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The following testimony was read by AJ Chamberlin to the Colorado Senate Subcommittee for Agriculture, Natural Resources and Energy on February 26, 2004 during hearing regarding Senate Resolution SR04-04 Rights-of-way on Public Lands. The exhibits referenced on the testimony were hardcopies provided to the subcommittee members as a package with the testimony. My husband and I live in the republic of Boulder. I was the first President of LUC (Land Use Coalition in Boulder) but I speak only for myself here. I bought my property with the deed that you see in exhibit “A” . Notice that there is no mention of a right of way on my deed or title. You may look at the survey which also does not mention or indicate any road or right of way on my property. Being a realtor, I asked the listing agent about the rough two-track that bisected my property and I was told that the previous owner of my property cut it in as access to his prospective building site and it was also expanded as a firebreak during the Black Tiger fire in 1989. I checked with the county and I was told that Mountain King was a “private road” and I found evidence of such like the building lot adjustment verbiage. “Exhibit “B”. I had an attorney review the title documents and we made sure that I had a recorded access to my property through Mountain King and also across a 10 acre parcel adjacent to me. We also checked for adverse possession and determined that this clearly did not apply. I bought the vacant land, 28 acres, with seller financing and loans. I paid taxes on it for 10 years. I even graded the old two track. I was planning for a building site at the top of the hill. But two years ago I built my dream home in the mountains on that property. There was some neighborhood use but that is to be expected on a vacant land, and I wanted to let folks know that the owner is here and to respect my property so one day I put up some vehicle gates at the start of my driveway at 8:00 am. By 8 pm that same day someone came up with a truck and ripped out the posts. Whoa! I had the gates put up again. This time I told folks that they could use my property but that they had to respect us, be our friends and they could use it. My only alternative was to fight for what I paid for. Their response was that they didn’t want to be my friend. The next thing I knew I was told off-hand that there was going to be a hearing on my driveway that I might want to attend. Even though my attorney who is a proponent of RS2477 argued that my driveway is not an RS2477 right of way, the county commissioners sided with the mob of users and abusers and ordered that I not shut my gates and that I should work out this road/trail/trespass issue amicably with my neighbors and oh, by the way, it may or may not be an RS2477, which needs to be determined in court. My hands are tied to this date. Here is the kicker, there are other neighbors on Mountain King that can testify that they used to cut across my property on an old horse trail but they knew that one day they would have to give way to me, the private property owner. They also indicated that the private property owners (two owners before me) of my property put in the driveway so that he could have access to the property. I also found out that the general public who were using this private road, which is privately maintained, had abused some of the private property owners in my neighborhood. You will see in the Mountain ear article Exhibit “C” that Karen Daniels, a stewardess, was punched in the face and given a black eye by a mountain biker when she told him to get off the property. Elizabeth Wallace had one dog kicked to death by a Mountain Biker and another dog was run over by a vehicle. What has not been stated in that article is that Ginny & Michael Klein had two beautiful large flagstone street signs that indicated “ Mountain King private road” vandalized. One was spray painted and then crushed and the other disappeared. Upon further investigation I found out that on another road, Darcy Powers, who will be unable to speak today, had her car window smashed by a rock (Exhibit “D”). Plus I added in the police report about the damage at our home. Now some would like to claim that someone outside the neighborhood did all this damage, but seeing with my own eyes who is using our driveway and Mountain King, I really think not! I suspect that it is basically the same individuals with a few others. Would this not make you mad? Prior to my buying the property, there was another road that this neighborhood had the County commissioners take to court to declare a public road. The neighborhood called this an “old Historic road” also. John Fort, the property owner, took them to court and he won!…sort of. The county restricted his building sites. (Exhibit “E”) I have since found out that some of these same neighbors recently badgered another landowner until he granted a recreation easement on the side of his property instead of straight through his meadow. Four roads in one neighborhood attempted or forced upon private property owners! Boulder is a place where the idealism that private property ownership is only secondary to us “sharing” the land or “borrowing” it from the general public. This is a county where your neighbor is allowed to tell you what color, size and use you can have on your property. This is where zoning is changed to prevent you from being able to build on two adjacent, taxable lots. This is where an RS2477 right of way is declared on private lands and denied on public lands. RS 2477 is a 21-word statute, which was great for the intent of its purpose, which was to provide access to homesteaders and miners. The exact words are “The right of way for construction of highways over public lands not reserved for public uses is hereby granted.” See the Mountain ear article Exhibit “F” for a short history of RS2477. But now “public” user groups are turning this statute on its head and using it to cross private lands as a short cut to public lands. This statute has been interpreted to mean that every trail, single track path, dry creek bed, access to & from, in or near and around a homestead or a mining claim is a “public” right of way that can be expanded to 60 feet wide. Imagine even a two track being able to be made that large! RS2477 is a statute that needs definitions, clarifications and protections for private property owners. Some private property owners would like to say that once a property is sold to a property owner without any declared, stated, right-of way in our title documents then those RS2477 rights-of-ways should be deemed abandoned. I would support this but there are three separate road stances that need to be clarified and distinguished: 1) Private properties where RS2477 is abandoned 2) property owners inholdings where RS2477 is a private access and 3) public RS2477 right of way which is open to all types of user groups. So we go back to our RS2477 issue. The county has taken the position that even though they have never maintained Mountain King and our driveway. Even though my driveway was never on their road rolls, (Exhibit G) that they are working to declare our driveway public in any way that they can and if it is determined as such they will not take over maintenance of either the driveway or Mountain King. So here we are. The private landowners of a properties which grant everyone along the route access via recorded easements to subsequent land owner where I am the last (thus there are no landlocked private properties), having to forcibly accept a public road on our property that we do not want plus having to then bear the burden of maintaining that access not only for myself but also for the “public”. Seeing that on my driveway alone I have spent at least $21,000.00 over the last 10 years and I anticipate that my costs will increase to at least $3000.00 a year (with snow removal, grading, etc) this is a very unfair and unjust burden to place on me, my family and the other property owners where I live. On top of this, I have my property cut in half by a right-of-way that I do not want and I do not even get compensated for the loss of use of the land that this right-of-way takes. I and other private property owners fear that this is another way for counties and governmental entities to take property without just compensation; a warped form of eminent domain. Even those property owners that do want access to landlocked properties who may initially be proponents of RS2477 do not want “the Public” to use their access. For example, some of the folks want the access for a link to grazing pastures. Just think if off road vehicle clubs, mountain bikers, etc could then use that same access! By the way, remember that even though Boulder wants to declare a public access using RS2477 on private property, which everyone can use, they are not allowing access to private property owners across public land through the use of RS2477. We brought up to some of these users that we want to retain control over use of our property due to liability. Their answer is… “that is what you as property owners have homeowners insurance for”!!!! So here we are with claimed rights-of-ways that cloud on our titles, with pugnacious elements using our property even though there is no court decree verifying that it is a true RS2477 rights-of-way. What is even more amazing is that some of these folks have gated RS2477 rights of ways and put up private property signs to keep everyone else off their own properties! What is good for them is not (apparently) good for the rest of us! There are many private property owners even a short distance in my neck of the woods that have RS2477 roads that have buildings within the 60’ widths. What will become of these buildings? Some of these folks have private road signs yet the “public” uses their driveways. What happens to these folks? Pull out a map and count how many private property owners can be affected in your area! (Exhibit H”) This is not just a Boulder problem although the county practices hypocrisy in this matter. I just live here and this is my sphere of influence. Appendix “I” indicated that this a Colorado and National issue. I have spoken with some folks with in the county now who may be in a position to change the stance of the county. One option that has been given to me is to do a recreational agreement. “Exhibit J” My only concern is if a county can limit a federal statute? Will the courts decide against any agreement that we may come up with? What if I live close to the county line? Can the neighboring county determine what can be done to my property? Hopefully the county will make the right choice soon and close off any access by the public through my property. But if one set of commissioners does so, can the next set re-open it? This resolution will hopefully let congress know that they can not bury this problem any longer. This resolution will force congress to revisit the intent of this statute and hopefully give the power back to the private property owners. This resolution will instruct congress to come up with criteria for “construction” and “abandonment” so that properties like ours will not have clouds on our titles. This resolution will instruct guidelines to be passed so that hopefully those properties that are the last developed in the neighborhood are given definitions of abandonment other than just passive abandonment, which is inherently faulty on vacant land properties and on newer subdivisions including platted subdivisions. And hopefully there will be some distinctions for the three types of road stances. Also private properties need to be removed from the position of having to prove an access is private but rather have the burden of proof rest upon the claimants. Property owners, purchasers, realtors, title companies, mortgage companies and claimants of rights-of ways need these clarifications. Please pass this resolution so that we can all work on a compromise that is fair to those of us who have paid a lot of money for their access and for their properties. |
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