Summit County attempting to seize private parcel by eminent domain
January 17, 2014
Attorneys participated in a status conference Monday, Jan. 13, in Summit County District Court to provide an update about a land dispute between Summit County government and a local property owner.
The case, which is being argued before 5th Judicial Court Judge Karen Romeo, was launched by Summit County in an attempt to seize by eminent domain a 10.3-acre parcel known as the "Hunter Mine" from its owner, Andy Barrie.
Barrie, originally from Lake Forest, Ill. — a northern suburb of Chicago — purchased in December 2011 the Hunter Mine parcel, which is located in unincorporated Summit County south of Breckenridge. He and his wife, Ceil, purchased the property and an adjacent home with the intention of expanding their family business to Colorado and moving to the area full time.
The Barries own Uncle Dicks LLC, a company that manufactures holiday wreaths, which they then sell to nonprofit organizations all over the world to be used in fundraising efforts. The Barries operate five plants for their wreath-making business, three in the Midwest and now two in Colorado.
The Barries were particularly drawn to the Hunter Mine parcel because of its natural character, as well as an old mining cabin and vast amounts of bristlecone pine trees located on the property, Andy Barrie said last week. The Barries plan to harvest felled bristlecones and tree bows for their holiday products.
But the Summit County Commission, through the county attorney's office, has launched a court battle to condemn the Hunter Mine property and seize it by eminent domain for public open space purposes.
The county's argument for condemning the property revolves around a recent discovery that the old mining cabin was improved upon by the previous owner without proper county building permits. County officials also have touted the parcel for its outstanding biodiversity significance and for being an important travel corridor for carnivorous species, such as the Canadian lynx and wolverines, that needs to be protected from commercial operations.
"What we're seeing (from the Barries), in terms of commercial usage, don't meet the county's goals of preservation of open space," said Brian Lorch, director of the Summit County Open Space & Trails Department, last week.
The Barries contend they were unaware of the previous owner's actions and argue the county decided to litigate on the basis of condemnation to avoid addressing the real issue of access.
Although the Barrie's home is easily accessible by private roads, the Hunter Mine parcel can only be accessed by an old mining road. Because the Hunter Mine parcel is surrounded by United States Forest Service land, known as an inholding, the old mining road meanders through public and private property. The Barries had been accessing the Hunter Mine by using an all-terrain vehicle.
But in February 2012, a forest service official informed the Barries that they could not use their ATV to access the Hunter Mine, citing motorized use of the mining road was prohibited under the White River National Forest's Travel Management Plan, which went into effect in 2011.
The Barries first tried to petition for access to their property with the forest service but backed off because the process is time consuming and expensive, Andy Barrie said. They then turned to the county to recognize the mining road, constructed sometime in the 1890s, as a county road under federal Reserved Statute 2477.
R.S. 2477 was enacted in 1866, during a period when the federal government promoted settlement of the American West, said Eben Clark, the Barrie's attorney. It was a primary authority under which many state and county highways were constructed over federal lands.
R.S. 2477 was repealed under President Gerald Ford's administration with the passage of the Federal Land Policy and Management Act of 1976. Although the Act repealed R.S. 2477, it did not terminate rights-of-way previously conveyed under R.S. 2477.
With federal statute on their side, the Barries met with county and forest service officials in June of last year. The Barries thought they were attending a meeting to discuss a compromise that would allow them motorized access to Hunter Mine.
However, the county offered to purchase the property and threatened to seize it by eminent domain if the Barries didn't sell, Andy Barrie said. The Barries declined two offers from the county of $30,000 and $50,000. The Hunter Mine parcel is valued at $36,034, according to Summit County Assessor's Office records.
"I've never dealt with such devious people, and I'm from Chicago — I know a shakedown when I see one," Andy Barrie said. "I was brought up to fight the good fight, and to me, this is a good fight."
Summit County attorney Jeff Huntley defended the county's action to acquire the Hunter Mine by eminent domain by saying the access issue led to the discovery of the old mining cabin's unauthorized improvements. The issue of access is therefore linked to the decision to condemn the property, he said.
"Mr. Barrie may want to keep this in the realm of access, but the issue came to our attention because they were violating the White River National Forest's Travel Management Plan," Huntley said. "That rolled into other issues of public access and the fact that the cabin is not in harmony with the surrounding property."
Although Clark believes the Barries have a strong case of ensuring future access to Hunter Mine under R.S. 2477, he said of greater concern are the actions of the county to acquire the parcel through eminent domain.
According to court records, the Summit County Commission approved the decision to acquire the parcel by eminent domain during a special meeting on Oct. 25, 2013. The Barries were not made aware of the meeting, Clark said, and there are no records of the meeting on the county's website.
"Eminent domain is one of the most onerous powers of government, and the electorate has the right to know the direction the commissioners are taking," Clark said. "We are supposed to have access to the people we elect, but this was not conducted in the light of day; it was not conducted in an open and honest manner."
The county has until Friday, Jan. 24, to respond to the Barrie's argument of accessing Hunter Mine under R.S. 2477. Another status conference is scheduled for Wednesday, Jan. 29, at which point Clark expects the case will be set for a hearing.
"The bottom line is the Barries don't want money; they want their property," Clark said. "We're not asking for an open public road, and we're not asking the county to construct a highway. We're just asking for one person to be able to use his ATV to access his own property."
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