country road.jpgIn order to facilitate the settlement of the western United States in the nineteenth century, the federal government broke the land up into “townships” that were generally 36-square mile blocks.  Each township was then broken into “sections” of roughly one square mile, or 640 acres.  Each section was further divided into “quarter sections,” and further into “quarter quarter sections” of 40 acres each.

Sometimes when we are working on acquisitions or financings of raw land, we encounter roads that follow the section lines, usually 30 feet on either side of the line.  There is often no deed, easement or dedication for these roads, and the question comes up as to whether there is some statutory basis for these roads.  If there is no statutory basis, then we need inquire about whether there is a prescriptive easement for these roads.  (See the note below on prescriptive easements.)

So, is there statutory authority for those roads?  There isn’t now, but there used to be. 

In 1885, the Colorado General Assembly passed a law [PDF] that allowed commissioners of a county, by an order at a regular meeting, to declare any section or township line “on the public domain” to be a public highway.  As pointed out by H. Keith Corey of Grand Junction (see part (3) of his paper), this statute was repealed in 1953, but its repeal did not remove any roads that were in place prior to repeal.  Before repeal, El Paso, Weld and Mesa Counties passed resolutions pursuant to this statute.  See Book 571, Page 55[PDF] of the El Paso County real property records and Book 86, Page 273 [PDF] of the Weld County real property records.

If you are looking at land that has one of these roads located on a section line, and the county passed a resolution pursuant to the 1885 statute before 1953, then you should assume that there is a public highway for the first 30 feet inside the section line.

Thanks to Ian Cortez of Ulteig Engineers, who brought this up at a surveying seminar, and to David Knapp at Land Title for sharing his experience on this issue.

NOTE:  Generally, a prescriptive easement arises when a party adversely uses property in the same manner as if it had an easement, and such use is continuous and uninterrupted for the period of prescription.  Almost every element of a presciptive easement is loaded with specific, and sometimes controversial, meaning, so the analysis needs to handled carefully.  Note that a prescriptive easement (and its cousin, adverse possession) usually cannot be established by private parties against governmental entities, so you probably can’t make one of these public highways go away without the county’s consent.

Photo by goingslo (flickr)

Medical marijuana businesses, including grow operations and dispensaries, can now be found in many communities throughout Colorado.  The establishment and proliferation of such businesses has presented a number of issues for their neighbors. 

One issue: marijuana stinks.  It has a very strong odor, even before it is smoked. 

Odor emanating from medical marijuana businesses has led to complaints from neighbors, who are typically other businesses.  These businesses and their customers may find the strong marijuana smell that periodically permeates their neighborhoods offensive, or simply overwhelming.  The question then becomes how to deal with the problem.

Colorado’s Medical Marijuana Code, C.R.S. § 12-43.3-101 et seq. (the “Code”) does not directly address or regulate odors coming from medical marijuana businesses, and it does not appear that the proposed state regulations to implement Code will address odors either. 

Accordingly, if neighbors have complaints about odors emanating from medical marijuana businesses, they will either have to hope that local regulation addresses the issue, or be resigned to remedies under the law of nuisance. 

The Boulder Daily Camera recently ran an article addressing the City of Boulder’s regulation of odors from medical marijuana businesses. There have apparently been a number of complaints of wafting smells of marijuana, and the City is investigating.

Under Boulder’s medical marijuana regulations, “[a] medical marijuana business shall be properly ventilated to filter the odor from marijuana so that the odor cannot be detected by a person with a normal sense of smell at the exterior of the medical marijuana business or at any adjoining use or property.”  Boulder Municipal Code, § 6-14-8(h).  Violations can result in a loss of a license, and/or a fine of up to $1,000 per violation. 

According to the Daily Camera, it is difficult for medical marijuana businesses to comply with the requirement, and expensive equipment is needed to mitigate odors.  Medical marijuana businesses have also complained that the requirement is unfair, given that a great many other businesses are allowed to let odors leave their properties without consequence.  (Walking past a pizza parlor, you can often smell the umistakable mix of baking bread and garlic).  However, it appears that the City is intent on trying to enforce its requirement.  As indicated, businesses have a strong incentive to comply, as they risk having their businesses shut down if they do not.

Given Boulder’s odor regulation, neighbors of medical marijuana businesses in Boulder are probably far better off than those in other local jurisdictions that do not have similar requirements.  Without a code provision addressing odors, complaining neighbors would likely only have remedies in the law of nuisance.  While a nuisance suit could result in an injunction, thus cutting off the problem, bringing such a suit would be quite expensive and time consuming for the complaining neighbor.  In contrast, pursuing relief through local code enforcement would likely solve the problem more quickly, and would be carried out primarily at the expense of the local government. 

Colorado’s new licensing scheme for medical marijuana businesses under the Code goes into effect on July 1, 2011.  Local jurisdictions throughout Colorado are still in the process of updating their regulations to conform to this dual state/local licensing system.  As they do, it will be interesting to see if other jurisdictions will attempt to regulate odors as Boulder has.    

 

According to law enforcement officials, identity thieves have been using the Colorado Secretary of State’s (the “Secretary”) website to engage in business identity theft.  By accessing the Secretary’s website, identity thieves are able to obtain public information about Colorado registered entities, and then for a nominal fee are able to change the registered agent of a registered entity to themselves.  Once the identity thieves have implemented the change, they will use the registered entity’s name to apply for fraudulent lines of business credit for their own personal use.  By some accounts, this scheme has affected at least twenty-five Colorado registered entities and allowed identity thieves to steal over $750,000.

Identity thieves are able to engage in this crime due to the lack of procedural safeguards to check the authenticity of forms implementing changes to the records of registered entities as they come into the Office of the Secretary.  Oftentimes, a registered entity will not even know that a change has been made to its entity records upon the submission of a form to the Office of the Secretary. 

An entity registered in Colorado can combat these identity attacks by listing an email address for the registered entity with the Office of the Secretary.  Thereafter, an email notification will be sent to the listed email address upon any change to the records of the registered entity, thereby alerting it of any unwarranted changes.  However, the option to list an email address for a registered entity is only a recent development and remains completely voluntary.  As a result, a majority of Colorado’s registered entities do not have an email address listed and may not be notified of identity theft attacks. 

Therefore, an entity registered in Colorado should consider subscribing for email notifications from the Office of the Secretary to try to protect the entity against identity theft.   A registered entity can subscribe to email notifications by visiting the Secretary’s website.  Additional information and resources about identity theft and protecting registered entities against identity theft attacks can also be found here.

 

 

 

As discussed here by The Wall Street Journal, the vast majority of Generation Y, a larger demographic than baby boomers, wants an urban lifestyle.  Of those born between 1980 and the early 2000’s, 88% want to live in an urban setting rather than in traditional, suburban communities.  They want a pedestrian-friendly environment.  They also prefer smaller dwelling units with shared amenities to the suburban home with a large yard.

Of course, as this DenverUrbanism.com blog post suggests, as time goes on and Millennials start having their own children, their desires may change.

It will be interesting to see how this generation’s preferences impact urban and suburban residential markets.

A few months ago, I wrote about a recent Colorado Court of Appeals decision that gave a broad interpretation to the Colorado Trust Fund Statute.  That decision highlighted the importance of maintaining strict accounting practices and segregating funds for each separate construction project.  As a follow up to that post, I would like to highlight a particular accounting practice that has the potential to create liability under the Trust Fund Statue while also invalidating mechanics’ liens filed by subcontractors.

construction tunnel.jpgGeneral contractors often use the same supplier or subcontractor on multiple projects.  Sometimes a newer project will pay out much quicker than an older project, whether because of construction issues that need to be resolved or delays in payment from the property owner.  In these situations some contractors decide to enter into arrangements with their subcontractors whereby invoices get paid based on aging rather than on a project by project basis.  This might be because neither the contractors nor the subs like to show past due accounts payable/receivable on their financial statements, or maybe the subcontracts provide for steep interest payments on past due invoices.

Whatever the motivation, the contractor and the sub often view this practice as harmless.  However, upon closer scrutiny, these types of arrangements can become disastrous for both contractors and subcontractors.  For example, if an older project never pays out as expected and the contractor is left with a shortage of funds, then that contractor will likely face liability under the Trust Fund Statute (to a property owner and/or other subcontractors) for diverting funds from one project to pay for the expenses of another. 

Meanwhile, the subcontractor whose invoices were paid based on aging, rather than on a project by project basis, is likely to have some unpaid invoices.  In such a case a subcontractor would usually protect itself by filing a mechanics’ lien against the property for which it did work and did not get paid.  However, this subcontractor will have a difficult time enforcing a mechanics’ lien for the newer “unpaid” invoices because it in fact already got paid with funds from that very project – those funds were simply misapplied to an older invoice for a different project.

While it can be tempting to maintain informal accounting practices with long standing and trusted subcontractors or suppliers, both sides need to ensure that they properly account for all funds so as not to run afoul of the Colorado Trust Fund and Mechanics’ Lien statutes.

Photo by laffy4k (Flickr)