The case filed by James Hutchings seeking an injunction against Alison Brown got underway in Magistrate Amanda Hunter’s District 11 court room on on Monday, Nov. 26, based on Hutchings’ contention that Brown is bound by deed restrictions common to her neighbors’ properties that prevent her from activities on her property and limit her use of the road easement. Attorney Charlie Cain attempted during the day-long proceedings to identify what exactly Hutchings was objecting to, and why an injunction was sought as a first recourse, rather than other reasonable efforts to resolve the conflict.
“They are asking for an injunction that can’t be cured by a monetary award,” said Cain. “The use of the road could be addressed through maintenance, but they didn’t. A reasonable use is always part of the agreement.”
The magistrate agreed saying, “The court’s determination is the proper scope of that easement. We have to define scope … we could point out that the claimants could have pursued other things like maintenance costs … maintaining the road first before seeking an injunction.”
Attorney for the claimant, Randy Herrick-Stare objected saying, “The fact she’s willing to maintain the washboard (road) doesn’t’ give her the right to use it as a dog training facility.”
Hunter said “the court’s role is to determine what is the proper use of the easement by anyone, including Dr. Brown … injunctive relive isn’t the remedy here; it is to seek costs related to maintenance costs. What happened (to the attempt to set up a method to maintain the road)? Did it fall apart, because there appears to be authority from the restatement – that could give the court authority to deny the injunction based on the restatement.”
Brown’s parcel at 11600 Antelope Road lies near the end of a private road easement that allows residents access out of their property. While she had her dogs on the property they were sometimes exercised along the road following an ATV, and she and quests who boarded horses at the property did ride along the road. When Brown purchased the first of her two parcels, formerly part of Everett land, along Antelope Road in 2014 from owner, Terry Scanga, she had her agent negotiate an amendment in deed restrictions related to her easement and number of livestock.
Some other neighbors who bought their land directly from the Everett’s have property deed restrictions that included no mobile homes, limits on livestock and no road maintenance dues. Herrick-Stare, contended that the commonality of deed restrictions for an area he referred to as the “Antelope Road Enclave” meant that the intent was always to limit commercial activity across the 40 acre parcels to maintain the “peace and quiet and residential nature of the area.” That intent, said Herrick-Stare prevents Brown from operating her equestrian center, applying for an outfitting permit or maintaining a kennel for her American foxhounds (Brown’s application for a kennel permit to house 25 dogs is pending for review this week with the Chaffee County Planning Commission.)
Curiously, as confirmed during his own testimony late in the day, Hutchings confirmed that the warranty deed for his own property, one of the first few purchased along Antelope Road, contained no deed restrictions at all. According to Hutchings, they were intended, and spoken of orally, but never made it on to the warranty deed between he and his wife Kay, and Terry and Judy Everett. “We agreed to deed restrictions, but they never got recorded through an error by Judy Everett – she acted as agent.”
Cain pointed out that if the intent didn’t end up in the document it’s irrelevant. There has been conflict on the road, including an incident in which Hutchings used his truck to block the road, not allowing Brown to pass. Her response was to call Judge Bill Alderton, who had been involved in an attempt with Brown and Hutchings to establish an Antelope Road Maintenance Association.
While Herrick-Stare objected to the records demonstrating the attempt to set up the association, Hunter overruled saying, “I will allow it – it shows the continued survival of an attempt at an agreement.”
An early witness for the claimant, Chaffee County Planning Manager Jon Roorda, attempted to explain the interpretation of activity allowed in an area zoned rural residential. “It’s a transition area from residential to truly rural; where agriculture turns into low density housing.”
Cain asked about the research Roorda said he did on the property, in preparation for Brown’s two pending applications, required by Judge Patrick Murphy’s prior ruling; the outfitting application and the kennel application. Prior to June 26, 1990, when section 4 of the county’s land use code added rural residential zoning, Chaffee County called the area a rural zone. Permitted uses for the parcel under the old designation were rural. While the area was designated rural residential from 1990 to 2014, in 2014 it returned to rural zone designation. Commercial riding stables (without amplified sound or light) are a permitted use in a rural zone.
Cain pointed out that in his official capacity, Roorda has been out to Brown’s neighbor’s property while a lawsuit was going on. “We’re going to talk about witness bias and that is where I’m going. I have two issues – you testified before Judge Hunter about the outfitting facility and the need for an outfitter application …. you were involved in the recently planning commission meeting where they discussed this? And you were involved in the draft of the findings and conclusions, right?”
The Planning Commission approved Brown’s outfitting application with conditions. Roorda said that the county attorney wrote the findings and conclusions from that meeting. But no actual record of the meeting’s conditions exists, because the audio recording of the meeting where findings were established has disappeared. The draft findings for the outfitting facility permit, as now written, say that to get the outfitting permit, there is an obligation for Brown to obtain a kennel permit. Roorda said he wasn’t aware that the outfitting permit findings required a kennel permit.
Chaffee County Attorney Jenny Davis stood up interjecting an objection, saying “this was a draft notice of decision prepared for the planning commission – and it should not be used in this court – this has no bearing on this.”
Hunter denied it saying “Ms. Davis, the county is not party to the case, the court will allow it.”
Cain asked Roorda to explain what the document is. “ I’ve got a problem with this witness and we haven’t even gotten to this – he has been part of two court orders, your order and your injunction – you said you can not condition one on the other … Roorda is continuing to insist that one is contingent on the other. The second part relates to the kennels – we already have an order. Judge Murphy said she was in compliance with the noise ordinance. But Mr. Roorda has drafted a document that says they are related. Mr. Roorda is ignoring the court order … Mr. Roorda has had it in for my client.”
Cain went on to clarify that he understood that the draft document of findings and conditions for Brown’s outfitting facility wasn’t Roorda’s document. But when asked if he had any knowledge that in this outfitting facility document, there is a condition that Brown get a court decision about the kennel. Roorda answered “yes.”
Cain questioned the staff report, saying the land use code simply says the applicant provide a description of all easements. “It doesn’t say my client provide the county with an actual court order saying this is permitted.” Cain asked if Roorda had made it a condition in the staff report. Roorda responded that there was “some sort of decision”of this as an access easement.
“But this is the land use code – there aren’t any specific requirements that a court order be issued on something … part of that earlier trial related to this claim and some sound testing done, and that sound component dovetails into the application for a kennel permit.”
Roorda said that one of the permit conditions related to noise.
“But in your staff report related to the noise issue, you made a statement that the residential noise levels should be applied to the noise levels here, said Cain. “But you are aware that the Judge Murphy’s findings – did you bother to look at the order that Judge Murphy wrote that was submitted with the application? The court applied a two-part use – he used a light industrial standard and a rural standard – that’s what the court ruled.”
Herrick-Stare objected, but Hunter overruled him saying, “But the staff report said specifically…..that there has to be compliance with the residential standard … I’m allowing him to address Mr. Roorda’s bias – it might be overruled….as it relates to establishment of that bias – I’ll allow some more questioning on it.”
Roorda went on to say that the sound analysis that Brown had done about the noise from her kennels was not valid because there were no dogs present. Cain objected, saying that the sound test were done with 25 dogs on the property. Brown provided proof that not only were the 25 dogs there, but that she had hired Quinton Turner, a retired police officer from Colorado Springs, for security purposes that entire week and he was there while the sound tests were done.
The trial continues at 8:30 Tuesday Nov. 27.
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