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Colorado Open Lands Prevails in Trespass Case

Colorado Open Lands won a recent case where adjacent lot owners claimed to have a 20-foot wide trail easement on conserved land.  The conservation easement permitted only a footpath  that had to be approved by Colorado Open Lands prior to construction. Legal fees through the trial ran over $125,000 plus $10,000 in related costs.  If the proposed conservation defense insurance program had been in place, it would have covered legal fees and related costs over the $5000 deductible.  The neighbors have appealed so the legal fees and staff time will escalate until final resolution.

Click here for the case background and copies of the court decision and briefs


Call your attorney fast

In December 2007, the Home Owners Association (HOA) and some of the lot owners individually filed a complaint against the developer and the land trust to use the conserved land for a 20-foot wide trail.  The land trust staff immediately called their attorney, Melinda Beck of Faegre & Benson LLP.

Melinda emphasizes the importance of calling the land trust attorney immediately when a land trust receives a complaint.  That same day is best because usually there is very little time to respond to a complaint.  Often it is 20 days and sometimes less.



The developer of the 10 adjacent lots granted Colorado Open Lands the easement  in 2001 on 102 acres.  After selling the 10 adjacent house lots, the developer sold the conserved land to one of the lot owners subject to the easement.  The easement allows recreational uses, such as hiking, biking, skiing, and horse riding on a “footpath” to be designated by the landowner and approved by the land trust prior to construction.  The easement allowed others to use the footpath, provided that the owner of the conserved land gave them permission.

The developer formed the HOA in 2005 as he sold the lots.  Then the developer, unknown to the land trust, gave the HOA and the lot owners a recreation license referencing a 20-foot wide trail on the conserved land.  The developer did not consult with or obtain the land trust approval before doing this.  The footpath reserved in the conservation easement did not reference a specific type of trail or trail width, but allowed only a “footpath,” not a trail.

The developer later sold the open space parcel to one of the adjacent lot owners subject to the conservation easement and the recreation license.  The new owner and the other adjacent lot owners disagreed regarding the adjacent lot owners’ ability to use the land subject to the conservation easement, as well as their right to a trail on it.  The adjacent lot owners felt deceived by the developer, who had allegedly promised them a trail and open access to the conservation easement parcel, and had allegedly failed to perform a number of other promised improvements to the development. Unable to resolve the situation, the lot owners sued the developer, the new conservation easement parcel owner, and named the land trust in order to quiet title.

Determining the Land Trust Goals and Trial Strategy

Colorado Open Lands staff, board and attorneys decided that the case implicated issues important to the land trust- namely, the trail location, width, and the interpretation of the conservation easement.  They did not want an adverse ruling from a court or a settlement contrary to the easement.  They determined that the only way to protect Colorado Open Lands’ interest was to remain active in the case.

Jacy Rock, the litigator for the land trust from Faegre & Benson LLP, led the staff team in fairly extensive pre-trial preparation.  One of the lessons that the team took away from this case was never to assume that a case will settle and not go to trial, particularly where people are angry, emotional, and feel that they were defrauded.  When emotions run high, cases do not settle.

Colorado Open Lands’ goal was to reach an acceptable resolution rather than win or get out.  This shaped the trial strategy.   The strategy was to be neutral, reasonable, and above any petty fights.  The objective was to protect the land and to assist the court to resolve the dispute.  Both Jacy and Melinda visited the site, which was immensely helpful in developing the trial strategy.



Discovery and Witness Preparation

Cheryl Wagner, Stewardship Director of Colorado Open Lands, said that the process of responding to the discovery requests “took an enormous amount of time” for her and the Executive Director, Dan Pike.  Staff reviewed all of the property files including emails.  They compiled over 400 documents.  Fortunately, most were already in electronic form.  Before they delivered any documents, they reviewed it thoroughly for accuracy and relevance.  Cheryl said that “a complete understanding of the process was critical and took additional time for the attorneys to educate the staff.  Then staff had to educate the attorneys about the land and the land trust procedures which took more time.  Then the work of witness preparation could start which took even more time.”

In all, staff spent approximately 80 hours on preparation for and attendance at the trial.  This was actually a simple case relative to other types of litigation and in the issues it presented. The hours and the cost could have been much greater in a more complex action.



Cheryl said that it was crucial for the land trust to be involved in the mediation process even though it meant more time and effort to prepare for that.  She felt that being present for mediation was well worth her time.  The land trust felt it was important to assist in the development of a resolution and educate all the parties about the easement and the land trust role.

The baseline consultant the land trust retained to help with trail location and design played an important role in mediation and at trial to demonstrate how the easement purposes would be affected by various locations and widths. A significant portion of the mediation was spent working with the parties to determine a trail design, location, and width and satisfy the parties. Even though the mediation did not result in a settlement and the trial ensued, the work done in mediation was influential in the final result at trial.  The landowners proposed an alternative trail route and width but never formally asked for trail approval.  The consultant was useful in responding to this alternative as well.


Trial Preparation

The trial took three days.  Two staff members (Dan and Cheryl) were present the entire time and both testified.  Cheryl and the former Land Stewardship Director, Mo Ewing, testified at the trial. They provided background for the judge on Colorado Open Lands and responded to very specific questions about the land trust procedures and practices, including the content of monitoring visit reports.  Cheryl noted that it is extremely demanding to recall the details of visits many years past so that documentation is critical.  Cheryl answered several questions about what would and would not be approved for a trail.

Cheryl also noted that they underestimated the time needed for this case and they didn’t think it would go to trial.  Staff spent approximately 80 hours total and the attorneys involved spent more than 370 hours on the entire process, a relatively modest amount compared to more in-depth litigation.


Major Issues

Three major issues relevant to Colorado Open Lands emerged from the case.  First, the Court ruled the conservation easement was first in priority and superior to any other interests.  Second, the Court ruled that the landowners only had a license, not an easement, to use the trail.  This was important because a license is irrevocable and not a property interest unlike the easement.  This preserved the landowner relationship with the conserved land owner as the only one of legal importance to the land trust.  Finally, the Court ruled that the trail location and design was never approved by the land trust.  What the land trust would approve was a one foot wide footpath in contrast to the 20 foot wide proposed trail.  The court ruled in March and the land trust prevailed on all counts applicable to it.  The neighbors are appealing the decision.

Legal Fees

The litigation would have cost the land trust $125,000 in fees plus $10,000 in costs if the firm had not provided pro bono representation.  The land trust paid the costs, but was able to recover most of them from the plaintiffs, which is unusual.   This could easily have been a $200,000 or more if there had been more discovery.  The pre-trial process is where costs skyrocket.  The land trust problem solving stance reduced costs.


Lessons Learned

The land trust now documents all substantive landowner discussions after this experience, as well as having in writing all approvals, denials and interpretations.  Nothing substantive is left for only a verbal conversation without written backup.  Accurate, thorough, and objective reports documenting visits are critical.

Dan noted that hindsight suggests the land trust could have been more proactive with the neighbors and the developer about the footpath and the easement restrictions.  Doing so might have helped prevent the confusion.  It might have also given the land trust prior notice of the pending recreation license.

More details in the easement about size limits might have helped too but the lot owners were wholly unaware of the easement at all, so that may not have helped.

The land trust problem solving approach to the case was very successful in the favorable resolution as well as in keeping legal costs to a minimum.

The proposed conservation defense insurance program would have absorbed the legal fees and related costs of this litigation.  Fortunately, the land trust had a well established pro bono relationship with a law firm that was willing and able to handle this litigation.  The land trust still had to pay for the out of pocket costs but was able to recover those from the plaintiffs.  Both of these circumstances are not typical of most cases.


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