November 18, 2008

Boulder's infamous 'land-grab' case settled

Kirlins say they will only have to cede 12 percent of south Boulder lot

By Heath Urie
Daily Camera

Two Boulder neighbors have settled a land dispute that made national headlines and prompted state legislators to change the law that allowed it to happen.

Don and Susie Kirlin, who originally lost 34 percent of one of their two vacant lots to neighbors Richard McLean and Edith Stevens, agreed to cede about 12 percent of the million-dollar property instead, the couples announced Tuesday.

“This settlement allows the parties to put this long-standing and difficult dispute behind them,” they wrote in a 48-word joint statement.

Under the terms of the agreement, which still must be sent from the Colorado Court of Appeals to Boulder District Court Judge James C. Klein for final approval, McLean and Stevens will own a five-foot strip of the Kirlins’ next-door lot, widening to nine feet at the north end of the property.

The total transaction equals 540 square feet of the 4,659-square-foot lot.

The settlement ends a high-profile case that divided the south Boulder neighborhood after Klein’s October 2007 decision to award the land to McLean, a former judge and Boulder mayor, and Stevens, an attorney. The couple sued for the Hardscrabble Drive property under the centuries-old law of adverse possession, which allows trespassers who openly use land for 18 years to claim it as their own.

The case, which the Kirlins had appealed, prompted public protests; death threats against McLean and Stevens; and an unsuccessful effort to fight Klein’s reinstatement in this month’s election. It spurred changes to Colorado’s adverse possession law, and spawned a new law prohibiting judges from hearing cases involving current or former judges from the same district.

Both couples called the settlement agreement a win-win situation: the Kirlins will be able to sell the property with enough land left to allow a house to be constructed on it, while McLean and Stevens will retain access to a path around the side of their house.

“I would have never done something like this to my neighbor, however I am happy that it’s finally over,” Don Kirlin said.

Stevens said the settlement ends a tense chapter in the neighborhood’s history.

“I think that the community will be relieved to see that the case is settled,” she said.

‘A fully buildable lot’

Although they’re still disappointed the lawsuit ever happened, the Kirlins said that having at least some of the valuable land back is satisfying.

“It’s cost me over $400,000” to fight the lawsuit, Don Kirlin said, “and after spending it, I only get to lose 12 percent of my property that I already owned.”

He said the property, with its expansive view of the Flatirons, is now for sale — listed at $925,000. A house with a footprint as large as 1,540 square feet could be built on it, he said.

“The end result is, and the most important part to me, is that it allows a fully buildable lot,” Don Kirlin said.

The investment, he said, was always meant to finance the couple’s “dream home,” which they still intend to build on their adjacent lot.

The terms of the settlement include provisions that allow construction crews to use the piece of the lot owned by McLean and Stevens for access to the site, but whoever buys the property must agree to restore the McLean-Stevens land to its original state after construction.

Don Kirlin said his neighbors approached him with the offer to settle the longtime dispute.

“I think their gut feeling was, and their legal counsel advised them, that there was a good chance they would lose in the court of appeals,” he said.

Kirlin said his neighbors stand to gain more from the deal than just land.

“Their friends abandoned them,” Don Kirlin said. “They want to try and attempt to regain some of their stature in the community.”

‘I don’t know why it took them so long’

McLean and Stevens said they had always hoped to settle the case, which was prompted by construction of a fence that cut off a path they had used unquestioned for 26 years.

They have said on several occasions that they tried to resolve the dispute without resorting to a lawsuit.

“You always are trying to settle the case without raising the level of antagonism, without incurring a lot of attorney’s fees, and we had hoped from the very start, before we filed the lawsuit, that we would be able to settle the case,” Stevens said.

The couple has long said their lawsuit was about preserving their right to use the land to access their own backyard, based on their two decades’ of previous use.

“I think from the very start, our goal was to retain access to the back of our property and to protect the trees and shrubs that we planted there,” Stevens said.

McLean echoed his wife, saying he wished the resolution could have come sooner.

“I’m quite satisfied with it, because we made the offer nearly a year ago,” he said. “I don’t know why it took them so long.”

Negotiations have been ongoing for more than a year, and the Kirlins said previous terms weren’t acceptable them.

‘Nobody had to lose this case’

In the year since the Boulder case gained national attention, Colorado lawmakers decided to revamp the law of adverse possession. As of July 1, the law gives judges the power to force adverse possessors to pay for the land they win, and to compensate the original owner for back property taxes and interest.

The case was unique for the way it affected the public, said Andy Low, attorney for the Kirlins.

“Out here in the West, people feel very strongly about property rights,” Low said. “It touched on a lot of people’s concerns about their own property.”

He said both couples were eventually able to rise above the “bitterness” that comes with lawsuits like this one, and reach a compromise.

“Ultimately, I think the headline for me is the case has a happy ending,” Low said. “Nobody had to lose this case, which is very unusual.”

Kimberly Hult, attorney for McLean and Stevens, agreed.

“This settlement should resolve the dispute in its entirety, including the appeal,” she said.