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HomeMy WebLinkAboutFRIENDSHIP HOMES, INC - GROUP HOME - 32-88 - SUBMITTAL DOCUMENTS - ROUND 1 - LEGAL DOCUMENTSDISTRICT COURT, LAR TMFR COUNTY f L&RADO CASE NO. 88 CV CtRm;. SUMMONS HOWARD D. BRUNER: JEAN S. BRUNER: RAYMOND L. ANDERS9N: BETTY LOU ANDERSON: V. SUE F. GWYNN: DAVID E. YUST: JEAN G. YUST: ROBERT D. Plaintiff S, HABERSTROH : Defendant . The People of the State of Colorado To the Defendant(s) named above: You are summoned and required to file with the clerk of this court an answer or other response to the attached complaint within twenty (20) days after this summons is served on you in the State of Colorado, or within thirty (30) days after this summons is served on you outside the State of Colorado. If you fail to file your answer or other response to the complaint in writing within the applicable time period, judgment by default may be entered against you by the court for the relief demanded in the complaint, without any further notice to you. The following documents are also served with this summons: A true copy of COMPLAINT (De- claratory Judgment, Injunction and Damages) with Exhibit "l" attache Date: May 5, 1988 ISSUED UNDER MY HAND AND SEAL AS ATTORNEY FOR THE PLAINTIFFS FISCHER, HOWARD & FRANCIS By: Elery Wilmarth, No. 1959 Post Office Box 506 Fort Collins, Colorado 80522 Telephone: 482-4710 This summons is issued pursuant to Rule 4, CRCP, as amended. A copy of the complaint must be served with this summons. RETURN OF SERVICE State of County of 1 declare under oath that I served this summons and a copy of the complaint in this case on on in County at Time at the following location: ❑ by handing it to a person identified to me as the defendant. ❑ by leaving it with the defendant who refused service. ❑ by leaving it with designated to receive service for the defendant. ❑ I am over the age of 18 years and am not interested in nor a party to this case. ❑ I attempted to serve the defendant on occasions but have not been able to locate the defendant. Return to the plaintiff is made on Date Subscribed and sworn to before me this In Notary Public* day of County, State of "Notary should include address and expiration date of commission. 1z Date ❑ Private process server ❑ Sheriff, County Service S Mileage S No. 195CA. Rey'. 3-87. SUMMONS IN' CIVIL ACTION' Bradford Publishing. 5825 W. 6th Avc.. Lakewood. CO 80214 —(303) 233-6900 3-87 C DISTRICT COURT, LARIMER COUNTY, COLORADO Civil Action No. 88 CV Courtroom COMPLAINT (DECLARATORY JUDGMENT, INJUNCTION AND DAMAGES) HOWARD D. BRUNER: JEAN S. BRUNER: RAYMOND L. ANDERSON: BETTY LOU ANDERSON: DAVID E. YUST: JEAN G. YUST: ROBERT D. HABERSTROH: Plaintiffs, VS. SUE F. GWYNN: Defendant. COME NOW the Plaintiffs by their attorneys, FISCHER, HOWARD & FRANCIS, and as a cause of action against the De- fendant allege as follows: 1. Certification Concerning Mandatory Arbitration: As per Colorado Rule of Civil Procdeure 109.1, "Mandatory arbitration shall not apply to any action in which an equitable remedy is sought." The Plaintiffs herein seek a declaratory judgment and an injunction against the De- fendant, both of which remedies are equitable in nature. Therefore, the Plaintiffs' claim, even though the damages being sought are less than Fifty Thousand Dollars ($50,000.00), that the Plaintiffs' claims are exempt from arbitration pur- suant to Colorado Rule of Civil Procedure 109.1. 2. That the Plaintiffs above named are the owners of real property as described below. (a) Howard D. Bruner and Jean S. Bruner, Lot 19, Highlander Heights First Subdivision, commonly known as 1300 Yount Street, Fort Collins, Colorado. (b) Raymond L. Anderson and Betty Lou Anderson, Lot 20, Highlander Heights First Subdivision, commonly known as 1301 Luke Street, Fort Collins, Colorado. (c) David E. Yust and lander Heights First Subdivision, Street, Fort Collins, Colorado. Jigan G. Yust, Lot 22, High - commonly known as 1301 Patton (d) Robert D. Haberstroh, Lot 247, Highlander Heights Twelfth Subdivision, commonly known as 1512 Patton Street, Fort Collins, Colorado. 3. That the Defendant, Sue F. Gwynn, owns rental pro- perty described as Lot 12, Highlander Heights First Subdivi- sion, commonly known as 1312 Pitkin Street, Fort Collins, Colorado. 4. That there are protective covenants applicable to the said Highlander Heights First Filing that are applicable to the lots owned by Plaintiffs and Defendant (except Plaintiff, Robert D. Haberstroh), a true copy of said protective coven- ants being attached hereto as Exhibit "1" and incorporated herein by reference as though fully set out. 5. That said Exhibit "1" states in part: "1. No building shall be erected, con- structed, placed, altered or retained on any lot, other than a one story, a one and one-half story; a two-story tri- level, or a two story four level, one family residence and such accessory buildings as may be required for incidental use with such residence by a single family." (Emphasis added). 6. That the Defendant has or has proposed to keep non - single family persons in the residence located at Lot 12, Highlander Heights First Subdivision, commonly known as 1312 Pitkin Street, Fort Collins, Colorado, since the Defendant's acquisition on or about October, 1987. Said intention is -2- (a) Howard D. Bruner and Jean S. Bruner, Lot 19, Highlander Heights First Subdivision, commonly known as 1300 Yount Street, Fort Collins, Colorado. (b) Raymond L. Anderson and Betty Lou Anderson, Lot 20, Highlander Heights First Subdivision, commonly known as 1301 Luke Street, Fort Collins, Colorado. (c) David E. Yust and J96an G. Yust, Lot 22, High- lander Heights First Subdivision, commonly known as 1301 Patton Street, Fort Collins, Colorado. (d) Robert D. Haberstroh, Lot 247, Highlander Heights Twelfth Subdivision, commonly known as 1512 Patton Street, Fort Collins, Colorado. 3. That the Defendant, Sue F. Gwynn, owns rental pro- perty described as Lot 12, Highlander Heights First Subdivi- sion, commonly known as 1312 Pitkin Street, Fort Collins, Colorado. 4. That there are protective covenants applicable to the said Highlander Heights First Filing that are applicable to the lots owned by Plaintiffs and Defendant (except Plaintiff, Robert D. Haberstroh), a true copy of said protective coven- ants being attached hereto as Exhibit "1" and incorporated herein by reference as though fully set out. 5. That said Exhibit "1" states in part: "l. No building shall be erected, con- structed, placed, altered or retained on any lot, other than a one story, a one and one-half story., a two-story tri- level, or a two story four level, one family residence and such accessory buildings as may be required for incidental use with such residence by a single family." (Emphasis added). 6. That the Defendant has or has proposed to keep non - single family persons in the residence located at Lot 12, Highlander Heights First Subdivision, -commonly known as 1312 Pitkin Street, Fort Collins, Colorado, since the Defendant's acquisition on or about October, 1987. Said intention is -2- endorsed by an application to the Planning and Zoning Board of the City of Fort Collins, Colorado. Said application re- quests the right to operate a group home for commercial purposes at said location. Further the Plaintiffs herein are informed that such a non -related and non -sing Le-.family___persons are being or will be kept for pecuniary renumeration�by the De- fendant and that Defendant seeks to gate a —boarding house or form of nursing home on said premises. 7. That the keeping of said non -single family members at 1312 Pitkin Street, Fort Collins, Colorado, is in violation of said protective covenants as described in Exhibit "1", and the Plaintiffs herein request a declaratory judgment to said effect. 8. That, in accordance with paragraph nine of said Exhibit "1", the Plaintiffs herein seek a permanent injunction prohibiting the use of Defendant's premises for said uses described above. 9. That the activities on said premises known as 1312 Pitkin Street, Fort Collins, Colorado, are prohibited by para- graph six of said Exhibit "l" as an annoyance or nuisance to the neighborhood and the Defendant should be required to cease such activities. 10. That the Plaintiffs do not have an adequate remedy at law and said Palintiffs seek such equitable remedies as declaratory judgment and injunction, both preliminary and permanent in notice to stop the Defendant's activities in the neighborhood. WHEREFORE, Plaintiffs- resepctfully request the following relief, to -wit: (a) For a declaratory judgment determining that the keeping of non -single family members is a violation of the protective covenants set forth in Exhibit "l". (b) For a preliminary and permanent injunction enjoining and restraining the Defendant from keeping non -single family members at 1312 Pitkin Street, Fort Collins, Colorado. -3- • • (c) For the prohibiting a nuisuance in the neighborhood in violation of the protective covenants described in Exhibit 1111t. (d) For the Plaintiffs' reasonable attorney fees and costs caused by the Defendant's violation of the protective covenants described in Exhibit "1" in the approximate sum of Two Thousand Five Hundred Dollars ($2,500.00). (e) For such other and further relief as to the Court shall seem proper. Plaintiffs' Address: Howard D. Bruner Jean S. Bruner 1300 Yount Street Fort Collins, Colorado Raymond L. Anderson Betty Lour Anderson 1301 Luke Street Fort Collins, Colorado David E. Yust J#an G. Yust 1301 Patton Street Fort Collins, Colorado Robert D. Haberstroh 1512 Patton Street Fort Collins, Colorado FISCHER, HOWARD $ FRANCIS By: Elery Wilmarth Attorney Registration No. 1959 Attorneys for Plaintiffs 125 South Howes Street, Suite 900 Post Office Box 506 Fort Collins, Colorado 80522 Telephone: 482-4710 -4- : DECL'1RATI0'0 PROTECTIVE COVI;NAItTri - IIICHL4IJDLRG1ITS F7P T SUBDIVISION The undersigned Clyde E. Ilondstein, Clara 11onstein, Roland Weitzel and Elizabeth Weitzel, being the owners in fee simple of all tine land in North, nder i sleights First Subdivision situate in SI.1% of section 18, Colorado, o mip 7 Non`Plal of Range 68 West of the 6th ovc in 20, 1�958Cdon}e hereby make this declaration of said Subdivision, dated November 20, Highlander ]Icights Sub - cable to all lots in said Ilig :�rotective Covenants appli� jivision. e: No building shall be erected,.constnicted, 1. Land Use and Building Type: other than a one-story, a one and one- Y _laced, altered or retained on any lot, _ half story, a tiro -story tri-levels as may besrequiredtory rfor vincidental use with Bence and such accessory building Houses of two-story construction may be such residence, by a single family. wilt at the discretion of the Architectural Control Committee. No house shall have a garage with more than two -car capacity. 2. Architectural Control. No building shall be erected, constructed, :?laced or altered on any locationtofnthe residence,til the �all accessorynbuildings, andtionallnd plan showing roved by the Architectural Control Committee ;incidental improvements have been app ;is to quality of workmanship and materials, harmony of external design with existing structures and as to location with respect to lot lines, topography Ind finish graae•elevations. improvements shall be constructed 3_ Building Quality and Size. All �f good and suitable materials and all workmanship shall be first class. The :I around area of each residence shall be not less than 1000 square any lot n g_ Building Location- Nor neadrer9than115bfeetctoeanynside street aline, 30 feet to the front lot line find no building shall be located nearer than 7 feet to an.interior lot line, except that no side yard will be required for a garage or other permitted ac- :essory building shalllocated locatedfeet any interiorfrom lotthe neareruthanbuilding feetsetback the line. rear go dwelling parches shall ,lot line. For the purpose of this covenant, eaves, steps and open 'not be considered as a part of a building, provided, however, that this shall not be construed to permit any portion of a building on a lot to encroach upon i • mother lot. 5. residence shall be on a lot or on parts of lots having Lot Area. No �n area of less than 6500 square feet. ctivities shall be carried on upon 6. Nuisances. No noxious or offensive a isance tothe -my lot, which may become an annoyance or a nu o etationshshall be carried ommercial livestock or poultry feeding or processing p 3n upon any lot. Control Committee. The AYRolandlWeitzellandlJamese 7_ Architectural :onsists of three members, namely Clyde E. IIonsteinin, o members of I A. Stewart, all of Fort Collins, Colorado, and the decision o any ions a Said Committdeathaor resignationtermine ll delo£ganytmembers f Committeeto the uthe remaining mct of said embers Cn event of r. No committee member shall be ;hall have full authority to appoint a successo fired b pusuant to these coen :ntitled to compensation for srovaleofeplansdandrspecifications asvrequ ,ommittee's approval or disapproval ants. Y shall be in writing. In event that such approval or disapproval .hese covenants, cans and specificaticns have been submitted :>e not made within 30 days after p_ :o Committee, or in any event, if not suit construction has II approval will not be �:ed prior to completion of or in any ; pP gas been commenced prior to completion of improvements, i `-as been and the related covenants shall be deemed to have been fully -complied ith.with 8. Term. These coshall be binding venants are to run the of 30 years ,�n all parties and on all persons claiming the shall be auto- �fter these covenants have been recorded, after which time, Y at r the extended for successive periods of ten years, unless an instrument in � signed by a majority of the then record 'owners of thetlots, has been i :riting V -ecorded agreeing to change said covenants s in whole or law or in ecluitY 9. Enforcement. Enforcement sl�allolicatte Pting to violate any covenant, I gainst any person or persons violating (continued) EXHIBIT "1"