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HomeMy WebLinkAboutAttorney CorrespondenceA Mountain Law Firm July 14, 2026 VIA ELECTRONIC MAIL Garfield County Attorney's Office Chad J. Lee, Esq. 901 Grand Ave, Ste. 201 Glenwood Springs, Colorado, 81601 970.945.8659 chad(ivandaw.com Attn: Kelly Cave, Assistant County Attorney 108 8th Street, Suite 201 Glenwood Springs, CO 81601 Re: Grading Permit Application for Elk Mesa Properties Dear Kelly: This firm represents Elk Mesa Properties, LLC ("Elk Mesa"), the owner of the approximately 540 acre property on the northern boundary of the Elk Springs subdivision commonly known as the Mesa (the "Property"), which Elk Mesa is developing as fourteen single- family residential lots of 35 or more acres each. Elk Mesa has applied to the County for a grading permit to commence site work on the Property. We understand the County has declined to issue the permit on the ground that Elk Mesa must first demonstrate legal access to the Property, and specifically that the County is requiring a separately executed access easement. We write to demonstrate that Elk Mesa already holds legal access and to request that the County issue the grading permit immediately. Elk Mesa has a clear right to the issuance of the grading permit. The County has a clear duty to issue the permit, having been provided with all of the documentation required by the permit application. We trust the following explanation will satisfy the County's need for documentation of legal access. Please respond in writing if it does not (or issue the permit if it does), as it is our understanding that all requirements for the issuance of the grading permit have been met. Aspen I Basalt I Buena Vista I Glenwood Springs I Salida P.O. Box 878, Glenwood Springs, CO 81602 A Mountain Law Firm 1. Elk Mesa holds a perpetual access easement under Article 3 of the 2005 Agreement. Access to the Property is governed by the Agreement Regarding Access and Water Service dated April 20, 2005, among Elk Mesa (as successor to Mesa Company), the Elk Springs Homeowners Association, Inc. (the "Association"), and Elk Springs, LLC (the "Agreement") — a fully executed written agreement the validity of which is not disputed. Section 3.1 of the Agreement provides that, so long as the Mesa is developed as no more than Low Density Residential Development, "the Association hereby agrees that the owners of the Mesa Lots, their guests and invitees, shall have a perpetual, non-exclusive easement for access and underground utility purposes over, under and upon the Elk Springs Roads" (the "Mesa Access and Utility Easement"). The Elk Springs Roads include the platted access easements serving the Property at Aster Drive (Filing 7), Wood Nymph Lane (Filing 6), and Kingbird Drive (Filing 9). 2. The easement is created by the Agreement itself, and any subsequent grant is confirmatory only. The grant in Section 3.1 is expressed in operative, present -tense terms the Association "hereby agrees" that the Mesa owners "shall have a perpetual, non-exclusive easement." Under Colorado law an easement may be created by express grant in a written instrument; no particular words are required for the easement to exist. The controlling question is the parties' intent as expressed in the instrument, and words that clearly show an intention to grant an easement, stated with reasonable certainty, suffice. See Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229 (Colo. 1998). Nor does the absence of recording affect Elk Mesa's rights here. Under C.R.S. § 38- 35-109(1), an unrecorded instrument is fully valid "between the parties thereto and against those having notice thereof." Elk Mesa and the Association are parties to the Agreement (indeed, its maker and the owner of the servient roads, see Recital F). The access grant is therefore binding on the Association and enforceable by Elk Mesa. The County has notice thereof, having been provided with a copy of the Agreement. The Agreement is perpetual (Section 5.1) and, by its terms, binds and inures to the parties' successors and assigns (Section 7.8). 3. Any separate easement instrument is confirmatory only, and within Elk Mesa's control. Section 3.1 provides that, upon Elk Mesa satisfying the Low Density Residential Development condition, the Association "shall grant the Mesa Access and Utility Easement on the Dedicated Existing Roads in one or more instruments of conveyance ... which shall be prepared by and in a form acceptable to [Elk Mesa]," and "shall execute and deliver such instrument(s) upon the reasonable request of [Elk Mesa]." Such an instrument would memorialize — not create the access right the Agreement has already granted; it is prepared by Elk Mesa and its execution is a Page 2 of 4 A Mountain Law Firm mandatory, non -discretionary duty of the Association. The existence of Elk Mesa's access does not depend on that confirmatory instrument, and conditioning a grading permit on it elevates form over substance. 4. The sole substantive condition — Low Density Residential Development — is satisfied. The Agreement conditions the access easement only on the Mesa being developed as no more than Low Density Residential Development, defined as no more than seventy (70) single-family residences together with limited accessory uses. Elk Mesa's proposed 14-lot development is well within that limit. Section 3.1 further provides that the required evidence of conformity may take "the form of a copy of an application to Garfield County for a planned unit development or subdivision preliminary plan for the Mesa" — that is, the very land -use submittals now before the County. The condition to Elk Mesa's access is thus satisfied. 5. Access is not in genuine dispute. Neither the validity of the Agreement nor the existence of Elk Mesa's access rights under Article 3 is in genuine dispute. The parties' preparation of a confirmatory easement instrument is a formality that memorializes, and does not create, those rights, and it has no bearing on whether Elk Mesa presently holds legal access. There is accordingly no unresolved question of legal access for the County to await. For these reasons, Elk Mesa respectfully requests that the County issue the requested grading permit forthwith, or state in writing that it is refusing to issue the permit because it has made the legal judgment that the Agreement does not provide easement access. The Agreement establishes Elk Mesa's legal access to the Property as fully as a standalone easement instrument would. Refusing to issue a grading permit on this basis is arbitrary, capricious, and lacks any rational basis. Refusal to issue the permit immediately will result in hundreds of thousands of dollars in damage due to further delays and potential winter conditions. Elk Mesa reserves all rights and remedies with respect to any conditioning or delay of the permit. Page 3 of 4 A Mountain Law Firm Given the short length of construction season and the costs of delay, we would appreciate a response by Friday, July 17. Thank you for your prompt attention to this matter. Regards, NAM PLLC /s/ Chad J. Lee Chad J. Lee, Esq., Partner cc: Elk Mesa Properties, LLC; Elk Springs Homeowners Association, Inc. (c/o Shelly Dackonish, Esq.); John Plano; Dave Kotz (SGM) Page 4 of 4