El Paso County approves Mariah Trail waiver despite neighbore28089s easement dispute

The El Paso County Board of County Commissioners voted 5-0 Aug. 28 to approve a waiver (file WV25001) that lets the county accept a planned extension of Mariah Trail even though about 350 square feet of the extension overlaps recorded private access easements.

The waiver was requested by Wayne Anthony Custom Homes to allow a previously approved subdivision of Tom Kirk's 35-acre parcel to move forward. Kylie Bagley, principal planner with Planning and Community Development, told the commission that the request seeks relief from El Paso County Land Development Code requirements that dedicated land be free of encumbrances and that the waiver process provides limited flexibility when a design standard is inapplicable or inappropriate.

Bagley said the portion of encumbrance at issue is roughly 350 square feet and that the planning commission heard the case Aug. 21 and recommended approval by a 4-1 vote. "This section of code states that all dedicated land shall be free of encumbrances," Bagley said while explaining the criteria staff used to evaluate the request.

Why it matters: the approved waiver allows the developer to construct a cul-de-sac and dedicate the road to the county while recorded private easements for neighboring parcels remain live. Supporters said the change creates future, guaranteed public access for adjacent landowners; opponents said approving the waiver without clearer plat protections risks limiting a neighbor's long-standing driveway access and that compensation or clearer plat notes are needed.

What commissioners heard - Applicant: James Tilton, counsel for Wayne Anthony Custom Homes, said the overlap affects only a small area and that the planned subdivision reserves Tract B and Tract C for future public right-of-way to ensure connectivity for neighboring parcels. He said roughly 150 square feet of the 350 would be roadway and the remainder would be adjacent land, and that the developer will construct the extension to county standards and dedicate it for county maintenance. "The waiver requeste28094is for El Paso County code section 8.5.0.1e28094which applies to public land dedications," Tilton said. - Support: Colt Haugen, a partner in DKSS who owns property south of the site, said he supports the waiver and that negotiated access improvements benefit future development and his property. - Opposition: Property owner Arvina Donahue said she is "not against the proposed Moriah Trail filing development" but is "deeply concerned about my rights as a property owner" and described instances when her driveway access was blocked. Donahue and her attorney asked that the recorded easement (reception number 221099747) be reflected clearly on the plat and that explicit protections be added so the easement remains "open and clear access" during construction and afterward. - Staff and counsel: Daniel Torres, Department of Public Works, confirmed the developer would construct the road and, upon county acceptance, the county would assume maintenance. County legal counsel advised commissioners there were no legal concerns to accepting right-of-way with the existing easement in place: "To put it succinctly, no. I don't believe that this would create legal concerns."

Key factual details and constraints - Parcel: Parcel number 5100000511; commissioner District 1; file WV25001. - Overlap: approximately 350 square feet of the future Mariah Trail extension would be subject to existing easements. - Reserved tracts: Tract B (approximately 37,518 sq ft) and Tract C (approximately 78,120 sq ft) are reserved on the proposed plat for future public right-of-way to serve neighboring parcels if/when those parcels develop. - Construction and maintenance: Developer (Wayne Anthony Custom Homes) will build the cul-de-sac and improvements to county standards; after dedication the county becomes responsible for maintenance. Mariah Trail is currently a gravel roadway. - Planning commission: recommended approval 4-1 at the Aug. 21 hearing.

Action and outcome Vice Chair Williams moved to approve the waiver as published in the packet and to confirm the recorded easement is reflected on the plat. The motion was seconded (not specified in the record) and passed on a roll call vote: Commissioner Wysong, Commissioner Nelson, Commissioner Applegate, Vice Chair Williams and the Chair all voted aye (5-0). The motion included an explicit confirmation for the record that the recorded easement be shown on the plat and that access cannot be lawfully closed where the county accepts a public right-of-way.

Context and next steps Commissioners and staff emphasized the decision addresses only whether the county will accept the right-of-way while the easement remains in place; it does not resolve private disputes over the exact location or wording of recorded easements. Staff said the plat may be corrected to show the recorded easement reference and that the county's acceptance of the road would make that portion public right-of-way subject to county maintenance and rules. Tract B and Tract C remain reserved on the plat and will be developed only if neighbouring property owners or future developers proceed with separate subdivisions.

The board took the vote during the Land Use meeting on Aug. 28; the board paused for a brief recess before the next agenda item.