HomeMy WebLinkAboutresolution.council.096-02 RESOLUTION NO. C~f~
Series of 2001
A RESOLUTION OF THE CITY OF ASPEN, COLORADO, AUTHORIZING THE MAYOR
TO EXECUTE. ON BEHALF OF THE CITY OF ASPEN, A SETTLEMENT AGREEMENT IN
THE COLORADO DISTRICT COURT CASE ENTiTLED YOUNG VBUDfNGER.
WHEREAS, there has been submitted to the City Council a proposed Settlement
Agreement in an action filed in the Colorado District Court naming the City of Aspen as a
defendant in a quiet title action styled Young v Budinger, er. al.; and
WHEREAS, the City Council has determined that the Settlement Agreement is a fair
resolution of the claims raised in the action and in the best interests of the city to execute.
NOW, WHEREFORE, BE IT RESOLVED BY THE CiTY COUNCIL OF THE CITY OF
ASPEN, COLORADO, that the Mayor is hereby authorized to execute on behalf of the City of
Aspen the Settlement Agreement in substantially the form appended hereto as Exhibit A and any
other related documents requisite to settle the action.
Dated: ~ /~ ,2002 /~/
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a
true and accurate copy of that resolution adopted by the City Council of the City of Aspen,
Colorado, at a meeting held ~ ./~,'~ ., 2002.
rathryn S.//~och, City Clerk
JPW-10/09/2002-G: \ j ohn\word\ resos\youn~- lawsuit .doc
LAW OFFICES
FREILICH. MYLER, LEITNER & CARLISLE
I~ AS~ CO:O~,ADO
106 SOUTH MILL STREET Fazm~cll. L~n'I, mg& CA~zS~
DAm I ~E~ PC SUITE 202
AS~S~. CoLo~o 8161 I
8EP 2002 JASON M DI~BISS
September 16, 2002
John Worcester, Esq.
Aspen City Attorney
130 S. Galena, Second Floor
Aspen, Colorado 81611
Re: Adverse Possession Claim
470 North Spring Street - 707 Gibson Avenue
Dear John:
Several months ago you and I discussed the potential settlement of an adverse possession claim
asserted by a landowner in Oklahoma Flats. Although I did not disclose the names and property
addresses involved in the claim, I described the general nature of the controversy and the fact that
the two property owners were willing to settle the matter through a "Consent Decree" issued by the
Pitldn County District Court. At the time of our conversation, you confn-rned that the City of Aspen
would have to be a parE/to the settlement because the consent decree would effect a boundary line
adjustment between the two affected lots. A court-ordered boundary line adjustment would have an
impact on the application of the City's land use regulations on each of the lots, especially on the floor
area available to each lot.
We represent both landowners ~n this dispute as an intermediary. Dermis and Andrea Young
("Young") own the property which is benefitted by the adverse possession claim. William D.
Budinger CBudinger") is the record owner of the disputed land.
This letter sets forth the details of the adverse possession claim, the defenses to the claim ~vhich
would be asserted in the absence of a settlement, and seeks the City's agreement to endorse the
settlement so as to avoid the need for litigation.
FREILICH, MYLER. LEITNER & CARLISLE
John Worcester, Esq.
September 16, 2002
Page 2
I. Backtround of Case.
Young are the owners of 470 North Spring Street (the "Young Property"), which is improved by a
Victorian bungalow ~vhich was moved to the site in the mid-I960s. Drummond Mansfield
("Mansfield") bought the property in September of 1969,~ and installed a fence and gate around the
driveway/parking area located immediately to the north of the house (the "Parking Area")? The
Parking Area had been used for driveway/parking purposes by the former owner of the Young
Property, Marvin Moriarity.~ Although Mansfield later removed the fence and gate,4 he continued
to use and exercise exclusive dominion over the Parking Area by maintaining a padlocked chain
across the opening when he wasn't using the Area for driveway purposes?
In September of 1980, Ruth Weinstock. bought the Young Property from Mansfield.° At that
time, Mrs. Weinstock's son, Mark Lowenstein ("Lowenstein"), moved in. He remained domiciled
in the Young Property until he moved to Cali£omia in 1983.7 Lowenstein (and his tenants, after
Lowens;em left the state) continued to use the Parking Area for driveway, parking and storage
purposesfi
Lowenstein and his mother's,estate sold the Property to Mr. and Mrs. Young in December
of 1989.9 They have continued to use and exercise exclusive dominion over the Parking Area since
they purchased the property. A photograph of the area as it currently exists is attache~t hereto as
Exh/bit D.
~ See Warranty Deed to Drummond Mansfield, attached hereto as Exhibit A, and Affidavit
ofG. Dr,trnmond Mansfield, attached hereto as Exhibit B.
z Mansfield Affidavit, ~[ 2.
3M
'Id.,*4.
61d.,~5.
See Affidavit of Mark Lowenxtern, attached hereto as Exhibit C, 5 ¶ 3, 7.
9 Mrs. Weinstock conveyed a 15% interest in the Young Property to Lowenstein in .rune of
1981.
FREILICH. MYLER. LE1TNER & CARLISLE
John Worcester, Esq.
September I6, 2002
Page 3
II. Sheffer's Response to Adverse Possession Claim.
In connection with certain improvements they planned to construct on their property, Mr. and
Mrs. Young need judicial recognition of their adverse possession claim to the Parking Area. They
first communicated their claim to Douglas and Barbara Sheffex. the then-owners of the Budinger
Property, in June of I999. The Youngs did not expect much resistance from the Sheffers because
the Parking Area is located ar the bottom of a steep hill, is quite remote from the home located on
the Budinger Property and, as described above, had not been used as part of that property for quite
a long time. However, for reasons not readily apparent, Mr. and Mrs. Sheffer were nor inclined to
acqmesce ro the adverse possession claim.
The Shellers planned to defend against the claim by asserting that the Youngs' possessxon
of the Parking Area was permissive, not adverse. Under their theory, Mansfield had been granted
permissmn ro use the Parking Area by an agent ora predecessor-in-interest to the Shellers. Further
investigation revealed that (a) no communication concerning "permissive use" of the Parking Area
was ever communicated to Mansfield or any other owner of the Young Property, and (b) the former
owner of the Budinger Property never authorized anyone to represent him in dealing with
Mansfield.l°
III. Analysis.
Title to real property may be acquired by adverse possession by a person who demonstrates,
"by clear and convincing evidence that possession was [1] actual, [2] adverse, [3] hostile, and [4]
under a claim of r/ght and that it was [5] exclusive and [6] uninterrupted for the statutory period''~
of 18 years. Once these elements have been satisfied, the adverse possessor is entitled to ali of the
incidents of ownership normally held by a person holding title. Black's Law Dictionary defines
"title" as the "union of all elemems ([including] ownership, possession and custody) constituting the
legal right to control and dispose of property; [and as] the legal link between a person who owns
property and the proper~y itself.''~2
to See Affidavit of Randy Wedum, Supplemental Affidavit of Randy Weedum, and Affidavit of
Lee Pardee, attached as Exhibits E, F and G, respectively, for further detail regarding the Sheffers'
plarmed defense and the facts described here.
n Miller v. Bell. 764 P.2d 389 (Colo. App. 1988)(citing Rafiopoulos v. Monger, 656 P.2d
1308 (Colo. 1983)).
22 1493 (7~ ed. 1999).
~FREILICH, MYLER. LEITNER & CARLISLE
John Worcester, Esq.
September 16, 2002
Page 4
The facts and circumstances of the claimant's possession of the property must be sufficient
to put a reasonable person in the position of the record owner on notice that the parry in possession
claims title to the land. The law ~vill not abide a sm'prise assertion of ownership.
No one should be surprised that the Youngs are now asserting their ownership of the Parking
Area. Mr. and Mrs. Young and their predecessors-in-interest have continuously used the Parking
Area for parking, driveway and storage purposes for at least 33 years. In the 1970s, Mansfield gated
and then chained the area from the street. Because of its long use by the owners of the Young
Property (and because the Parking Area is located at the bottom of the slope from the remainder of
Budinger Property), it appears to be part of the Yotmg Property. The Youngs control and dominion
over the Parking Area has been absolute since at least the time Mansfield bought the land in 1969.
When, as here, a claimant and his predecessors~in-~merest have been m possession of
property "for more than 18 years, there is a presumption that [their] holding was adverse.''~3 Once
the claimant demonstrates possession for the statutory period, the burden of proof shifts to the record
owner ro overcome the presumption.~4
The Sheffers hoped to persuade a Court that possession of the Parking Area by Mr. and Mrs.
Yotmg and their predecessors-in-interest was permissive, not adverse. As described in the preceding
section, the evidence which the Sheffers planned to present in this case was inadequate to overcome
the presumption of adversity which exists in the law once possession for the statutory period has
been demonstrated. Simply stated, the preponderance of the evidence supports the Youngs' version
of events.
IV. City of Aspen Regulations
Some time ago, you and I discussed this case in concept. I took the following information
from our conversation:
1. In the case of a typical adverse possession lawsuit, the City of Aspen is served as an
interested party and may participate in the action. Its interests are to protect its land
use regulations and the plat of the property which define development rights
appurtenant to each lot.
Agricultural Ditch and Reservoir Co. v. Gleason, 686 P.2d 802. 807 (Colo.App.
984)(citing Gleason v. Phillips, 172 Colo. 66, 470 P.2d 46 (I 970)).
Id. (quoting Trueblood v. Pierce, 116 Colo. 221, 179 P.2d 671 (1947))
FREILICH. ~IYLER. LEITNER & CARLISLE
John Worcester, Esq.
September 16, 2002
Page 5
2. Any final judgment rendered in the lawsuit binds the City as wei1 as the parties. Each
lot, in the size and shape recognized by the Court, is entitled to the floor area
allotment provided by the Aspen Land Use Code. The size and shape of each lot
prior to the Court's decree is irrelevant to the calculation of floor area which may be
constructed on each lot.
3. If Budinger and Young agree on the terms of a settlement of the Adverse Possession
Claim and the City is persuaded that the adverse possession claim is legitimate and
would otherwise prevail before the court, the City may join in a lawsuit and a
proposed settlement thereof resolving all issues. The City's review of the facts and
circumstances behind the Adverse Possession Claim may be handled
administratively, withont involvement by the Planning and Zoning Commission or
City Council.
V. Request for City's Involvement in Settlement.
In addition ro the affidavits and other factual material discussed above. I have enclosed the
following documents for your review and approval:
Exhibit
I-I. Waiver and Acceptance of Service
I. Complaint Under Rule 105
J. Final Order
K. Stipulation and Motion for Entry of Final Order
L Settlement Agreemem
After you have fully reviewed this correspondence and the draft pleadings and agreements
enumerated above, please give me a telephone call to discuss them. Thank you for your time and
cooperation.
Sincerely,
FREILICH, MYLER, LEITNER & CARLISLE
E. Michael Hoffrnan
FREILICH. MYLER. J~EITNER & CARLISLE
John Worcester, Esq.
September 16, 2002
Page 6
Tabte of Exhibits
Exhibit A - Warranty Deed to Drurm2ond Mansfield
Exhibit B - Affidavit of G. Drummond Mansfield
Ex_h/bit C - Affidavit of Mark Lowenstern
Exhibit D - Photograph of Parking Area
Exhibit E - Affidavit of Randy Wedum
Exl'dbit F -SupplementaI Affidavit of Randy Wedum
Exhibit G - Affidavit of Lee Pardee
Exhibits H through L ~ as shown on previous page
Dol~'ar. a~d Other good and va~unble
TO RAVg'A~D TO HOE;D t~l ~4 ~l.~
~d i~e a~.h~p~d ~f., ~.th. q.l~ and p~..5~
· ,-..,.--,,,.-.,,-; .... .~.. . . /j., //~-,,.,. .......
. ~. ~,~ - . . ·
................_
. STAT~ or ~RADO,
~ ~i~in.~ "'
AFFIDAVIT OF G. DRUMMOND MANSFIELD
I, G. Drummond Mansfield, the affiant, a resident of the State of Indiana, under oath
depose and state the following:
1 ) On September 15, 1969. I purchased Lot 2 Block 4 of the Oklahoma Flat Subdivision
and the house on it more commonly known as 470 North Spring Street, hereinafter
"470". I purchased 470 from Marvin Moriarity. I moved in immediately after the
closing and the house was my principal residence.
2) In 1970, based on a survey provided to me by Marvin Moriarity, I built a fence
surrounding the house on all four sides. The position of the fence is shown in the
attached Exhibit 1 (which I have drawn) by the line marked with the X's. I positioned
the fence accoring ro a survey provided m me by Mr. Moriarity. I believed that the
survey provided by Mr. Moriarity accurately represented the property lines of 470 and
believed that the fence I built enclosed only my property. The fence included a large
"car gate" I built in front of the driveway on the north side of the property as shown in
Exhibit 1 (the "disputed property"). The driveway/parking area on the north side of
the house already existed as such when I purchased 470 and ro the best of my
~.qS¥~_dg~-h-ad beenused, for~thatpurpose-pfior-~o mypurchase of the'p~t-)i~i-ty~'"Th~
gate and fence can be seen in the photograph of 470 1 took in 1972 (Exhibit 2).
3) In 1975 a new survey of 470 was done and I learned that my f~nce was outs;de of the
property lines of 47u. The solid line on Exhibit 1 shows the corrected property lines.
4) Based on the new survey, I removed the north fence and replaced it with a new fence
running along the updated property line. I removed the car gate shown in Exhibits 1
and 2 but placed a chain across the front of the driveway/parking area (as shown in
my drawing of Exhibit !) to malntaJ, n my private access and security.
5) I maintained the chain across the driveway through the time of my sale of the property
in September of 1980 and continued to use the driveway/parking area for my private
use and the use of my visitors and guests.
6) I openly, continuously, and notoriously used the "disputed" property from September
1969, until the sale of 470 in September of 1980.
7) During my ownership of 470, the northern portion of the land up m, and including an
area up the hillside (see exhibit 1) was in continuous use as a driveway, parking and
storage area.
8) In 1980, I moved from Aspen to Indiana.
9) At no time from the date of purchase on September I5, 1969 until the date of sale on
September 2, 1980 did anyone object to my possession and use of this area.
10) At no time during this same period did I, or anyone else I am aware of, ask the record
owners of the disputed property for permission to use the property as stated above.
FURTHER AFFIANT SAYETH NOT.
G.~ Drummond Mans~e-ld ~ ~
Sworn to and subscribed before me this .~ day of '~/~/~ ?~? ,I 999.
N~orary e~lic
My co~ission expires: /~
TRA~y O. BENTZ, Notary Public Resident of Monroe
.'7 - ~- - .....
AFFII)AVIT OF MARK LOWENSTERN
I, Mark Lowenstein, the affiant, a resident of the State of California, under oath depose
and state the following:
1) On September 2. 1980, I, on behalf of my mother and with her power of attorney,
purchased Lot 2 Block 4 of the Oklahoma Fiat Subdivision and the house on it more
commonly known as 470 North Spring Street, hereinafter "470". I moved in
immediately after the dosing and the house was my principal residence.
2) My mother was the sole owner of 470 until 1981 when I purchased a portion of 470
and held the property in joint tenancy with my mother.
3) Upon taking possession of 470 in 1980, the house was surrounded on ali four sides by
fencing along its property iine (see Exhibit 1, the fence is represented by the solid line
surrounding the house). Additional land outside the northern fence to the hillside
(approximately up to the X marked line on the top of the exhibk t, defined herein as
the "Disputed property") had been previously cleared and was used as a driveway for
................ iS~rlkifi~-'kffd s-fo~-~ FffSrh-ifi~-iS~b-ri~l o15~-rg~fi6~, ~is-e~i'~ki~-d'-~iil~/ia~-~o-p-e~ a~-~l
discussions with the parties during the sale process, I was aware that this additional
land had been used for the driveway, parking and storage area fqr 470 for a number of
years prior to the 1980 purchase.
4) Within the first weeks of my possession, I removed the fencing on the north, east and
south sides of the property. I left the western par; of the fence bordering on Spring
Street in place along with a small portion of the fence in the northeast comer of the
property. The drawing attached as Exhibit 1 represents the actual fence that existed
when I moved into the house. The fence removal was completed prior to the Is; of
October, 1980.
5) I, and my tenants, openly, continuously, and notoriously used the "Disputed property"'
from September 1980, until the sale of 470 to Mr. and Mrs. Young.
6) The northern portion of the land up to, and including an area up the hillside, including
the Disputed property, was in continuous use as a driveway, parking and s;orage area.
7) In L9~7_, I moved from Aspen to Cali£omia and leased 470 until the property was sold.
8) At no time from the date of purchase in September, 1980 until the date of sale on
December 27, 1989 to Mr. and Mrs. Young, did anyone object to my possession and
use of this area.
Affadavit of Mark Lowenstein - Page 2
9) At no time during this same period did I, or anyone else I am aware of, ask the record
owners of the disputed property for permission to use the property as stated above.
FURTHER AFFIANT SAY
Lowe ste '""
~Y~IBIT I
~o~ 2 Block ~ ~lahom~ l~Zats
Extdbit D - Photographs of Parking Ar~a
Current View of Parking
Area from North Spring
Street
Portion of Parking Area Used
Hold Trash .Cans
Another View of Parking Area from
North Spring Street
Exhibit D I Continued)
View of Young Residence in 1972 sho~,dng fence surrounding t~he
structure, including the Parking Area.
O~T ~ '00 ~:O~PM MCFL'~],~I =ICKETT ~HITSITT p,~
AFFIDAVIT OF
RANDY WEEDUM
STATB OF COLORADO )
) $$.
County of PitkJn )
The und~igned Affiant, Randy Weedum, after first b~ng duly sworn upon his
oath cioes state and affirm as follows:
1. My name is Randy Wecdum, I am over 21 years of age at the &me ofmy
execution of this Affidavit and I ~ su~£erlng no illness or infmnity that rnigh~ affect my
r~collcction or statement h~eln.
2 I cun:ently reside at 101 Ind~pendmce Place. Aspen, Colorado 81611
3. I have lived and practiced as a professional architect in thc City of Azpen,
Colorado, for a per~od of time in ex,ess of 25 years.
tn the told to late 1970's I wa~ co-owner and developer, along with Lee Pardee. of
...... a de_x~Ip~p_~. ~a%t !09~¢4 ~e .t~:~en ..Czi_'_b_~on Aven~e and North Spt/rig Street iu the City of
of that projecJ, we had the lands surveyed and made ourselves aware o£the location of
the property corners of that property m connection with our cteveloprd?nt plan.
5. At that time the property located at 470 North Spnng Street, wti/ch as the property'
irnmecliately adjacent mud to thc South of the p~open-y wo owned and were developing,
was owned by a Mr, Oeor§* Drummond. He lived in the reaidence on that property
during that period oftqme,
5. In the course of our development of the Hilltop propen/es, we conveyed the lot
known as 707 Gibson Avenue to my developmen~ parma, Lee Pardee, for the
con~u'uct/on of his residence, I was the architect who designed th~ residential s~ucture on
that propcr~y for Lee Pardee. As I became involved in the design work for that residence
in the period of 1978-1979, I hsd occasion to examine closely the location of tho common
property boundm-y between the property at 707 Gibson Avenue anc1470 North Spring
Street. It beaame apparent to me that tkis boundary cut through an area utilized by IVlx,
Drummond on ocoasion to park a cat next to his driveway. I diacuzsed th/s/na~ter with
Lee Patdee and M_r. Drummond. Lee Pardce and I d~"miacd that hc had no need ~o
ufil/ze that pon/on ofh/s property in his developme~ut plan. We then indicated to Mr.
Drummond that Lee was happy to permit imf. Drummond. to continue to util/z~ that are~
of Pard~¢'s lot for parkir~. Mr, Drummond expt~$ed no object/on to tkie offer nor to my
knowlcdg~ did he ever iud/cate that he believed it was his property or hie fight to park on
My c, ommis~ian ~xp~:/-Z5 ~c;~ Notary Public
DISTRICT COURT, COUNTY OF PITKIN,
STATE OF COLOtLM30
Court Address: 506 E. Main St., Aspen, CO 81611
Plaintiff(s): DENNIS YOUNG AND
ANDREA YOUNG
Defendant(s): WILLIAM D. BUDINGER,
AND THE CITY OF ASPEN,
A COLOtL~DO HOME RULE · COURT USE ONLY ·
MUNICIPALITY
Case Number: 02 CV
Div.:
Attorney: E. Michael HofRnan
Name: Freilich, Myler, Leitner & Carlisle
Address: 106 South Mill Street, Suite 202
Aspen, Colorado 81611
Phone Number: 970-920-1018
Fax Number: 970-920-4259
E-mait: ernhlaw@msn, com
Atty. Reg.#: 21885
SUPPLEMENTAL AFFIDAVIT OF ~Y WEDUM
STATE OF COLORADO }
} SS.
COUNTY OF PITK1N }
The undersigned Affiant, Randy Wedum, after being duly sworn upon his oath does state and
affirm as follows:
1. My name is Randy Viedum, I am over the age of 21 at the time of my execution of this
Affidavit and I am suffering no illness or infn-mity ~at might affect my recollection or
statement herein.
2. I earlier provided an Affidavit regarding the subject matter ofttfis action. That Affidavit was
executed and notarized on October 30, 2000 (which Affidavit shall be referred to herein as
the "October 2000 Affidavit").
g~tr~ct CourL P~tk~n
Ca~ No. 02 CV
Yo~g v. Bud/~ger ~d Ci~ of A~
Supp[em~t~l A~vk of ~dy ~'~dum
Pa~ 2
3. It h~ been brou~t m my atmnfion ~at ca.in of the smt~en~ I m~¢ ~ P~ph 6 of
Octob~ 2C~ ~davit w~ re.ted ~ ~ ~t s~p~ed ~ G. ~ond M~sfietd,
the [n~-~dual [ identified as Mr. G~rge ~mond. S~.ffic~ty, Mr. M~sfield re~dtes the
~5on ~at Lee P~dee ~nd ~ "~dicated m Mr. D~ond ~at Lee w'~ hazy m pemr
Mr. D~hm~osd to con.hue m ~il~e that mrna of P~dee's lot ~r p~ki~g.' F~er~ I We
discmsed ~e contents ofP~aph ~ of~e October 2~0 Affi~St ~'~ L~ P~dee, Lee
Pm~d~e
4_ Upon ~h~ resection, I now believe ~at I never discerned the question of~. M~sfietd's
~e or a po~on of ~e'mal prop~y located at 707 Gibson Avenue wi~ Mr. M~eld. I
believe I discussed ~e m~er Mth Lee P~dee ~d ~t L~ ~d I decided thru Mr.
M~sfiek?s use of a ~o~on o~ 707 Gib~n Averme ~vould not impact Lee's plied
im~ovement of~e 707 Gibmn Avenu~ 7rop~. For t~t reason I now betie~e we ~d not
bring ~e m~tter up
F~er Affi~ ~ye~5 not,
~dy Wed~
SubscSbea~swomtobef~eme~s 2~ayof ~/~ ,2002. by,dy
Wedm,
My co~ssion expi~s:
DISTRICT COURT, COUNTY OF PITKIN,
STATE OF COLORADO
Court Address: 506 E. Main St., Aspen, CO 816I I
Plaintiff(s): DENNIS YOUNG AND
ANDREA YOUNG
Defendant(s): WILLIAM D. BUDINGER,
AND THE CITY OF ASPEN,
A COLORADO HOME RULE (~ COURT USE ONLY
MUNICIPALITY
Case Number: 02 CV
Attorney: E. Michael tto~an Div.:
Name: Freilich, Myler, Leimer & Carlisle
Address: 106 Somb, Mill Stree~ Suite 202
Aspen, Colorado 81611
Phone Number: 970-920-1018
Fax Number: 970-920-4259
E-mai?. emhlaw(~rnsn, com
Atty. Reg.#: 21885
AFFIDAV~ OF LEE PARBEE
STATE OF COLORADO }
} SS.
COUNTY OF PITKIN }
The undersigned Affiant, Lee Pardee, after being duly sworn upon his oath does state and
affirm as follows:
1 My name is Lee Pardee, I am over the age of 21 at the time of my execution of this Affidavit
and I am suffering no illness or infirmity that might affect my recollection or sraremen~
here/:m
2. I currently reside at 40 North Star Circle Aspen, Colorado 81611.
3. I have lived and worked in Aspen, Colorado for a period in excess of 30 years.
4. In the mid- to Iate-1970s, I was a partner of Wedam-Pardee Group, the developer of
property located between Gibson Avenue and North Spring Street in the City of Aspen
which ~as ~own at the time as the ~ House Condominiums. Randy Weedum .was the
other phncipal owner of WeedumZPardee Group.
5. Weedum*Pardee Group conveyed the real property located at 707 Gibson Avenue (the
AGibson AvenueProperty0 to me inMarch or April of 1977. I engagedRandy Weedum to
design a home to be constructed on the Gibson Avenue Property,
6. i have read and re~4ewed the Affidavit of Ran~' Weedum notar/zedOctober 30, 2000~ fhave
no independent recollection of the facts recited in Paragraph 6 of the Affidavk, I do not
reo~t any discussion wkh Randy Weedum. George Drummond orG DrummondMansfietd
concerning use of any part of the Gibson Avenue Property by anyone other than me. my
family or my guests, tn addition, I have no recollection of ha¼ng authorized anyone,
including Randy Weedurrk to act as my agent in dealing with George Drummond or G.
DrmnmondMansfield or anyone else in connectionvd~h the GibsonAvenue Property or any
part thereof.
To the best of my recollection, I never gave permis~on to anyone to use any part of the
Gibson Avenue Property, including that portion of the G~son Avenue Property wh/ch
abuts the property located at 470 Spring Streek whichis now owned by Dennis Young and
Andrea Young
Further Affiant sayeth nor.
DATED:
Subscribed and sworn to before me this ~:~"~- day of July, 2002, by Lee Pardee
Witness my band and official seal.
My
DISTRICT COURT, COUNTy OF PITKIN,
STATE OF COLORADO
Court Address: 506 E. Main S.t., Aspen, CO 816i 1
Plaintiff(s): DENNIS YOUNG AND
ANDREA YOUNG
Defendant(s): WILLIAM D. BUDINGER,
AND TI-~ CITY OF ASPEN,
A COLORADO HOME RULE
MUNICIPALITY
Case Number: 02 CV
Div.:
Attorney: . E. Michael Hoffman
Name: Freilich, Myler, Leimer & Carlisle
Address: 106 South Mill Street, Su/te 202
Aspen, Colorado 81611
Phone Number: 970-920-1018
Fax Number: 970-920-4259
E-mail: erahlaw~msn.com
Atty. Reg.#: 21885
WAIVER AND ACCEPTANCE OF SERVICE
STATE OF COLORADO )
COUNTY OF PITKIN )
I declare under oath that I am authorized to receive service of process on behalf o£the City
of Aspen, a home rule municipality, which is a Defendant in this case; that I received and accepted
service of the Summons and Complaint under Rule 105 in this case; that the City of Aspen waives
any other service, and consents to the jurisdiction of this court to determine all issues raised in the
pleadings as if it were served by personal service w/thin the State of Colorado.
Defendant City of Aspen is not eligible and not in the militazy service. This waiver of service
is not to be construed as an admission by the City of Aspen of the truth of the allegations in the
Complaint and the City of Aspen reserves the fight to receive notices of settings and the fight to
respond and appear in person if it so desires.
D~r~c~ Co~ P~ CouaW
C~ No. 02 CV
Young v. Budinger and CiW of A~pen
Wai'¢~r and Accep~nc~ of Se~v~c~
Pag~ 2
CITY OF ASPEN~ A HOME RULE ML~tCI?ALITY
By:
Name:
Title:
Signed trader oath before me on ,2002, b? as
an authorized representative of the City of Aspen. a home rule municipality.
My commission expires
Notary PublicZ/kddress
DISTRICT COURT, COUNTY OF PITKIN,
STATE OF COLORADO
Court Address: 506 E. Main St., Aspen, CO 81611
Plaintiff(s): DENNIS YOUNG AND
ANDREA YOUNG
Defendant(s): WILLIAM D. BUDINGER,
AND THE CITY OF ASPEN,
A COLORADO HOME RULE * COURT USE ONLY ·
MUNICIPALITY
Case Number: 02 CV __
Attorney: E. Michael Hoffman
Name: Freilich, Myler, Leimer & CarIisle
Address: 106 South Milt Street, Suite 202
Aspen, Colorado 816I 1
Phone Number: 970~920-1018
Fax Number: 970-9204259
E-mail: emb2aw~msn.com
Atty. Reg.#: 21885
COMPLAINT UNDER RULE 105
COME NOW, Plaintiffs Dennis Young and Andrea Young ("Plaintiffs"), by and 7through
their undersigned counsel, Freilich, Myler, Leimer & Carlisle, for their claims against the
Defendants, and each of them, states and alleges as follows:
QUIET TITLE PURSUANT TO RULE 105
a. Plaintiffs are the owners in joint tenancy and in possession of the real property situate in
Pitkin County, Colorado, described on Exhibit A attached hereto and incorporated herein by
this reference (the "Contested Parcel").
b. Plaintiffs claim adverse possession of the Contested Parcel by Plaintiffs and Plaintiffs'
predecessors in interest for a period of time in excess of the applicable statutes of Iimitation.
c. There may be persons interested in the subject matter of this action whose names cannot be
inserted herein because said names are unknown ro Plaintiffs although diligent efforts have
D~ct Con~. P~&in Coun5
C~se No. ~ CV
Yo~g v. B~ger ~d C~U of Aspen
Com~ ~ Under ~ule 105
Page 2
been made to ~c~ ~e n~e~ of s~d persons: such p~son We b~n made &fen~
~d desi~t~ 'all ~no~ ~mom who clMm ~ay ~tere~ ~ ~e subj~r mn~ of~is
ac~on"; so f~ ~ P~infiffs' ~oMedge ext~_
d~ved ~-o~ one or mom ofkhe ~ed Defenders.
d. ~e Defend~ts ctMm some fi~& title, or hntere~ Lq ~d to &e above referenced Contested
Pmmel a&v~se to Plaintiffs: and ~e c!Mms of Defend~m ~e Mthout foun~fion or
e. Defen~nr W[tl~m D. Budinger ct~s ~ estate, right, rifle or inreresz ~ ~d m s~d
Conte~ed P~cet by vi~ue of berg ~e owner of record of t~t cem~ re~ property
colony ~o~m ~ 707 Gibson Avenue, Aspm. Colorado 81611 (&e "Bu~mger
Pmpe~y'); ~e Conte~ed P~rcel is wi~m &e ma of sMd the Bu(mger ~e~ ~ ~id lot
is descfib~ M ~e aFpticable record pl~ of ~e Ci~ of Aspen.
~ough ~fmdmt CiW of As~n (the "Ci~") does ~t cI~ ~ Mt~em in ~e Cont~ted
P~cet, it is mn in~able pa~ h~ ~ca~ ~out
accorded complete relies If ~e ~ is not
Contested P~cel wh~ cMc~atMg ~e ~proved floor ~ ~ch may be bott on P~ntiffs'
prop~. ~at d~iFmn by the ~' woMd requ~ Pl~fi~ to ~e a dectammU j~gmem
amion m cl~ ~e ~ct ofa ~osifive ~g in ~s la~2 on ~e Ci~'s ~fions Ju~eial
~onomy is s~ ~ mg ~ Ci~ ~ a defender hem.
~FO~, P~nfiffs requ~t ~e following relief:
I For a complete Mj~ion of ~e fi~B of ~t p~ to ~kis ~ ~ re~e~ to ~e
Cont~smd P~el; for a decree ~Wmg tM Defend~ts m s~ Ib~ ~e mt~e of~ cla~s,
dem~ng ~at the Defen~m ~d ~ch of fhe~ have no imere~, estate, or claim of
~nd whatsoever in smd Conteged ?~cel, fomvmbmg ~d mjo~g~e Defenders ~om
~se~g ~y cl~m or title ~mo, quiefi~ the title of~e Ptainti~ in and m the Contested
P~eI ~d adjudging &at ~ Plaintiffs me the o~s ~ f~ simple ~d entitled to
possession of ~e Conmsted Pmcet; &at PIMn~ffs ~ enfitted to ~I me and mjo~em of
&e Conmsmd Parcel ~cl~ the ~t m have ~e m~ of the Cont~ted P~cel included
wh~ calculadng ~e improved floor ~ea w~ch may b~ co~med on Phint~s' prope~
(including ~e Conte~ed Pamel) under the land use mgMations of~e CiW of Aspen. ~d
such o&er relief ~ to ~e Co~ may seem
District Coflr~. Pilk}n County
Case No. 02 C'V
Young v. Bnding~r and City. of ~pen
Complaim Under Rule 105
Respec~ully submitted_
FREILICH, MYE~R. LEITNER & CARLISLE
By:
E. Michael Hoffrnmq
Plaintiffs? Address
470 North Spring Street
Aspen. Colorado 8t611
Table of Exhibits
Exhibit A - Legal Description of Contested Parcel
DISTRICT COURT, COUNTY OF PITKIN,
STATE OF COLORADO
Court Address: 506 E. Main St., Aspen, CO 81611
Plaintiff(s): DENNIS YOUNG A_ND
ANDREA YOUNG
Defendant(s): WILLIAM D. BUDINGER,
AND THE CITY OF ASPEN,
A COLORADO HOME RULE · COURT USE ONLY ·
MUNICIPALITY
Case Number: 02 CV
Div.:
Attorney: E. Michael Hoffman
Name: Freilich, Myler, Leitner & Carlisle
Address: 106 South Mill Street, Suke 202
Aspen, Colorado 81611
Phone Number: 970-920-1018
Fro'( Number: 970-920-4259
E-mail: emhlaw~msn.~om
Atty. Reg.#: 21885
FINAL ORDER '
Upon the joint Motion and Stipulation of all parties, it is hereby ordered that:
1. The Settlement Agreement dated , between Dennis Young,
Andrea Young, William D. Budinger and the City of Aspen, a copy of which is attached
hereto and incorporated herein as Exkibit A, is hereby approved and adopted, in its entirety,
as the Final Order of this Court in this matter;
2. As stated in the Settlement A~eement, title to the real property described in Exhibit B of this
Final Order is hereby vested in the Plaintiffs, Dennis Young and Andrea Young, as joint
tenants. This Final Order, including ail exhibits and attachments thereto shall be recorded
in the real property records of Pit!tin County, Colorado within ten days of the enmy of this
Final Order.
3. Each party shall bear their own court costs and attorney's fees;
DL~'ict Court_ PinCh Coun~
Case No, 02 CV
Young v, Budinger and C[~ of Asl~n
Fina~ Order
Page 2
This Cram shatl retain j m, Ssdicfion in this matter for the purpose of en forcLng the provisions
of the Setfiemen~ Agreement.
Dated a5is day of ,2002.
BY THE COURT:
District Com't Judge
DISTRICT COURT, COUNTY OF PITKIN,
STATE OF COLORADO
Cottrt Address: 506 E. Main St., Aspen, CO 81611
Plaintiff(s): · DENNIS YOUNG AND
ANDREA YOUNG
Defandant(s): WILLIAM D. BUDINGER,
AND THE CITY OF ASPEN,
A COLORADO HOME RULE * COURT USE ONLY ·
MUNICIPALITY
Case Number: 02 CV
Attorney: E. Michael Hoffman
Name: Freilich, Myler, Leitner & Carlisle
Address: 106 South Mill Street, Suite 202
Aspen, Colorado 81611
Phone Number: 970-~20-1018
Fax Number: 970~920-4259
E-maih emhlaw@msn.com
Atty. Reg.#: 21885
STIPULATION AND MOTION FOR ENTRY OF FINAL ORDER
COME NOW Plaintiffs Dermis Young and Andrea Young and Defendants William D.
Budinger and the City of Aspen (collectively, the "Parties"), by and through their respective legal
counsel, and jointly submit this Motion for Entry of a Final Order in accordance with the following
stipulation:
1. On, ,2002, the Parties entered into a comprehensive Settlement
Agreement which effectively resolves ali outstanding issues in this matter.
2. The fully executed Settlement. Agreement has been flied with the Court in this matter and a
copy thereof is attached hereto and incorporated herein by this reference as Exhibit A.
3 In accordance with the provisions of the Settlement Agreement, the parties hereto and thereto
hereby request that the Court enter a Final Order, in the form attached hereto as Exhibit B,
which results in the approval of those matters described in the Settlement Ageement as they
relate to and affect the real property described in said Order.
District Court. Pitk~n Cc~unU
Case No. 02 CV
Youv4 ¥. Budinger and Ci~ of Aspen
Stipulation and Motion for Entry of Final Order
Page 2
Respect~Nly submitted.
FREILICH. MYLER. LEITNER & CARLISLE
E. Michael Hoffman
SETTLEMENT AGREEMENT
This Agreement is made and entered into this day of ,2002, by and
between Dennis Young and Andrea Young (collectively, "Young"), William D. Budinger
("Budinger") and the City of Aspen. a home rule municipality (the "City").
RECITALS
1 This Settlement Agreement is established to resolve all claims brought in an action brought
in the Pitkin County, Colorado District Court known as Young v. Budinger, et al., Case No.
02 CV __ ,'which shall be referred to herein as the "Quiet Title Action").
2. Young is the record owner of certain real property located in the City of Aspen known as Lot
2, Block 4, Oklahoma Flats, together with appurtenant rights under the Easement for
Encroachment recorded in the real property records of Pitkin County, Colorado on
December 12, 1977 in Book 340 at Page 298 as Reception No.'200238, commonly known
as 470 North Spring Street, Aspen, Colorado (which shall be referred to herein as the"Young
Property"). The Property is improved by a single-family home which is Young's principal
residence.
3. Budinger is the record owner of certain real property located in the City of Aspen described
in Exhibit A, attached hereto, and commonly known as 707 Gibson Avenue, Aspen,
Colorado twhich shall be referred to herein as the"Budinger Property"). The Property is
improved by a single-family home.
4. The City's interest in this matter is to maintain the integrity of its Land Use Code by
confirming the legitimacy of Young's adverse possession claim and the fundamental fairness
of the settlement memorialized in this Agreement.
5. The Budinger Property, which is located immediately north of the Young Property, includes
a parcel of land (the "Contested Parcel") which has been used by owners of the Young
Property for more than 18 years. A land survey of the Contested Parcel and the Young and
Budinger Properties is attached hereto as Exhibit B. The Contested Parcel and the area
surrounding the Contested Parcel as shown in the survey are enlarged and labeled in Exhibil
C.
6. Since about 1968, Young and Young's predecessors-indnterest have occupied the Contested
Parcel in a manner that was hostile, adverse, actual, under a claim of fight, exclusive, and
uninterrupted. Those elemems are demonstrated in the following facts:
a. Upon information and belief, the personal residence which currently exists on the
Young Property, which residence dates from approximately 1886, was moved to the
Young Property in the late 1960s.
b. In September of 1969, the Young Property was acquired by G. Drummond Mansfield
{"Mansfield"). Mansfield immediately moved into the historic home and used it as
Settlement Agreement
Young v. Budinger
Page 2
his principal residence. At the time Mansfield purchased the Young Property, the
Contested Parcel was used as a driveway and parking area appurtenant to the historic
home. A copy of an Affidavit of G. Drummond Mansfield is attached to this
Settlement Agreement as Exhibit D.
c. in reliance on a survey provided to him by the prior owner of the Young Property,
Mansfield fenced in the Young Property and the Contested Parcel. The fence
included a gate which enclosed the driveway and parking area utilized by Mansfield
on the Contested Parcel. A photograph of the Young Property at the time it was fully
fenced by Mansfield is attached hereto as Exhibit E
d. In 1975 Mansfield removed the fence but maintained a chain where the gate had
been previously located. Through the time he sold the Young Property in September
of 1980, Mansfield continuously used the Contested Parcel for driveway and parking
purposes, and to maintain his privacy and security.
e. In September of 1980 Mark Lowenstein ("Lowenstein") on behalf of his mother,
Ruth Weinstock, bought the Young Property from Mansfield. Lowenstein moved
into the historic home immediately upon closing of the purchase. In 1981,
Lowenstern purchased a portion of the Young Property from his mother. A copy of
an Affidavit of Mark Lowenstem is attached to this Settlement Agreement as Exhibit
F.
f. In connection with his use of the Young Property, Lowenstern utilized the Contested
Parcel as a driveway and as a parking and storage area. Lowenstein maintained the
driveway by having it graded periodically, by keeping a gravel surface on the
driveway and by keeping it clear of snow.
g. Lowenstein moved from the Young Property in 1983. From that time until the
property was sold to Young on December 27, 1989, the Contested Parcel was used
as a driveway and as a parking and storage area by Lowenstern's tenants. The
tenants also utilized the chain installed by Mansfield to maintain exclusive dominion
and control over the Contested Parcel.
h. Young has continuously used the Contested Parcel for driveway, parking and storage
purposes from the date they purchased the Young Property through the present.
Young has maintained the driveway by having it graded periodically, by keeping a
gravel surface on the driveway and by keeping it clear of snow. As shown in Exhibit
G. these improvements cause the Contested Parcel to appear as part of the Young
Property.
7. Under the facts set forth above, the parties agree and acknowledge that Young is the owner
Settlement Agreement
Young v. Budinger
Page 3
of the Contested Parcel by adverse possession, under the terms and conditions set forth
below.
NOW THEREFORE, for valuable consideration, the receipt and sufficiency o£ which is
hereby acknowledged, the parties agrees as follows:
A. Young as Owner of Contested Parcel. Young is the owner of the Contested Parcel. The
northern boundary of the Young Property is hereby changed from its historic location to
the alignment identifted in Exhibit B as the northern boundary of the Contested Parcel.
The Young Property and the Contested Parcel are hereby merged. Within ninety (90)
days of the acceptance of this Settlement Agreement by the Court, Young shall record a
lot line adjustment plat in the real property records of Pitkin County, which plat shall
reflect the merger of the Contested Parcel into the Young Property and the removal of
said Contested Parcel from the Budinger Property. The City and Budinger shall
cooperate with Young in the preparation and execution of the lot line adjustment plat.
B. Effect of Lot Line Adiustment. The Young Property, as it exists after the date of the
acceptance of this Settlement Agreement by the Court and as reflected in the lot line
adjustmem plat referenced in Paragraph 1, immediately above (which shall be referred to
herein as the "Combined Young Property"), shall for all purposes be treated as a typical
lot within the R-30 PUD zone district of the City, entitled to the same floor area, set back
requirements and other use rights and restrictions as any other lot of the same size within
that zone district. One of the effects of this provismn is to redt~ce the floor area which
can be built on the Budinger Property and to increase the floor area which can be
constructed on the Young Property.
C Design Review Approval. Budinger shall have the right to review the plans and
specifications (the 'SRenovation Plan") proposed by Young for the renovation and
expansion of the historic residence located on the Young Property. Young shall provide
such plans and specifications to Budinger no less than thirty (30) days prior to Young's
submission of those plans and specifications to the City for a building permit. Within
thirty (30) days of his receipt of the Renovation Plan, Budinger shall, at his sole
reasonable discretion, (a) approve the Renovation Plan, (b) approve the Renovation Plan
subject to certain changes required by Budinger, or (c) reject the Renovation Plan. If
Budinger rejects the Renovation Plan, Budinger shall provide written reasons for such
rejection to Young with the notice of rejection, and Young may then amend and resubmit
the Renovation Plan, as necessary, until the Renovation Plan is reasonably acceptable to
Budinger. In the event Budinger approves the Renovation Plan or approves the
Renovation Plan subject to conditions, all of which are acceptable to Young, Young may
submit the Renovation Plan to the City for building permit review. Young shall provide
notice to Budinger within five (5) days of submitting the Renovation Plan to the City.
The Renovation Plan shall be deemed acceptable by Budinger if Budinger does not
Settlement Agreemem
Young v. Budinger
Page 4
respond to the Renovation Plan within thirty (30) days of his initial receipt of the initial
Renovation Plan or of any amended Renovation Plan.
(i) Budinger shall have a similar right to review any change order seeking a material
modification in the Renovation Plan, except that Young shall provide a copy of
any such proposed change order to Budinger no less than ten (10) days prior to
the date it is submitted to Young's general contractor and/or the City, as
necessary, and that Budinger shall be required to respond as set forth above,
within ten (10) days of his receipt of such change order.
D. No Development Approvals Granted By Cit'r' in this Settlement Agreement. The
acceptance and execution of this Settlement Agreement by the City shall not be deemed
or construed as granting Young the right to make any modification(s/or addkion(s) to
the Combined Young Property. To secure the right to make such modifications or
additions, Young shall be required to seek and receive appropriate development
approvals from the City through the process(es) which would otherwise apply to the
Combined Young Property. Young shall not, however, be required to seek further
approval from the City to combine the Contested Parcel with the Young Property to
create the Combined Young Property and to have the resulting area of the Combined
Young 'Property be used in floor area ratio calculations and of other regulations of the
City of Aspen.
E. Agreement to File Motion to Close Quiet Title Action. The parties agree that the rights
and obligations set forth in this Settlement Agreement constitute a complete settlement of
all outstanding claims present in the Quiet Title Action. The parties direct E. Michael
Hoffman, attorney to file with the Court the Stipulation and Motion for Entry of Final
Order which is attached to this Settlement Agreement as Exhibit H to request that the
Court enter a final judgment consistent with this Settlement Agreement.
F. Mutual Release. Each Party hereby unconditionally discharges and releases every other
party, its employees, agents, heirs, executors, panners, attorneys, successors, assigns and
other representatives from any and all claims, defenses, counterclaims and / or causes of
action arising from or related to the subject matter of the Quiet Title Action to which
each party may be entitled to assert as of the date of this Settlement Agreemem, whether
such claims, defenses, counterclaims and/or causes of action are known or unknown.
G. Time is of the Essence. Time is of the essence in all aspects and provisions of this
Agreement.
H. Miscellaneous.
Bindin~ Effect. This Settlement Agreement shall be binding upon and shall
benefit the parties hereto, their successors and assigns.
Settlement Agreement
Young v. Budinger
Page 5
(ii) Controllin~ Law. This Settlement Agreement shall be construed tn accordance
with and governed by the laws of the State of Colorado.
(iii) Counterparts. This Settlement Agreement may be executed in several
counterparts and, after execution and as executed, shall constitute an agreement
binding on all of the parties, notwithstanding that all of the parties are not
signatory to the original or the same counterpart.
(iv) Entire A~reement. This Settlement Agreement contains the entire agreemem
between the parties, and supersedes all prior understandings, agreements,
negotiations and representations, written and oral. not contained herein. Budinger
and Young represent and affirm that no other agreement, written or oral, exists
between them concerning the subject matter of this Settlement Agreement, and
that no consideration (other than as stated herein) has been paid as part of this
Settlement Agreement. This Agreement may not be amended or modified, except
by an agreement in writing signed by both parties hereto.
(v) Further Assurances. Each of the parties agree to execute, acknowledge, deliver,
file, and record, or cause to be executed, acknowledged, delivered, filed and
recorded, such further instruments and documents, and such certificates, and to do
ail things and acts as the other parry may reasonably require in order to carry our
the intentions of this Settlement Agreement.
(vi) Facsimile Signature. This Settl'ement Agreement may be executed by either party
by facsimile transmission which signature shall be binding upon such party.
(vii) Attorneys' Fees Each parry shall be responsible for its own attorneys fees and
costs incurred in the Quiet Title Action, including in the drafting and review of
this Settlement Agreement. In the event of any action for breach of, to enforce
the provisions of, or otherwise involving this Settlement Agreement, the court in
such action shall award a reasonable sum as attorneys' fees to the party who. in
light of the issues litigated and the court's decision on those issues, was the
prevailing party in the action. Ifa party voluntarily dismisses an action, a
reasonable sum as attorneys' fees shall be awarded to the other parry unless such
right to attorney's fees is waived by written agreement.
(viii) Notice. Any notice required under the Settlement Agreement shall be deemed
delivered by facsimile transmission when the transmission is complete, when
delivered by hand delivery, or when delivered by overnight courier to the
Settlement Agreement
7otmg ¥. Budinger
Page 6
following addresses:
If to Budinger: William D. Budinger
728 E. Francis
Aspen. Colorado 81611
With copy to: Krabacher & Sanders, P.C.
201 North Mill Street, Suite
Aspen, Colorado 81611
(970) 925-6300
If to Young: Dennis and Andrea Young
,$70 North Spring Street
Aspen, Colorado 81611
If to City: City of Aspen
Attn: John WorCester, City Attorney
130 Galena Street
Aspen, Colorado 81611
(970) 920-5050
1N WITNESS WHEREOF. the parties have executed this Agreement on the date first
above written.
BUDINGER
William D. Budinger
YOUNG
Dennis Young Andrea Young
Settlement Agreement
Young v. Budinger
Page 7
CITY OF ASPEN
ATTEST: CITY OF ASPEN,
a Colorado ho~,~_~,~yty
City Crerk ~ayor ~ ~ xx
%.
STATE OF COLO~O )
)ss.
CO~TY OF PIT~ )
The foregoing Se~lement Agreement was ac~oMedged before me this day of
,2002. by William D. Budinger.
~ESS my h~d and official se~.
My co~issmn expires:
Notary Public
STATE OF COLORADO )
)SS.
COUNTY OF PITKIN )
The foregoing Settlement Agreement was acknowledged before me this day of
,2002, by Dennis Young and Andrea Yotmg.
WITNESS my hand and official seal.
My commission expires:
Notary Public
Settlement Agreemem
Young v. Budinger
Page 8
STATE OF COLORADO
)SS.
COUNTY OF PITKIN )
The foregoing Settlement Agreemem was acknowledged before me this I'~41 day of
~ ~ ,2002, by Helen Klanderud as Mayor of the City of Aspen and Kath~
Koch as City Clerk of the City of Aspen.
WITNESS my hand and official seal.
My commission expires:
Notary Public
Table of Exhibits
Exhibit A - Legal Description of Budinger Property
Exhibit B - Survey of Contested Parcel, Budinger Property and Young Property
Exhibit C - Enlargement of Relevant Portion of Survey
Exhibit D - Affidavit of G. Drummond Mansfield
Exhibit E - Photograph of Fully Fenced Young Property, Including Contested Parcel
Exhibit F - Affidavit of Mark Lowenstern
Exhibit G - Current Photographs of Contested Paine]
Exhibit H - Stipulation and Motion for Entry of Final Order
E.xhSb~ D
AFFIDAVIT OF ~, DRUM~O~ ~$FI~LD
I, O. Drummond Mansfield, the affiant, a resident of the State of Indiana. under oath
depose and state the following:
1) On September 15, 1969, I purchased Lot 2 Block 4 of the Oklahoma Fiat Subdivision
mad the house on it more commonly known as 470 North Spring Street, hereinafter
"470". I purchased 470 from Marvin Moriarity.' I moved in immediately after the
closing and the house was my principal residence.
2) In 1970, based on a survey provided m me by Marvin Moriarity, I built a fence
surrounding the'house on all four sides. The position of the fence is shown in the
attached Exhibit 1 (which I have drawn) by the line marked w/th the X's. I positioned
the fence accoring to a survey provided to me by Mr. Moriarity, I believed that the
survey provided by Mr. Moriarity accurately represented the property lines of 470 and
believed that the fence I built enclosed only my property. The fence included a large
"car gate" I built in front of the driveway on the north side of the property as shown in
Exhibit I (the "disputed property"). The driveway/parking area on the north side of
the house already existed as such when I purchased 470 and to the best of my
knowledge had been used for that purpose prior to my purchase of the property. The
gate and fence can be seen in the photograph of 470 1 took in 1972 (Exhibit 2).
3) In 1975 a new survey of 470 was done and I learned that my fenc~ was outside of the
property lines of 470. The solid line on Exhibit 1 shows the corrected property lines.
4) Based on the new survey, I removed the north fence and replaced it with a new fence
rurming along the updated property line. I removed the car gate shown in Exhibits 1
and 2 bm placed a chain across the front of the driveway/parking area (as shown in
my drawing of Exhibit 1) to maintain my pr2vate access a~nd security.
5) ][ maintained the chain across the driveway through the time Df my sale of the property
in September of I980 and continued re use the driveway/parking area for my private
use and the use of my visitors and guests.
6) I openly, continuously, and notoriously used the "disputed" property from September
t969, until the sale of 470 in September of 1980.
7) During my ownership of 470, the northern portion of the [and up to, and including an
area up the hillside (see exhibit 1) was in continuous use as a driveway, parking and
storage area.
8) In 1980, I moved from Aspen to Indiana.
9) At no time from the date of purchase on September 15, 1969 until the date of sale on
September 2, 1980 did anyone object to my possession and use of this area.
10) At no time during this same per/od did I, or anyone else I am aware of, ask the record
owners of the disputed property for permission re use the property as stated above.
FURTHER AFFIANT SAYETH NOT.
G. Drummond Mansfield
Sworn re and subscribed before me this .~day of ~/~/1~, 1999.
My commission expires: /~ -~)-¢O
TEACY C. B/NTZ, No~a~ Publfc
Resident of Monroe 2oun~
My Commission Expires ~2-22~0
Lo~ 2 ~lock ~ ~lahome i~a~s
I
(~o~ ~ra~ to ~calm)
Exhibin E
View of Young Residence in 1972 showing fence surrOunding the
structure, including the Parking Area.
Exb/bit F
AFFIDAVIT OF MA_RI( LOVOgNSTERN
t, Mark Lowenstein, the affiant, a resident of the State of California, under oath depose
and state the following:
I) On September 2, 1980. I, on behalf of my mother and with her power of auomey,
purchased Lot 2 Block 4 of the Oklahoma Flat Subdivision and the house on it more
commonly known as 470 North Spring Street, hereinafter "470". I moved ha
mediately after the closhag and the house was my principal residence.
2) My mother was the sole owner of 470 until 1981 when I purchased a portion of 470
and held the property in joim tenancy with my mother.
3) Upon taking possession of 470 in I980, the house was surrounded on ali four sides by
fencing along its property line (see Exhibit. I, the fence is represented by the solid line
surrounding the house). Additional land outside the northern fence m the h/lis/de
(approximately up to the X marked line on the top of the exhibit I, defined herein as
the "Disputed property") had been previously cleared and was used as a driveway for
............. -~-~--g~n-~Ym--d storage. Fr~ my pers--Y6'fi~-6~-fe-~{on, experience with the property and
discussions with the parties during the sale process, I was aware that this additional
land had been used for the driveway, parking and storage area for'470 for a number of
years prior to the 1980 purchase.
4) Withb the f~rst weeks of my possession, I removed the fencing on the north, east and
south sides of the property. I left the western pan of the fence bordering on Spring
Street in place along witha small portion of the fence in the northeast comer of the
property. The drawing attached as Exhibit 1 represents the actual fence that existid
when I moved into the house. The fence removal was completed prior to the t= of
October, 1980.
5) I, and my ~enants, openly, continuously, and notoriously used the "Disputed propen3"'
from September 1980, until the sale of 470 m Mr. and Mrs. Young.
6) The northern portion of the land up To, and including mn area up the h/llside~ including
the Disputed propers, was in continuous use as .a driveway, parking and storage area.
7) In 1~_,I moved from Aspen to California and leased 470 until the property was sold.
8) At no time from the date of purchase in September, 1980 until the date of sale on
December 27, I989 to Mr. and Mrs. Young, did anyone object m my possession and
use of this area.
1
Affadavit of Mark Lowenstein - Page 2
9) A: no ~m¢ during this same period did I, or anyone else I am aware of, ask th~ record
· · the property as sm~ed
owners of the disputed property for pcrn~smon ~o use
FURTHER AFFIAN~
Sworn to a~ subs~ibecl before me this'~__~day of/~¥ ., 1999.
No~ ~dbtic ~
My co~ssion expkes: -- ~ ~T~BLI~AHFO~I~_~ ..............
E~]~,~T ~
Em~hibit G
Current View of Parking
Area from North Spring
Street
Portion of Parking Area Used
Hold Trash Cans
Another View of Parking Area from
North Spring Street
Eygnibit H
DISTRICT COURT, COLrNTY OF PITKIN,
STATE OF COLORADO
Court Address: 506 E. Main St., Aspen, C.O 81611
Plaintiff(s): DENNIS YOUNG AND
ANDREA YOUNG
Defendant(s): WILLIAM D. BUDrNGEK,
AND THE CITY OF ASPEN,
· A COLORADO HO1VIE RIFLE · COURT USE ONLY ·
MUNICIPALITY
Case Nmnber: 02 CV
Div,:
Attorney: E. Michael Hoffman
Name: Freilich, Myler, Leitner & Carlisle
Address: 106 South Mi//Street, Suite 202
Aspen, Colorado 81611
Phone Number: 970-92021018
Fax Number: 970-920-4259
E-mail: emhlaw~msn, com
Atty. Reg.#: 21885
STIPULATION AND MOTIOiY FOR F~NTRY i~F FINAL ORDER
COME NOW Plaintiffs Dennis Young and Andrea Young and Defendants William D.
Bndinger and the City of Aspen (collectively, the "Parties"), by and through their respective legal
counsel, and jointly submit this Motion for Entry of a Final Order in accordance with the following
stipulation:
1. On, ,2002, the Parties entered into a comprehensive Settlemem
Agreement which effectively resolves all ouzsumding issues in this ma~ter.
2. The fully executed Settlement Agreement has been filed with the Court in this matter and a
copy thereof is attached hereto and incorporated herein by this reference as Ex. hJbit A.
3 In accordance with the provisions of the Settlement Agreement, the parties hereto and thereto
hereby request that the Court enter a Final Order, in the form attached hereto as Exhibit B,
which results in the approval of those matters described in the Settlement Agreement as they
relate to and affect the real propergy described in said Order.
District Court, Pitkin CounW
Ca~e No. 02 CV
Young v. Budinger and City of Aspen
Stipulation and Motion for EnUy of Final Order
Page 2
Respectfully submitted,
FREILICH, MYLER, LEITNER & CARLISLE
B. Michael Hoffman