Laserfiche WebLink
ZP's Motion had not been filed at the time the Division's Brief was filed. <br />Accordingly, the Division's Brief did not have the opportunity to address the Colorado <br />case law cited by ZP in support of its Motion. <br />ZP incorrectly applies the rules of law set forth in the Carlson v. McNeil and the <br />Didamo v. Tyrol Sport Arms Company cases cited in Issue 1 of ZP's Motion. The <br />Carlson case involved a lawsuit by one cotenant for trespass against a corporation who <br />had obtained title to property by way of a tax sale deed. The single cotenant claimed <br />that the tax sale to the corporation was faulty and sought to prove trespass against the <br />corporation. The corporation argued that one cotenant could not by itself, without the <br />joinder of the other cotenant, bring an action for trespass and oust the corporation from <br />the entire property. The court found the tax sale to be faulty, and under such facts, the <br />Carlson court ruled that one tenant-in-common may recover possession of the entire <br />tract as against all persons except his cotenant. As such, the facts that gave rise to the <br />Carlson case are in no way similar to the facts involved in this matter. Moreover, here, <br />ZP makes no claim of ownership interest to the surface estate of the proposed pit <br />amendment area located on the Home Property. Anthony, Marilyn, Barry and Martha <br />Zellitti have the unfettered right to provide access to the Home Property. Further, <br />Carlson does not provide any legal support for the proposition that one cotenant may <br />prevent access to the lessee of another cotenant. <br />ZP's reliance on Didamo is similarly misplaced. Didamo was an unlawful <br />detention action brought by a single cotenant against a tenant corporation. The <br />property was owned by three cotenants and the cotenants had all executed a lease with <br />the tenant corporation. In addition, the three cotenants were also the shareholders in <br />the tenant corporation, and the corporation employed two of the cotenant owners. It <br />was undisputed that the lease with the tenant corporation expired. The cotenant owner <br />that did not work for the corporation brought an action for damages and sought <br />possession of his portion of the co-tenancy property. The court stated that the one- <br />cotenant's rights were expressly limited to the extent of his interest in the subject <br />rp opert y and upheld the trial court's award of a proportionate share of rental due to the <br />one cotenant. Here, ZP claims no rights under the lease Hocker has relating to the <br />Home Property or any surface right to the Home Property. Further Didamo does not <br />provide any legal support for the proposition that one cotenant may prevent access to <br />the lessee of another cotenant. <br />CONCLUSION <br />ZP makes numerous irrelevant and unsupported arguments in an attempt to <br />persuade this Board to deny the Permit Application. As stated above, the Division <br />correctly addresses all relevant issues before the Board regarding the Pit Amendment <br />and this Response seeks only to provide further support to the Division's analysis and <br />conclusions. Many of the differing issues raised by ZP will be fully addressed by the La <br />Plata County State District Court, but none of the issues raised by ZP support any delay <br />in approving the Pit Amendment, or placing any conditions on the Pit Amendment. <br />3