The long-awaited final order from District 11 Magistrate Amanda Hunter regarding the case filed against Alison Brown was quietly returned April 24, more than four months after the Nov. 27, 2018 hearings in which her use of and access to her property at 11600 Antelope Rd. was heard. The findings appear to present a victory for Brown, with three of the four plaintiff’s requests denied, and Brown’s request for a direct verdict on the plaintiffs’ claim for relief, and breach of deed restrictions granted.
Brown’s property and driveway lie at the end of the Antelope Road easement. Courtesy photo.
The court case, filed by plaintiffs Chris Vely, Laura Barton James and Marian Hutchings against Brown and Headwaters Hounds LLC, sought to prevent her from use of her property at 11600 Antelope Rd. for any purpose outside of residential use, or from using the road easement to access her property. Their argument: due to the deed restrictions they said should have been in place, and a narrow interpretation of what constituted use of the road easement, she should only be allowed to use it for residential purposes.
Brown bought her rural-zoned property from the Scanga family with the stipulation that a three-cow or three horse deed restriction mandate be changed prior to purchase and that was done.
Hunter’s decision rejected the plaintiff’s assertion regarding deed restrictions. She said they built their case on their understanding that deed restrictions existing on some but not all the neighboring lots, put on by the Everett’s (who had sold the initial lots) had intended the area to remain “sparse, quiet, an enclave.” But her ruling said that she found no evidence that the Everett’s intended to create a quiet residential neighborhood, and “no evidence that Brown knew of any development plan to keep the place sparse, quiet, an enclave – she knew only about the deed restrictions which were changed prior to her purchase.”
Hunter’s written decision specified that evidence showed it “intended the arrangement to be personal on either or both sides, rather than to create a servitude. Given these factors, the Court finds that the covenant created in the Kuester/Scanga purchase contract, at least with respect to the burdens it created, runs with the land and touches and concerns the land. Thus, it is a servitude. However, the burden of this servitude is not enforceable by the third party Plaintiffs unless Plaintiffs can show they were the intended beneficiaries. …it appears the intent of the sales contract (Kuester to Scanga) was to protect the ranching interests of the Everett operation, not to provide any direct benefit to [the plaintiffs] in this case.”
Hunter’s extensive comments about the deed restrictions made clear her view that Brown’s activities constituted agricultural activities that “any restrictions on number of cattle or dogs … are likely a method to protect ranching operations when considered against Ms. Kuester’s testimony that they (the Everett’s) didn’t want too many houses going up in the area around Sand Park because they wanted to graze cattle. Any benefit felt by neighboring homeowners is incidental,” read her decision.
“Plaintiffs’ argument that the restriction limiting the number of head of livestock to no more than three exists to prevent a feedlot type of situation is speculative and not supported by any evidence,” her ruling continued. “The same is true of the restrictions on dogs and fencing obligations.”
The plaintiffs’ requests to limit access were denied in Hunter’s ruling, as well as their claims that Brown’s use of the road generated more traffic than should be allowed. Also denied was their request for the court to enjoin Brown from using the property in any way that generates more traffic than what existed at the time the easement was created.
Brown was granted access to use Antelope Road for her own and any commercial use she might have.
In fact, Hunter’s decision pointed out that the cattle ranching going on around them is a commercial activity. She took issue with the reference made by many witnesses at trial referred to the read easement as an “ingress/egress easement,” [while] in the document of conveyance it is termed an “access easement.”
The plaintiffs’ request that the court enjoins Brown, and by extension, Headwater Hounds, from using the easement for the running or movement or dogs was partially granted. Her ruling matched the county’s changed land use code allowing no more than seven dogs on rural properties; Brown was directed to have no more than seven dogs at any given time on the Antelope Road easement.
The plaintiffs have 21 days from the date of the filing to prepare a Proposed Order of Injunction to use as its ultimate Order of Injunction regarding the easement. Brown will have 21 days to respond to the content of this Proposed Injunction Order.
The District 11 ruling came just one week after Brown’s appeal of the Chaffee County Planning Commissions rejection of her kennel application was rejected by county commissioners. In their rejection, commissioners noted that they couldn’t consider approval, because they were waiting on the District Court to establish whether Brown’s use of her property was legal based upon deed restrictions and whether her activities were considered agricultural.
When asked April 30 for a comment about the verdict, which has a direct bearing on Brown’s recent appeal to Chaffee County Commissioners, Commissioner Greg Felt said he hadn’t seen the court findings. He said until they had reviewed it, he could not say whether the findings might impact their initial decision or whether they might consider reopening the appeal.
The resolution formalizing commissioners’ rejection of her appeal is on the agenda for their May 7 meeting which begins at 9 a.m. in the commissioners meeting room at 104 Crestone Ave. in Salida.
Editor’s note: Alison Brown is an investor in Ark Valley Voice, but has no editorial control.
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