McCloskeys embroiled in another fight
Editor’s note: This is the first in a two-part series.
An Aspen couple at the center of a Hunter Creek Valley access dispute that ripped the town apart a decade ago are embroiled in a strangely similar dispute on a Hawaiian island.
Tom and Bonnie McCloskey have locked horns with a neighbor over access to a ranch where the McCloskeys plan to build a vacation home.
This time, though, the McCloskeys had their access blocked and were forced to file a lawsuit to open it. In the Aspen fight, they attempted to close the access of other landowners and the public and were served with litigation.
In their lawsuit in Hawaii, the McCloskeys have used many of the same arguments that were successfully used against them by neighbors in Aspen. What went around, came around. Tom McCloskey downplayed the similarities in the cases Thursday. He noted public access isn’t an issue in the Hawaii case.
He also claimed that the neighbor blocking access to his ranch knew McCloskey possessed an easement across her property, but simply didn’t want to let him use it.
In Aspen, McCloskey contended that he didn’t think his neighbors possessed any easement through his land.
As for lessons learned in Aspen and applied in Hawaii, McCloskey said the experience here did teach him to take a dispute to court as soon as possible. McCloskeys on other side of gate The dispute in Hawaii came after the McCloskeys bought the 164-acre Moloa’a Bay Ranch on Kauai in May 1998. They earned government approval to establish 17 lots on a plateau overlooking the ocean.
By September 1998, they were moving in heavy equipment to clear the land and install utilities when they found their route blocked by a neighboring landowner, according to Clark Lipscomb, vice president of real estate development for McCloskey’s Aspen-based Cornerstone Real Estate Ventures.
“My contractor was going nuts because every time they came through there she called the cops,” said Lipscomb.
He said he tried in vain to settle the issue with neighbor Deborah Forester. When she erected a gate to block access, the McCloskeys filed a lawsuit against her.
“The gist of it was, `We just don’t want you to use it,’ ” said Lipscomb. “That just wasn’t an option.”
According to court documents and local newspaper accounts, Forester didn’t want the McCloskeys to use a 10-feet easement that crossed her property. The easement was one of two routes that went from a public road to the McCloskeys’ land.
Forester argued that the McCloskeys should use an alternative, existing route to their land rather than disturbing her peace and quiet. She contended that the easement through her property had been abandoned because it hadn’t been used for 20 years. Heard it all before The McCloskeys were familiar with those arguments – they are nearly identical to what they used in Aspen.
The McCloskeys bought about 70 acres from Fritz Benedict next to National Forest land on the north side of Hunter Creek in May 1987. They sparked a community uproar that spring by closing the north trail into Hunter Creek Valley and eventually building a mansion virtually on top of the trail.
They contended the road was private and off limits to the public as well as landowners farther up the valley, such as Jim and Merrilee Auster, then-owners of the Hummingbird mining claim.
The McCloskeys also claimed that the public ownership of the north road had expired from lack of use. The public, they said, could use the south road into Hunter Creek or Smuggler Mountain Road to access the National Forest.
An extremely convoluted court battle ensued that took years to resolve. In a nutshell, the McCloskeys and their allies granted permanent access to the Austers and other landowners, eliminating them from the court battle.
The public – represented by Pitkin County, the U.S. Forest Service and a citizens’ group called Friends of Hunter Creek – eventually prevailed in U.S. District Court to keep the north road open. The court must still define the width and location of the public easement.
No one involved in the case is betting against an appeal. Better luck next time The McCloskeys had better luck in Hawaii.
They were confident of their case, said Lipscomb, because Forester’s title commitment, as well as the McCloskeys’, showed the easement existed.
A judge ruled in August that documents clearly show the easement exists across their neighbor’s property, according to an article in the Garden Island newspaper. The judge also ruled that the easement hadn’t been abandoned.
A final decision in the case is pending, but McCloskey said he is close to negotiating a settlement with his neighbor.
One road onto the 164-acre ranch isn’t enough, McCloskey said. He wants both accesses because he wants to use one to get to his house and reserve the second road for other potential development.
McCloskey said he doesn’t intend to sell all 17 lots for development.
Like his boss, Lipscomb didn’t see the parallels between the McCloskeys’ experiences in Aspen and Kauai. In this latest case, he said, all relevant property title commitments clearly showed the McCloskeys had access through the neighbor’s land.
In the Aspen case, it wasn’t clear that the Austers and other landowners had access through the McCloskeys’ property, according to Lipscomb. If that had been clear, his boss wouldn’t have spent 12 years engaged in a legal battle, he said.
In both the Kauai and Aspen cases, the McCloskeys’ title insurance companies are footing his legal bills.
Editor’s note: Since buying their ranch in Kauai, the McCloskeys have made the natives restless over the status of a trail. That issue will be explored in Monday’s edition.
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The 10th Circuit Court of Appeals this week affirmed the dismissal of a lawsuit against the city of Aspen that challenged its zoning laws concerning Mill Street Plaza, which is home to locally serving businesses.