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| 11/13/2008 10:46:00 PM | Email this article • Print this article | Property owner mad over fence damage
Mike Potter
Staff Writer
On County Road 35 just off of U.S. 285 southwest of Jefferson in South Park, stands one man's monument to last winter.
Denver resident and Park County landowner James Howell set in cement a destroyed gate with a sign crediting the "sculpture" to the Park County Road and Bridge Department.
The irony of the symbolic sculpture is evident, and it was a product of months of frustration for Howell.
Initially, he was not upset when the melting snow revealed his damaged fence.
In an April 1, 2008, letter to David Kintz, Park County Road and Bridge fleet manager, he said that he understood Park County was going to repair and replace the damaged sections of fence.
"It is okay with me if the fence is moved 10 to 15 feet to the west to mitigate damage in the future," he wrote.
He wanted it fixed quickly because he leases the land from May to September for grazing, and the fence needed to be in place to keep the animals contained.
But he never received a response to his letter, so Howell started calling Kintz.
"[He] never returned one phone call I made to him. [He] never said I'm sorry," Howell said.
On July 24, 2008, Howell sent a letter to Park County Commissioner John Tighe, outlining the reasons he believed the county was liable for damages to his fence, starting with how the county chose to remove snow from the road.
"[Road and Bridge] piled the snow in a manner (on both sides of the road) so that the banks would capture more snow (creating 'snow traps')," he wrote. "The traps collected snow and forced snow plow drivers to keep piling the snow up."
"If I was to destroy my neighbor's fence by means of my action, even accidental, I would be liable for repairs," he wrote. "Why should our government be held to a different level of accountability just because they are bigger and more powerful than their constituent?"
By the time that letter was sent, Howell told The Flume that it cost about $5,500 to repair the fence. His property owners insurance covered some of the cost, he said, but he has a high deductible.
He also moved the fence away from the road so it wouldn't happen in the future, but by doing that, he said, he's lost the use of some of that land for grazing.
"Basically I donated a couple [to] three acres to Park County. They're not going to pay for [the fence if it is knocked down again], so I might as well move the thing," he said.
Tighe, in an Aug. 8, 2008, letter responding to Howell, said the county had no choice but to pile the snow where it did.
"Due to the snowfall and excessive winds we had this past winter, a lot of snow had piled up and drifted before our Road and Bridge Department could get to the roads," he said in the letter.
When road crews finally made it to some roads, there was so much snow it had to be put anywhere available.
"There was nowhere to put that much snow but alongside the roads," Tighe said.
The county didn't have any other options about where the snow could go, he said. After the winter emergency was declared in February, additional equipment was brought in from around the state to help with snow removal, including equipment that could blow snow over the already-towering piles.
"The Colorado Department of Transportation brought in a blower, but that was well after much of the snow had already been plowed and piled on the side of the roads," Tighe said.
Allen Chapman, executive director for Colorado Technical Services Inc., the company that handles Park County's insurance claims, said that even though the county might be responsible for the destruction of the fence, it wasn't responsible for repairs.
He said the county has immunity when it comes to maintaining county roads and isn't responsible for the damage to Howell's fence.
"It's unfortunate, but that's the way it is," Chapman said.
County attorney Lee Phillips pointed The Flume to Colorado Revised Statute 24-10-106, Immunity and Partial Waiver, as justification for the immunity.
It states: "A public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant except as provided."
It then goes on to say, "sovereign immunity is waived by a public entity in an action for injuries resulting from: (a) The operation of a motor vehicle, owned or leased by such public entity, by a public employee while in the course of employment, except emergency vehicles..."
Phillips said he could not answer the question of whether or not road graders are considered emergency vehicles, and are thereby exempt from liability.
Chapman said the governmental immunity referred to in the statute does apply to the Road and Bridge equipment because it was considered emergency equipment if it was actively plowing snow.
Howell also said he understood there was money set aside for fence repairs in the Road and Bridge budget.
Park County Budget and Finance Director Kathy Boyce confirmed there has been money in the past for those types of repairs, but not much.
"They have a fencing line item," she said. "They spent $46 one year and $18 another. It's a pretty small budget."
Kintz, the fleet manager for Road and Bridge, said the money set aside for fence repairs aren't usually used in cases like Howell's.
The budget for repairing fences usually is limited to fixing wire fences near cattle guards, he said, and is never used to do extensive repairs or replacements on fences damaged by Road and Bridge equipment.
He also said the heavy snow, coupled with the strong and persistent winds, forced road crews to pile the snow up wherever they could to keep the roads passable.
"Some fences did get dumped on. [There was] nothing else you could do if you're going to keep the roads open," Kintz said.
Howell is currently waiting to hear back from a letter he sent to the county commissioners and CTSI before he makes his next step, he said.
He believes that the county denied his claim because it didn't want to set a precedent and have to replace all other fences that were destroyed by road graders during the winter.
"I don't think government should act like that," he said. "What they did was not right, and the way they handled it was not right."
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