HomeMy WebLinkAbout04 Snowmass Creek Road Litigation Settlement 2nd Reading 4.26.17 AGENDA ITEM SUMMARY
REGULAR MEETING DATE: April 26, 2017
AGENDA ITEM TITLE: Ordinance of the Board of County Commissioners
of Pitkin County, Colorado Authorizing the
Settlement of Litigation Concerning Snowmass
Creek Road and Recognizing an Easement for Tail
Water
STAFF RESPONSIBLE: Laura Makar, Assistant County Attorney
ISSUE STATEMENT: This is the second reading and public hearing of an Ordinance
of the Board of County Commissioners of Pitkin County, Colorado authorizing execution
of a Settlement Agreement in litigation concerning Snowmass Creek Road and
recognizing an easement for tail water from 876 Snowmass Creek Road into the borrow
ditch along Snowmass Creek Road as it makes its way back to Snowmass Creek.
BACKGROUND: David B. Brothers, Marshall A. Brothers, Bennett Bramson, and
0876 Snowmass Creek, LLC (collectively herein "Brothers") irrigate 876 Snowmass
Creek Road by water received from the Stewart No. 1 Ditch pursuant to shares and/or
water rights held in the Stewart No. 1 Ditch Company ("Stewart"). Since 2007,
Snowmass Creek Road ("Road") has experienced cracking and signs of distress in the
areas adjacent to the 876 Property, and the Board alleged Road failures were caused by
the irrigation operations of the Defendants in two separate lawsuits. The first suit was
Pitkin County District Court case number 2009CV000085, which was resolved by
settlement between Board and Stewart, and by jury verdict in favor of the Board against
Brothers. The Board filed a second suit against Defendants, Board of County
Commissioners of Pitkin County v. Brothers et al., District Court, County of Pitkin, State
of Colorado, Civil Action No. 2014CV030084, alleging that Road damage was caused
by Brothers and Stewart's ditch construction, maintenance, operation, and/or irrigation
practices on the 876 Property, or otherwise by water leaving the property or operations
going on, under or through the Road. In an effort to resolve this dispute without the need
for trial, but ensure Snowmass Creek Road does not experience further damage due to
irrigation practices on 876 Snowmass Creek Road, expert witnesses to the litigation have
collectively prepared a Memorandum detailing a proposal for improvements to the
Defendants' ditch and irrigation systems on the 876 Property and the Snowmass Creek
Road right-of-way and its associated drainage appurtenances. In exchange for agreement
of the Board to recognize an easement for the tail water leaving the 876 Property via the
improvements into the Snowmass Creek Road borrow ditch to return to Snowmass Creek,
Brothers and Stewart are willing to undertake and pay for the improvements collectively
prepared by the experts.
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The terms of the Settlement Agreement shall incorporate language approved by the County
Attorney and the Chair or Chair's designee shall be authorized to execute the Agreement in
the approved form.
LINK TO STRATEGIC PLAN: Safe and healthy community; conserving natural
resources.
KEY DISCUSSION ITEMS: Authorization to enter into the Settlement Agreement.
BUDGETARY IMPACT: Settling the controversy is less costly than litigating it
through the trial court and court of appeals.
RECOMMENDED BOCC ACTION: Hold public hearing and adopt Ordinance on
second reading.
ATTACHMENTS:
Proposed Ordinance
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AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN
COUNTY, COLORADO,AUTHORIZING THE SETTLEMENT OF LITIGATION
CONCERNING SNOWMASS CREEK ROAD AND RECOGNIZING AN EASEMENT
FOR TAIL WATER
ORDINANCE NO. -2017
RECITALS:
1. Pursuant to 30-35-301 C.R.S., the Board of County Commissioners ("BOCC") of Home
Rule Counties is authorized to make and publish ordinances for carrying into effect or
discharging the powers and duties conferred upon such counties by law and as seems
necessary.
2. Pursuant to Section 2.8.1 of the Home Rule Charter("HRC"), the BOCC is authorized to
take official action by Ordinance for certain matters where action is prescribed pursuant
to the Colorado Revised Statues as amended.
3. The BOCC and David B. Brothers, Marshall A. Brothers, Bennett Bramson, and 0876
Snowmass Creek, LLC (collectively herein"Brothers") and the Stewart No. 1 Ditch
Company("Stewart") are currently engaged in litigation concerning the Snowmass Creek
Road.
4. The BOCC, Brothers, and Stewart have reached agreement in principle on a settlement of
the litigation that will provide for, among other things, ditch and tail ditch improvements
to prevent damage to Snowmass Creek Road.
5. The settlement calls for the BOCC to recognize an easement for tail water from Brothers
and Stewart's irrigation practices to flow from 876 Snowmass Creek Road at a location
agreed to by the BOCC, Brothers, and Stewart into the borrow ditch along Snowmass
Creek Road as it makes its way back to Snowmass Creek.
6. This Ordinance provides authority to recognize the easement and for the Board Chair (or
Chair's designee) to execute a Settlement Agreement, and other documents that may be
necessary to finalize the settlement.
7. The BOCC, Brothers, and Stewart have agreed to the terms and conditions of a
Settlement Agreement in a form substantially approved by the County Attorney.
8. The BOCC finds that adoption of this ordinance is in the best interest of the citizens of
Pitkin County and is necessary for the immediate preservation of the public health, safety
and welfare of the citizens of Pitkin County.
NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of
Pitkin County, Colorado that it hereby adopts an Ordinance Authorizing the Settlement of
Litigation concerning Snowmass Creek Road and Recognizing an Easement for Tail Water and
authorizes the Chair(or Chair's designee) to sign a Settlement Agreement upon the satisfaction
of the County Attorney as to form as well as to execute any other associated documents
necessary to complete this matter.
INTRODUCED, READ AND ADOPTED ON THE 12th DAY OF April 2017 AND SET FOR
PUBLIC HEARING ON THE 26th DAY OF April 2017.
NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE
ORDINANCE PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE DAY OF
2017.
NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE POSTED
ON THE OFFICIAL PITKIN COUNTY WEBSITE www.pitkincounty.com ON THE
DAY OF 2017.
ADOPTED AT A PUBLIC HEARING ON THE DAY OF 2017.
PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER A PUBLIC HEARING, IN THE
ASPEN TIMES WEEKLY ON THE DAY OF 2017.
POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICIAL PITKIN COUNTY
WEBSITE www.pitkincounty.com ON THE DAY OF 2017.
THIS ORDINANCE IS EFFECTIVE ON APRIL 26, 2017.
ATTEST: BOARD OF COUNTY COMMISSIONERS
By By:
Jeanette Jones George Newman, Chair
Deputy County Clerk
Date:
APPROVED AS TO FORM: MANAGER APPROVAL
Laura Makar, Assistant County Attorney Jon Peacock, County Manager