CRESTONE — In its Oct. 20 district manager report, the Baca Grande Water and Sanitation District (BGWSD) lists a site visit to the White Eagle LLC by board members and determined, “The conditions of the property and especially the building do not indicate the property is safe to inhabit.”

Lakish is reportedly living at the lodge with his young children and has been for several months. According to minutes from the May 2 Saguache County Commissioners meeting, Lakish told commissioners the building was “condemned by the state in 2012 for numerous issues, including electrical, plumbing and foundation issues.” He did not mention he was currently living in the building.

The BGWSD site visit was conducted in response to an earlier request by Alder Lakish that the district waive back dues fees on the property. The board requested Lakish produce evidence he is “the property owner or legal representative of the property,” but noted that as of the Oct. 20 meeting he had not provided such proof.

In a Nov. 17 district manager’s report, BGWSD noted it denied any further discussion of the matter with Lakish until he can prove he is the rightful owner. They also mention that the legal owners of the LLC, Brian Kramer and Julie O’Halloran, had contacted them about the matter asserting they are the valid owners and are seeking legal counsel regarding Lakish and have asked him to vacate the building.

Condemnation confusion

Some have asked why, if Lakish truly believed the property was condemned, he would live on the premises with his children. In a post made to Facebook last week, Lakish explains his position as follows:

“I only made one payment on that tax arrangement [made with County Treasurer Connie Trujillo] because I began to get more information on complications about the Baca Water and Sanitation past due bills related to the property and I got more information about the state red flagging issues related to replacing the plumbing, electric and roofing leak repairs…

“I wanted to get a budget on the necessary repairs to make the building useful again as a private storage building and ensure that I wouldn't get stuck paying a $450,000 bill for having to bulldoze the building and haul it off in roll off dumpsters, before I progressed with the tax lien title process.”

In trying to determine who issued the condemnation of White Eagle in 2012, several individuals were contacted.

The first of these was Curtis Belcher with the Colorado Division of Property in the Grand Junction office, who had to visit White Eagle in 2012 as part of the county’s effort to reassess properties. Belcher said, “I don’t think there was ever an actual condemnation; I am not aware of any condemnation. The whole place, though, was covered in mold, so it was obviously an environmental hazard.” He advised contacting the Colorado Department of Health and Environment (CDPHE).

CDPHE denied ever condemning the property and suggested contacting the former public health director who was working during that time period, Della Viera, now working for public health in Alamosa. Viera said she had a strict understanding with the county that the Department of Public Health does not have the authority to condemn buildings. Current Saguache County Public Health Director David Daboll said basically the same thing.

Saguache County Co-Administrator Wendi Maez explained that the building was never condemned as such but that it had been red-tagged by the state electrical and plumbing inspectors. A red tag placed on property by state officials is generally understood to mean that until deficiencies noted on the tag posted at the property are corrected, no one can live on the premises.

The public generally does not understand, however, that under the law, this is also considered a condemnation. According to an online article published in The Colorado Lawyer in September 2006:

“In addition to various government agencies and political subdivisions, certain private entities have express statutory authority, over and above any rights granted by Article II, § 14, to condemn private property. Among these are pipeline and other transmission companies, as well as certain utility providers...The private utilities with the power to condemn generally are required to serve everyone equally with everyday necessities such as water, electricity, natural gas, or telecommunication services.”

It is not clear whether or not the declaration of the property as uninhabitable by the BGWSD, as a private utilities agency, can also be classified as a formal condemnation.

Maez said Friday that the Board of County Commissioners officially sits as the Saguache Board of Public Health and that neither the present nor past boards have ever issued a condemnation of White Eagle LLC. She added that the commissioners have never formally condemned any county property since she has served with the county.

Condemnation by a state utility inspector differs from an eminent domain situation where commissioners would need to be able to first condemn the property then take actual possession and “re-purpose” it. This is not necessary when a private utility or state entity condemns the property, as explained above.

According to County Treasurer Connie Trujillo, commissioners did not want to become responsible for White Eagle LLC because of asbestos issues and other damage that would be too expensive for the county to remedy. When first interviewed last month, Trujillo said she did not realize Lakish was living on the property and did not believe commissioners were aware of this either.

 Sheriff weighs in

The Saguache Sheriff’s Office has been faulted for not removing Lakish from the White Eagle property for trespassing but Sheriff Dan Warwick says removal is not that simple. “There’s a whole lot more to this than we are getting,” Warwick said. He indicated that until actual legal ownership is determined by the state and/or within the court system itself and the statutory eviction process is followed, the sheriff’s office cannot intervene.

In his opinion, Warwick said, the county left the process up to the treasurer’s office when it should have simply taken the property back onto the tax rolls. “The state has no protections in place for people” involved in these complicated situations, Warwick concluded.

 Adverse possession

One county resident recently pointed out that the actions of the county could be interpreted as helping Lakish establish a case of adverse possession under Colorado law.

Adverse possession in Colorado is established from the nature of a trespasser’s possession and the length of time the person possesses the land. The possession by a trespasser must be:

• hostile (against the right of the true owner and without permission)
• actual (exercising control over the property)
• exclusive (in the possession of the trespasser alone)
• open and notorious (using the property as the real owner would, without hiding his or her occupancy), and
• continuous for the period set by state statute (which, under  Colorado Rev. Stat. § 38-41-101, is generally 18 years).

According to Lakish, he had permission of the owners to pay the taxes on the property and do as he pleased; this is explained in his Facebook post last week and was allegedly witnessed by numerous individuals not interested in the case per se. But the above would seem to be a matter of interpretation by the courts, as Warwick maintains.

Witnesses can testify Lakish actually had at least a presumed permission and Lakish is protesting he does not have full control over the property because he cannot have utilities re-established or meet with the owners to clarify matters. To claim adverse possession, the possession would need to be hostile and the claimant would need to exercise control over exclusively, and in the same manner as the owners, something that currently Lakish is not able to do.

This would actually disprove any claim to adverse ownership, especially in light of the fact state statute requires the property be held for a minimum of 18 years.