A western wrinkle on the power of eminent domain
February 17, 2014
BRECKENRIDGE — The view from the deck of the small, century-old cabin was a dream come true for Andy and Ceil Barrie — a sweeping panorama of 13,000 and 14,000-foot peaks towering above the forest of centuries-old bristlecone pines.
It convinced the couple to buy a three-bedroom home in a subdivision below, where they could live year-round, and the 10-acre parcel surrounding the cabin in the midst the White River National Forest.
Now the county government, alarmed that the couple drives their ATV up a 1.2-mile old mining road to the cabin, wants to take the Barrie's land — and it's doing so by claiming eminent domain. Rather than using the practice of government seizure of private property to promote economic development, the county is using it to preserve open space.
The move shocked the Barries. They have allowed hikers to travel through their property, had no plans to develop the land and were negotiating with the county at the time it moved to condemn the property.
“I feel like I can’t trust my government.”
Open space "is all it's ever been," said Andy Barrie. "I feel like I can't trust my government."
Summit County Attorney Jeff Huntley said the county had to act after the Barries insisted on being able to use motorized transport to get to the cabin. "People in this community are very intent on preserving the backcountry," he said.
Experts in eminent domain say it's rare for governments to use that power to create parks or open space.
"It's not that you can't do it, but they don't do it much," said Dana Berliner, who was co-counsel in the 2005 U.S. Supreme Court case upholding the constitutionality of eminent domain. "There's typically other ways of doing open space than just taking land."
But in Colorado, where picturesque mountain towns are bursting with tourists and second-home owners, and outdoor recreation is the state religion, there have been a few instances of cities deciding to confiscate land to preserve it.
The most significant was when Telluride in 2004 seized 572 acres that the owner wanted to develop along the San Miguel River and left it as open space. The state Supreme Court upheld the confiscation, saying that especially overcrowded mountain towns need to preserve their recreational and natural assets.
Breckenridge is the prototypical Colorado ski town that attracts hordes of ski bums, tourists and residents because of its position at the foot of the sweeping Tenmile Range, swaddled in preserved land.
Among those it lured are the Barries, who run a firm that provides Christmas wreaths to nonprofits and have a residence in the Chicago suburbs.
The couple came to Colorado annually on golf trips with some of Andy's old high school pals.
On a 2011 journey, Ceil met friends in Breckenridge and found a restored cabin nestled in a woodsy subdivision just outside the town boundaries. It was a century-old property built on top of a creek that one could watch burble below through a transparent floor in the master bedroom. And it was for sale along with 10 acres just up the ridgeline.
The Barries stayed there that summer and hiked up the county open space trail on the old mining road behind the lower house, through the national forest, to the old cabin at tree line.
The view won them over. They decided to sell their second home on a Wisconsin lake and buy the lower and upper property in a package deal for $550,000. The transaction closed in late 2011 and came with a converted all-terrain vehicle they could use to drive up the road in the winter.
'we just want the land'
That's when the trouble began.
The U S. Forest Service told the Barries they couldn't use a motorized vehicle on the road to access their 10 acres, which float like an island in the 2.1 million acres of the White River National Forest.
The Barries countered that they had a legal right to traverse the old road and prepared a court challenge. Summit County contacted the Barries and asked to buy the land. The Barries said it wasn't for sale.
The county commissioners voted to condemn the property on Oct. 25, endorsing a staff report that found that "public motorized access" to the property could damage the alpine tundra and streams, as well as habitat for the endangered lynx.
The county also discovered that the prior owner had illegally expanded the upper mining cabin by building its second story and deck. The Barries say they are pursuing legal action against the seller.
On a recent day, the Barries drove up the winding mining road to the cabin. Inside the compact, unheated structure was a set of bunk beds and a coffee table garnished with a copy of Cabin Life magazine, as well as a single light powered by a solar panel outside.
The Barries said they were frustrated. They would have happily demolished the cabin if needed — they say they'd be happy to spend warm evenings up there in a yurt or tent — and had been trying to give some of the land to conservation groups.
They spoke about how their children are now all in college and they hoped to relocate to Colorado as empty nesters.
"We just want the land," Ceil Barrie said forlornly.