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Judge rules in favor of Vacationaire Estates, Flamms

Ninth District Judge Paul Rasmussen reversed an earlier decision regarding a property dispute between Tim and Nikki Clancy of Vacationaire Resort, the Flamm Community Property Trust and Vacationaire Estates (VE).

VE is a Minnesota nonprofit corporation organized in 1971 to provide an operating agreement for 10 cabin owners.

In an amended court order, Rasmussen determined that, "except for the part of the road owned by the Flamm Trust, the real property lying under Icon Drive, at issue in this proceeding, is currently owned by Vacationaire Estates." The court order states the property is "subject to an easement for ingress and egress" in favor of current and future members of VE, the Flamm Trust, Kvamme property and Donna property. (The Kvammes and Donnas own land to the north, but were not involved in the litigation.)

In the initial May 29 court order, Rasmussen had determined that a portion of Icon Drive was owned by the Clancys and another portion by the Flamm Trust.

All three parties sought amendments to the original court order. A hearing was held Aug. 14.

The amended court order was filed Sept. 13 in Hubbard County Court. Rasmussen granted the real property to VE and denied all other pending motions.

"As the Clancys do not own or have any easement or right to use the road north of their property, neither they or their patrons may park on or along the road north of their property line without permission," Rasmussen wrote. "Vehicles parking without permission on or along the road on property owned by VE or the Flamm Trust may be towed at the owner's expense."

In his findings of fact, Rasmussen reiterated that all of the real property involved in the case was once under common ownership. Icon Drive is a private road, approximately 24 feet wide, "some of which follows vacated County 89 and some of which does not," he wrote. Only a portion of the vacated road was at issue in the court case.

Rasmussen reasserted that VE is owner of the northwest part of the paved parking lot within its property boundary and the Flamm Trust owns part of the lot within its property line. He repeated his original finding that the Clancys did not meet the burden of proof regarding "claims for adverse possession or a prescriptive easement and their patrons have no right to use these sections of the parking lot without permission" from VE or the Flamm Trust.

Rasmussen also reaffirmed that "the apparent encroachment onto the Clancy property by the drain field serving the Flamm Trust property has existed for over 25 years and was created when both properties were under control of the same party. The Clancys are estopped from claiming any trespass and/or damages. Any part of that drain field that exists on the Clancy parcel shall remain and need not be removed."

"All claims not specifically addressed above are hereby dismissed/denied," he concluded.

Larry Kimball, attorney for Vacationaire Estates, said, "Judge Rasmussen is an experienced, very competent judge. He has done a good job of allowing everyone involved the opportunity to present their evidence and arguments. His most recent decision is supported by the facts, consistent with the law and well-written. I hope this decision will allow all parties to begin a process of cooperation and consideration to restore the tranquility of this beautiful area."

The Flamm's attorney, Edward Shaw, said, "On behalf of the trust, we are pleased that the court upheld the property rights of the Flamm Trust and Vacationaire Estates along old Highway 89 and enforced the property line boundaries. The recent court order should provide clarity and prevent encroachment by the current owners of the Vacationaire Resort."

Clancys' attorney, Patrick Doran, declined to comment due to pending litigation.

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