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Home My WebLink About20120385.tiff INVENTORY OF ITEMS FOR CONSIDERATION • Applicant Case Number USR-1683 Submitted or Prepared Prior to At Hearing Hearing 1 Staff Comments X Department of Planning Services Field Check Form X Letter to Applicant X Affidavit of sign posting X Legal Notifications X ‘`' 2 Application X Maps X Deed/Easement Certificate X Surrounding Property/Mineral Owners X Utilities — N/!1 X 3 Referral List X 411 Nj Referrals without comment X Weld County Sheriffs Office, referral dated 11/25/08 X Weld County School District RE-1J, referral dated 12/1/08 X City of Longmont, referral dated 10/24/2011 X N� Little Thompson Water District, referral dated 12/1/08 and 10/20/2011 X Highland Ditch Company, referral dated 12/11/08 X Weld County Department of Planning Services, Landscape referral dated X 11/26/08 Mountain View Fire Protection District, referral dated 12/11/08 and X 10/27/2011 4 Referrals with comments X \ Weld County Department of Public Health and Environment, referral dated X 12/29/08 and 10/28/2011 # 42/a��.2O// State of Colorado Division of Water Resources, referral dated 10/28/2011 X N N US Army of Corps of Engineers, referral dated 12/2/08 and 10/19/2011 X Colorado Division of Wildlife, referral dated 12/21/08 X EXHIBIT 2012-0385 Longmont Soil Conservation District, referral dated 12/9/08 and 11/8/2011 X • Weld County Zoning Compliance, referral dated 11/25/08 and 10/19/2011 X N N Weld County Department of Building Inspection, referral dated 12/29/08 X and 12/12/2011 \' N4 Weld County Department of Public Works, referral dated 12/22/08 and X 12/13/2011 Town of Mead, referral dated 12/10/08 and 7/15/09 and 11/2/2011 X 5 Surrounding Property Owners- Letters 5.A Letter from Frank Grimaldi dated 10/25/2011 X 5.B Letter from Frank Grimaldi dated 6/29/2009 X • 5.C Letter from Frank Grimaldi dated 5/2/2008 X 5.D Letter from Frank Grimaldi dated 4/30/2008 X • 5.E Letter from Hunters Cove Residences dated 1/9/2009 X • 5.F Letter from Mike Marshall no date on letter X 5.G Letter from Karen and Marty Johnson dated 2/3/2009 X • 5.H Letter from Joseph and Marnie Tocko dated 2/4/2009 X 5.1 Neighborhood meeting notice dated 2/17/2009 X 5.J Letter from Brett Corning President of the Muligan Fishing and Gun Club dated X 3/11/2009 5.K Letter from Michael Mitchell dated 3/10/2009 X 5.L Email from Mike Mitchell dated 6/2/2009 X 6 PC Exhibits X • 6.A Letter from�Toodd`Hodges dated 12/29/2011 y I X .� " Land . 6 rw'l6oc-f, 1.-LU.I,.. `-he l' .AIL °UCZ10 „to) /al/P /( (\ I hereby certify that the items identified herein were submitted to the Department of Planning ervices at or prior toommissioners the scheduled Pl� hearing. Michelle Martin Planner S • W�`DC� LAND USE ON P SHEET SUMMARY COLORADO Planner: Michelle Martin Case Number: USR-1683 Hearing Date: January 3, 2012 Applicant: Highland Ditch Company do Nick Sekich 4309 State Highway 66, Longmont CO 80504 Request: A Site Specific Development Plan and Special Review Permit for an Expansion of a Nonconforming Use, fishing and hunting club to 70 members and the following additional recreational uses: boating, scuba diving, water skiing, hiking, sailing, kayaking, canoeing, and overnight camping in the A (Agricultural) Zone District Legal Description: Mulligan Reservoir a/k/a Highland Reservoir No. 1 being part of Section 22, T3N, R68W of the 6th P.M., Weld County, CO Location: Approximately 700 feet south of County Road 32 and approximately 1,200 feet East of County Road 7 Size of Parcel: +/- 115.29 Acres • Parcel Number: 1207 22 000041 POSSIBLE ISSUES SUMMARIZED FROM APPLICATION MATERIALS The criteria for review of this Special Review Permit is listed in Section 23-2-220 of the Weld County Code. The Department of Planning Services' staff has received responses from the following agencies: Without Comments: ▪ Weld County Sheriffs Office, referral dated 11/25/08 ▪ Weld County School District RE-1J, referral dated 12/1/08 ▪ Mountain View Fire Protection District, referrals dated 12/11/08 and 10/27/2011 ▪ Weld County Department of Planning Services, Landscape referral dated 11/26/08 ▪ Highland Ditch Company, referral dated 12/11/08 • Little Thompson Water District, referrals dated 12/1/08 and 10/20/2011 • City of Longmont, referral dated 10/24/2011 With Comments: ▪ Weld County Department of Public Health and Environment, referral dated 12/29/08 and 10/28/2011 ▪ Weld County Department of Public Works, referrals dated 12/22/08 and 12/13/2011 ▪ Weld County Department of Building Inspection, referrals dated 12/29/08 and 12/12/2011 ▪ Weld County Zoning Compliance, referrals dated 11/25/08 and 10/19/2011 ▪ Town of Mead, referrals dated 12/10/08 and 7/15/09 and 11/2/2011 ▪ Longmont Soil Conservation District, referrals dated 12/9/08 and 11/8/2011 ▪ Colorado Division of Wildlife, referral dated 12/21/08 ▪ US Army of Corps of Engineers, referrals dated 12/2/08 and 10/19/2011 EXHIBIT • • State of Colorado Division of Water Resources, referral dated 10/28/2011 The following agencies have not responded: • Weld County Paramedic Services use-i100 • Town of Firestone USR-1683 Highland Ditch Page 1 SPECIAL REVIEW PERMIT • \1 ADMINISTRATIVE REVIEW COLORADO Planner: Michelle Martin Case Number: USR-1683 Hearing Date: January 3, 2012 Applicant: Highland Ditch Company do Nick Sekich 4309 State Highway 66, Longmont CO 80504 Request: A Site Specific Development Plan and Special Review Permit for an Expansion of a Nonconforming Use, fishing and hunting club to 70 members and the following additional recreational uses: boating, scuba diving, water skiing, hiking, sailing, kayaking, canoeing, and overnight camping in the A (Agricultural) Zone District Legal Description: Mulligan Reservoir a/k/a Highland Reservoir No. 1 being part of Section 22, T3N, R68W of the 6th P.M., Weld County, CO Location: Approximately 700 feet south of County Road 32 and approximately 1,200 feet East of County Road 7 • Size of Parcel: +/- 115.29 Acres Parcel Number: 1207 22 000041 THE DEPARTMENT OF PLANNING SERVICES' STAFF RECOMMENDS THAT THIS REQUEST BE APPROVED FOR THE FOLLOWING REASONS: 1. The submitted materials are in compliance with the application requirements of Section 23-2-260 of the Weld County Code. 2. It is the opinion of the Department of Planning Services' staff that the applicant has shown compliance with Section 23-2-220 of the Weld County Code as follows: A. Section 23-2-220.A.1 -- The proposed use is consistent with Chapter 22 and any other applicable code provisions or ordinance in effect. Section 22-2-20.A.Goal 9. Reduce potential conflicts between varying land uses in the conversion of traditional agricultural lands to other land uses. A.Policy 9.5. Applications for a change of land use in the agricultural areas should be reviewed in accordance with all potential impacts to surrounding properties and referral agencies. Encourage applicants to communicate with those affected by the proposed land use change through the referral process. The applicants over the last 3 years have been diligently working with the referral agencies, surrounding property owners and the Mulligan Fishing and Gun Club in order • to minimize the impacts of the proposed recreational facility. As a result of the neighborhood meeting and meetings with the Town of Mead and the District Court findings the Highland Ditch Company has revised their application to address many of the USR-1683 Highland Ditch Page 2 concerns. The Department of Planning Services has determined that with these • proposed changes, the use is compatible with the surrounding land uses. B. Section 23-2-220.A.2 -- The proposed use is consistent with the intent of the Agricultural (A) Zone Districts. Section 23-3-40.N of the Weld County Code allows for a Site Specific Development Plan and Special Review Permit for an Expansion of a Nonconforming Use, fishing and hunting club to 70 members and the following additional recreational uses: boating, scuba diving, water skiing, hiking, sailing, kayaking, canoeing, and overnight camping in the A (Agricultural) Zone District Upon review of by the Weld County Code Compliance Officer, an active Zoning Violation (ZCV08-00131) was noted. This violation was initiated due to the commercial ski component operating without first obtaining the necessary Weld County Zoning Permits. This case has not yet been presented to the Board of County Commissioners through the Violation Hearing process. Since this case has not been presented to the Board of County Commissioners, no investigation fee is required as this time. Please be aware that we have not received any complaints on regarding this parcel for at least 2 years. The only reason this violation case was kept active was to ensure that prior to any skiing activities a Use by Special Review (USR) permit was obtained. The initial complaint was received from several private citizens. This application if approved by the Board of County Commissioners and once a plat is recorded will correct the violation. If this application is denied, all commercial skiing components shall be removed from the property. C. Section 23-2-220.A.3 -- The uses which will be permitted will be compatible with the • existing surrounding land uses. The Town of Mead surrounds the majority of the reservoir the few remaining parcels that have not been annexed by the Town of Mead are zoned Agricultural (A). The surrounding area is primarily residential (Hunters Cove Subdivision) and a planned development with residential uses (Equinox Development). There are approximately 28 properties within 500 feet of the property in question. The Weld County Department of Planning Services has received 1 letter from a surrounding property subsequently 10 letters had been received from surrounding property owners. Over the past 3 years the applicant has diligently work to resolve many of their concerns. Some of the concerns stated in the letter dated 10/25/2011 are as follows: water skiing at high rates of speed, camping adjacent to Hunters Cove properties, open fires adjacent to Hunters Cove properties, people urinating in public, loud music, overloading boats, not wearing life jackets, and consuming alcohol. The development standards and conditions of approval should help elevate some of the concerns of the surrounding property owner. D. Section 23-2-220.A.4 -- The uses which will be permitted will be compatible with future development of the surrounding area as permitted by the existing zoning and with the future development as projected by Chapter 22 of the Weld County Code and any other applicable code provisions or ordinances in effect, or the adopted Master Plans of affected municipalities. The property is not located within an Intergovernmental Agreement Area but does lies within the three mile referral area for the City of Longmont, Town of Firestone and Mead. The Town of Mead indicated in their latest referral dated 11/2/2011 that the Town of Mead Board of Trustees reviewed this application, and submits the following comments: • The board has a favorable recommendation for the approval of this application, with the following conditions: provide a detail on the site plan, showing the access road and parking areas and layout, water skiing not be approve as a use, camping be restricted to an area behind the clubhouse. As a condition of approval the applicant will need to USR-1683 Highland Ditch Page 3 address the concerns of the Town of Mead. E. Section 23-2-220.A.5 -- The application complies with Article V of the Weld County Code. • The existing site is within the County Road Impact Fee Area, Capital Expansion Impact Fee, and the Stormwater/Drainage Impact Fee area. Effective April 25, 2011, Building Permits issued on the proposed lots will be required to adhere to the fee structure of the Weld County Road Impact Program. (Ordinance 2011- 2) Effective April 25, 2011, Building Permits issued on the proposed lots, will be required to adhere to the fee structure of the County Facility Fee and Drainage Impact Fee. (Ordinance 2011-2) F. Section 23-2-220.A.6 -- The applicant has demonstrated a diligent effort to conserve prime agricultural land in the locational decision for the proposed use. The subject site is classified as "Prime irrigated Farmland of National Importance" as delineated on the Important Farmlands of Weld County map, dated 1979. The majority of the site is currently being utilized as a reservoir and the applicants do not intend to diminish the current use of the property therefore the agricultural vitality is not harmed. G. Section 23-2-220.A.7 — There is adequate provisions for the protection of health, safety, and welfare of the inhabitants of the neighborhood and County. The Design Standards (Section 23-2-240, Weld County Code), Operation Standards (Section 23-2-250, Weld County Code), Conditions of Approval and Development Standards will ensure that there are adequate provisions for the protection of health, • safety, and welfare of the inhabitants of the neighborhood and County. This recommendation is based, in part, upon a review of the application materials submitted by the applicant, other relevant information regarding the request, and responses from referral entities. 1. The plat shall be amended to delineate the following: A. All sheets of the plat shall be labeled USR-1683. (Department of Planning Services) B. The attached Development Standards. (Department of Planning Services) C. The plat shall be prepared in accordance with Section 23-2-260.D of the Weld County Code. (Department of Planning Services) D. The applicant shall delineate the recorded access from County Road 32 per reception number 3628369. The applicant shall also delineate the access easement from County Road 7 to the reservoir with book and page. (Department of Planning Services) E. The applicant shall delineate at least 35 parking spaces 10 of which will need to accommodate boat trailers. (Department of Planning Services) F. The location of the two port a potties shall be shown on the plat. (Department of Planning Services) G. The location of all oil and gas facilities shall be show on the plat in addition to • their setbacks. (Department of Planning Services) USR-1683 Highland Ditch Page 4 H. On the Plat, provide a blow-up of the recreational area with existing and future • improvements shown and labeled as well as all parking and camping areas. (Department of Public Works) Show and label the FEMA floodplain boundaries on the Plat. (Department of Public Works) J. Show and label the campsites, fire rings, walking trails, and where the boats will be stored. (Department of Planning Services) 2. The applicant shall address the requirements (concerns) of Weld County Building Department, as stated in the referral response dated 12/12/2011. (Weld County Building Department) 3. All septic systems (which include vault privies) located on the property shall have appropriate permits from the Weld County Department of Public Health & Environment. The Environmental Health Division of the Weld County Department of Public Health & Environment was unable to locate a septic permit for the existing vault privy. Any existing septic system which is not currently permitted through the Weld County Department of Public Health & Environment will require an evaluation by a Colorado Registered Professional Engineer. The review shall consist of observation of the system and a technical review describing the systems ability to handle the proposed hydraulic load. The review shall be submitted to the Environmental Health Services Division of the Weld County Department of Public Health and Environment. In the event the system is found to be inadequately sized or constructed the system shall be brought into compliance with current Regulations. (Department of Public Health and Environment) 4. The applicant shall submit a waste handling plan, for approval, to the Environmental Health Services Division of the Weld County Department of Public Health & Environment. The plan shall include at a minimum, the following: • 1) A list of wastes which are expected to be generated on site (this should include expected volumes and types of waste generated). 2) A list of the type and volume of chemicals expected to be stored on site. 3) The waste handler and facility where the waste will be disposed (including the facility name, address, and phone number). (Department of Public Health and Environment) 5. The applicant shall enter into a Improvements Agreement according to policy regarding collateral for improvements and post adequate collateral for all landscaping, transportation (access drive, parking areas, etcetera) and non-transportation (plant materials, fencing, screening, water, signage etcetera). The agreement and form of collateral shall be reviewed by County Staff and accepted by the Board of County Commissioners prior to recording the USR plat. Or the applicant may submit evidence that all the work has been completed and reviewed by the Department of Planning Services and the Department of Public Work. (Department of Planning Services) 6. The applicant shall either submit a copy of an agreement with the property's mineral owner/operators stipulating that the oil and gas activities have been adequately incorporated into the design of the site or show evidence that an adequate attempt has been made to mitigate the concerns of the mineral owner/operators. Drill envelopes can be delineated on the plat in accordance with the State requirements as an attempt to mitigate concerns. The plat shall be amended to include any possible future drilling sites. (Department of Planning Services) 7. The applicant shall address the requirements (concerns) of the Town of Mead, as stated in the • referral response dated 11/2/2011. Evidence of such shall be submitted in writing to the Weld County Department of Planning Services. (Town of Mead) USR-1683 Highland Ditch Page 5 8. The applicant shall address the requirements (concerns) of the U.S. Army Corps of Engineers, as stated in the referral response dated 10/19/2011. Evidence of such shall be submitted in writing • to the Weld County Department of Planning Services. (U.S. Army Corps of Engineers) 9. The applicant shall address the requirements (concerns) of the Division of Wildlife, as stated in the referral response dated 12/21/2008. Evidence of such shall be submitted in writing to the Weld County Department of Planning Services. (Division of Wildlife) 10. The applicant shall address the requirements (concerns) of the Weld County Department of Public Works, as stated in the referral response dated 12/13/2011. Evidence of such shall be submitted in writing to the Weld County Department of Planning Services. (Division of Wildlife) 11. Upon completion of 1 - 10 above the applicant shall submit three (3) paper copies of the plat for preliminary approval to the Weld County Department of Planning Services. Upon approval of the paper copies the applicant shall submit a Mylar plat along with all other documentation required as Conditions of Approval. The Mylar plat shall be recorded in the office of the Weld County Clerk and Recorder by Department of Planning Services' Staff. The plat shall be prepared in accordance with the requirements of Section 23-2-260.D of the Weld County Code. The Mylar plat and additional requirements shall be submitted within sixty (60) days from the date of the Board of County Commissioners resolution. The applicant shall be responsible for paying the recording fee. (Department of Planning Services) 11. In accordance with Weld County Code Ordinance 2006-7 approved June 1, 2006, should the plat not be recorded within the required sixty (60) days from the date the Board of County Commissioners resolution a $50.00 recording continuance charge shall added for each additional 3 month period. (Department of Planning Services) 12. The Department of Planning Services respectively requests the surveyor provide a digital copy of this Use by Special Review. Acceptable CAD formats are .dwg, .dxf, and .dgn (Microstation); • acceptable GIS formats are ArcView shapefiles, Arclnfo Coverages and Arclnfo Export files format type is .e00. The preferred format for Images is .tif(Group 4). (Group 6 is not acceptable). This digital file may be sent to maps(a�co.weld.co.us. (Department of Planning Services) 13. The Special Review activity shall not occur nor shall any building or electrical permits be issued on the property until the Special Review plat is ready to be recorded in the office of the Weld County Clerk and Recorder. (Department of Planning Services) • USR-1683 Highland Ditch Page 6 SITE SPECIFIC DEVELOPMENT PLAN • SPECIAL REVIEW PERMIT DEVELOPMENT STANDARDS Highland Ditch Company USR-1683 1. A Site Specific Development Plan and Special Review Permit for an Expansion of a Nonconforming Use, fishing and hunting club to 70 members and the following additional recreational uses: boating, scuba diving, water skiing, hiking, sailing, kayaking, canoeing, and overnight camping in the A (Agricultural) Zone District. (Department of Planning Services) 2. Approval of this plan may create a vested property right pursuant to Section 23-8-10 of the Weld County Code. (Department of Planning Services) 3. All liquid and solid wastes (as defined in the Solid Wastes Disposal Sites and Facilities Act, 30-20-100.5, C.R.S., as amended) shall be stored and removed for final disposal in a manner that protects against surface and groundwater contamination. (Department of Public Health and Environment) 4. No permanent disposal of wastes shall be permitted at this site. This is not meant to include those wastes specifically excluded from the definition of a solid waste in the Solid Wastes Disposal Sites and Facilities Act, 30-20-100.5, C.R.S., as amended. (Department of Public Health and Environment) 5 Waste materials shall be handled, stored, and disposed in a manner that controls fugitive dust, fugitive particulate emissions, blowing debris, and other potential nuisance conditions. (Department of Public Health and Environment) • 6. The applicant shall operate in accordance with the approved "waste handling plan". (Department of Public Health and Environment) 7. Adequate drinking (bottled water), handwashing and toilet facilities (portable toilets) shall be provided for personnel using the facility. (Department of Public Health and Environment) 8. Any septic system, including a vault privy, located on the property must comply with all provisions of the Weld County Code, pertaining to Individual Sewage Disposal Systems. (Department of Public Health and Environment) 9. Fugitive dust and fugitive particulate emissions shall be controlled on this site. (Department of Public Health and Environment) 10. This facility shall adhere to the maximum permissible noise levels allowed in the non-specified areas as delineated in Section 14-9-30 of the Weld County Code. (Department of Public Health and Environment) 11. All pesticides, fertilizer, and other potentially hazardous chemicals must be stored and handled in a safe manner in accordance with product labeling and in a manner that minimizes the release of hazardous air pollutants (HAP's) and volatile organic compounds (VOC's). (Department of Public Health and Environment) 12. The operation shall comply with all applicable rules and regulations of the State and Federal agencies and the Weld County Code. (Department of Public Health and Environment) 13. Effective April 25, 2011, Building Permits issued on the proposed lots will be required to adhere to • the fee structure of the Weld County Road Impact Program.(Ordinance 2011-2) (Department of Planning Services) USR-1683 Highland Ditch Page 7 14. Effective April 25, 2011, Building Permits issued on the proposed lots, will be required to adhere to the fee structure of the County Facility Fee and Drainage Impact Fee. (Ordinance 2011-2) • (Department of Planning Services) (Department of Planning Services) 15. The property owner or operator shall be responsible for complying with the Design Standards of Section 23-2-240, Weld County Code. 16. The property owner or operator shall be responsible for complying with the Operation Standards of Section 23-2-250, Weld County Code. 17. A building permit shall be obtained prior to the change of use, or construction of any new structures. (Department of Building Inspection) 18. A plan review is required for each building for which a building permit is required. Two complete sets of plans are required when applying for each permit. Include a Code Analysis Data sheet provided by the Weld County Building Department with each Building permits Submittal plans shall include a floor plan showing the specific uses of each area for the building. The Occupancy Classification will be determined by Chapter 3 of the 2006 International Building Code. The plans shall also include the design for fire separation and occupancy separation walls, when required by Chapter 5 and 7 of the 2006 International Building Code. Fire Protection shall conform to Chapter 9 and exiting requirements by Chapter 10. (Department of Building Inspection) 19. Buildings shall conform to the requirements of the various codes adopted at the time of permit application. Currently the following has been adopted by Weld County: 2006 International Building Code; 2006 International Mechanical Code; 2006 International Plumbing Code; 2006 International Fuel Gas Code; and the 2011 National Electrical Code and Chapter 29 of the Weld County Code. (Department of Building Inspection) 20. All building plans shall be submitted to Mountain View Fire Protection District for review and • approval prior to issue of Building Permits. (Department of Building Inspection) 21. Sources of light shall be shielded so that light rays will not shine directly onto adjacent properties where such would cause a nuisance or interfere with the use on the adjacent properties in accordance with the plan. Neither the direct nor reflected light from any light source may create a traffic hazard to operators of motor vehicles on public or private streets. No colored lights may be used which may be confused with or constructed as traffic control devices. (Department of Planning Services) 22. Aquatic invasive species could potentially be a risk on the reservoir and therefore the applicant shall adhere to the recommendations of the Division of Wildlife for best management practices. (Division of Wildlife) 23. Hours of operation for the water skiers shall be from April 1 through August 31 during daylight hours. Hours of operation for motorized boats shall also be year round but during daylight hours only. The other recreational activities do not have standard hours of operation and would be available year round. (Department of Planning Services) 24. The facility shall adhere to the State of Colorado boating rules and regulations. 25. Pursuant to Chapter 15, Articles I and II of the Weld County Code, if noxious weeds exist on the property or become established as a result of the proposed development, the applicant/landowner shall be responsible for controlling the noxious weeds. All vegetation, other than grasses, needs to be maintained at a maximum height of 12 inches until the area is completely developed. (Department of Public Works) 26. Necessary personnel from the Weld County Departments of Planning Services, Public Works, • and Public Health and Environment shall be granted access onto the property at any reasonable time in order to ensure the activities carried out on the property comply with the Conditions of USR-1683 Highland Ditch Page 8 Approval and Development Standards stated herein and all applicable Weld County regulations. • (Department of Planning Services) 27. The historical flow patterns and runoff amounts will be maintained on site in such a manner that it will reasonably preserve the natural character of the area and prevent property damage of the type generally attributed to run-off rate and velocity increases, diversions, concentration and/or unplanned ponding of storm run-off. (Department of Public Works) 28. The Special Review area shall be limited to the plans shown hereon and governed by the foregoing standards and all applicable Weld County regulations. Substantial changes from the plans or Development Standards as shown or stated shall require the approval of an amendment of the Permit by the Weld County Board of County Commissioners before such changes from the plans or Development Standards are permitted. Any other changes shall be filed in the office of the Department of Planning Services. 29. The property owner or operator shall be responsible for complying with all of the foregoing Development Standards. Noncompliance with any of the foregoing Development Standards may be reason for revocation of the Permit by the Board of County Commissioners. 30. No more than 70 members shall be allowed to utilize the recreational facilities. (Department of Planning Services) 31. The uses established with NCU-481 (Mulligan Fishing and Hunting Club) shall still remain in effect. (Department of Planning Services) 32. WARNING: LOTS MAY NOT BE BUILDABLE DUE TO FLOODPLAIN OR FLOODWAY DESIGNATION. Please be advised that owners of Parcel #120722000041 may not be able to obtain building permits to construct non-agricultural structures. All construction or improvements • occurring in the floodplain as delineated on Federal Emergency Management Agency FIRM Community Panel Map #0802660850C dated September 28,1982, shall comply with the Flood Hazard Overlay District requirements of Chapter 23, Article V, Division 3 of the Weld County Code and all applicable FEMA regulations and requirements as described in 44 CFR parts 59, 60, and 65. (Department of Public Works) 33. Flood hazard development permits will be required for development activities located within the FEMA mapped Mulligan Reservoir Floodplain. The FEMA definition of development is any man- made change to improved or unimproved real estate, including by not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation, drilling operations, or storage of equipment and materials. (Department of Public Works) 34. FEMA's floodplain boundaries may be updated at any time by FEMA. Prior to the start of any development activities, the owner should contact Weld County to determine if the floodplain boundaries have been modified. (Department of Public Works) 35. The applicant has an agreement with parcel owner 1207-22-002015 to utilize a portion of the property for access. If this agreement is terminated or not renewed the property owner shall utilize the permitted access easements. 36. There shall be no campsites or overnight parking located in the FEMA mapped 100-year floodplain. (Department of Public Works) 37. Portable boat docks will require a building permit and a flood hazard development permit (FHDP) must be obtained prior to the installation of the boat docks. (Department of Public Works) 38. WELD COUNTY'S RIGHT TO FARM: Weld County is one of the most productive agricultural • counties in the United States, typically ranking in the top ten counties in the country in total market value of agricultural products sold. The rural areas of Weld County may be open and spacious, but they are intensively used for agriculture. Persons moving into a rural area must USR-1683 Highland Ditch Page 9 recognize and accept there are drawbacks, including conflicts with long-standing agricultural practices and a lower level of services than in town. Along with the drawbacks come the • incentives which attract urban dwellers to relocate to rural areas: open views, spaciousness, wildlife, lack of city noise and congestion, and the rural atmosphere and way of life. Without neighboring farms, those features which attract urban dwellers to rural Weld County would quickly be gone forever. Agricultural users of the land should not be expected to change their long-established agricultural practices to accommodate the intrusions of urban users into a rural area. Well-run agricultural activities will generate off-site impacts, including noise from tractors and equipment; slow-moving farm vehicles on rural roads; dust from animal pens, field work, harvest and gravel roads; odor from animal confinement, silage and manure; smoke from ditch burning; flies and mosquitoes; hunting and trapping activities; shooting sports, legal hazing of nuisance wildlife; and the use of pesticides and fertilizers in the fields, including the use of aerial spraying. It is common practice for agricultural producers to utilize an accumulation of agricultural machinery and supplies to assist in their agricultural operations. A concentration of miscellaneous agricultural materials often produces a visual disparity between rural and urban areas of the County. Section 35-3.5- 102, C.R.S., provides that an agricultural operation shall not be found to be a public or private nuisance if the agricultural operation alleged to be a nuisance employs methods or practices that are commonly or reasonably associated with agricultural production. Water has been, and continues to be, the lifeline for the agricultural community. It is unrealistic to assume that ditches and reservoirs may simply be moved "out of the way" of residential development. When moving to the County, property owners and residents must realize they cannot take water from irrigation ditches, lakes, or other structures, unless they have an adjudicated right to the water. Weld County covers a land area of approximately four thousand (4,000) square miles in size (twice the size of the State of Delaware) with more than three thousand seven hundred (3,700) • miles of state and County roads outside of municipalities. The sheer magnitude of the area to be served stretches available resources. Law enforcement is based on responses to complaints more than on patrols of the County, and the distances which must be traveled may delay all emergency responses, including law enforcement, ambulance, and fire. Fire protection is usually provided by volunteers who must leave their jobs and families to respond to emergencies. County gravel roads, no matter how often they are bladed, will not provide the same kind of surface expected from a paved road. Snow removal priorities mean that roads from subdivisions to arterials may not be cleared for several days after a major snowstorm. Services in rural areas, in many cases, will not be equivalent to municipal services. Rural dwellers must, by necessity, be more self-sufficient than urban dwellers. People are exposed to different hazards in the County than in an urban or suburban setting. Farm equipment and oil field equipment, ponds and irrigation ditches, electrical power for pumps and center pivot operations, high speed traffic, sand burs, puncture vines, territorial farm dogs and livestock, and open burning present real threats. Controlling children's activities is important, not only for their safety, but also for the protection of the farmer's livelihood. • USR-1683 Highland Ditch Page 10 7;;;;N), DEPARTMENT OF PLANNING SERVICES 1555 N 171h GREELEY, CO 80631 PHONE: (970)353-6100100, Ext. 3540 FAX: (970)304-6498 COLORADO December 8, 2011 Highland Ditch Company c/o Todd Hodges 1269 N Cleveland Ave Loveland CO 80537 Subject: USR-1683-A Site Specific Development Plan and Use by Special Review Permit for an Expansion of a Non- conforming Use, fishing and hunting club to 70 members and the following additional recreational uses: boating, scuba diving, water skiing, sailing, kayaking, canoeing, and overnight camping in the A(Agricultural)Zone District on a parcel of land described as Mulligan Reservor in Section 22, T3N, R68W of the 6th P.M.,Weld County, Colorado. Dear Applicant: • I have scheduled a meeting with the Weld County Planning Commission on January 3, 2012, at 1:30 p.m. A subsequent hearing will be held on February 8, 2012 at 10:00 a.m. with the Board of County Commissioners. Both hearings will take place in the Hearing Room, Weld County Administration Building, 1150 O Street, Greeley, Colorado. It is recommended that you and/or a representative be in attendance to answer any questions the Planning Commission members or Board of County Commissioners may have. Colorado Revised Statute, C.R.S.24-65.5-103 (adopted as part of H.B.01-1088) requires notification of all mineral estate owners 30 days prior to any public hearing. The applicant needs to provide the Weld County Planning Department with written certification indicating the above requirement has been met. A representative from the Department of Planning Services will be out to the property a minimum of ten days prior to the hearing to post a sign adjacent to and visible from a publicly maintained road right-of-way which identifies the hearing time, date, and location. In the event the property is not adjacent to a publicly maintained road right-of-way, one sign will be posted in the most prominent place on the property and a second sign posted at the point at which the driveway(access drive)intersects a publicly maintained road right-of-way. The Department of Planning Services' staff will make a recommendation concerning this application to the Weld County Planning Commission and will be included in the staff report one week prior to the scheduled Planning Commission hearing. You may view the staff report at ,vwW Ne!Jcounryplann iq orU If you have any questions concerning this matter, please call. Respectfully, Digitally s mth Kristine Random //t///// � Reason;l 1555 N author of this document � Location:1555 N 17th Aye Date:2011.12.08 13:56:59-07'00' Michelle Martin Planner • BOARD OF COUNTY COMMISSIONERS' SIGN POSTING CERTIFICATE • THE LAST DAY TO POST THE SIGN IS 12/23/2011 THE SIGN SHALL BE POSTED ADJACENT TO AND VISIBLE FROM A PUBLICALLY MAINTAINED ROAD RIGHT-OF-WAY. IN THE EVENT THE PROPERTY BEING CONSIDERED FOR A SPECIAL REVIEW IS NOT ADJACENT TO A PUBLICALLY MAINTAINED ROAD RIGHT-OF-WAY, THE DEPARTMENT OF PLANNING SERVICES SHALL POST ONE SIGN IN THE MOST PROMINENT PLACE ON THE PROPERTY AND POST A SECOND SIGN AT THE POINT AT WHICH THE DRIVEWAY (ACCESS DRIVE) INTERSECTS A PUBLICALLY MAINTAINED ROAD RIGHT-OF-WAY. I, Michelle Martin, HEREBY CERTIFY UNDER PENALTIES OF PERJURY THAT THE SIGN WAS POSTED ON THE PROPERTY AT LEAST TEN DAYS BEFORE THE BOARD OF COMMISSIONERS HEARING FOR USR-1683 IN THE AGRICULTURAL ZONE DISTRICT. Michelle Martin Name of Person Posting Sign • Signature of Person Posting Sign STATE OF COLORADO ) ss. COUNTY OF WELD The foregoing instrument was subscribed and sworn to me this ` 4 -day of Dekenkbei , 20 11 . WITNESS my hand and official seal. ;Etc' Notary Publi f BETHANY t SALZsAN ). _ My Commission Expires •9.. • .r 10/14/2015 • • .• -• ."' My Commission Expires: f • • PLANNING COMMISSIONERS' SIGN POSTING CERTIFICATE • THE LAST DAY TO POST THE SIGN IS _12/23/2011 THE SIGN SHALL BE POSTED ADJACENT TO AND VISIBLE FROM A PUBLICALLY MAINTAINED ROAD RIGHT-OF-WAY. IN THE EVENT THE PROPERTY BEING CONSIDERED FOR A SPECIAL REVIEW IS NOT ADJACENT TO A PUBLICALLY MAINTAINED ROAD RIGHT-OF-WAY, THE DEPARTMENT OF PLANNING SERVICES SHALL POST ONE SIGN IN THE MOST PROMINENT PLACE ON THE PROPERTY AND POST A SECOND SIGN AT THE POINT AT WHICH THE DRIVEWAY (ACCESS DRIVE) INTERSECTS A PUBLICALLY MAINTAINED ROAD RIGHT-OF-WAY. I, Michelle Martin, HEREBY CERTIFY UNDER PENALTIES OF PERJURY THAT THE SIGN WAS POSTED ON THE PROPERTY AT LEAST TEN DAYS BEFORE THE PLANNING COMMISSIONERS HEARING FOR_USR-1683 IN THE A (AGRICULTURAL) ZONE DISTRICT. Michelle Martin Name of Person PostingSign • Signature of Person Posting Sign STATE OF COLORADO ss. COUNTY OF WELD The foregoing instrument was subscribed and sworn to me this I l day of ( tht.l , 20 1 ( . WITNESS my hand and official seal. PV B,./C ` otary Public BETHANY 1 SALZMAN My Commission Expires 9j:••.• My Commission Expires: 10/14/2015 F fir CttV-e_. • .v . • . t li Y • ` 1. A � :� rTtt ' r 1, •777 _ - . '. � .- . '� � \ 4 -" i tr.' P. ' r: - ii,, . ..+ .i =•yam T��' I f� v/\y ._-..r , •., . .... .... Ark r.r. _air VI 1 V `` L • l i ,‘,...„,r„,..,,,,4.. .e.: . . ,, h. * ,,,, :,.. . Illi. .;•54".a3/41t48101.4-411440r It 4- A, 7 • + ' _,,... 4 _ . , ` 1 Alglirt;it . . P. , idIl 1 fir ,ar. qtr,, • 9t �A� + ``\ *. •. 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IN THE EVENT THE PROPERTY BEING CONSIDERED FOR A SPECIAL REVIEW IS NOT ADJACENT TO A PUBLICALLY MAINTAINED ROAD RIGHT-OF-WAY, THE DEPARTMENT OF PLANNING SERVICES SHALL POST ONE SIGN IN THE MOST PROMINENT PLACE ON THE PROPERTY AND POST A SECOND SIGN AT THE POINT AT WHICH THE DRIVEWAY (ACCESS DRIVE) INTERSECTS A PUBLICALLY MAINTAINED ROAD RIGHT-OF-WAY. I, , HEREBY CERTIFY UNDER PENALTIES OF PERJURY THAT THE SIGN WAS POSTED ON THE PROPERTY AT LEAST 10 DAYS BEFORE THE BOARD OF COMMISSIONERS HEARING FOR USR-1683 IN THE AGRICULTURAL ZONE DISTRICT. Michelle Martin Name of Person Posti g Sign • Signature of Person Posting Sign STATE OF COLORADO ) ) ss. COUNTY OF WELD ) The foregoing instrument was subscribed :::•�'` 1"", ,.. me th•is I6 day of ad , 2009. WITNESS my hand and official seal. tV . /g‘4 It ; : BETHANY ; s 1 1 SALZMAN ,`01 • Notary Public �'..'7'••._,,,,...• OQs' L '.OF Cos_ My Commission Expires My Commission Expires: 10.11.2011 • PLANNING COMMISSIONERS' SIGN POSTING CERTIFICATE THE LAST DAY TO POST THE SIGN IS 7/23/09 THE SIGN SHALL BE POSTED ADJACENT TO AND VISIBLE FROM A PUBLICALLY MAINTAINED ROAD RIGHT-OF-WAY. IN THE EVENT THE PROPERTY BEING CONSIDERED FOR A SPECIAL REVIEW IS NOT ADJACENT TO A PUBLICALLY MAINTAINED ROAD RIGHT-OF-WAY, THE DEPARTMENT OF PLANNING SERVICES SHALL POST ONE SIGN IN THE MOST PROMINENT PLACE ON THE PROPERTY AND POST A SECOND SIGN AT THE POINT AT WHICH THE DRIVEWAY (ACCESS DRIVE) INTERSECTS A PUBLICALLY MAINTAINED ROAD RIGHT-OF-WAY. I, Michelle Martin, HEREBY CERTIFY UNDER PENALTIES OF PERJURY THAT THE SIGN WAS POSTED ON THE PROPERTY AT LEAST 10 DAYS BEFORE THE PLANNING COMMISSIONERS HEARING FOR USR-1683 IN THE A(AGRICULTURAL) ZONE DISTRICT. 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Rt • • It • ;. , s... ^ . x • { b 1 ;4 iss f :s� &, X ,Y Tom. ,d" ,v `�. e yyg _ ' •„;.;,,%:: : :-.i,,:.•,:..,;(:.>„/„.4',,,-;• t..i. ;per as F lt \te ' 3'Nld; ay, ; t { "%, :: i, }}y ,f Y§ z • >.� :aa� ♦ r.C. aL Wa • y• JS T $C' ft I. + � ,� f 5 '1 b y i :dq d r4 • ,.bT • • • • • 4 aEo. - F: .. . . • • • • • a ' '"%•,, . • • • yA • • • #D 1t.'6 DEPARTMENT OF PLANNING SERVICES 1555 N 17th AVENUE GREELEY CO 80631 W� D PHONE353-6100, Ext. 3571 C (971)FAX: (970) 304-6498 COLORADO October 19, 2011 Todd Hodges Design, LLC 1269 N Cleveland Av Loveland CO 80537 Subject: USR-1683 - Request for a Site Specific Development Plan and Special Review Permit for an Expansion of a Non-conforming Use, fishing and hunting club to 70 members and the following additional recreational uses: boating, scuba diving, water skiing, sailing, kayaking, canoeing, and overnight camping in the A (Agricultural) Zone District on a parcel of land described as Mulligan Reservoir in Section 22, T3N, R68W of the 6th P.M., Weld County, Colorado. Dear Applicants: Your application and related materials for the request described above are being processed. I will schedule a meeting with you to discuss the referrals after we have been received them.• Once the concerns and requirements of the referral agencies have been met or the applicant has shown an attempt to meet their concerns and requirements, a Planning Commission Hearing will be scheduled. It is the policy of Weld County to refer an application to any town or municipality lying within three miles of the property or if the property is located within the comprehensive planning area of a town or municipality. Therefore, our office has forwarded a copy of the submitted materials to the Firestone, Longmont, and Mead Planning Commission for their review and comments. Please call Firestone at 303-833-3291, Longmont at 303-651-8601, and Mead at 970-535-4477 for further details regarding the date, time, and place of this meeting. It is recommended that you and/or a representative be in attendance at the Firestone, Longmont, and Mead Planning Commission meeting to answer any questions the Commission members may have with respect to your application. If you have any questions concerning this application, please call. Respectfully, / Digitally signed by Kristine Randm ///J --yr Reason:l am the author f this document /— ,*/�� Location:1555 N 17th Ave Date:2011.10.19 09:15:28-06'00' Michelle Martin Planner • Page 1 of 2 Michelle Martin • _.- .--.. __ - ---._.._.._-.-------- From: Mike Mitchell [Mike@qorconsult.com] Sent: Wednesday, July 29, 2009 11:10 AM To: Michelle Martin Cc: Bruce Barker Subject: RE: USR-1683 Thank you Michelle for your timely response. We will keep you and the county attorney informed of any use of the lake for water skiing or surface high speed boating. Our membership is presently employing the policy of reporting to the county sheriff all illegal trespass that occurs. Mike From:Michelle Martin[mailto:mmartin@co.weld.co.us] Sent: Wednesday,July 29,2009 11:04 AM To: Mike Mitchell Cc: Bruce Barker Subject: RE: USR-1683 Mike, The reason for the continuance is a result of the pending lawsuit,the issues brought forth by the lawsuit will need to be resolved first before the Use by Special Review application can continue forward. The County Attorney has been made • aware of the lawsuit and agrees that the lawsuit should be resolved before proceeding with the land use case. The Weld County Department of Planning Services continues to inform the applicants that they should not operate the ski club without the necessary land use permits. According to the applicants they have not operated this summer. Let me know if you have any other questions. Michelle Martin Planner II 4209 CR 24.5 Longmont,CO 80504 mmartin@co.weld.co.us PHONE: (720)652-4210 x 8730 FAX: (720)652-4211 Please tell us how we're doing: http:'/www.co.weld.co.us departmentsiplanningicomp improve comments.cfm From: Mike Mitchell [mailto:Mike@gorconsult.com] Sent: Wednesday,July 29,2009 7:41 AM To: Michelle Martin Cc: Brett Coming; Shepherd Jerry;Shepherd Kenny;Dale&Linda Skeen; Spudx@aol.com;Renzelman Spud; dwp@zplaw.net • Subject: RE: USR-1683 Thank you Michelle. 7/29/2009 Page 2 of 2 I do have some questions. What does continued indefinitely mean? I am concerned that if Highland Ditch or the County Planning Board is not prepared to hear the application then what is the status of . Highland ditch's ability to use the reservoir surface? You made the comment to us that while their application is being considered that they can continue their non-conforming use". Postponed indefinitely is predicated on a decision by either the planning staff or Highland Ditch to suspend evalaution on the application. We do not feel it is fair or justified to allow Highland ditch to continue to be involved in a non-conforming(essentially illegal)use while its application is suspended indefinitely. We would ask that they not be allowed to continue their non-conforming use until such time as they have met the requirements of the planning process (re: application submittal and willingness to be heard by the PB and the WC-BOCCC) and received a decision from both. I would like to inform you that our club has filed suit against the Highland Ditch Company in Weld County court to protect and enforce our rights. Our attorney, Mr. David Pehr, is in the process of sending a letter to the BOCC attorney to provide a copy of the complaint. From:Michelle Martin [mailto:mmartin@co.weld.co.usl Sent: Tuesday, July 28, 2009 3:21 PM To: Mike Mitchell Cc: Spudx@aol.com Subject: USR-1683 Mike, I wanted to inform you that case USR-1683 (Highland Ditch Company) is being continued indefinitely • therefore there will not be a hearing on August 4, 2009 before the Planning Commission and August 19, 2009 before the Board of County Commissioners. Please let me know if you have any questions. Michelle Martin Planner II 4209 CR 24.5 Longmont,CO 80504 mmartin@co.weld.co.us PHONE: (720)652-4210 x 8730 FAX: (720)652-4211 Please tell us how we're doing: http:/www.co.weld.taus/departments/planning/comp improve comments.efm • 7/29/2009 Michelle Martin From: Bruce Barker 'ent: Friday, August 27, 2010 9:19 AM o: Michelle Martin Subject: RE: question I think that it will need a USR, only because "shareholders" is such a loose term. Could be hundreds of people with great impact on the neighbors. Original Message From: Michelle Martin Sent: Thursday, August 26, 2010 12:12 PM To: Bruce Barker Subject: FW: question Bruce, Have you had the opportunity to review the below address. When you get the chance could you please let me know your thoughts, thanks. Michelle Martin Planner III •1555 N 17th Ave IIIGreeley, CO 80631 mmartinOco.weld.co.us PHONE: (970) 353-6100 x 3540 FAX: (970) 304-6498 From: Michelle Martin Sent: Monday, August 16, 2010 3:03 PM To: Bruce Barker Subject: question Hi Bruce, The applicants for USR-1683 (Highland Ditch Company) were wondering if staff would consider allowing the shareholders of the ditch company the right to water ski in the reservoir without obtaining a USR permit. In the past planning staff has allowed owners of a lake to water ski in their own lake without a USR. Once the property owner is being compensated for allowing other individuals the use of the lake staff has required a USR. In this case it's a little different instead of a single property owner its shareholders. What are your •thoughts? 1 1 agc 1 us L • Subj: Fwd: Mulligan Fising and Gun Club v. Highland Ditch Company Claim No.COSP209070578 • Our File 4890 Date: 7/19/2010 6:17:01 P.M. Mountain Daylight Time From: highlandditch@aol.com To: ReDerrCpa@aol.com —Original Message— From: Nikolai Frant<nnf@omhdlaw.com> To: highlandditch@aol.com; 'Trade E. Wigginton' <twigginton@glatfelters.com> Cc: 'Mark C. Overturf <mco@omhdlaw.com>; 'Michelle Capdeville' <mc@omhdlaw.com> Sent Mon, Jul 19, 2010 5:46 pm Subject: Mulligan Fising and Gun Club v. Highland Ditch Company Claim No. COSP209070578 Our File 4890 Jill and Trade, On Friday the Court issued the attached decision in this case. We write to summarize the court's decision and to provide you with information regarding Highland's options going forward. The Courts Findings The court held that, with the 1922 Deed, Highland gave Reese the exclusive right to hunt and fish on Highland No. 1. The court also held that the Mulligan Club validly obtained that exclusive hunting and fishing right via the 1974 deeds. This means that if the court's decision is not challenged on appeal, the Mulligan Club will have the • exclusive right to hunt and fish on Highland No. 1. As you will recall, the Mulligan Club initially claimed that Highland was prohibited from permitting others to use Highland No. 1 for other recreational uses such as waterskiing. That claim is now dismissed with prejudice. The court states that Harmony "has the legal right to authorize any other recreational use of Highland No. 1." These other recreational uses would include waterskiing—so long as those who water ski do not also fish or hunt while on the reservoir. With respect to the clubhouse, Highland still has the right to move it at any time. Finally, Mulligan Club now owns an easement over the"access road"from WCR 7 to the clubhouse. However, that easement cannot be enforced against anyone who is not a party to this lawsuit. Options for Appeal If Highland would like to challenge the court's decision, it has two options. First, it can ask Judge Hartmann to change his decision. The deadline for doing so is August 2, 2010. Second, Highland can appeal the decision to the Colorado Court of Appeals. If Highland does not ask Judge Hartmann to change is decision, the deadline for filing an appeal is August 6, 2010. Conference Call We would like to set up a conference call to discuss the findings and Highland's options with Mr. Sekich (and anyone else who would like to participate). Please let us know your availability this week for a call. Good days for us are tomorrow(Tuesday), Wednesday, or Friday. Thank you and let us know. Nikolai • Nikolai N. Frant,Esq. Monday,July 19, 2010 AOL: rederrcpa r ag.c L Ut c Overturf McGath Hull &Doherty,PC 625 E. 16th Ave.,Suite 100 • Denver,CO 80203 p: 101:RA0PRIS F: 303.860.2869 • • Monday.July 19, 2010 AOL: rederrcpa Michelle Martin •From: Todd Hodges [toddhodges@gwestoffice.net] sent: Friday, November 13, 2009 4:33 PM To: Michelle Martin Cc: Scott E. Holwick; Ray Derr Subject: Fw: Michelle Below is an update concerning the Highland Ditch case. Call if you have any questions. Have a great weekend! Todd A. Hodges, Principal Todd Hodges Design, LLC 970-613-8556 fax 970-613-8775 Original essage— From: Scott'. To: Todd Hodges Cc: Ray Derr ; Jeffrey J. Kahn Sent: Friday, November 13, 2009 10:32 AM Subject: RE: *Todd, As you know,the law firm of Overturf, McGath, Hull& Doherty, P.C. of Denver is handling the civil litigation in Case No.09CV570 (District Court, Weld County) on behalf of Highland Ditch Company's insurance provider. Mark Overturf is the responsible attorney for the litigation. His status update of the litigation follows below: This case was filed under Rule 16.1 for simplified procedure. The parties are obligated to meet the requirements of Rule 26(a)(1), but no written discovery or depositions are permitted. The parties have exchanged initial disclosures and a four-day jury trial has been scheduled to begin May 10, 2010. Rule 16.1(k)(2) and (3) requires a detailed disclosure of the testimony of witnesses to be called at trial, including experts. Plaintiff's Rule 16.1(k)(2) and (3) disclosures are due February 9, 2010, and Defendant's Rule 16.1(k)(2)and (3) disclosure are due March 11, 2010. Mark specifically erred on the side of caution in providing this update as he did not want to inadvertently include any additional information that might be privileged through the work product and/or the attorney-client privilege doctrines. Please let me know if either you or Michelle has any additional questions. Best regards, Scott Scott E. Holwick LYONS GADDIS KAHN &HALL, PC P.O. Box 978 Longmont, CO 80502-0978 �03-776-9900; Facsimile 303-776-9100 s h olwick@Igkhlaw.com www.lgkhlaw.com 1 a CONFIDENTIALITY STATEMENT;THIS E-MAIL MESSAGE AND ANY ACCOMPANYING DOCUMENTS CONTAIN INFORMATION WHICH IS ATTORNEY CLIENT PRIVILEGED,CONFIDENTIAL AND INTENDED ONLY FOR THE USE OF THE ABOVE-NAMED RECIPIENT.IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT,YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION,DISTRIBUTION,PRINTING OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED.IF YOU HAVE RECEIVED THIS MESSAGE IN ERROR,PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE OR RETURN THE E-MAIL MESSAGE TO US.THANK YOU. please visit our newly designed website at www.lgkhlaw.com � �� From:Todd Hodges [mailto:toddhodges@gwestoffice.net] Sent:Tuesday, November 03, 2009 11:35 AM To: Ray Derr; Scott E. Holwick Subject: Fw: Michelle Martin is back from her maturnity leave and would like an update concerning the Highland Ditch court proceedings. I would be happy to pass along any information you have concerning the status of the legal issues. Have a great week. Todd A. Hodges, Principal Todd Hodges Design, LLC 970-613-8556 fax 970-613-8775 Original Message--- From. Mtche le .......... :..:........... .Mart# -: .. ... .... ....... . . ....... .. .. n . ,,; .... . To: Todd Hodges Sent: Tuesday, November 03, 2009 11:24 AM IHi Todd, I just wanted to touch base with you regarding the status of USR-1683 (Highland Ditch). Could you please update me on status of their legal issues. Thanks for all your help. Michelle Martin Planner II 918 10th Street Greeley,CO 80631 mmartin(a;cn.weld.co.us PHONE: (970)353-6100 x 3540 FAX: (970)304-6498 • 2 Michelle Martin From: Esther Gesick 'ent: Friday, July 31, 2009 2:09 PM fo: Michelle Martin Cc: Jennifer VanEgdom Subject: RE: 8/19/09 Hearings Hi Michelle, I would note that actually the motion will be to refer the matter back to staff, since we don't do indefinite continuances. Once it's ready to go forward, staff can send the file back over and we'll do a new notice for publication and mailing to the SPO's. Esther E. Gesick Deputy Clerk to the Board Weld County, Colorado 915 10th Street Greeley, CO 80631 (970) 356-4000 X4226 (970)352-0242 (fax) Original Message From: Michelle Martin Sent: Friday, July 31, 2009 2:03 PM To: Esther Gesick; Chris Gathman; Kim Ogle Cc: Jennifer VanEgdom Subject: RE: 8/19/09 Hearings Hs ther, ighland Ditch Case number USR-1683 will be continued indefinitely at the August 19 hearing and I will check with the applicants regarding USR-1699. Michelle Martin Planner II 4209 CR 24.5 Longmont, CO 80504 mmartin@co.weld.co.us PHONE: (720) 652-4210 x 8730 FAX: (720) 652-4211 Please tell us how we're doing: http://www.co.weld.co.us/departments/planning/comp_improve_comments.cfm Original Message From: Esther Gesick Sent: Friday, July 31, 2009 8:51 AM To: Chris Gathman; Kim Ogle; Michelle Martin Cc: Jennifer VanEgdom Subject: 8/19/09 Hearings Kim, Chris, and Michelle, Just a heads up that the applicants for the hearings scheduled for 8/19 will need to be advised that only three Commissioners will be present; Commissioners Rademacher and Conway will be excused. Please contact us for available continuance dates if you want to coordinate with the applicants ahead of time to help speed up the process on the 19th. • hanks! Esther E. Gesick Deputy Clerk to the Board 1 Page 1 of 1 Michelle Martin • From: Renzelman Spud [spudx@mac.com] Sent: Thursday, July 30, 2009 1:33 PM To: Michelle Martin Subject: Mulligan Hi Michelle, sorry to bother you but I just figured out why I haven't been getting your emails. So way to got my old e mail address. please change to Spudx rr mac.com Thanks. Spud spudx@mac.com • • 7/30/2009 MEMORANDUM II• TO: Planning Commissioners COLORADO DATE: July 28, 2009 FROM: Michelle Martin SUBJECT: USR-1683 The applicants in their email dated 7/27/09 and letter dated 7/28/09 are requesting an indefinite continuance of USR-1683 until legal maters have been resolved. USR-1683 is for A Site Specific Development Plan and Special Review Permit for an Expansion of a Nonconforming Use (Water Ski Club) in the A (Agricultural) Zone District. • • • Page 1 of 1 • Michelle Martin From: Michelle Martin Sent: Tuesday, July 28, 2009 3:21 PM • To: 'Mike@gorconsult.com' Cc: Spudx@aol.com Subject: USR-1683 Mike, I wanted to inform you that case USR-1683(Highland Ditch Company) is being continued indefinitely therefore there will not be a hearing on August 4, 2009 before the Planning Commission and August 19, 2009 before the Board of County Commissioners. Please let me know if you have any questions. Michelle Martin Planner II 4209 CR 24.5 Longmont,CO 80504 mmartin@co.weld.co.us PHONE: (720)652-4210 x 8730 FAX: (720)652-4211 Please tell us how we're doing: http: 'www.co.weld.co.us/dgearttnents/planning'comp_improve comments.cfin • 7/28/2009 Richard N. Lyons, II Lyons Gaddis Kahn S Hall Jeffrey J. Kahn Eve I. Canfield John W. Gaddis A Professional Corporation C Attorneys and Counselors Scott E. Holwick • Bradley A. Hall Matthew Machado Steven P.Jeffers Madoline Wallace-Gross Anton V. Dworak Chad A. Kupper Adele L. Reester Daniel F. Bernard Catherine A.Tallerico Senior Counsel Special Counsel July 28, 2OO9 Michelle Martin, Planner II VIA E-MAIL: Weld County Planning& Building Services mmartin@co.weld.co.us SW Weld Office ORIGINAL VIA REGULAR MAIL 4209 CR 24.5 Longmont CO 80504 Re: Case No. USR-1683, Application of Highland Ditch Company for a Site Specific Development Plan and Use by Special Review for an expansion of a Non-conforming use (ski club) in the A Zone District(the "Application") Dear Michelle: Our office represents the Highland Ditch Company(the "Company"). Pursuant to our telephone • conversation with you this morning regarding the above-referenced Application,the Company requests that the August 4, 2009 hearing before the Weld County Planning Commission on its application be continued. The Company makes the request for the following reasons: 1. On June 26, 2009,the Mulligan Fishing& Gun Club (the "Mulligan Club") served the Company with a Complaint consisting of fifteen claims, several of which will require the Court to make a legal determination as to the relative rights of use to the surface rights of Highland Reservoir No. 1 (a/k/a Mulligan Reservoir) between the Mulligan Club and the Company. A copy of the complaint in Case No. 09CV570 is attached hereto as Attachment No. 1. 2. On July 23, 2009,the Company filed an answer to the complaint generally denying the Mulligan Club's claims and raising a number of defenses on its behalf. A copy of the answer is attached hereto as Attachment No. 2. 3. Although the Court has not yet done so,the Court ultimately will enter a ruling on the claims and defenses asserted by the Mulligan Club and the Company. 4. Weld County's decision on the merits of the Application should be continued, otherwise the County may act in a manner that is not consistent with the Court's determinations. The Company submits this request one week prior to the August 4, 2009 hearing in hopes that the Planning& Building Services staff will: (a) recommend to the Planning Commission that the hearing be continued pending the resolution of those contested issues in Case No. 09CV570 that affect the application; and (b) contact those parties it knows to be interested in the application to inform them that it will make such a recommendation to the Planning Commission. 515 Kimbark Street • Second Floor • P.O. Box 978 • Longmont, CO 80502-0978 Phone: 303-776-9900 • Fax: 303-776-9100 • www.Igkhlaw.com Lyons Gaddis Kahn L. Hall A Professional Corporation C^ Attorneys and Counselors • Ms. Michelle Martin July 28, 2009 Page 2 The Company does not necessarily desire to delay the application. However, by filing the complaint in District Court,the Mulligan Club has chosen the forum in which to determine the rights of the parties to use the reservoir. Thus, at this time, it would seem inefficient and wasteful to proceed with the use by special review process. Please contact me with any further questions relating to the Application. Sincerely, LYONS GADDIS KAHN& HALL, PC By S. " Jeffrey J. Kahn Jkahn@igkhlaw.com Scott E. Hoiwick sholwick@lgkhlaw.com SEH cc: Board of Directors, Highland Ditch Company(w/o enclosures) • Todd Hodges (w/o enclosures) Ray Derr (w/o enclosures) S F:1Clients1H1HJGHL1Mulligan\Corr120 0 9 0 728-jjk-martin re ncu permit.doc 7/28/2009 • District Court,Weld County, Colorado P.O. Box 2038 Greeley, CO 80632 Plaintiff: MULLIGAN FISHING AND GUN CLUB, a Colorado nonprofit vs. corporation Defendant: HIGHLAND DITCH COMPANY, a Colorado nonprofit corporation, JOHN DOE, a person or persons ACOURT USE ONLYA whose real name is currently unknown to Plaintiff, and ALL UNICNOWN PERSONS who may claim any right title or interest in or to Highland Reservoir#1 David W. Pehr Case Number: Attorney for Plaintiff 8501 Turnpike Drive, Suite 110 Westminster, CO 80031 Phone: (303)427-1516 Fax: (303)428-7412 e-mail: dwp@zplaw:net • Atty. Reg. #7223 Division • SUMMONS THE PEOPLE OF THE STATE OF COLORADO TO THE ABOVE NAMED DEFENDANTS: You are hereby summoned and required to file with the Clerk of this Court an Answer or other response to the attached Complaint. If service of the Summons, Complaint was made upon you within the State of Colorado, you are required to file your Answer or other response within 20 days after such service upon you. If service of the Summons, Complaint was made upon you outside of the State of Colorado, you are required to file your Answer or other response within 30 days after such service upon you. 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 further notice. The following documents are also served herewith: . Dated this 3rd day of June 2009. David W. Pehr- 7223 THIS SUMMONS IS ISSUED PURSUANT TO RULE 4, CR.C.P. AS AMENDED. A COPY • OF THE COMPLAINT MUST BE SERVED WITH THIS SUMMONS. A �\ Attachmenqi)14' District Court,Weld County, Colorado P.O. Box 2038 Greeley, CO 80632 Plaintiff: MULLIGAN FISHING AND GUN CLUB, a Colorado nonprofit vs. corporation Defendant: HIGHLAND DITCH COMPANY, a Colorado nonprofit corporation, JOHN DOE, a person or persons ACOURT USE ONLYA whose real name is currently unknown to Plaintiff, and ALL UNKNOWN PERSONS who may • claim any right title or interest in or to Highland Reservoir#1 David W. Pehr Case Number: Attorney for Plaintiff 8501 Turnpike Drive, Suite 110 Westminster, CO 80031 Phone: (303) 427-1516 Fax: (303)428-7412 e-mail: dwp@zplaw.net Atty. Reg. #7223 Division COMPLAINT COMES NOW Plaintiff above named, by and through its attorney, David W. Pehr of the law firm of Zak & Pehr, P.C. and, for a complaint against Defendant, states and alleges as follows: GENERAL ALLEGATIONS 1. Plaintiff and Defendant Highland Ditch Company are Colorado • corporations existing under and by virtue of the laws of said state. 2. The persons joined herein under the name and style of John Doe are persons whose real names are unknown to Plaintiff but who claim some interest in the subject matter of this action. 1 • Attachment 1 • 3. The persons joined herein under the name and style of All Unknown Persons Who May Claim Any Right Title or Interest in.or to Highland Reservoir #1 are persons whose names are unknown to Plaintiff but who may claim some interest in property which is the subject of this action. 4. This action concerns a profit a prendre consisting of the exclusive right to hunt and fish in and on Highland Reservoir#1 in Section 22, Township 3 North, Range 68 West of the Sixth Principal Meridian, Weld County, Colorado. 5 Defendant Highland claims title to the above reservoir. 6. The persons joined herein as Defendants Doe have leased the right to use the reservoir for boating and water skiing from Defendant Highland. 7. Boating and water skiing are incompatible with Plaintiff's right to use the reservoir for fishing and hunting purposes and interfere with said right. 8 This action also concerns title to a parcel of land,hereinafter called Parcel 1, located on the West bank of the above reservoir and consisting of about ten acres on which Plaintiff has placed a clubhouse and other improvements and for which a proper description will be provided upon completion of a survey. • 9. This action also concerns title to a parcel of land,hereinafter called Parcel 2, described as a strip of ground 15 feet wide from the public highway on the West side of Section 22, Township 3 North, Range 68 West of the 6" Principal Meridian, to the club house now owned and maintained by the Mulligan Fishing and Gun Club, for which a proper . description will be provided upon completion of a survey. FIRST CLAIM FOR RELIEF (Exclusive Right to Hunt and Fish by Deed) 10. Plaintiff acquired the exclusive hunting and fishing rights to the Highland Reservoir #1 by virtue of deeds recorded in book 717 at reception numbers 1638624, 1638625, 1638626 and 1654461 of the books and records of the County of Weld and State of Colorado. 11. The exclusive right to hunt and fish on the said reservoir constitutes a valid and enforceable prof t a prendre. 12. Plaintiff is the lawful owner of the above described profit. Wherefore Plaintiff prays that this Court find, determine adjudge and decree that Plaintiff is the rightful and sole owner of all rights to hunt and fish on, in and adjacent to • 2 Attachment 1 Highland Reservoir #1 in Section 22, Township 3 North, Range 68 West of the Sixth Principal Meridian, Weld County, Colorado, that Plaintiff's said right is prior and superior to the right of any other party hereto to hunt and fish in, on or adjacent to the above reservoir, that Plaintiff have its costs as expended herein and for such other and further relief as to this Court may appear meet and just in the premises. SECOND CLAIM FOR RELIEF (Hunting,Fishing and Recreational Rights by Adverse Possession, Old Statute) 13. For a period exceeding eighteen years next preceding the commencement of this action Plaintiff has maintained exclusive possession of the above described reservoir for hunting, fishing and other recreational activities. 14. At all times material hereto such possession has been open and notorious. 15. At all times material hereto such possession has been continuous. 16 At all times material hereto such possession has been exclusive. 17. At all times material hereto such possession has been adverse to the title and interest of all other parties hereto. •_ 18. At all times material hereto such possession has been real and actual. 19. Plaintiffs possession began prior to July 1, 2008. Wherefore Plaintiff prays that this Court find, determine adjudge and decree that Plaintiff is the rightful and sole owner of all rights to hunt, fish and conduct recreational activities on, in and adjacent to Highland Reservoir#1 in Section 22, Township 3 North, Range 68 West of the Sixth Principal Meridian, Weld County, Colorado, that Plaintiffs said right is prior and superior to the right of any other party hereto to hunt, fish or conduct other recreational activities in or on said property, that Plaintiff have its costs as expended herein and for such other and further relief as to this Court may appear meet and just in the premises. THIRD CLAIM FOR RELIEF (Hunting,Fishing and Recreational Rights by Adverse Possession,New Statute) 20. For a period exceeding eighteen years next preceding the commencement of this action Plaintiff has maintained exclusive possession of the above described Highland Reservoir for hunting, fishing and other recreational activities. 3 • Attachment 1 • 21. At all times material hereto such possession has been open and notorious. 22. At all times material hereto such possession has been continuous. 23. At all times material hereto such possession has been exclusive. 24. At all times material hereto such possession has been adverse to the title of all other parties hereto. 25. At all times material hereto such possession has been real and actual. 26. At all times material hereto Plaintiff believed that it was the true and actual owner of the Property. 27. Plaintiff held such belief in good faith. 28. Such belief was reasonable under the circumstances herein pertaining. 29. An award of compensation to the Defendants is neither fair nor equitable under the circumstances herein presented. • Wherefore Plaintiff prays that this Court find, determine adjudge and decree that Plaintiff is the rightful and sole owner of all rights to hunt, fish and conduct recreational activities on, in and adjacent to Highland Reservoir#1 located in Section 22, Township 3 North, Range 68 West of the Sixth Principal Meridian, Weld County, Colorado, that Plaintiff's said right is prior and superior to the right of any other party hereto to hunt, fish or conduct other recreational activities in or on said property, that Plaintiff have its costs as expended herein and for such other and further relief as to this Court may appear meet and just in the premises. FOURTH CLAIM FOR RELIEF (Right to Maintain Clubhouse and Improvements on Parcel 1) 30. Plaintiff acquired the right to maintain a clubhouse and other improvements on Parcel 1 by virtue of deeds recorded in book 717 at reception numbers 1638624, 1638625, 1638626 and 1654461. 31. By said deeds Plaintiff also acquired ownership of said improvements. 32. Plaintiff is the lawful owner of and holds exclusive title to the above described clubhouse and dock and other improvements built by Plaintiff on Parcel 1. • 4 Attachment 1 ti • Wherefore Plaintiff prays that this Court find, determine adjudge and decree that Plaintiff is the rightful and sole owner of the clubhouse, dock and other improvements built on Parcel 1 by Plaintiff, that Plaintiff have its costs as expended herein and for such other and further relief as to this Court may appear meet and just in the premises. FIFTH CLAIM FOR RELIEF (Title to Parcel 1 by Adverse Possession, Old Statute) 33. For a period exceeding eighteen years next preceding the commencement of this action Plaintiff has maintained the exclusive possession of Parcel 1. 34. At all times material hereto such possession has been open and notorious. 35. At all times material hereto such possession has been continuous. 36. At all times material hereto such possession has been exclusive. 37. At all times material hereto such possession has been adverse to the title or interest of any other party hereto. 38. At all times material hereto such possession has been real and actual. • 39. Plaintiffs possession began prior to July 1,2008. Wherefore Plaintiff prays that this Court find, determine adjudge and decree that Plaintiff is the rightful and sole owner of Parcel I, that Plaintiff's said right, title and interest is prior and superior to the right of any other party in said Parcel 1, that Plaintiff have its costs as expended herein and for such other and further relief as to this Court may appear meet and just in the premises. SIXTH CLAIM FOR RELIEF (Title to Parcel 1 by Adverse Possession,New Statute) 40. For a period exceeding eighteen years next preceding the commencement of this action Plaintiff has maintained exclusive possession of Parcel I. 41. At all times material hereto such possession has been open and notorious. 42. At all times material hereto such possession has been continuous. 43. At all times material hereto such possession has been exclusive. 5 Attachment 1 • 44. At all times material hereto such possession has been adverse to the title or interest of all other parties to this action. 45. At all times material hereto such possession has been real and actual. 46. At all times material hereto Plaintiff believed that it was the true and actual owner of Parcel 1. 47. Plaintiff held such belief in good faith. 48. Such belief was reasonable under the circumstances herein pertaining. 49. An award of compensation to the parties defendant is neither fair nor equitable under the circumstances herein presented. Wherefore Plaintiff prays that this Court find, determine adjudge and decree that Plaintiff is the rightful and sole owner of Parcel 1, that Plaintiff's said right, title and interest is prior and superior to the right of any other party in said Parcel 1, that Plaintiff have its costs as expended herein and for such other and further relief as to this Court may appear meet and just in the premises. • SEVENTH CLAIM FOR RELIEF (Title to Parcel 2 by Deed) 50. Plaintiff acquired ownership of and title to Parcel 2 by virtue deeds recorded in book 717 at reception numbers 1638624, 1638625, 1638626 and 1654461 of the books and records of the County of Weld and State of Colorado. 51 Plaintiff is the lawful owner of and holds exclusive title to Parce12. Wherefore Plaintiff prays that this Court fmd, determine adjudge and decree that Plaintiff holds sole and exclusive title to said Parcel 2, that Plaintiff's title thereto is prior and superior to the rights of any other party hereto, that Plaintiff have its costs as expended herein and for such other and further relief as to this Court may appear meet and just in the premises. EIGHTH CLAIM FOR RELIEF (Title to Parcel 2 by Adverse Possession, Old Statute) 52. For a period exceeding eighteen years next preceding the commencement of this action Plaintiff has maintained exclusive possession of Parcel 2. • 6 Attachment 1 • • 53. At all times material hereto such possession has been open and notorious. 54. At all times material hereto such possession has been continuous. 55. At all times material hereto such possession has been exclusive. 56. At all times material hereto such possession has been adverse to the title or interest of any third person. • 57. At all times material hereto such possession has been real and actual. 58. Plaintiff's possession began prior to July I, 2008. Wherefore Plaintiff prays that this Court find, determine adjudge and decree that Plaintiff holds sole and exclusive title to said Parcel 2, that Plaintiff's title thereto is prior and superior to the rights of any other party hereto, that Plaintiff have its costs as expended herein and for such other and further relief as to this Court may appear meet and just in the premises. NINTH CLAIM FOR RELIEF (Title to Parcel 2 by Adverse Possession,New Statute) 59. For a period exceeding eighteen years next preceding the commencement • of this action Plaintiff has maintained exclusive possession of Parcel 2. 60. At all times material hereto such possession has been open and notorious. - 61. At all times material hereto such possession has been continuous. 62. At all times material hereto such possession has been exclusive. 63. At all times material hereto such possession has been adverse to the title or interest of all other parties hereto. 64. • At all times material hereto such possession has been real and actual. 65. At all times material hereto Plaintiff believed that it was the true and actual owner of the Property. 66. Plaintiff held such belief in good faith. 67. Such belief was reasonable under the circumstances herein pertaining. 7 Attachment 1 • 68. An award of compensation to the parties defendant is neither fair nor equitable under the circumstances herein presented. Wherefore Plaintiff prays that this Court find, determine adjudge and decree that Plaintiff holds sole and exclusive title to said Parcel 2, that Plaintiffs title thereto is prior and superior to the rights of any other party hereto, that Plaintiff have its costs as expended herein and for such other and further relief as to this Court may appear meet and just in the premises TENTH CLAIM FOR RELIEF (Easement for Access by Prescription) 69. For a period exceeding eighteen years next preceding the commencement of this action Plaintiff has used a road constructed by Plaintiff over across and through Parcel 2 in order to access the reservoir and exercise its rights to hunt and fish thereon. 70. At all times material hereto such use has been open and notorious. 71. At all times material hereto such use has been continuous. 72. At all times material hereto such use has been adverse to the title or • interest of all other parties hereto. 73. At all times material hereto such use has been real and actual. Wherefore Plaintiff prays that this Court find, determine adjudge and decree that Plaintiff has and owns an easement over and across Parcel 2 for ingress to and egress from Highland Reservoir#1 in order to exercise its exclusive right to hunt and fish in such reservoir, that Plaintiff's said easement is prior and superior to the right of any other party in or to said Parcel 2,that Plaintiff have its costs as expended herein and for such other and further relief as to this Court may appear meet and just in the premises. ELEVENTH CLAIM FOR RELIEF (Under Rule 105, C.R.C.P. as to Fishing and Hunting Rights) 74. Plaintiff claims the exclusive right to hunt and fish on the above reservoir. 75 Defendants, by word and action, deny Plaintiff's claimed right. 76. Pursuant to Rule 105, C.R.C.P. Plaintiff requests an adjudication of the interests of all parties in and to the reservoir. • 8 Attachment 1 • • WHEREFORE, Plaintiffs pray that this Court adjudicate and decree the rights of all parties in and to the above described property, that Plaintiff be awarded his costs as incurred herein and for such other relief as may to this Court appear meet and just in the premises. TWELFTH CLAIM FOR RELIEF (Under Rule 105, C.R.C.P. as to Parcels 1 and 2) 77. Plaintiff claims title to Parcels 1 and 2, above described. 78. Defendants,by word and action, deny Plaintiff's claimed title. 79. Pursuant to Rule 105, C.R.C.P. Plaintiff requests an adjudication of the interests of all parties in and to Parcels 1 and 2. WHEREFORE, Plaintiffs pray that this Court adjudicate and decree the rights of all parties in and to the above described property, that Plaintiff be awarded his costs as incurred herein and for such other relief as may to this Court appear meet and just in the premises. THIRTEENTH CLAIM FOR RELIEF (Preliminary Injunction) • 80 Plaintiff has a reasonable probability of success on the merits. 81 There is a danger of real, immediate and irreparable injury to Plaintiff which may be prevented by the temporary injunctive relief herein requested. 82 Plaintiff has no plain, speedy and adequate remedy at law. 83 The injunction herein sought will not disserve the public interest. 84 The balance of equities favors granting the injunctive relief herein sought. 85 The injunction herein sought will preserve the status quo pending a trial of this action on the merits. Wherefore Plaintiff prays that this Court enter its order enjoining Defendant from interfering with Plaintiff's use and enjoyment of the Reservoir, Parcel 1 or Parcel 2 during the pendency of this action and expressly enjoining the defendants, or any of them, from using the surface of the reservoir for water skiing or other recreational purposes and from going upon the said reservoir,parcel 1 or parcel 2. 9 Attachment 1 • FOURTEENTH CLAIM FOR RELIEF (Permanent Injunctive Relief) 86 Plaintiff owns the properties and rights herein above described. 87 Defendants have trespassed upon Plaintiff's properties and interfered with Plaintiff's exercise of its rights in the reservoir. 88 Unless restrained,Defendants will continue so to trespass in the future. 89 Such interference constitutes a continuing trespass against which Plaintiff is entitled to a permanent injunctive relief. Wherefore Plaintiff prays that this Court enter its order permanently enjoining Defendants from interfering with Plaintiffs use and enjoyment of its properties and its rights in the reservoir and from trespassing on the same, for its costs as herein incurred and for such other and further relief as to this court may appear meet and just in the premises. FIFTEENTH CLAIM FOR RELIEF Damages for Trespass • 90 At all times material hereto Plaintiff owned and was entitled to possession of Parcels 1 and 2. 91 One or more of the Defendants entered upon the said properties of Plaintiff on several occasions without Plaintiffs permission. 92 Defendants damaged Plaintiff's property during such trespasses. 93 Defendant's conduct in committing the above trespasses was willful, intentional and malicious and such as to justify the imposition of punitive damages against Defendants and each of them. 94 Plaintiff has been injured and damaged by the trespass of Defendants. Wherefore Plaintiff prays judgment against Defendants and each of them for compensatory damages in an amount to be determined at trial, for punitive damages in an amount to be determined at trial, for its costs as expended herein, for its attorney fees as expended herein and for such other and further relief as too this Court may appear meet and just in the premises. . 10 Attachment 1 • Respectfully submitted, ZAK&PEHR, P.C. David W. Pehr-7223 Attorney for Plaintiff Plaintiff's address 4444 W. Cottonwood Place Littleton, CO 80123 Ii 11 Attachment 1 • • District Court, Weld County, Colorado P.O. Box 2038 Greeley, CO 80632 Plaintiff: MULLIGAN FISHING AND GUN CLUB, a Colorado nonprofit vs. corporation Defendant: HIGHLAND DITCH COMPANY, a Colorado nonprofit corporation, JOHN DOE, a person or persons ACOURT USE ONLYA whose real name is currently unknown to Plaintiff, and ALL UNKNOWN PERSONS who may claim any right title or interest in or to Highland Reservoir#1 David W. Peter Case Number: Attorney for Plaintiff • 8501 Turnpike Drive, Suite 110 Westminster, CO 80031 Phone: (303)427-1516 Fax: (303)428-7412 e mail: dwp@zplaw.net Atty. Reg. #7223 Division DISTRICT CIVIL CASE COVER SHEET FOR INITIAL PLEADING OF COMPLAINT, COUNTERCLAIM, CROSS-CLAIM OR THIRD PARTY COMPLAINT 1. This cover sheet is filed by a party or attorney for the party to this case. This cover sheet is not to be filed in a Domestic Relations, Probate, Water, Juvenile, or Mental Health case. Check the boxes applicable to this case. 0 Simplified Procedure under C.R.C.P. 16.1 applies to this case because this case is not a class action, forcible entry and detainer, Rule 106, Rule 120, or other expedited proceeding and because this party does not seek a monetary judgment in excess of $100,000.00 against another party, including any attorney fees, penalties or punitive damages but excluding interests and costs. ❑ This case is not subject to the Simplified Procedure for actions pursuant to C.R.C.P. 16.1,because: • 1 Attachment 1 • ❑ This is a class action, forcible entry and detainer, Rule 106, Rule 120, or other similar expedited proceeding. or D This party is seeking a monetary judgment for more than $100,000.00 against another party, including attorney fees, penalties or punitive damages,but excluding interests and costs (see C.R.C.P. 16.1(c)). 2. This party makes a Jury Demand. ❑ Yes El No This party understands: 1. Even if the claim is for a monetary judgment against another party in excess of $100,000.00, all parties, within 45 days of the case being at issue, can file a stipulation to be subject to simplified procedures of C.R.C.P. 16.1 and without the $100,000.00 judgment limitation under the rule. 2. Even if all parties have indicated that Rule 16.1 applies to this case, any party, within 35 days of the case being at issue, may elect to have the case excluded from the Simplified Procedure of the Rule by filing with the court in this action a notice, pursuant to Rule 16.1(d), which may be in the form and content of a • "Notice to Elect Exclusion From C.R.C.P. 16.1", Appendix to Chapters 1 to 17, Form 1.3 (JDF 602). ZAK AND PE , P.C. David W. Pehr- 7223 Date ✓ Any party making a claim against another party must complete this cover sheet for all District Civil Cases. ✓ Any party that is required to file this cover sheet must serve a copy on all other parties along with the first pleading. • 2 Attachment 1 • DISTRICT COURT,COUNTY OF WELD, COLORADO Court Address: P.O. Box 2038 Greeley, CO 80632 MUD Document—District Court 2009O'570 970-351-7300 CO Weld County District Court 19th JD Filing Date:Jul 23 2009 2:05PM MDT Filing ID:26258168 Plaintiffs-: MULLIGAN FISHING AND GUN CLUB, a Colorado non- profit corporation Defendants-: HIGHLAND DITCH COMPANY, a Colorado non- profit corporation;JOHN DOE, a person or person whose real name is currently unknown to Plaintiff; and ALL UNKNOWN PERSONS who may claim any right,title or interest in or to Highland Reservoir No.1 s COURT USE ONLY s OVERTURF McGATH HULL & DOHERTY, P.C. Case Number: 09CV570 Mark C. Overturf#15188 Ctrm: • Nikolai N. Frant#38716 625 E. 16th Avenue, Suite 100 Denver, Colorado 80203 Telephone: 303-860-2848 Facsimile: 303-860-2869 E-mail mco@omhdlaw.com nnf@omhdlaw.com DEFENDANT HIGHLAND DITCH COMPANY'S ANSWER AND JURY DEMAND Defendant HIGHLAND DITCH COMPANY, by and through its attorneys OVERTURF MCGATH HULL & DOHERTY, P.C., for its Answer to Plaintiffs Complaint, states and alleges: 1. As to the allegations of Paragraph 1 of the Complaint, Defendant HDC admits that both Plaintiff and Defendant HDC are Colorado nonprofit corporations existing under the laws of the state of Colorado and denies any contrary representations contained in Paragraph 1. • 4890 Attachment 2 2. Defendant HDC has insufficient knowledge to admit or deny the • allegations of Paragraphs 2, 3, 6, 8, 9, 74, 75, 77 and 78 of the Complaint and therefore denies same. 3. Defendant HDC admits the allegations of Paragraph 5 of the Complaint. 4. Defendant HDC denies the allegations of Paragraphs 4, 7, 13 - 29, 31 - 49, 51 - 73, and 80 - 94 of the Complaint. 5. As to the allegations of Paragraph 10 of the Complaint, Defendant HDC admits that documents were recorded in book 717 at reception numbers 1638624, 1638625, 1638626 and 1654461 of the books and records of the County of Weld and State of Colorado and further states that the documents speak for themselves and denies any contrary representations regarding their meaning. 6. As to the allegations of Paragraphs 30 and 50 of the Complaint, Defendant HDC admits that documents were recorded in book 717 at reception numbers 1638624, 1638625, 1638626 and 1654461 and further states that the documents speak for themselves and denies any contrary representations regarding their meaning. 7. The allegations of paragraphs 11 and 12 of the Complaint contain legal conclusions to which no response is required. To the extent a response to the • allegations is required, Defendant HDC denies any allegation that is contrary to the applicable law. 8. Paragraphs 76 and 79 of the Complaint contain a request for relief to which no response from Defendant HDC is required. GENERAL DENIAL 1. Defendant HDC denies any factual allegations not expressly admitted above. AFFIRMATIVE DEFENSES 1. Plaintiff's Complaint fails to state a claim upon which relief may be granted. 2. Plaintiffs Complaint fails to include parties who are indispensable to this lawsuit. 3. Plaintiff is not the real party in interest with respect to all or portion of its claimed injuries and damages. • 2 Attachment 2 • 4. Plaintiff's claims of adverse possession and prescription fail because Plaintiff's claim of right was not open, notorious, adverse, and/or did not meet the minimum time requirements. 5. The injuries suffered by the Plaintiff, if any, were as a result of actions of third parties over whom Defendant HDC had no control or right of control. 6. Plaintiff's claims are barred by the doctrines of waiver, laches, and estoppel. 7. Defendant HDC is entitled to ownership and right to use through deed, or alternatively by contract, consent, agreement, equitable title or ownership, or adverse possession. 8. The conduct of the parties evidences and establishes ownership and right to use by Defendant HDC. 9. Plaintiff's claims are barred or reduced by the doctrine of after acquired title or estoppel by deed. . 10. Defendant HDC's actions were at all times privileged. 11. Plaintiff has not been damaged, but if so, has failed to take reasonable actions to minimize or mitigate its claimed damages. 12. Plaintiff's claims are barred by the applicable statute of limitations. 13. Defendant's actions were at all times within Plaintiff's express, implied, or constructive consent. 14. Plaintiff's damages, if any, are barred or reduced by Plaintiff's actions or fault pursuant to C.R.S. § 13-21-111 et seq. WHEREFORE, Defendant Highland Ditch Company, having answered Plaintiff's Complaint, prays that the same be dismissed, with prejudice, and that Defendant be awarded its costs of suit, attorney's fees, and all further relief deemed appropriate by the Court. JURY DEMAND DEFENDANT HDC DEMANDS TRIAL TO A JURY OF SIX (6) PERSONS ON • ALL ISSUES HEREIN JOINED. 3 Attachment 2 Respectfully submitted, OVERTURF McGATH HULL & DOHERTY, P.C. By S/Mark C. Overturf Mark C. Overturf#15188 Nikolai N. Frant#38716 Attorneys for Defendant Defendant's Address: Highland Ditch Company 4309 State Highway 66 Longmont, CO 80504 • I HEREBY CERTIFY that a true and correct copy of the foregoing Defendant Highland Ditch Company's Answer was electronically filed through LexisNexis CourtLink this 23rd day of July 2009, and served on the following: David W. Pehr, Esq. 8501 Turnpike Drive,Suite 110 Westminster,CO 80033 Jeffrey J. Kahn, Esq. Scott E. Holwick, ESq. Lyons Gaddis Kahn Sr Hall, P.C. P.O. Box 978 Longmont, CO 80501-0978 S/ Terry Sandahl In accordance with C.R.C.P.121,§1-26(9),a printed copy of this document with original signatures is being maintained by the filing party and will be made available for inspection by other parties or the Court upon request. • 4 Attachment 2 Page 1 of 1 Michelle Martin • From: HighlandDitch@aol com Sent: Monday, July 27, 2009 9:57 AM To: Michelle Martin; DDstaver@aol.com; doublesfarms@gmail.com; ButchSekich@aol.com; Kent.peppler@rmfu.org; toddhodges@gwestoffice.net; Rederrcpa@aol.com; JKahn@blglaw.com Subject: USR- 1683 July 27, 2009 Michelle Martin Highland Ditch Company would like to request that the hearing scheduled for August 4, 2009, be delayed until other legal matters regarding the lake be resolved first, as Todd Hodges and Ray Derr discussed with you today! Thank you, Jill A Baty/Office Manager • 7/27/2009 aral • DEPARTML OF PLANNING SERVICES SOUTHWEST OFFICE 4209 CR 24.5 LONGMONT, CO 80504 • PHONE: (720)652-4210, Ext. 8730 FAX: (720) 652-4211 111k COLORADO November 24, 2008 Highland Ditch Company do Todd Hodges 1269 N Cleveland Av Loveland CO 80537 Subject: USR-1683 - Request for a Site Specific Development Plan and Special Review Permit for an Expansion of a Non-conforming Use (Ski Club) in the A(Agricultural)Zone District on a parcel of land described as Mulligan Reservoir in Section 22, T3N, R68W of the 6th P.M., Weld County, Colorado. Dear Applicants: Your application and related materials for the request described above are being processed. I will schedule a meeting with you to discuss the referrals after we have been received them. Once the concerns and requirements of the referral agencies have been met or the applicant has show an attempt to meet their concerns and requirements, a Planning Commission Hearing will be scheduled. • It is the policy of Weld County to refer an application to any town or municipality lying within three miles of the property or if the property is located within the comprehensive planning area of a town or municipality. Therefore, our office has forwarded a copy of the submitted materials to the Firestone, Longmont, and Mead Planning Commission for their review and comments. Please call Firestone at 303-833-3291, Longmont at 303-651-8601, and Mead at 970-535-4477 for further details regarding the date, time, and place of this meeting. It is recommended that you and/or a representative be in attendance at the Firestone, Longmont, and Mead Planning Commission meeting to answer any questions the Commission members may have with respect to your application. If you have any questions concerning this application, please call. Respectfully, Michelle Martin Planner • a • DEPARTMt' OF PLANNING SERVICES SOUTHWEST OFFICE 42 C 24.5 LONGMON 2, CO 80504 • "DC. PHONE: (720)652-4210, Ext. 8730 FAX: (720)652-4211 COLORADO November 24, 2008 Highland Ditch Company c/o Todd Hodges 1269 N Cleveland Av Loveland CO 80537 Subject: USR-1683- Request for a Site Specific Development Plan and Special Review Permit for an Expansion of a Non-conforming Use (Ski Club) in the A(Agricultural)Zone District on a parcel of land described as Mulligan Reservoir in Section 22, T3N, R68W of the 6th P.M., Weld County, Colorado. Dear Applicants: Your application and related materials for the request described above are being processed. I will schedule a meeting with you to discuss the referrals after we have been received them. Once the concerns and requirements of the referral agencies have been met or the applicant has show an attempt to meet their concerns and requirements, a Planning Commission Hearing will be scheduled. • It is the policy of Weld County to refer an application to any town or municipality lying within three miles of the property or if the property is located within the comprehensive planning area of a town or municipality. Therefore, our office has forwarded a copy of the submitted materials to the Firestone, Longmont, and Mead Planning Commission for their review and comments. Please call Firestone at 303-833-3291, Longmont at 303-651-8601, and Mead at 970-535-4477 for further details regarding the date, time, and place of this meeting. It is recommended that you and/or a representative be in attendance at the Firestone, Longmont, and Mead Planning Commission meeting to answer any questions the Commission members may have with respect to your application. If you have any questions concerning this application, please call. Respectfully, (MU11 'L=-l'r) L`1' Michelle Martin Planner • • • Page 1 of 1 Todd Hodges @ Todd Hodges Design, LLC • From: "Chris Gathman"<cgathman@co.weld.co.us> To: <toddhodgesdesign@gwestoffice.net> Cc: "Bethany Salzman"<bsalzman@co.weld.co.us> Sent: Wednesday, November 05, 2008 2:48 PM Subject: Highland Ditch Use By Special Review Permit Application Todd, The Department of Planning Services has reviewed your Special Review Permit for the Highland Ditch Company (Section 22 T3N R68W—Pre Application#PA08-061)and has determined the application to be complete. You can therefore submit the remainder of the applications for processing. Sincerely, Chris Gathman,AICP,Planner II Weld County Department of Planning Services 918 10th Street,Greeley, Colorado 80631 ph(970)353-6100 ext. 3540 fax(970)304-6498 • • 11/19/2008 • MEMORANDUM III a DATE: 25, 2008 Case File 8 061, pre-application Jul COLORADO FROM: Kim Ogle, Planning Manager SUBJECT: Pre-Application Meeting prior to submitting A Use by Special Review application Attendees: Ray Derr, Highland Ditch Company Bob Schlagel, Highland Ditch Company Butch Sekich, Highland Ditch Company Don Dunker, Public Works No Representative, Environmental Health Frank Piacentino, Building inspection Tom Honn, Planning Kim Ogle, Planning • On Friday July 25, 2008 an informal meeting was held in the Southwest Service Center Conference Room) regarding the proposed expansion of a NCU to include water skiing on Mulligan Reservoir. (The legal description is part of Section 22, Township 3 North, Range 68 West of the 6v' P.M. There are limited improvements located on site, including a boat dock on pontoons, access roads and designated parking areas.) Background Information: Mulligan Reservoir has historically been utilized by two separate groups; the hunters and fishers and the recreational lake users whom are represented today. The proposed expansion is to include motorized water craft for skiing on the lake. No jet boats would be allowed per agreement with club members and guests. It is anticipated that this use would occur mid spring to mid summer and occur within the 73 acre surface area and during daylight hours only. There will be no overnight parking or camping permitted as part of this application Physical improvements include the ditch, the head gate and associated encumbrances associated with the acceptance and delivery of water. Access to the lake is restricted to an easement from the North and a potential access from CR 7 heading East through a locked gate or from the South across lands owned by Schmidt. Recorded documents are not of record, although there is an understanding in place. Planning staff strongly encouraged written, signed and recorded easements to be of record to protect their future interests. Additional improvements proposed include a second dock and a boat ramp. Water and sanitary • are available although the facility has neither and utilizes a 1922 club house for storage of materials and a port-a-let for lavatory functions. There was limited discussion on the Emergency Preparedness Plan and the role of the State Engineers Office as a regulatory body for the maintenance, structural integrity and operation of • • • the direct fill and storage Reservoir. It is estimated that there is approximately 978 acre feet at this location. The applicant will be required to obtain a Dam Report from the State Engineers Office to demonstrate integrity of the dam and built up areas. Provided that this document is able to demonstrate structural integrity from wave action, a USR application may be submitted. Ogle provided brief narrative of the materials submitted by the Mulligan Fishing and Gun Club stipulating that their activities have been ongoing from a date uncertain prior to 1972. Documents submitted indicate 1974, whereas the construction of the Club house was 1922 and recognized as such. Planning will acknowledge both users as a NCU given the materials in hand. Public Works provided a summary of the requirements for this application and is attached herein. A Site plan is required delineating parking, circulation, stop blocks, and signs. A traffic study is not required however, a estimate of the vehicle trips for this facility is requested. Public Works noted that a Preliminary Drainage Report, a Geo-Technical Soil Report is not required. The site may or may not be within the Floodplain, therefore a FHDP Permit is not known as of the meeting date and time. Public Works will follow-up with this determination. Public Works noted that existing access across lands owned by others requires a recorded easement. Lighting will not be likely present. Landscape treatment will not be improved from the native condition. Although not specifically discussed, the oil and gas interests require addressing to provide evidence that their concerns, if any, have been mitigated. Also, County government will require • an improvements agreement to be submitted for all on-site improvements. Planning staff will provide additional detail to this point in the staff administrative comments associated with the application referral comments. End memorandum. • Cc 4 c F:t.JS .CIL u 61 Plc)Si*" '' Gs IS rc C 1AJ 16 bzss ,c,, ,_, is c ^ it zsonk S.,.�� '/ /s, t di lc l/& 8 c CA t k Ike. (-_, 2 (2) y ,t>.z .S g i ✓^_ GOO Ci c fZkS , 1. 41 3(7 tug-7 tvc s iz,)-k, w ,.ice Ca A-1 NfcJI--4— (n..,0,/ air1/4,z.. re' : t got R- / 0/ ''t X25 PyIP)4 41- i 3 Sig Pc-- Ic, at. pa,Vs,Z. 01,4 4JC- e ,Liri bee . no 5)- Cci-c/4 co—( /14e,Vt_. 7 )14Ve Zu 4 It fr-s A) ix:Lii- ch,C,3 Fits tv-AS till'(-7 k:: . lo d' f ,, 44- Fs),) go,../6s ar 5 4.4 $Aoot t? OA '.5 Is i& T/fit (--Q Ic c `I SL/kit-1,A) , , J ,.,.( c I4 c e . ,J f� w4 /'/_ 1 -,oL 1n C: - Cc)n _0( G6 4 uc: b s7S/ ins - r fpnc.i2_ silO 5Jocl( I— (Ik3A his fnd-1 c.„) -er Nb OarsC ossis • + cl r 5c/r‘ C`U, 1/62_ Cc->S t S so; vn ` 5 4O';wine APPLICATION FLOW SHEET • COLORADO APPLICANT: Highland Ditch Company CASE#: USR-1683 REQUEST: A Site Specific Development Plan and Special Review Permit for an Expansion of a Nonconforming Use,fishing and hunting club to 70 members and the following additional recreational uses: boating, scuba diving, water skiing, hiking, sailing, kayaking, canoeing, and overnight camping in the A (Agricultural)Zone District LEGAL: Mulligan Reservoir in Section 22,T3N, R68W of the 6th P.M.,Weld County, CO LOCATION: South of County Road 32 and East of County Road 7 PARCEL ID#: 1207 22 000041 ACRES: +/_ 115.29 DATE BY Application Received 11/19/08 mm Application Updated 10/18/2011 Application Complete 11/23/08 mm Application Updated 10/18/2011 PC Hearing Date: Action: Utility Board Date: PC Sign to be Posted By: PC Sign Posted • Referrals Listed 11/23/08 mm Application Updated 10/18/2011 File Assembled Referrals Mailed IO�tCf 11 Chaindexed � Letter to Applicant Mailed Date Public Notice Published in County Newspaper Surrounding Property& Mineral Owners Notified I DI I I I Planning Technician Maps Prepared Field Check by DPS Staff Planning Commission Resolution Sent to Applicant Planning Commission Meeting Minutes Filed in Case Case Sent to Clerk to the Board CC Hearing: Action: CC Sign to be Posted By: CC Sign Posted • Plat and/or Resolution Recorded Recorded on Maps and filed Overlay Districts Zoning Agricultural Geologic Yes_ No X_ Airport Yes No X_ Flood Hazard Yes_X_ No Road Impact Area Panel#080266 0850C Hello