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HomeMy WebLinkAboutEASTGATE PDP - 10-04 - REPORTS - LEGAL NOTICEMr. David E. Phillips Premier Custom Builders, Inc. August 4, 2004 Page 3 execution of such deed."). In enacting this provision, the Colorado General Assembly simply adopted the prevailing rule expressed by the majority of jurisdictions whose courts had considered the situation. It is well settled that;where a subdivision contains an attraction such as a park or a lake which renders the lots more desirable, the sale of lots by reference to a plat referencing the attraction creates an irrevocable easement in the area for the owners. Such rights are not terminable by the issuance of a treasurer's deed following a tax sale, therefore your use of Tract B is subject to the rights of the Association and its lot owners. On behalf of the Association, we hereby request your written position as to your intentions in light of the above. Further, by virtue of the foregoing, please consider this to be notice to you that any further pursuit of development of Tract B in light of these issues will occur solely at your own risk, and without any legitimate expectation -that you will be entitled to construct or conclude such development. To the contrary, if development of Tract B in contravention of the Association's and its lot owners' rights does proceed, the Association may elect to pursue its rights and remedies at law and in equity, all of which rights and remedies are specifically reserved. These include bringing an action before the Larimer County District Court for declaratory judgment, for temporary and permanent injunctive relieve, and for damages, and for the Association's attorneys fees and costs incurred pursuing such relief. We look forward to your response. Very truly yours, MYATT, BRANDIES & GAST, P.C. BRL cc: Mr. Bob Barkeen, City of Fort Collins Mr. Rich Roberts, Eastgate Owners' Association Richard S. Gast, Esq. FAWpc\RSG\E=gatc\phi11zps Itr 8-2-04.doc Mr. David E. Phillips Premier Custom Builders, Inc. August 4, 2004 Page 2 City of Fort Collins by virtue of its approval and signature upon the Plat. As noted by a recent decision of the Colorado Court of Appeals, once an easement or other right is dedicated by a subdividing property owner to the public and the governmental entity accepts the dedication by approving the plat, the public's right to the dedication vests and there is an "appropriation of an interest ... to public use." Tumbaugh v. Chapman, 68 P.3d 570, 572 (Colo. App. 2003). When the public's right is accepted by a local government and utilized by the public its status as a public property interest continues until vacation or abandonment. Id. at 573. Here, Tract B was in fact dedicated and accepted, and has functioned as a public detention / utility easement for many years. Further the Covenants describe the land in question as an "open space" and ". common park area," and it has been utilized in that capacity as well. Given that the City of Fort Collins has not vacated or abandoned the public's right to the property, any development inconsistent with the right held by the public would be prohibited. By copy of this letter, we are advising the City of Fort Collins of the Association's concerns and requesting the City's position on this issue. 2. Equitable Servitude. Irrespective of the public use rights associated with Tract B, the Covenants and Plat operate to create an equitable servitude as to that parcel, resulting in legally enforceable rights held by the lot owners represented by the Association. These lot owners purchased their property in reliance on the plat and governing documents, and in particular, in reliance on the fact that under these documents, Tract B would remain an open - space park area and would be utilized for detention and drainage purposes as part of a common scheme and plan related to the subdivision itself. See Covenants, Preamble, Art. 2 ("Tract B will be developed as a park area for the use of occupants of all of the residential buildings and as a storm retention pond to retain storm runoff waters"). As such, under Colorado law the Association and other lot owners have standing to enforce the equitable servitude upon the parcel, which would clearly preclude development of the parcel as a residential 4-plex. 3. Architectural Control. Even if the parcel were not otherwise required to remain free of development pursuant to the dedication and acceptance of a public easement and equitable servitude inuring to the benefit of the Association and other property owners, the Covenants applicable to the subdivision provide for architectural control and review of any proposed strictures on Tract B. See Covenants, Art. II1. Your proposal has not been submitted to the Eastgate Owners' Association for evaluation by its Architectural Control Committee ("ACC"). Although the ACC would not likely have the power to approve your development in light of the other issues described above, the failure to approach the Association for approval provides the Association with additional grounds to stop your development. It is our understanding that title to Tract B passed to you or your predecessors pursuant to one or more tax certificate(s) of purchase and subsequent treasurer's deed(s). Please be advised that under Colorado law, the issuance of a treasurers deed does not impact or abrogate existing equitable servitudes or easements, such as the Covenants and rights of the lot owners to the expectation of a open space/park area at issue here. See C.R.S., § 39-11-136(3) ("execution of [treasurer's deed] shall not affect the existence of any ... easements, or equitable servitudes that run with the land and contain both benefits and burdens, all as claimed or existing prior to the R.A,mSEY D. NIVATT ROBT. W. BRA\DES, JR. RICHARD S. GAST JEFFRE}'J. JOHNSON ♦, DANIEL C. MUFFLY BRIAN R. LEONE JOSHUA B. ZUGISH MYATT BRANDES & GAST PROFESSIONAL CORPORATION ATTORNEYS AND COUNSELORS AT LAW CLOCKTOWER SQUARE 323 SOUTH COLLEGE AVENUE, SUITE I FORT COLLINS, COLORADO 80524-2845 August 4, 2004 VIA CERTIFIED U.S. MAIL, RETURN RECEIPT REQUESTED AND REGULAR U.S. MAIL Mr. David E. Phillips Premier Custom Builders, Inc. 1420 Blue Spruce Drive Fort Collins CO 80524 Re: Eastgate Owners' Association, Inc. -- Tract B, Replat of East Gate First Subdivision, Tract A Our file No. 3066-001 Dear Mr. Phillips: TELEPHONE (970)4824846 FACSIMILE (970)482-3038 bleone@verinet.com RECEIVED AUG 0 F 2004 CURRENT PLANNING This law firm represents the Eastgate Owners Association, Inc. (the "Association"). Under the recorded Declaration of Covenants, Conditions and Restrictions and Grant of Easements ("Covenants") .associated with the Replat of Tract A, Eastgate; - First Filing, subdivision in the County of Larimer, State of Colorado (the "Subdivision"), the Association has the power to administer and protect the rights of the lot owners in the Subdivision, including through enforcement of use restrictions contained on the subdivision Plat and within the Covenants. The Association recently became aware that you and your firm have acquired the parcel of property legally described as Tract B, Replat of Tract A, Eastgate, First Filing, County of Larimer, State of Colorado and depicted on the subdivision Plat as a "detention and utility easement' area ("Tract B"). The Association has also learned that you are in the process of pursuing development review before the City of Fort Collins for a proposal involving construction of a 4-Plex residential structure and related improvements on Tract B. This letter is to advise you that the proposed development of Tract B would impermissibly conflict with the rights of the Association and the other lot owners of the Subdivision, including as specified on the plat and in the Covenants. There are at least three areas of concern and incompatibility. . 1. Public Easement Dedication. The Plat itself calls out Tract B as .a dedicated "detention and utility easement." Pursuant to the language on the Plat, this easement was dedicated"to and for public use, forever hereafter...." The dedication was accepted by the