November 13, 2007

Retired judge: This land is my land

Jurist rules in favor of colleague,
snatches $1 million parcel

© 2007

Judge James Klein

A judge has ruled in favor of another judge – now retired – in an unusual "adverse possession" land dispute in pricey Boulder, Colo., giving the retired judge a large part of his neighbor's $1 million parcel of land for a pathway to his backyard.

The recent ruling came from James Klein a judge in Colorado's 20th Judicial District covering Boulder, and was in favor of Richard McLean, who retired from the judiciary in Boulder several years ago.

The loser in the case was Boulder resident Don Kirlin, who is publicizing his situation on the website. He and his wife Susie owned the land in question for more than two decades, and he appeared recently on the radio talk show hosted by Dan Caplis and Craig Silverman on Denver's KHOW radio.

The result of the lawsuit was that Klein awarded to McLean ownership of 34 percent of a residential lot valued at an estimated $800,000-$1 million in a Boulder subdivision based on McLean's allegations he and family had, under the state's "adverse possession" law, used the property for their own uses in a "notorious" fashion and without permission of the owners for more than 18 years.

Amy Waddle, a spokeswoman with Colorado's 20th Judicial District, said, "The judges don't comment on pending cases. I believe they are considering appeal."

On the radio show Kirlin explained his shock when the land on which he's paid taxes of about $16,000 a year, plus $65 per month homeowner association dues, on which he's sprayed for weeds and repaired fences, suddenly was made unusable by Klein's decision.

"This is a foundation … of our country," Kirlin, an airline pilot, said. "You should be able to buy property and own it."

He said he and his wife purchased the property, which actually included two residential lots, in southwest Boulder at the foot of Colorado's Flatiron mountains, in the 1980s, but never developed it because of his busy career and raising of family. They lived in another home just a few hundred yards away, and besides paying the annual property taxes, attended the property with fence repairs and weed-spraying requirements, he said.

He passed it regularly en route to his hikes into the mountains, and never saw any "encroachments," he said. The law under which Klein gave the property to McLean requires someone to "possess" property by using it, without permission of the owner, continuously for 18 years, and most commonly comes up when a building built before mapping technologies were accurate, extends onto another parcel of land.

Kirlin said he discovered there was a problem when a neighbor told his wife at a high school football game McLean was planning a legal action to take some of the parcel, which is only about 60 feet by 80 feet.

He said the family discussed the situation, but seeing no evidence that such a claim could be substantiated, decided to go ahead with a fencing project on the parcel. McLean, however, told the contractor when he arrived to stop the work on Kirlin's property, and within a little over two hours on a Friday evening had a court order to that effect, Kirlin said.

During the trial McLean testified he had worn a path 20 feet onto Kirlin's land to obtain access to his backyard, but Kirlin, a former member of the homeowners' association board and the HOA manager testified that was incorrect.

Klein then simply ruled in favor of McLean, which means 34 percent of the parcel, or about 1,500 square feet, is given to the retired judge, Kirlin said.

He said he had approached the former judge when he confronted the fencing contractor and asked how the issue could be resolved. "His only response was, 'We're going to start an action,'" Kirlin said.

The costs of the lost fight – so far – have surpassed $120,000, and Kirlin said he plans to appeal, but also was given more bad news in just the past few days.

"We just got notified a couple days ago they want us to pay their court costs," he said.

"Under a best case scenario, if we appeal, and we get back the land we already owned, it will cost us $200,000 and it will take us three years," he said.

Caplis said he had known the two plaintiffs, McLean, and Edith Stevens, a former chairman of the Democratic Party in Boulder County, for years.

"I can't understand why either of them would be willing to do something so wrong," he said.

Kirlin said a number of issues were suspicious during the trial. "They said they've had these big political parties, engagement parties, delivery vehicles using my lot over the years, and yet, over 25 years they didn't have one picture of all of these activities," he said.

"I don't care if you're ACLU or John Birch you shouldn't have your property taken by people who trespassed on it," Caplis said.

Klein's opinion concluded that McLean had a "stronger" attachment to the land than the actual owners.

Colorado state website notes that Klein got his law degree from the University of Denver and went into the state's employment as an assistant attorney general focusing on worker's compensation and unemployment issues. He then worked as an administrative law judge and then moved to the 20th Judicial District bench.

McLean confirmed in court he knew the land belonged to someone else, but he used it anyway to reach his backyard and hold parties.

McLean has declined media requests for comment and his attorney declined comment, confirming that an appeal is expected.

An online forum on the issue allowed Boulder-area residents to express mostly one-sided opinions:

"Welcome to the USSA," said Travis McGee. Added "freekitty," "This is so underhanded, they can't find a rock to get under."