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Home My WebLink About20060095.tiff 7454 South Depew Street Littleton, CO 80123-7010 March 28, 2005 Clerk to the Board Board forWeld County Commissioners 915 10th Street Greeley, CO 80632 Re: USR#1495 Gentlemen: This letter is written to request that the applicant name of Marcelle Geudner be removed from the application, leaving Jess R. Aragon as the sole applicant of the Use by Special Review, USR#1495. Mr. Aragon wishes to continue with the application process now as by both sole owner and applicant. I sold Jess Aragon my remaining one-half interest in the property located at 28629 WCR 17, on February 28, 2005. The sale also included my ownership interest in the public access road serving the property. The deed was recorded by Mr. Aragon on that same date. Enclosed is a copy of the deed mentioned above and dated February 28, 2005. Please send all future correspondence to Mr. Aragon at 1001 East Harmony Road, #192, Fort Collins, CO 80525. If you have any questions regarding this matter, I can be reached at 303-979-7814. Thanks for all you have done to expedite this process in a fair and unbiased manner. Sincerely, "^ 3 Marcelle Geudner Enclosure EXHIBIT use *1415 2006-0095 206 3264206 02/28/2005 03:23P Weld County, CO 1 of 1 R 6.00 D 0.00 Steve Moreno Clerk& Recorder QUITCLAIM DEED Grantor(s) MARCELLE L. GEUDNER, whose address is 7454 S. DEPEW STREET, LITTLETON, CO 80128, County of Jefferson and the State of Colorado, for and in consideration of the sum of other good and valuable consideration and ten($10)Dollars in band paid, hereby sell(s) and quitclaims(s)to Grantee, JESS R. ARAGON whose address is 1001 E. Harmony Road, 1192, FORT COLLINS,CO 80525, County of Larimer and State of Colorado, the following real property, in the County of Weld, State of Colorado, to wit: Part of the NE 4 of Section 8, Township 5 North, Range 67 West of the 6" ! P.M. , County of Weld, State of Colorado, more particularly described as follows : Beginning at the East , corner of .said Section 8, Township 5 North, .range 67 west of' the 6" P.M. , and considering the East line of said Section 8, Township 5 North, Range 67 West of the 6" P.M. , to bear North 00°00 ' 00" East and all other bearings contained herein relative thereto: Thence South 89°54 ' 12" West, 753 .45 feet along the South line -of the Northeast , of said Section 8 to the True Point of Beginning; Thence continuing South 89°54 ' 12" West, 347 . 55 feet along the South line of the Northeast 'i of- said Section 8 ; Thence North 00°00 ' 00" East, 588 . 30 feet; Thence North 88°43 ' 58" East, 347 . 64 feet; Thence South 00°00 ' 00" West, 595 . 38 feet to the South line of the Northeast , of said Section 8 and the True Point of beginning, County of Weld, State of Colorado together with any and all rights for use of the private road or ea"Sement created by the Quit Claim Deed of Jerry Bigbee recorded in Book 928 at Reception No . 1849942 on February 18, 1982 in the records of Weld County, Colorado . also known by the street and number as: 28629 W.C.R. 17, WINDSOR, CO 80550 assessor's schedule or parcel number: 095708000045 with all its appurtenances- Signed this 28"' day of February, 2005 . C r \°� �•dL cl��`� „�9 ''lam MARCELLEL. GEUDNER STATE OF COLORADO ) ss. ............•• • COUNTY OF LARIMER ) : pRY.PUe' The foregoing instrument was acknowledged before me this 28r" day of February.2005 by MARCEL APRIL M GEUDNER. �:, KRENNING i Witness my hand and official seal: N�, let My commission expires471 ), My Commission Expires June fr, 006 Page 1 of 3 Filings in All Cases Expand All 11512 114 Search Select Go 1 through 20 of 20 ❑ T Date Filing Filing JD Court Case Number Case Name Authorizer Option Time 1 ET) CO Weld WEINMEISTER, GARY AND File And May 9 2005 County 2005CV265 KATHLE et al vs. GEUDNER, Warren W Details 7111 5780330 Serve 5:47PM District Court Schaeffer MARCELLE L et al 19th JD Filing Type Document Title Linked Size flDisclosure Plaintiffs' Rule 26.2 Disclosures 0.1M Certificate CO Weld Apr 18 WEINMEISTER, GARY AND Daniel S File And County ❑1] 5634051 2005 District Court 2005CV265 KATHLE et al vs. GEUDNER, Maus Details Serve 12:49PM 19th JD MARCELLE Let al Filing Type Document Title Linked Size Order AMENDED ORDER JOINING NECESSARY PARTY ENTERED (DSM} 0.1M CO Weld Apr 15 WEINMEISTER, GARY AND File And County E0 5624413 2005 District Court 2005CV265 KATHLE et al vs. GEUDNER, Richard F Zier Details Serve 1:13PM 19th JD MARCELLE Let al Filing Type Document Title Linked Size H Proposed Order Amended Order Joining Necessary_Party 0.1M CO Weld Apr 14 WEINMEISTER, GARY AND Daniel S File And County ❑E 5616414 2005 District Court 2005CV265 KATHLE et al vs. GEUDNER, Maus Details Serve 2:04PM 19th JD MARCELLE Let al Filing Type Document Title Linked Size H Order ORDER GRANTING MOTIONTO JOIN JEFF ARAGON AS NECESSARY II 0.1M PARTY ENTERED. DSM E Order ORDER GRANTING MOTION FOR LEAVE TO AMEND PLEADINGS tit 0.1M ENTERED. DSM CO Weld WEINMEISTER, GARY AND no 5583711 File And Apr 8 2005 County 2005CV265 KATHLE et al vs. GEUDNER, Richard F Zier Details Serve 7:02PM District Court MARCELLE L et al 19th JD Filing Type Document Title Linked Size Answer Answer of Defendant Jess R. Aragon to Amended Complaint for 0.1M Delcaratory Judgment CO Weld WEINMEISTER, GARY AND H E 5581994 File And Apr 8 2005 County 2005CV265 KATHLE et al vs. GEUDNER, Richard F Zier Details Serve 5:10PM District Court MARCELLE L et al 19th JD Filing Type Document Title Linked Size Entry of Entry of Appearance 0.1M Appearance CO Weld WEINMEISTER, GARY AND HE 5577866 Serve 12:48PM District Court 2005CV265 KATHLE et al vs. GEUDNER, Lowenbach Details 19th JD MARCELLE L et al Filing Type Document Title Linked Size Order ORDER DISMISSING MARCELLE L. GEUDNER AS A.,PARTY 0,1M DEFENDANT ENTERED. JRL CO Weld WEINMEISTER, GARY AND ^ File And Apr 6 2005 County Timothy L 5564185 2005CV265 KATHLE et al vs. GEUDNER, Details DE Goddard Serve 6:09PM District Court MARCELLE Let al 19th JD Filing Type Document Title Linked Size https://fileandserve.lexisnexis.com/WebServer/WebPages/AccessFilings/prcInbox.asp 5/10/2005 Page 2 of 3 ❑ Answer Defendant Cozy Cow Dairy, LLC's Answer to Amended Complaint for 0.1M Declaratory Judgment P CO Weld Mar 29 WEINMEISTER, GARY AND File And County Warren W ❑� 5459793 Serve 2005 District Court 2005CV265 KATHLE et al vs. GEUDNER, Schaeffer Details 4:12PM 19th JD MARCELLE L et al Filing Type Document Title Linked Size ❑ Stipulation Plaintiffs' Stipulation to Dismiss Party Defendant 0.1M CO Weld Mar 28 WEINMEISTER, GARY AND File And County ❑E 5451908 Serve 2005 District Court 2005CV265 KATHLE et al vs. GEUDNER, Richard F Zier Details 5:36PM 19th JD MARCELLE L et al Filing Type Document Title Linked Size ❑ Motion Motion to Dismiss Marcelle L. Geudner as a Party Defendant 0.1M ❑ Filing Other Exhibit A=_Quitclaim Deed 0.1M Proposed Order Order Dismissing Marcelle L. Geudner as aParty Defendant 0.1M CO Weld Mar 22 WEINMEISTER, GARY AND File And County Warren W ❑Q 5414638 Serve 2005 District Court 2005CV265 KATHLE et al vs. GEUDNER, Details Schaeffer 4:19PM 19th JD MARCELLE L et al Filing Type Document Title Linked Size ❑ Return of Service Summons and Affidavit Certificate of Service - personally to less 0.1M aragon on 03/21/2005 CO Weld Mar 21 WEINMEISTER, GARY AND File And County John Robert ❑0 5407680 Serve 2005 District Court 2005CV265 KATHLE et al vs. GEUDNER, Lowenbach Details 7:03PM 19th JD MARCELLE Let al Filing Type YP Document Title Linked Size Notice Filed CLERKS_NOTICE_REGARDING MANDATORY ELECTRONIC FILING 0.1M ISSUED Mar 17 CO Weld WEINMEISTER, GARY AND File And County Warren W ❑E 5388410 Serve 2005 District Court 2005CV265 KATHLE et al vs. GEUDNER, Schaeffer Details 6:42PM 19th JD MARCELLE L et al Filing Type Document Title Linked Size Complaint - ❑ Amended Amended Complaint for Declaratory Judgment 0.1M ❑ Filing Other Exhibit A 0.1M ❑ Filing Other Exhibit B 0.1M ❑ Filing Other Exhibit C 0.1M Civil Case Cover Amended District Court Civil Case Cover Sheet for Initial Pleading of ❑ Sheet Complaint, Counterclaim, Cross-Claim or Third Party Complaint 0.1M **rule 16.1 does apply** CO Weld Mar 11 WEINMEISTER, GARY AND File And County Timothy L 7 5326320 Serve 2005 District Court 2005CV265 KATHLE et al vs. GEUDNER, Goddard Details 7:24PM 19th JD MARCELLE L et al Filing Type Document Title Linked Size Answer Defendant Cozy Cow Dairy, LLC's Answer to Complaint for 0.1M Declaratory Judgment CO Weld Mar 11 WEINMEISTER, GARY AND File And County John Robert ❑E 5325277 Serve 2005 District Court 2005CV265 KATHLE et al vs. GEUDNER, Lowenbach Details 5:52PM 19th JD MARCELLE L et al Filing Type Document Title Linked Size ORDER FOR WITHDRAWAL OF THOMAS HELLERICH AS COUNSEL https://fileandserve.lexisnexis.com/WebServer/WebPages/AccessFilings/prcInbox.asp 5/10/2005 Page 3 of 3 ❑ Order FOR PLAINTIFFS ENTERED. JRL 0.1M Mar 11 CO Weld WEINMEISTER, GARY AND File And County HE 5376494 Serve 2005 District Court 2005CV265 KATHLE et al vs. GEUDNER, Marla Bohling Details 5:00PM 19th JD MARCELLE Let al Filing Type Document Title Linked Size DEFENDANT MARCELLE GEUDNER RESPONSE TO MOTION TO JOIN ❑ Response NECESSARY PARTY PURSUANT TO CRCP 19; FURTHER MOTION TO 0.1M DISMISS CO Weld WEINMEISTER, GARY AND File And Mar 9 2005 County John Robert ❑s 5306875 Serve 5:38PM District Court 2005CV265 KATHLE et al vs. GEUDNER, Lowenbach Details 19th JD MARCELLE L et al Filing Type Document Title Linked Size ❑ Order ORDER FOR SUBSTITUTION OF COUNSEL FOR PLAINTIFF ENTERED. 0.1M JRL CO Weld WEINMEISTER, GARY AND no 5293635 File And Mar 8 2005 County 2005CV265 KATHLE et al vs. GEUDNER, Warren W Details Serve 1:49PM District Court MARCELLE L et al Schaeffer 19th JD Filing Type Document Title Linked Size El Filing Other Substitution of Counsel 0.1M El Proposed Order Order for Substitution of Counsel 0.1M CO Weld WEINMEISTER, GARY AND File And Mar 4 2005 County ❑E 5301534 Serve 8:00PM District Court 2005CV265 KATHLE et al vs. GEUDNER, Not Available Details 19th JD MARCELLE L et al Filing Type Document Title Linked Size ❑ Filing Other Document filed in paper format--no additional information is 0.1M available online CO Weld WEINMEISTER, GARY AND File And Mar 2 2005 County Warren W HE 5256065 Serve 4:43PM District Court 2005CV265 KATHLE et al vs. GEUDNER, Schaeffer Details 19th JD MARCELLE L et al Filing Type Document Title Linked Size ❑ Motion Motion to Join Necessary Party Pursuant to C.R.C.P. 19 OO 0.1M ❑ Proposed Order Order Joining Necessary Party OO 0.1M ❑ Motion Motion to Amend Pleadings 0.1M ❑ Proposed Order Order Allowing Plaintiffs Leave to Amend Pleadings W 0.1M Select *IGol 1 through 20 of 20 https://fileandserve.lexisnexis.com/WebServer/WebPages/AccessFilings/prcInbox.asp 5/10/2005 Lyn Martin 6140 Waterfront Drive Fort Collins, CO 80524 October 13, 2005 Board of County Commissioners 915 10th Street Greeley, CO 80631 RE: USR #1495/ Jess Aragon/ applicant Gentlemen: This letter is a substitution for my oral testimony, since my husband and I will be out of the country during the timeframe of the October 19th, 2005 hearing. It is to serve as my witness statements for the probable cause hearing that you will be conducting on behalf of the four sets of neighbors opposing Mr. Aragon's small family landscape supply business located at 28629 WCR 17, Windsor, CO 80550. My husband and I are customers of Mr. Aragon's business, and we are well aware of his continuing efforts to obtain a Special Review Permit from Weld County. We had purchased materials from him last year and they were being held while we built our new home. This year he informed us that he would be able to work on our landscaping, but that he had restricted hours that he must strictly adhere to. There were several occasions where Mr. Aragon would leave his trucks and other equipment parked on the street in front of our house if it became too late for him to return them to his sales yard because of hours he agreed to. There were also two occasions where I drove out to Windsor to pick out additional supplies, but it was too near the required closing time and Mr. Aragon's staff members refused my entry due to his restricted hours. I have first-hand knowledge that Mr. Aragon has been serious about adhering to the restrictions he agreed to. I have been made aware that the opposing neighbors have made allegations to the Board that Mr. Aragon has violated some of the items, and that they have even altered photos to make them show later times than the actual picture should demonstrate. Everyone knows that dates and times on digital medium can be program as desired. I am sickened to think that the Planning Staff of Weld County would consider the few who oppose the business so vehemently to be credible. I question the motivation behind allowing this monitoring by the opposing neighbors to force probable cause. I feel that the Board needs to consider only objective information from unbiased individuals when deciding on whether to prosecute someone who I believe has followed every rule to the letter. I know both Mr. Aragon and his girlfriend, Cindi Rubiano, are very upset about the way the neighbors have turned this land use Commissioner Letter/Lyn Martin 4- EXHIBIT I IT 10/13/2005 1 matter into a personal vendetta based on hatred and racial biases. I read the letter submitted by Mr. and Mrs. Weinmeister to the County last June, and I am shocked that the County would give credibility to any comments or fraudulent documentation the neighbors have provided in regard to this business. I was present at the hearing on February 16th, 2005, where the opposing neighbor's attorney brought up the lawsuit against the owner of the property. The filing of this lawsuit, I truly believe, was a means to derail and bankrupt Mr. Aragon and his business venture. It's my opinion you should have continued with your original venue and voted to approve the land use as did the Town of Windsor and the Weld County Planning Commission. I also believe that at least one Commissioner going forward should excuse himself from any vote on this land use issue. It is my opinion that it was entirely inappropriate for him to go out into the hall and have a conference with all of the neighbors at the conclusion of the meeting. I was angry when I witnessed this and took a picture of the incident. Having been a Human Resources Manager for the past 18 years, I know that when you are dealing with disputes of this nature you must remain impartial to achieve the most constructive solution. If one is not able to remain unbiased, he should excuse himself from future hearings. I have recommended to Mr. Aragon that he seek assistance at a Federal level as this entire situation appears to have a racial basis. This issue has gotten away from the case at hand, and considerations should be limited to whether this business meets the criteria for the permit. I feel this business at its current site exceeds any expectation the County might possible have, and should be considered on those merits. Mr. Aragon has done everything to show that he does care about the area he occupies, and has shown it by making the improvements necessary even before he is approved. I think it is foolish to believe that he would spend all the money he has spent only to break the rules and risk being closed down. What does make sense though is that the neighbors would continue to make false allegations figuring that if they throw enough mud on the fence, some of it will stick. If you have any questions regarding my knowledge and what I have observed regarding TimberRock's operations, feel free to contact me at 970-690-1233. Again, I will be out of the country for 3 weeks and will be available after November 6th. I hope you make the right decision to allow Mr. Aragon to continue operations until the final land use hearing occurs. Thank you for your time. Sincerely, ,I(//1 /1/ Lyn Martin Commissioner Letter/Lyn Martin 10/13/2005 2 nine are families with singles mothers. I tic ,., "This is the most families we've had. It could f}, be the economy.I heard a lot of things about peo- ple needing help with heating bills," Cassell said. "There are a lot of people who are too proud to want the help,but we keep it all confidential." Skip Tillman of Fort Collins loves to play Santa -- to the residents at Windsor Health Care.Tillman, „ a a parishioner at Our Lady of the Valley and also a r member of the Knights of Columbus,will take the 'F gifts to the center on Friday. He and others will I pass them out to residents on Christmas Day. Pad Tillman said each resident will get two-three si gifts. Za? Deacon Harold Kimble said he sees an ongoing need to help some families in the parish. -sa "There are some families,no matter what they f4 do, they just can't get ahead," Kimble said. "The `" tl love that we've got in the parish and the concern for a family less fortunate,we see that year-round, Chelsea Paige, a second-grader at Scott Elementary Sc aka especially at Thanksgiving and Christmas?' all dressed up for the Around the World holiday prograi *suet( Jo Ru€ faZ Know a Panorama person? kk Colorac PunoJ , x . j,j As we close another year,we start to reflect on the peo- i` slut ple who made a difference in our lives and our communi- ; CtLEBRnTixc `wE PE0P.t .. WELD COUNTY ASSOCIATED PRE' Imo saa ty• ,.... - -- -PieH'ap. We know that many contributions are made by individ- DENVER — Yarty, uals who are never acknowledged. So we offer you an senators split a opportunity to spotlight those unsung heroes by submit- Wednesday on E aram e4ep ting a nomination for the Tribune's 2006 Panorama,a spe- Arctic Nations sa rnsur 1i cial section that celebrates the people of Weld County.We ' z s Refuge to oil di auaa,rad.D,.( hope you'll share with us what makes your hero so special. ld+ +- 'tam'litili-II Democratic Rep. -fad Za Z Please include the nominee's name, address and phone &t , anxiously watche "Canaj number, along with the idea or explanation of the story. t�' v. '` 6�; 3.i si ! vised vote from Et -Zeno luau Include your name,address and phone number as well. b ta"+9 f +a .-7,- 7-' Eldorado Springs. ^'(epsau Nominations may be mailed to Kim Spencer,city editor, Inclusion of pla 2utpZa P.O. Box 1690, Greeley, CO 80632, or e-mailed to ANWR doomed 21-lumen ' lr unsunghero@greeleytribune.com.Deadline is Dec.30. appropriations Pa;atp fq 3 —Staff reports Wayne Allard, R- am -noldwgm Ni .--_.. � . ,,:. -. b uaZOJJ sut roundup °I ut I AI-In Jury still deliberating use of the dirt access road that runs pronounced dead.Weld County west, perpendicular to Weld 17, and ners Office Investigator Mark Wa „gag,; in Alfaro murder trial which is co-owned by Aragon and the said officials are unsure whether Jurors spent all day Wednesday other landowners. died of a health problem or from _ N deliberating the fate of Matthew Alfaro The lawsuit went to trial on head injury in the fall off his bike V 3 81a and didn't make a decision. Wednesday, and Aragon and his neigh- An autopsy is planned for toda Alfaro,22,is charged with first- bors each had witnesses who talked degree murder and other charges in the about the quality and safety of the 'Water main leaks in Eva death of James Goslin,34,who was road before and after Aragon did some A water main break on Wedne: shot Dec.30,2004, at Island Grove Vil- construction on it. afternoon led to a detour on 37th lage Apartments in Greeley. At the end of the day, Weld District Alfaro was on trial all last week and Judge Jonathan Hays said he wanted Street for several hours after Evai part of the prior week;jurors were attorneys for each side to present water employees noticed water or more information about case histo 37th Street east of State Street. given the case Tuesday night. ry The jury will be back at 8:30 a.m. in similar property and road access City employees turned off the disputes. and detoured traffic between Stat today to resume deliberations. Those briefs are due Dec.30. Hays Central streets on 37th Street. Thi said he'll make a ruling by Jan. 6 street was still closed late Wedne, Judge considers land-use regarding Aragon's use of the road. evening. Railroad travel was not issues in business road case Aragon is scheduled to go before affected. A Windsor businessman whose county commissioners again—for the landscaping company had come under rescheduling of a Feb.16 hearing date Lottery fire from neighbors went on trial for a — on Feb. 8,2006. ■ Numbers in Wednesday's$2( land-use issue Wednesday, but there lion Powerball drawing:9,12,16,22 was no decision. Dacono man collapses, dies powerb Jess Aragon owns and operates A 73-year-old Dacono man was II N 'U� TimberRock Landscaping Center, off found after he collapsed on a bicycle Lotto dr Weld County Road 17 about a half-mile early Wednesday. ■ Nu north of U.S.34. Harold King was transported to Cash 5 d The lawsuit centered on Aragon's Longmont United Hospital and was t ", 01/31/2006 11:05 970-224-9188 BELL BOGS & ASSUU raft Di ZIER LAW OFFICES RICHARD K ZIER 322 E. OAK STREET TELEPHONE POST OFFICE BOX 770 (970)482-2255 FORT COLLINS,COLORADO 80522 FAX(970)224-9188 FACSIMILE TRANSMITTAL THE MESSAGE TRANSMITTED HEREWITH IS INTENDED EXCLUSIVELY FOR THE ADDRESSEE. THIS MESSAGE MAY CONTAIN CONFIDENTIAL INFORMATION WHICH MAY NOT LEGALLY BE DISCLOSED. IN THE EVENT ANY PERSON OTHER THAN THE ADDRESSEE RECEIVES THIS MESSAGE, PLEASE ADVISE US BY TELEPHONE AND THEREAFTER RETURN THE MESSAGE BY REGULAR MAIL. DATE: 1/31/0¢ TO: Mr. Lee Morrison, Asst. County Attorney FAX NUMBER OF RECEIVER: 352-0242 FROM: Rick tier MESSAGE: RE: Weinmeister et al. v. Aragon final order-- Here is the order of Judge Hays in the above matter. The effort to block Aragon's use of his parcel failed, as did the attempt to narrow the road. Partition shouldn't affect the day to day situ- ation, and Aragon has always acknowledged and discharged his "Lazy Doq" obligations . I trust he may go forward with the USR now. . . TOTAL NUMBER OF PAGES EXCLUDING THIS COVER SHEET: -3- If you do not receive all of the pages, please call our office at the number above. •.:Y.:':li�.Y: Cat ‘rffigA) s'ryy' EXHIBIT 1 01/31/2006 11:05 970-224-9188 BELL BOGE & ASSOC PAGE 02 District Court Weld County,State of Colorado Court Address:901 9a Avenue, Greeley,CO 80631 Phone Number: (970)351-7300 Ext.4350 ;:FILED Document cii2WRItignaspftWatat Court 19th JO GARRY and KATHLEEN WEINMEISTER; pltlua Pstg. ��Jac.Ju‘vw 4-4-7r) MST r1NitWkrE�titiv 65 HARRY D.HARTSHORN; Casa CHARLES and TINA SH.INNER;and THOMAS W.WEII.ER Plaintiffs vs. Division No.4 JESS R.ARAGON and CRAZY COW DAIRY Defendants ORDER FOR PARTITION Plaintiffs seek a declaratory judgment,pursuant to C.R.C.P.Rule 57,to declare theirs and the Defendants'tights to a certain parcel of land in which all parties own an undivided interest as tenants-in- common. The court treats this Plaintiff/'complaint as a partition action pursuant to C.R.S.§38-28-101, et seq. The subject property is roughly 1378'x 60',and is surrounded and abutted by each of the parties'the separate parcels. A road,for the most part unimproved,runs the length of the subject property and serves as access from Weld County Road 17 to each of the parties'parcels. In this partition suit,Plaintiffs seek to crate separate parcels by extending their individual boundaries to the center line of the existing road,subject to a 12-foot access easement on either side of the road's center line. The net effect would be to dissolve the existing tenancy-in-common,and substitute a 24-foot easement in the same location and of the same length as the existing road. The area is developing rapidly,and property abutting the Spinner property's north boundary has been recently annexed by the City of Windsor for conversion to a commercial use,namely,an"Auto Plaza". Upon information and belief,the Plaintiffs'and Defendant'property will be similarly annexed in the foreseeable future,and that the City of Windsor will require a 60-foot easement for the existing access mad on the subject property. Therefore,it is not practical to create a 24-foot casement in this partition case. As rounds for the relief that they bane requested,Plaintiffs allege that Defendant and his predecessor in title have: 1. Installed a culvert,narrowing the nodal width of the roadway; 2. Applied for a Use by Special Review(USR)to Weld County for operation of Defendant Aragon's landscape business; 3. Expanded the historically residential use of the roadway. Plaintiffs request orders declaring that the subject parcel is limited to residential access,and orders establishing the parties'respective rights of use the roadway and their obligations with respect to road maintenance. In the alternative,Plaintiffs request partition pursuant to statute. 01/31/2006 11:05 970-224-9188 BELL BOGE & ASSOC PAGE 03 Defendants object on grounds that the subject parcel is not an easement,but is held in fee simple by the parties as tenants-in-cwomon,and that therefore,there is no limitation upon the use of the roadway for residential purposes. Be further alleges that his installation of the culvert has improved the road's drainage,and has not burdened the other landowners. At this point in the litigation,Defendant Aragon has a pending USA application before the Weld County Commissioners.end has been granted a variance to conduct his business operations during the pendency of his application. The dispute among the cotenants has arisen since Defendant Aragon began operating a landscape supply business on the parcel that he has since purchased. These disagreements center on complaints of increased traffic,narrowing of the access road,and a general decline in the rural atmosphere that is attributed to Aragon's business operation. Plaintiffs also complain of their inability to erect signage to reduce unwanted traffic beyond Aragon's business operation,and the increased liability of the co-tenants arising from potential personal injury and property damage to Aragon's business invitees. Some of the Plaintiffs have admitted openly that they object to the Defendant's business operation being conducted in its current location. The court does not address the merits of the parties'allegations,but observes that the requested relief will diminish the Plaintiffs'concerns only if Defendant Aragon's landscape operation were forced to relocate. Nevertheless,the Plaintiffs have a statutory right to maintain this action. Hence,the court must make a complete adjudication of the rights of all parties to the subject property,and make such orders as it deems necessary to promote the ends of justice and to completely adjudicate the controversy concerning the title,rights,and interest of the parties in this matter. Accordingly,pursuant to C.R.S. §38-28-105.the court orders and decrees that the subject parcel,as more fully described in Attachment A,be partitioned. It is further ordered that: 1. Chuck Jones,PIS,650 Garden Drive,Windsor,CO,is hereby appointed as commissioner,who shall fairly and impartially make partition of the property in accordance with this court's order. Mr.Jones has disclosed contacts that he has had with an attorney for a party in interest and with Mr.Aragon. Based upon the absence of any interest that Mr.Jones has in the outcome of this matter,and upon the fact that his duties as commissioner are purely technical and do not require the exercise of subjective judgment,the court finds that this appointment creates no actual or apparent conflict. 2. The property shall be partitioned as follows: a)The east and west boundaries of each party's parcel be extended approximately 30 feet,to the center line of the existing roadway. b) A 60-foot wide access easement shall be created and centered,insofar as practical,on the centerline of the existing roadway. 3. The commissioner shall view the property and make partition thereof in writing,shall re-describe the same, assign to each party his share,end shall submit the same to the court for confirmation. ' 01/31/2006 11:05 970-224-9108 BELL BOGS & ASSOC PAGE 04 4. The Weiruneisters,Harry Hartshorn,the Shinners,Thomas Weiler,Jess Aragon and Crazy Cow Dairy shall each deposit$200.00 into the registry of this court to defray the S1200.00 anticipated cost of the Commissioner's re-description of the property,and such related duties as may be required to complete the partition. These funds shall be deposited no later than February 10,2006. 5. The court ooncludes that the following principles apply with respect to the new easement: a) The owners of the Diemen'may make any use of Srincluding main(enan$and improvement,that is reasonably necessary to enjoyment ofuht,and which does not cause unreasonable damage to servient estate or unreasonably interfere with enjoyment of servient estate. Lazy Dog Ranch v. Telluray Ranch Corp.,965 P.M 1229(Colo.1998). b) The responsibility for maintaining this easement generally on those who use the easement for access to property. Because there are several owners In common of the easement,each owner may make reasonable repairs which do not injuriously affect his or her co-owners. c) The easement holders not only have the right,but the obligation,to repair and maintain the easement as necessary.The duty is primarily upon the dominant easement owners to repair their route over the servient land. 6. Objections may be filed by any patty within fifteen(15)days of the entry of the final order approving the Commissioner's written.report and re-description. Ordered,by the court,January 27,2006: Jona n W.Bays Senior District Judge Page 1 of 2 Carol Harding From: Lee Morrison Sent: Tuesday, February 07, 2006 8:51 AM To: Carol Harding Subject: FW: SUR1495 Wednesday 10:00AM, 2/8/2006 La D. Ho 4:amy. Assistant Weld County Attorney 915 10th St., PO Box 758 Greeley, CO 80632 (970)356-4000 x 4395: FAX 352 0242 This e-mail contains confidential and/or privileged information. lithe reader is not the intended recipient, please reply and delete your copy of this message From: Mike Brouwer [mailto:mdbrealtor@juno.com] Sent: Monday, February 06, 2006 5:45 PM To: Dlons@co.weld.co.us; Glenn Vaad; Rob Masden; Bill Jerke; Mike Geile; Michelle Martin; Lee Morrison Cc: jessaragon@comcast.net Subject: SUR1495 Wednesday 10:00AM, 2/8/2006 02/06/2006 Reference: USR 1495; Landscape materials yard Jess Aragon, TimberRock Landscape Dear Commissioner: I am sending this letter since I will not be in town to attend the meeting this Wednesday 02/08/2006. I urge you to approve the referenced request by Jess Aragon and TimberRock Landscaping. The centrally located site makes delivery of landscape materials to Weld and Larimer county locations very efficient. Additionally, the improvements to the site and access road have been significant over the last several years. I am the REALTOR who sold the property to Ms. Geudner in June 2001. Since Mr. Aragon has been involved with the property, it as well as the surrounding properties have experienced an increase in value due to the improvements made by Mr. Aragon. When I first showed the property in the summer of 2001, I had to use a four-wheel drive vehicle in order to access this property. The access road improvements, short of paving, couldn't have been better. Mr. Aragon has been a very pro-active supporter of youth activities over the past 10 to 12 years that I am aware of. Through TimberRock Landscaping he has volunteered time and resources for youth group fundraising activities. Putting him out of business would be detrimental to youth activities in both Weld and Larimer counties. Thank you for your consideration in this matter, 4I `' C4S,2`�i'/y�5 2/7/2006 Page 2 of 2 Michael Brouwer CRS, GRI, CSP Broker Associate Coldwell Banker Residential Brokerage 1-800-748-3136 X 6503 2/7/2006 Page 1 of 2 Carol Harding From: Lee Morrison Sent: Tuesday, February 07, 2006 1:50 PM To: Michelle Martin; Kim Ogle; Bethany Salzman; Donald Carroll; Esther Gesick; Carol Harding Subject: fyi: TimberRock/Weinmeisters La D. H. Assistant Weld County Attorney 915 10th St., PO Box 758 Greeley, CO 80632 (970)356-4000 x 4395: FAX 352 0242 This e-mail contains confidential and/or privileged information. If the reader is not the intended recipient,please reply and delete your copy of this message From: Jeffrey Richards [mailto:jrichards@ahrs-law.com] Sent: Tuesday, February 07, 2006 10:57 AM To: Lee Morrison Subject: Re: TimberRock/ Weinmeisters Lee, I am confirming that I am only representing the Weinmeisters and will be present tomorrow. It is my understanding that Mr.Schaeffer is also going to be present and will be there on behalf of all the neighbors. Jeffrey J. Richards, Esq. Anstine, Hill, Richards and Simpson Denver, CO 80203 Tel. 303-832-5588 Fax 303-832-9265 j richardlahrs-law.com Original Message From: Lee Morrison To: Jeffrey Richards Sent: Friday, February 03, 2006 4:57 PM Subject: RE: TimberRock/Weinmeisters Jeff There is not a requirement that you enter an appearance or anything of the sort in advance of standing up before the Board. It would help me if I know if you or Mr Schaeffer or both intend to represent some or all of the neighbors. I did send a communication to Mr Weinmeister regarding a question he had regarding the order( which I have seen) and I will forward that to you. 6w D. M.az,04. Assistant Weld County Attorney _ 915 10th St., PO Box 758 Greeley, CO 80632 (970)356-4000 x 4395: FAX 352 0242 This e-mail contains confidential and/or privileged information. If the reader is not the intended recipient,please repl E A. 2/7/2006 Page 2 of 2 and delete your copy of this message From: Jeffrey Richards [mailto:jrichards@ahrs-law.com] Sent: Thursday, February 02, 2006 4:24 PM To: Lee Morrison Subject: TimberRock/ Weinmeisters Lee, I am planning on coming to the hearing next week. Should I notify anyone etc.... Also, there was a court ruling on the other case. Let me know if you need a copy. Thanks. Jeffrey J. Richards, Esq. Anstine, Hill, Richards and Simpson Denver, CO 80203 Tel. 303-832-5588 Fax 303-832-9265 jrichards@ahrs-law.com 2/7/2006 Date: February 7, 2006 To: Weld County Commissioners and Lee Morrison From: Stan Liss Re: Timber Rock Landscape Center I will not be able to present testimony on behalf of Timber Rock Landscape Center at tomorrow's hearing and would like to forward these comments prior to the meeting. I have known Jess Aragon and Cindi Rubiano for over ten years. Both are good honest people and a credit to the communities in which they live and conduct business. When I first visited the present site of their Landscape Center, I was taken aback by the raw physical challenges it would present. The terrain and general layout would take the skill of a master to make it presentable as a retail landscape center. With each successive visit out to the site, I was impressed with its transformation, physical appearance and in general user- friendly feel. Jess and Cindi have done a fantastic job in adding an attractive business which services the residents of Northern Colorado in a professional and friendly atmosphere. I have attended two past commissioner hearings on behalf of Jess and Cindi. I am disappointed that they have had to endure the opposition of a "few chosen" neighbors on their objective to serve the needs of"many" Northern Colorado residents who support their business. I am hopeful that they are allowed to continue to conduct business at this site without prohibitive restrictions. Thank you in advance for reading my comments. EXFi1Bff C:\WINNT\Temp\Temporary Internet Files\OLK20D\Timber Rock Memo doc £I512 *1 qq District Court Weld County, State of Colorado Court Address: 901 9th Avenue, Greeley,CO 80631 Phone Number: (970)351-7300 Ext.4350 t Ptl r:n uoeu0u,,t GI:Kum USE QNweet('mn.t 19th.II) GARRY and KATHLEEN WEINMEISTER; Hong tare: Feb 12006 4:curt 3151 HARRY D.HARTSHORN; Case N III in ,taiTh s265 CHARLES and TINA SHINNER; and h4I4@R'I <: THOMAS W.WEILER Plaintiffs vs. Division No.4 JESS R. ARAGON and COZY COW DAIRY Defendants ORDER FOR PARTITION Plaintiffs seek a declaratory judgment, pursuant to C.R.C.P. Rule 57, to declare theirs and the Defendants' rights to a certain parcel of land in which all parties own an undivided interest as tenants-in- common. The court treats this Plaintiffs' complaint as a partition action pursuant to C.R.S. § 38-28-101, et seq. The subject property is roughly 1378'x 60',and is surrounded and abutted by each of the parties' the separate parcels. A road, for the most part unimproved,runs the length of the subject property and serves as access from Weld County Road 17 to each of the parties'parcels. In this partition suit,Plaintiffs seek to create separate parcels by extending their individual boundaries to the center line of the existing road, subject to a 12-foot access easement on either side of the road's center line. The net effect would be to dissolve the existing tenancy-in-common, and substitute a 24-foot easement in the same location and of the same length as the existing road. The area is developing rapidly,and property abutting the Shinner property's north boundary has been recently annexed by the City of Windsor for conversion to a commercial use, namely,an"Auto Plaza". Upon information and belief, the Plaintiffs' and Defendant' property will be similarly annexed in the foreseeable future, and that the City of Windsor will require a 60-foot easement for the existing access road on the subject property. Therefore, it is not practical to create a 24-foot easement in this partition case. As grounds for the relief that they have requested,Plaintiffs allege that Defendant and his predecessor in title have: 1. Installed a culvert, narrowing the useful width of the roadway; 2. Applied for a Use by Special Review(USR)to Weld County for operation of Defendant Aragon's landscape business; 3. Expanded the historically residential use of the roadway. Plaintiffs request orders declaring that the subject parcel is limited to residential access, and orders establishing the parties'respective rights of use the roadway and their obligations with respect to road maintenance. In the alternative, Plaintiffs request partition pursuant to statute. tk EXHIBIT I. Lls2 1+1+6 Defendants object on grounds that the subject parcel is not an easement, but is held in fee simple by the parties as tenants-in-common,and that therefore,there is no limitation upon the use of the roadway for residential purposes. He further alleges that his installation of the culvert has improved the road's drainage,and has not burdened the other landowners. At this point in the litigation,Defendant Aragon has a pending USR application before the Weld County Commissioners,and has been granted a variance to conduct his business operations during the pendency of his application. The dispute among the cotenants has arisen since Defendant Aragon began operating a landscape supply business on the parcel that he has since purchased. These disagreements center on complaints of increased traffic,narrowing of the access road,and a general decline in the rural atmosphere that is attributed to Aragon's business operation. Plaintiffs also complain of their inability to erect signage to reduce unwanted traffic beyond Aragon's business operation,and the increased liability of the co-tenants arising from potential personal injury and property damage to Aragon's business invitees. Some of the Plaintiffs have admitted openly that they object to the Defendant's business operation being conducted in its current location. The court does not address the merits of the parties'allegations,but observes that the requested relief will diminish the Plaintiffs' concerns only if Defendant Aragon's landscape operation were forced to relocate. Nevertheless, the Plaintiffs have a statutory right to maintain this action. Hence,the court must make a complete adjudication of the rights of all parties to the subject property, and make such orders as it deems necessary to promote the ends of justice and to completely adjudicate the controversy concerning the title,rights,and interest of the parties in this matter. Accordingly,pursuant to C.R.S. § 38-28-105, the court orders and decrees that the subject parcel, as more fully described in Attachment A,be partitioned. It is further ordered that: 1. Chuck Jones,P.L.S,650 Garden Drive,Windsor,CO, is hereby appointed as commissioner,who shall fairly and impartially make partition of the property in accordance with this court's order. Mr. Jones has disclosed contacts that he has had with an attorney for a party in interest and with Mr. Aragon. Based upon the absence of any interest that Mr.Jones has in the outcome of this matter, and upon the fact that his duties as commissioner are purely technical and do not require the exercise of subjective judgment,the court finds that this appointment creates no actual or apparent conflict. 2. The property shall be partitioned as follows: a)The east and west boundaries of each party's parcel be extended approximately 30 feet,to the center line of the existing roadway. b) A 60-foot wide access easement shall be created and centered, insofar as practical,on the centerline of the existing roadway. 3. The commissioner shall view the property and make partition thereof in writing,shall re-describe the same, �. assign to each party his share, and shall submit the same to the court for confirmation. Con 4. The Weinmeisters,Harry Hartshom,the Shinners,Thomas Weiler,Jess Aragon and critaryt.ow Dairy shall each deposit$200.00 into the registry of this court to defray the$1200.00 anticipated cost of the Commissioner's re-description of the property,and such related duties as may be required to complete the partition. These funds shall be deposited no later than February 10,2006. 5. The court concludes that the following principles apply with respect to the new easement: a) The owners of the easement may make any use of easement,including maintenance and improvement,that is reasonably necessary to enjoyment of easement, and which does not cause unreasonable damage to servient estate or unreasonably interfere with enjoyment of servient estate. Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229(Colo.1998). b) The responsibility for maintaining this easement generally on those who use the easement for access to property. Because there are several owners in common of the easement,each owner may make reasonable repairs which do not injuriously affect his or her co-owners. c) The easement holders not only have the right,but the obligation,to repair and maintain the easement as necessary.The duty is primarily upon the dominant easement owners to repair their route over the servient land. 6. Objections maybe filed by any party within fifteen(15)days of the entry of the final order approving the Commissioner's written report and re-description. Ordered, by the court,January 27, 2006: Jonathan W.Hays Senior District Judge • Weld County, Colorado, District Court P. O. Box 2038 Greeley, CO 80632-2038 (970) 351-7300 Plaintiffs: Garry and Kathleen Weinmeister, Harry D. Hartshorn, Charles and Tina Shinner, and Thomas W. Weiler v. Defendants: Jess R. Aragon, Marcelle L. COURT USE ONLY Geudner, and Cozy Cow Dairy, LLC Warren W. Schaeffer, #28488 Case No: 05 CV 265 Houtchens, Houtchens & Greenfield, LLC 822 7th Street, Suite 270 Greeley, CO 80631 Division: 9 Telephone: (970) 353-9195 Fax: (970) 353-0151 AMENDED COMPLAINT FOR DELCARATORY JUDGMENT • COME NOW the Plaintiffs, Gary and Kathleen Weinmeister, Harry D. Hartshorn, Charles and Tina Shinner, and Thomas W. Weiler, by and through their attorneys of record, Houtchens, Houtchens &Greenfield, LLC, by Warren W. Schaeffer, and pursuant to C.R.C.P. 57 request that the Court enter a declaratory judgment, declaring the rights of the parties and in support thereof shows and states unto the Court as follows: I. C.R.C.P. 57 provides that the Court may enter an order establishing the rights, status and other legal relationships of all parties interested under a deed, will, written contract, or other writing constituting the contract. 2. C.R.C.P. 57 further provides that any party in interest to such deed, will, written contract, or other writing may bring such action to determine the rights of the various parties. 3. Plaintiffs and the Defendants are apparent beneficiaries of a certain deed dated January 19, 1981, and recorded February 18, 1981, in the Weld County records at Book 928, at Reception No. 1849942. Said deed was executed by Jerry Bigbee as grantor, and the beneficiaries are the owners of record of the adjacent properties. Said deed recites that the address for the adjacent properties are 28653, 28649, 28641, and 28607 WCR 17, Weld County, Colorado. A copy of said deed is attached hereto and marked Exhibit A and incorporated herein by reference. 4. Said deed sets forth a metes and bounds description. Upon information and belief, the metes and bounds description describes the joint access private road, for access to the property owned by Plaintiffs and Defendants. 5. A proof of possession dated June 2, 1982 and recorded June 16, 1982, in Book 0970 at Reception No. 1894758 of the Weld County records sets forth that a certain road was owned by Jerry Bigbee and that Jerry Bigbee by deed recorded at Reception No. 1849942 conveyed ownership of the road to the adjacent properties. A copy of said proof of possession is attached hereto and marked Exhibit B and incorporated herein by reference. • 6. A survey of the adjacent properties and the roadway described in Exhibit A was subsequently prepared. A copy of said plat of survey is attached hereto and marked Exhibit C and incorporated herein by reference. 7. Upon said information and belief, said roadway described in Exhibit A is a roadway 60 +/- feet wide, which connects WCR 17 and provides access to the adjacent property owners, consisting of six parcels. 8. Plaintiff Garry and Kathleen Weinmeister are the owners of Parcel 9. 9. Plaintiff Harry D. Hartshorn is the owner of Parcel 4. 10. Plaintiff Charles and Tina Shinner are the owners of Parcel 6. 11. Plaintiff Thomas W. Weiler is the owner of parcels 3 and 3a. 12. Defendant Cozy Cow Dairy, LLC, is the owner of Parcel 1. 13. On information and belief and representation of counsel for Defendant Marcelle L. Geudner, Jess R. Aragon may be the owner of Parcel 2. 14. That the historic use of the roadway has been 60 feet in width and has been solely used for the private access to the residences located on the various parcels. 15. That Marcelle L. Geudner, the predecessor in interest of the apparent owner of parcel 2 has recently, without the consent or authorization of any other parcel owners, made modifications and changes to the roadway, and has narrowed the roadway, contrary to the wishes and desires of the Plaintiffs. A culvert was put in without any prior notice or consent of the adjacent property owners which narrowed the existing roadway. 16. That Defendant Geudner has an application pending before the Weld County Board of County Commissioners USR 1495, to change the use of the property owned by said Defendant from residential to a use by special review, for a commercial operation. Said application contains a request that said Defendant be able to use the private roadway for access to her commercial operation. On information and belief, Defendant Geudner continues to maintain this request despite transferring her interest in favor of Jess R. Aragon. 17. Plaintiffs have objected to Defendant Geudner's and/or Jess R. Aragon's attempted use of the property for the commercial operation under the application for use by special review. 18. Plaintiffs object to Defendant Geudner's and/or Jess R. Aragon's attempt to change and expand the historic use of the access easement. 19. The deed, Exhibit A, and the proof of possession, Exhibit B, do not establish the names of the various owners of the roadway, and do not declare the rights of the adjacent owners. 20. That the adjacent owners of the property do not have any system or association in place to manage the care, maintenance, upkeep and use of the roadway. • 21. Pursuant to C.R.C.P. 57, the Court may enter declaratory judgment declaring the ownership of the roadway, and the rights, benefits, obligations, burdens, and duties of each of the adjacent landowners as to said roadway, and to set forth a declaratory order that the roadway is for private use, and limited to access for ingress or egress only to private residences. REQUEST FOR ALTERNATIVE FORM OF RELIEF: PARTITION 22. Plaintiffs readopt and reallege the allegations in Paragraphs 1 through 21 as if fully set forth herein and incorporated herein by reference. 23. Plaintiffs, as an alternative source of relief requested herein above, request the Court to enter declaratory judgment partitioning the property pursuant to C.R.S. 38-28-101, et. seq. ADDITIONAL COMPLAINT FOR DECLARATORY JUDGMENT PURSUANT TO C.R.C.P. 57: PRESCRIPTIVE EASEMENTS 24. Plaintiffs readopt and reallege the allegations in Paragraph 1 through 23 as if fully set forth herein and incorporated herein by reference. 25. In the alternative, Plaintiffs assert and allege that each of the parties hereto assert a residential access easement across the interest held by each other. 26. Accordingly, Plaintiffs assert and allege that any expansion of the use from residential to commercial access by Defendants Geudner and/or Aragon is violative of Colorado law regarding easements. 27. Plaintiffs respectfully request the Court, in the alternative to the relief requested hereinabove,to declare that all owners of an interest in the subject property are prohibited by law from expanding their use beyond anything other than residential access. WHEREFORE, Plaintiffs pray that the Court enter: 1. (a) A declaratory judgment declaring the rights of the parties and declaring that the roadway is a 60 foot roadway for residential use only and requiring Defendants Geudner and/or Jess R. Aragon, d/b/a Timberock to return the roadway to its prior width and condition and: (b) Enter orders establishing the rights, duties, obligations and use of the roadway by and among the adjacent property owners and : (c) Establish the obligations for payment of the costs and expenses of the maintenance of the roadway, and : (d) In the alternative, enter orders appointing commissioners to partition this subject property equitably between the competing owners, or: (e) Enter orders finding that a prescriptive easement as to all parties exists and that neither party/claimant to the subject property can expand the use of the roadway beyond residential use; and: (f) For such other and further relief as the Court may deem proper and equitable. Respectfully submitted this 17th day of March, 2005. HOUTCHENS, HOUTCHENS & GREENFIELD, LLC /s/Warren W. Schaeffer Duly Signed Original on File Warren W. Schaeffer, #28488 Attorney for Plaintiffs CERTIFICATE OF MAILING I do hereby certify that on the 17th day of March, 2005, a true and correct copy of the foregoing AMENDED COMPLAINT FOR DECLARATORY JUDGMENT was electronically filed and served on the following individuals via Justicelink, and was placed in the U. S. Mail first class postage prepaid,properly addressed to: Richard F. Zier, Esq. 322 East Oak Street Fort Collins, CO 80524 Timothy L. Goddard, Esq. 125 S. Howes Street, Sixth Floor P. O. Box 2267 Fort Collins, CO 80522 Duly Signed Original On File In accordance with C.R.C.P. 121 1-26(9), a printed copy of this document with original signature(s) is maintained by Houtchens, Houtchens & Greenfield, LLC, and will be made available for inspection by other parties or the Court upon request. 1 " FF8II )81 c: C Rre lee at �1 �5n rlurF Q. 1y.. fs• R. plenty 101ira'lti .__ w^ Z-wr! Recorder. a I RECORDER'S STAMP i '' 1 TnBDEEn, Modems 19th d:,ynl January .1981. ii I i; a II hetwegh JERRY B[OBEE r i' of the Cnnnty or Weld andatnte or 1 a I' Colurndn.of the first part.and OWNERS OF RECORD OF THE ' ADJACENT PROPERTIES • II n '• whoseleeal addressla 28653, 28649, 28641, and 28607 II Weld County Road 17 of we County or Weld and mate or ' f' I. Colorado,of the sernml part, :, WITN ESSETH.Thee the avid party of the first part.for And ineon.ideral iou offing sum of us ---One Dollar and other good and valuable consideration .VOLt.A.R5,_ ; p Il to the said partY of the first part in hand paid liv the ani d parties of the second pa rt.the receipt whereof n o I is hereby confessed and Achnnwledged,hits remind,,¢lensed,moll,ran uprrd end Q tll'r CLAIMED, nnrl by these • rl I present.' Ines remise,rely ass,mill.convey end QUIT CLAIM unto the said pit rt lB Sof the second part, the heirs. II I' successors and assigns,forever.all the right,title.lnte reat.clnim and demand whirl,the raid party of the final pan I . has in and to the following described Int or parcel of land situate.lying and being in the County ' of Weld and State of Colo radii.to wit: -1 Part of the Northeast Quarter (NEt) of Section Eight (8), Township Five (5) I; . , I, North, Range Sixty-seven (67) West, of the 6th P.M. , Weld County, I, I; Colorado, being more particularly described as follows; II P Beginning at the East Quarter Corner of said Section 0, Township 5 North, I; i Range 67 West of the Gth P.M., and considering the East line of said ' I' Section 8, Township 5 North, Range 67 West of the 6th P.M. , to bear liII North 00°00'00" East, and all other bearings contained herein relative •: thereto: - Il Thence South 89°54'12" West, 30.00 feet; thence North 00°00'00" East, ; II 610.17 feet to the True Point of Beginning; I' r-. ii Thence South 88°43'50" West, 1,378.64 feet; Thence North 80°09'35" il West, 872,83 feet; Thence South 56°12'57" West, 141.17 feet; Thence jl North 26°10'22" West, 60.53 feet; Thence North 56°12'57" East, 155.89 i, I! feet; Thence South 80°09'35" East, 867.52 feet; Thence North 88°43'58" East, 1,378.64 feet; Thence South 00°00'00" West, 60.00 feet to the I�. True Point of Beginning. II Man known aastrret and nanller it II TO HAVE AND TO HOLD the same,together with all and singular the appurtenances and privileges the reuntA JpIf1 N belonging or in anywise thereuutn appertaining,:mid all Lhr¢slate.right,title,interest and claim whoever,of the I\ I said party of the first port.either in lnw or enui V.to the only pre,],o ruin,torn,,(I L and bebop(of the said partly S of the second part,the heirs and assigns forever. Ii IN WITNESS WHEREOF,TI,,an iii party of the Prat part S hereunto set h' i hand • !, and seal the day and year first Ahem written. , ,; ..2Z r-' f SEA LI '. Signed,Sealed and Delivered in the P,,sor,rr id' ( frY Bl9bkJe� �. Ij __— —ISEALI I, ,I• —I SEAL! • • —. I STATE0FC0LDRAn0. � .r _ county of Weld I' li The foregoing instrument win arbnonleil[rdbefnrymethis 19th day of January I' ,; 1961 .W TERRY BIGBEE. i- i. I My commission eepirea ��. Jl .IY{� .W'itne.ss my hand vnl nfneinl aenl. h i; Ii ,.O`.9;',.Q c;' ,.o`: 9776", 1 .c ✓>/ii ..,�L fl } Nato.yr Fu Q o ' •$XHLBIT II F W IH ' Nn.9J1. 0urt Uswnr:r.n.-m.nr.,,a rmh.kur,puy w..,unm...u,.n.u.a.[.u....d.uuel—Uen ne.wit,_z+e ,.. AR1d9Y756 \,.4970 REC 01894758 06/16/82 13: 11. $3.00 1/001 1 "._ F 0898 MARY ANN F_1'ERSTEIN CLERK 3 RECORDER WELD Cn; CO I m— stets PROOF OF POSSESSION I STATE OF...... Colorado : 1 COUNTY OF...He1d._.........____1 SS' (TO BE EXECUTED BY DISINTERESTED PARTY) The undersigned.of lawful age.being first duly rworn.deports and rays:Than _..._._._.. i ." .__......_.._._.._—______._.______.................is the owner of the following described land in 1 _.._........._..__-_Sicld Coney . ..._.__......._Colorado.._. ....... to•wit- 1 Township 5 North. Range 67 West, 6th P. H. I Section 8, A tract of land in the NEr; described as beginning at the East Quarter I Corner of Section 8, and considering the east line of Section. 8, to bear N 00°00'00" E, and all other bearings contained hsrein relative thereto; Thence S 89°54'12" If, 30.00 feet; Thence N no 00'00^ E. 610.17 feet to the true Eoint of beginning; Thence S 88°43'58" 14, 1,378.64 feet; Thence N cC 39'38" le, 872.83 feet; Thence S 56°1297" 14, 141.17 • feet; Thence N 26°10'22" W 60.53 feet; Thence F 56°12'57" E 155.89 feet; 1 Thence S 80°09'35" E, 887.52 feet; Ther.ce N 88443'58" E, 1,378.64 feet; hence S 01°DO'OO" W, 60,00 feet to the true point of beginning. of Seaiaa__.__.: ovnaF,tp....__;t'h.._Pange......Y.ea_....containing. ....3.J0 saner more or less. . The andemgned farther nye that.__Jut.........it fr^.i!ir with said and and that. .....he_.... knows that said nwnrr!•_-b.-a ii, the actual open. peaceable and onditterbrd possession of all of said land and that no ocher person claim or occupies said land adverse to said owner and that said owner has possession of raid land as follow,: a road Acquired 1/18/46 (Deed 1169, 517) by Lowell I.. Cause, et al. 7/23/63 (140 61.2, 1533605) by Raymond H. Frank and William K. Frank. fe/28/69 (WD 612, 1533606) by . Raymond H. Frank. 5/7/71 (WD 646, 1567653) by Jackie Chismar. 8/27/71 (Deed 652. 1574261) by Roy Lundvall, Trustee of the Jackie C. Chismar T,st. 5/31/72 (QCD 689. 1590591) by Jerry Dirbee. 1/19/81 (Deed 92 1 4994 by ere of Record yer 1 adjacent properties on 1/19/81. \\ Subscribed and rworn to before me. this ._,2 77.`.day o( r .. ._.A(�.f., ....r'c..'b•s�1Se2.... '•.•w i" .i-� My eommiuieo expires ......f�11�i,L F":'�"`_ .../J per _0,.• tr . ar 1s t�tsclses /77e.' 95Ctrr—.-e.lior'rigedr ._ : .r ....__..._...._._ .—. C . cite /cc an', •1 tisJt•_l"_ I btil )Q 1985 7E 4JP • ad STATE CF.._....__._ I ,...�7j0 3 -----_}SS. (TO BE EXECUTED BY TENANT) tt COUNTY OF The wide:signed. of lawful age, (wing int duly sworn. depose and says: That he occupies the above described land as tenant of...._._...._..._...._.______.._.._..... _. ........ the owner thereof:that he became such tenant on the....___...._....._day of..... . 19.._.... and that his tenancy is for....................yars and will expireon the...___.._. day of. 19 ....... That be claims no title to said land other than u tenant as aforesaid,and doer hereby state and declare that his tight to posaenion in no way interferer with tin right of raid owner to lase said lands for oil and gas drvrlop- meat purposes.and that his pouaaion as tenant is subject to the rights of any lease or assignee under any oil and/or gas lease executed by such owner. Subscribed and tworo to before me. this...._...._......_day of 19 . .. Mycommission expiry .— —_........._......................_._ _..... Nato.Pxbak. ...__.._ STATE OF..........Colorado.._....._..._. ___,._ 5S. (TO BE EXECUTED BY OWNER) COUNTY OF Ncld . The undersigned.of lawful age. bring Ent duly sworn.deposes and say,: That he is the owner of said above described lands and that he has read the above and foregoing affidavits and certificates and p:oonclly know, than &:statements made therein are true and correct. and he has owned and been a pout<nion of the • above described land for years. Subscribed and sworn to before me.this day of.......... ....... .. ... .. ..- 19 I ,� My commission expire t f O'ssi Natn P.61;.. `' � } I ��rr t ptl_ i:4s9a' 'i/cam 3- _0%9 el�0�� I .v . � w I I 1,� � � o .N % 'i1 II k� 0j • m e - .<•• 5?-1- 7727G/7 l n � � \, ' • �I 0 ,9 O� 'd9S IN. ; ^ t OO a r - o}Mxei k0 t ! UI la o Q 0 0 N 1 V J\ QN o t_ �--: d'‘ 1/2./j/-"- v _ '• J a 24G e. a t• h pm ii i _ ru p ` r vas _ __ '. Fn c. S ,\� - $6 /s -- \ v /"e‘ �nM N /N„0E,80!'V✓v !J mt‘i DISTRICT COURT, WELD COUNTY, COLORADO 901 9th Avenue P.O. Box 2038 Greeley, Colorado 80632-2038 970-351-7300 • In re the Plaintiffs: GARRY and KATHLEEN • Court Use Only • WEINMEISTER, HARRY D. HARTSHORN, CHARLES and TINA SHINNER, and THOMAS W. WEILER vs. Defendants: JESS R. ARAGON, MARCELLE L. GEUDNER, and COZY COW DAIRY, LLC Attorney for Defendant Jess R. Aragon: Richard F. Zier Case No. 05 CV 265 322 East Oak Street Fort Collins, CO 80524 970-482-2255 Division 9 Registration#8553 ANSWER OF DEFENDANT JESS IL ARAGON TO AMENDED COMPLAINT FOR DECLARATORY JUDGMENT ANSWER Defendant Jess R. Aragon("Aragon") by his attorney answers the Amended Complaint for Declaratory Judgment as follows: 1. Aragon admits the allegations contained in Paragraph 1 of the Amended -- Complaint. 1 2. Aragon admits the allegations contained in Paragraph 2 of the Amended Complaint. 3. In response to the allegations contained in Paragraph 3 of the Amended Complaint, Aragon admits and asserts that he is an owner of property described in the deed referenced in the first sentence of said Paragraph 3. Aragon asserts that the said deed speaks for itself. Aragon lacks sufficient information to form a belief as to the truth of the remaining allegations in said Paragraph 3, and so denies the same. 4. In response to the allegations contained in Paragraph 4 of the Amended Complaint, Aragon admits that the referenced deed sets forth a metes and bounds description,but Aragon lacks sufficient information to form a belief as to the truth of the remaining allegations contained in said Paragraph 4, and so denies the same. 5. In response to the allegations contained in Paragraph 5 of the Amended Complaint, Aragon admits that a copy of the referenced "Proof of Possession" is attached to the Amended Complaint as Exhibit B, and further states affirmatively that the document speaks for itself. 6. Aragon lacks sufficient information to form a belief as to the truth of the allegations contained in Paragraph 6 of the Amended Complaint, and so denies the same. 7. In response to the allegations contained in Paragraph 7 of the Amended Complaint, Aragon lacks sufficient information to form a belief as to the truth of the allegations contained in said Paragraph 7 and so denies the same, except that Aragon admits that the properties identified as Parcels 1-6, inclusive, on Exhibit C attached to the Amended Complaint presently receive access via the referenced parcel. Aragon specifically denies that any roadway on the parcel is 60 feet wide. 8. Aragon admits the allegations contained in Paragraph 8 of the Amended Complaint. 9. Aragon admits the allegations contained in Paragraph 9 of the Amended Complaint. 10. Aragon admits the allegations contained in Paragraph 10 of the Amended Complaint. • 11. Aragon admits the allegations contained in Paragraph 11 of the Amended Complaint. 12. Aragon admits the allegations contained in Paragraph 12 of the Amended Complaint. 2 13. In response to the allegations contained in Paragraph 13 of the Amended Complaint, Aragon affirmatively states that as of February 28, 2005 Aragon is the sole owner of Parcel 2 as described in the Amended Complaint. 14. Aragon denies the allegations contained in Paragraph 14 of the Amended Complaint. 15. Aragon denies the allegations contained in Paragraph 15 of the Amended Complaint, except Aragon admits a culvert was put in recently. 16. Aragon denies the allegations contained in Paragraph 16 of the Amended Complaint. 17. Aragon admits the allegations contained in Paragraph 17 of the Amended Complaint. 18. Aragon lacks information sufficient to form a belief as to the truth of the allegations contained in Paragraph 18 of the Amended Complaint, and so denies the same. 19. In response to the allegations contained in Paragraph 19 of the Amended Complaint, Aragon states that the deed and Proof of Possession referenced in said Paragraph 19 speak for themselves. 20. Aragon lacks information sufficient to form a belief as to the truth of the allegations contained in Paragraph 20 of the Amended Complaint, and so denies the same, except that Aragon is not aware of a formal maintenance association concerning the jointly owned real property. Aragon states affirmatively that one or more of the Plaintiffs had stated recently that they have worked together to maintain portions of said real property, and so Aragon assumes that some system has historically been in place for this purpose. 21. In response to the allegations contained in Paragraph 21 of the Amended Complaint, Aragon admits that pursuant to C.R.C.P. 57 the Court may enter some sort of declaratory judgment. Aragon lacks information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 57 and so denies the same, except that Aragon specifically denies that the roadway is limited to access for ingress or egress only to private residences. 22. In response to the allegations contained in Paragraph 22 of the Amended Complaint, Aragon incorporates his responses to the allegations contained in Paragraphs 1-21, inclusive, of theAmended Complaint as if fully set forth herein. 23. In response to the request for alternative relief contained in Paragraph 23 of the Amended Complaint, Aragon denies that it would be appropriate or just for the Court to partition the property. 3 24. In response to the allegations contained in Paragraph 24 of the Amended Complaint, Aragon incorporates his responses to the allegations contained in Paragraphs 1-23, inclusive, of the Amended Complaint as if fully set forth herein. 25. In response to the assertion of the residential access easement contained in Paragraph 25 of the Amended Complaint, Aragon denies that such assertion is appropriate, legal or just. 26. Aragon denies the allegations and assertions contained in Paragraph 26 of the Amended Complaint. 27. Paragraph 27 is essentially a prayer, not an allegation. Nevertheless, to the extent it is regarded as an allegation, Aragon denies the same. AFFIRMATIVE DEFENSES 1. The Amended Complaint fails to state claims against Aragon upon whici release may be granted. 2. The parties are joint owners, in fee, of the subject real property as tenants in common. Therefore, Plaintiffs' claims for Orders establishing easements are inapt. 3. Access via the private roadway is not limited to such for only residential purposes. 4. Aragon is willing to defray his fair share of costs for upgrade and maintenance of the roadway. 5. Aragon's recent work in the roadway has not unreasonably burdened or inconvenienced the other joint owners. On the contrary, the road has been made significantly better, and safer, and prior drainage problems have been significantly improved. The work has benefited all of the joint owners, and has been at Aragon's cost. 6. Aragon owns a landscape business, TimberRock Landscape Center. The use is one which is permitted by Weld County in the A-Agricultural Zone (in which Parcel 2 is located in unincorporated Weld County) upon special review approval. Aragon currently has an application pending for special review approval before the Weld County Board of Commissioners. If approved by the County Commissioners, it must be because the Commissioners have found after public hearing that the proposed use as planned and as mitigated is compatible with the area in terms of its outward effects, including without limitation access, traffic, dust, noise, and visual appearance. Plaintiffs filed this suit one week prior to the scheduled County Commissioner hearing on February 16, 2005 in an effort to postpone or derail Aragon's application. The County Commissioners did postpone the hearing pending the outcome of this suit. The Weld County attorney has given his opinion that the subject roadway 4 is available for access to Aragon's proposed use. The Windsor Planning Commission (which, because Aragon's property is slated for eventual annexation to the Town of Windsor, is required to review the proposal) and the Weld County Planning Commission have unanimously recommended approval of Aragon's application. 7. Partition of a jointly owned access road would be an absurd result. 8. The claims for restricted private easement and partition are frivolous and groundless, and Aragon should be awarded his costs including reasonable attorney fees incurred in defending the same. 9. Plaintiffs' claims are barred or reduced by operation of the doctrines of waiver, estoppel, laches, and/or failure to mitigate damages. WHEREFORE, Aragon requests the Court to declare that Aragon is an owner of the real property in the referenced deed and Proof of Possession, that the Court deny that Aragon is limited to using the private roadway for access only to a residential use, and that the rights of the parties which the Amended Complaint requests the Court to declare includes the right of Aragon to utilize the private roadway for access to his proposed landscape center use on Parcel 2. Further, Aragon requests that the Court establish the obligations for payment of the costs and expenses of the maintenance of the roadway in an equitable manner. Further, Aragon requests that the Court award him his costs including, if appropriate, reasonable attorney fees incurred in defending this suit, and grant him such other and further relief as the Court deems proper. RESPECTFULLY submitted this 8`h day of April 2005. ZIER LAW OFFICES Signed Original on File at Zier Law Offices /s/Richard F.Zier,#8553, Pursuant to C.R.C.P. 121§1-26(9) By: Richard F. Zier Attorney Registration No. 8553 Attorney for Defendant Jess R. Aragon 5 CERTIFICATE OF SERVICE • I hereby certify that on this the 8th day of April , 2005, a true and correct copy of the foregoing ANSWER OF DEFENDANT JESS IL ARAGON TO AMENDED COMPLAINT FOR DECLARATORY JUDGMENT was filed electronically and served by CourtLink and addressed to the following: Warren W. Schaeffer, Esq. Houtchens, Houtchins & Greenfield, LLC 822 7th Street, Suite 270 Greeley, CO 80631 Timothy L. Goddard, Esq. Hasler, Fonfara&Maxwell, LLP 125 S. Howes Street, Sixth Floor P.O. Box 2267 Fort Collins, CO 80522 Signed Original on File at Zier Law Offices /s/Margaret A.Book, Pursuant to C.R.C.P. 121§1-26(9) Margaret A. Book for Zier Law Offices THIS DOCUMENT WAS FILED ELECTRONICALLY PURSUANT TO C.R.C.P. 121 1-26. A DULY SIGNED ORIGINAL IS ON FILE AT THE OFFICES OF ZIER LAW OFFICES. 6 Hello