City of Greenwood Village v. Boyd

• Decision Date: 22 January 1981
• Docket Number: No. 78-1074,78-1074
• Citation: 624 P.2d 362
• Parties: CITY OF GREENWOOD VILLAGE, Colorado, a municipal corporation, Plaintiff- Appellee and Cross-Appellant, v. Grant D. BOYD and Gay A. Boyd, Virgil E. Carrier and Rita D. Carrier, Thomas C. DeFeo and Lowell E. DeFeo, Howard L. Edwards and Carolyn B. Edwards, and Robert G. Good and Mary S. Good, Defendants-Appellants and Cross-Appellees, and Gerald J. Alger and Barbara J. Alger, the Capitol Savings Service Corporation, a Colorado corporation, Robert T. Barbour, Michael Bernstein and Paula R. Bernstein, David L. Daggett and Constance I. Daggett, William F. Mara and Mary E. Mara, Wilbur Bruce and Kim D. Wilson, Paul J. Queger and Bonnie Michelette, Anthony R. Dawson and Jill Dawson, Defendants. . III
• Court: Colorado Court of Appeals

Page 362

624 P.2d 362

CITY OF GREENWOOD VILLAGE, Colorado, a municipal corporation, Plaintiff- Appellee and Cross-Appellant, v. Grant D. BOYD and Gay A. Boyd, Virgil E. Carrier and Rita D. Carrier, Thomas C. DeFeo and Lowell E. DeFeo, Howard L Edwards and Carolyn B. Edwards, and Robert G. Good and Mary S. Good, Defendants-Appellants and Cross-Appellees and Gerald J. Alger and Barbara J. Alger, the Capitol Savings Service Corporation, a Colorado corporation, Robert T Barbour, Michael Bernstein and Paula R. Bernstein, David L Daggett and Constance I. Daggett, William F. Mara and Mary E. Mara, Wilbur Bruce and Kim D. Wilson, Paul J. Queger and Bonnie Michelette, Anthony R. Dawson and Jill Dawson, Defendants.

No. 78-1074.

Colorado Court of Appeals, Div. III.

Jan. 22, 1981.

Banta, Hoyt, Malone & Banta, P. C., R. Val Hoyt and Stephen G. Everall, Englewood, for plaintiff-appellee and cross-appellant.

Grant, Rotole, Owen & Walker, Larry L. Grant, Denver, for defendants-appellants and cross-appellees.

George Mabry, Littleton, Wallis Campbell, Lakewood, for amici curiae James Styers and Constance Styers.

VAN CISE, Judge.

Defendants Boyd, Carrier, DeFeo, Edwards, and Good appeal a judgment declaring a dedication of an easement to the plaintiff City of Greenwood Village (the city) for the benefit of the public. We affirm.

In September 1972, the city council amended its zoning ordinance and approved a plat and planned unit development (PUD) plan for a 160 acre parcel of land known as the Green Oaks subdivision. In February 1973, the council approved by resolution a replat of Green Oaks involving minor corrections unrelated to this litigation; the PUD plan was not changed. These documents were duly recorded. In conjunction therewith, defendant First Capitol Corporation (the original owner and developer) executed and recorded a declaration of protective covenants.

This case involves a strip of land varying in width from 20 to 50 feet on the perimeter of the northerly and westerly portion of Green Oaks and designated as "green belt" on the subdivision plat and PUD plan and on the replat. In 1977, a controversy developed over encroachments within a portion of the northerly green belt abutting lots 81 to 94. As a result, this action was commenced by the city against the developer and the owners of those lots, seeking to quiet title to the green belt and to compel removal of the encroachments.

The developer was a passive participant. The city settled with all individual defendants except appellants and the Bernsteins, and the settling defendants were dismissed out of the action before trial. As to the non-settling defendants, the trial court determined that the green belt had been statutorily dedicated to the public, and therefore to the city, as an easement for open space and non-motorized traffic, including horse traffic, and that these defendants had to remove the encroachments they had made into the green belt.

The appealing lot owners contend that there was never a valid dedication of the green belt. The city cross-appeals on the ground that the dedication was in fee simple rather than as an easement. The amici curiae join in the city's contention. The Bernsteins have not appealed.

In the recorded plat and PUD plan and in the replat it is stated that the developer does "hereby dedicate to the public all roadways and easements for purposes shown hereon" and that "(a)ll areas designated as green belt are also reserved as utilities and drainage easements." Both plats show a clearly marked strip containing random pattern dots within the strip, labeled at various places "green belt."

The PUD plan specifies that set back requirements from the green belt are 20 feet. On that same plan are notes that provide:

"Horses may be kept in Lots 1-25 only. Horse traffic shall be limited to Lots 1-25, Tract 'H', the major northerly greenbelt and westerly greenbelt.

"A fence not to exceed 2 (two) feet in height, to delineate greenbelts, shall be provided to greenbelt standards by each abutting property owner ... on greenbelt lines as shown on plan within the property. A split rail fence not to exceed 6 (six) feet in height shall be erected by abutting property owners ... to delineate greenbelts where horse traffic is allowed....

"Final grading of greenbelts to be performed by Capitol Savings Service Corporation. All landscaping in greenbelts shall be installed and maintained by the abutting property owners to the center line of said greenbelts except the landscaping of major greenbelts (as designated on plan) which will be installed and maintained by the greenbelt commission of the City of Greenwood Village ...."

From the above, the court properly concluded that the dedicating...