County, landowner win Big Horn lawsuit
Old roadway in Sunshine Canyon not public, judge rules
By
Jason GewirtzCamera Staff Writer
A judge has declared an old road that crosses Big Horn Mountain as abandoned, giving Boulder County and a Sunshine Canyon landowner a victory in a closely watched lawsuit.
District Judge Roxanne Bailin issued a ruling in the case late last week after hearing three days of testimony in July.
The case drew interest from property rights advocates because of the county's involvement in the dispute, which began between two landowners.
On Tuesday, the county defended its association with the case. The county got involved in the case because of public access issues, not because of its interest in Big Horn Mountain as open space, said Ron Stewart, county commissioner and open space director.
"If the question is was the county in this lawsuit in order to make the land worth less, that's not the reason we were in the lawsuit," he said.
The case centered around a dirt road that served as the connection from Boulder to Gold Hill before the current Sunshine Canyon alignment was built in 1887. The old road crossed the top of Big Horn Mountain.
In 1996, landowner Mark Heath sought to use the road to access property he owned on Big Horn. He planned to build a house there and claimed the road to the site was public. Heath eventually gained permission to use the road to cross several neighboring properties.
But one area landowner, Douglas Parker, argued that the road was not public and Heath could not cross. Boulder County joined Parker in the suit, arguing that if the road was declared public, the county would have responsibility for a road it doesn't currently maintain.
As a possible settlement before the trial began, Boulder County tried to buy about 80 acres of the properties in question as open space. The deal could not be completed.
At the trial, Heath and his neighbors argued that the public has long used the road for social events including weddings, wood gathering and hiking. They also argued the road had never been abandoned by the county after the Sunshine Canyon road was realigned in the 1880s.
But Bailin ruled that the road had been abandoned. Also, use of the road for hiking and other social events was not enough proof that the road was still "public," she said.
"The (road) has essentially not been used for the purposes of public travel for over 110 years," she wrote in her ruling. "In addition, occasional, random and infrequent pedestrian traffic is insufficient to establish use by the public."
Karl Anuta, attorney for several of the landowners who joined Heath in the suit, said the group will decide by the end of the week whether to appeal or ask for a reconsideration.
"We're disappointed with the decision because we think it's contrary to the law," he said.
Stewart said the county is still interested in the properties as open space but does not want to pay more than they are worth.
"A property that has legal access is in a different situation than a property that does not," he said.
Heath and his attorney could not be reached for comment.
September 8, 1999
Copyright © 1999 The Daily Camera.
Reprinted with permission.
For more information contact the Land Use Coalition at info@landusecoalition.org or call 303-666-7903.
Last updated January 24, 2002.
URL: http://landusecoalition.org/dc_bighorn_lawsuit_article.htm
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