Yearslong litigation surrounding the protection of open space in Fraser’s Grand Park is nearing its latest ruling.

Grand Park, which contains about 468 acres of open space, includes Elk Creek Meadow and Cozens Meadow. A portion of this open space is at the crux of a court trial between the town of Fraser and Grand Park’s developer, Clark Lipscomb.

Fraser town staff believes that the two meadows must be placed in a conservation easement, based on a 2003 annexation agreement. The developer disagrees that an easement over the entirety of both meadows is legally required, based on an amended agreement and a planning document, which were finalized two years later in 2005.

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How we got here

The latest lawsuit stems from a discrepancy between the 2003 and 2005 documents on which areas should be preserved. The earlier agreement states that Elk Creek Meadow and Cozens Meadow will be placed in a conservation easement. The more recent Planned Development Document, which serves as the master plan for Grand Park, only mentions an easement for Elk Creek Meadow, and there is no indication of an easement over Cozens Meadow.

In March 2020, the town recorded the conservation easement that the developer submitted for Elk Creek Meadow. But seven months after the recording, the town (and later a judge) declared the Elk Creek Meadow easement void because it was not signed by the town attorney.

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As a result of the dispute about the Cozens Meadow easement, the town paused entitlements — such as building permits, land-use applications and certificates of occupancy — for the Grand Park development. According to town staff, it took this action because it believed the developer had breached what it considered the promise of a conservation easement on Cozens Meadow in the earlier agreement.

Litigation began shortly thereafter in 2021, when Grand Park sued the town for stalling its development process, and a judge ruled that the town had to resume entitlements. The town then countersued Lipscomb for breach of contract, a case that is now playing out in court. According to the town, Lipscomb breached the Oct. 31, 2007, deadline to submit the easement.

The Grand Park developer and his attorneys maintain that the 2020 Elk Creek Meadow easement is still valid and that Grand Park has no obligations to provide an easement over Cozens Meadow. But the question of the easement remains in court to be answered.

What’s happening now

Three years later, Grand County District Court Judge Mary Hoak is still presiding over the legal dispute. The latest trial began in August and resumed in September.

At the public bench trial, attorneys Larry Katz and Scott Albertson represented the plaintiff Lipscomb. Fraser’s town attorney Kent Whitmer, and Ashley Hernandez-Schlagel and Sean Lemieux represented the defendant, the town. Fraser’s attorneys have argued they have a right to condemn the meadows, privately owned by the developer. If the judge orders that the town can condemn them, this would be done with no compensation to the developer.

On Sept. 24, Lipscomb’s attorneys stated they had filed a motion for dismissal of the town’s claims on the grounds of the statute of limitations. According to Katz, a breach of contract claim is valid for three years, under the statute. The town claims Lipscomb defaulted on the easement’s 2007 deadline, and 14 years had passed by the time the town sued.

“This case is too old … people’s memories have faded, documents have been lost,” Katz told the judge.

Hoak denied the plaintiff’s motion in a Sept. 24 order, saying that the case was not limited by timespan. Regardless of how many years had passed, the town still has the ability to argue its case for a conservation easement, she said.

The attorneys for each side are set to file their closing arguments by Nov. 19 followed by any rebuttal arguments on Dec. 10. After reviewing the case, Hoak will rule on whether the developer is required to place the meadows into a conservation easement.

A ruling in the trial is not expected for months, according to the judge.