Styers v. Mara

• Decision Date: 05 February 1981
• Docket Number: No. 79CA0919,79CA0919
• Citation: 631 P.2d 1138
• Parties: James STYERS and Constance Styers, Plaintiffs-Appellants, v. William F. MARA, Mary E. Mara, Wilbur B. Wilson, and Kim D. Wilson, Defendants-Appellees, and Gerald J. and Barbara A. Alger, Michael and Paula R. Bernstein, Grant D. and Gay A. Boyd, Capitol Federal Savings & Loan Association, a federal corporation, Virgil E. and Rita D. Carrier, L. F. Cassidy, City of Greenwood Village, Colorado, a municipal corporation, David L. and Constance I. Daggett, Anthony and Jill Dawson, Thomas C. and Lowell E. Defeo, Howard L. and Carolyn B. Edwards, First Capitol Corporation, a Colorado corporation, Frederick C. Fisher, Vernon L. and Jane A. Francen, Jack Harvey, Samuel L. Jenkins, Robert B. and Mary S. Good, Jack Levine, Coleen M. Love, Bonnie Micheletti, Natli A. Molloy, Alfred W. Vitt, Dorothy M. Wilson, and Paul J. Zueger, Defendants. . I
• Court: Colorado Court of Appeals

Page 1138

631 P.2d 1138

James STYERS and Constance Styers, Plaintiffs-Appellants, v. William F. MARA, Mary E. Mara, Wilbur B. Wilson, and Kim D Wilson, Defendants-Appellees and Gerald J. and Barbara A. Alger, Michael and Paula R Bernstein, Grant D. and Gay A. Boyd, Capitol Federal Savings & Loan Association, a federal corporation, Virgil E. and Rita D. Carrier, L. F. Cassidy, City of Greenwood Village Colorado, a municipal corporation, David L. and Constance I. Daggett, Anthony and Jill Dawson, Thomas C. and Lowell E. Defeo, Howard L. and Carolyn B. Edwards, First Capitol Corporation, a Colorado corporation, Frederick C. Fisher, Vernon L. and Jane A. Francen, Jack Harvey, Samuel L. Jenkins, Robert B. and Mary S. Good, Jack Levine, Coleen M. Love, Bonnie Micheletti, Natli A. Molloy, Alfred W. Vitt, Dorothy M. Wilson, and Paul J. Zueger, Defendants.

No. 79CA0919.

Colorado Court of Appeals, Div. I.

Feb. 5, 1981.

Rehearing Denied March 5, 1981.

Certiorari Denied June 29, 1981.

George Mabry, Littleton, Wallis L. Campbell, Lakewood, for plaintiffs-appellants.

Lohf & Barnhill, P. C., Dennis A. Graham, Denver, for defendants-appellees.

VAN CISE, Judge.

In May 1978, plaintiffs, James and Constance Styers, commenced this action against defendants William F. and Mary E. Mara, Wilbur B. and Kim D. Wilson, and others. Later a separate action was instituted against other defendants. These cases were consolidated. Defendants Mara and Wilson (hereinafter referred to as "defendants," since the other parties defendant are not involved in this appeal) moved for and were granted a summary judgment dismissing the case as to them on the ground that the action was barred by the one-year statute of limitations, § 38-41-119, C.R.S.1973. Included in the judgment was a C.R.C.P. 54(b) order rendering that judgment appealable before final disposition of the claims against the other parties defendant. Plaintiffs appeal. We affirm.

This case involves a strip of land in the City of Greenwood Village (the city) designated as "greenbelt" on the Green Oaks subdivision plat and planned unit development (PUD) plan, on the replat, and in the protective covenants. This greenbelt is located on the perimeter of the northerly and westerly portions of the subdivision. In City of Greenwood Village v. Boyd, Colo.App., 624 P.2d 362 (1981), an action commenced by the city in November 1977, we held that the city had an easement for the benefit of the public in this greenbelt for open space and non-motorized traffic including horse traffic plus concurrent use of the area for utility and drainage purposes. Thus, the lot owners own fee title in the greenbelt, subject to the easement. These plaintiffs own a lot which includes a segment of the westerly greenbelt, and defendants own lots which include segments of the 35 foot wide northerly greenbelt. All these lots are subject to this easement and protective covenants.

Building permits for construction of defendants' homes were issued by the city in October 1975. By June 30, 1976, the Maras had constructed a split-rail fence, a swimming pool, landscaping, and an extensive moss rock wall, and the Wilsons had constructed a tea house, landscaping, and a fountain, all of which were located wholly or partly within the greenbelt area. Because of their encroachments into the greenbelt, they were named as defendants in City of Greenwood Village v. Boyd, referred to above, in which the city sought the removal of all the residents' improvements from the greenbelt. These defendants settled with the city, receiving quitclaim deeds from the city to the southerly 15 feet of the greenbelt area and giving the city easement deeds to the northerly 20 feet of that greenbelt area, which easement deeds granted and permitted horse, pedestrian, and bicycle use thereon by the public.

In the present action, plaintiffs, as members of the public and as owners of land in the subdivision, sought to have the Maras' and the Wilsons' and the other lot owner defendants' improvements removed not only to the extent that they were within the original greenbelt area but also, because of the requirements in the PUD plan and the protective covenants calling for a 20 foot setback from the greenbelt area, to the extent that the improvements were nearer than 20 feet south of the south line of the original greenbelt area. They also asked for an order requiring the defendants to erect a split-rail fence along the original greenbelt boundary lines, as required in the covenants.

It is not necessary to determine whether plaintiffs had standing, independent of the city, to bring this action to enforce the provisions of the PUD plan and the protective covenants concerning...