Colorado Open Lands previews legal argument for protecting Fiester Preserve
FRISCO — A legal battle looms over the fate of Fiester Preserve, a 6-acre open space parcel at the southwest corner of Highway 9 and the western entrance to Peak One Boulevard on the outskirts of the Town of Frisco.
At the core of the fight to save Fiester is the legal argument to save a conservation easement placed on it decades ago — by the county itself.
That argument will be put forth by the open space conservation nonprofit Colorado Open Lands, who inherited the easement from the former Colorado Divide Land Trust when the two organizations merged last year.
Colorado Open Lands President and CEO Tony Caligiuiri gave the Summit Daily a broad overview of the defense his organization will put forth if and when Summit County’s Board of County Commissioners attempts to condemn and extinguish the conservation easement on its own land. Aside from the Fiester Preserve, Colorado Open Lands owns and protects just around 450 conservation easements across the state.
From the outset, Caligiuiri made clear that his organization would not voluntarily extinguish its own easement.
“We are obligated to defend the easement, and we are always concerned about facilitating any kind of precedent when it comes to condemnation,” Caligiuiri said. “It would start eroding the integrity of easements in general.”
Colorado Open Lands seeks to preserve open spaces across the state for permanent conservation. For them there is no wiggle room with the word “permanent.” It is meant to be land that will never be bulldozed and have buildings stacked on top of it. Natural and open, forever.
Caligiuiri acknowledged that, at times, local and state government have taken pieces of conservation easements whenever a greater public need arose. As an example, he recalled how the devastating Front Range floods of 2013 ravaged infrastructure from Fort Collins to Colorado Springs, going as far as wiping out entire roads and destabilizing local geology. That created problems down the line, when roads needed to be moved around or bridges rebuilt near existing open space.
Even in less dire situations, like when power lines need to be built, he said local or state governments only condemned small portions of open space easements to do so. The few feet of space taken by government did not completely wipe away the integrity of the open space.
But he said that Summit County government’s attempt to condemn and extinguish an entire easement, one it promised to protect permanently just 25 years ago, seems to be without precedent.
1996: Summit County amends their planned unit development to designate a 6.13 acre area as a conservation easement and trailhead, which provides easy and attractive access to the White River National Forest.
1997: Property dedicated for Continental Divide Land Trust preservation.
1998: Conservation easement officially placed on Fiester Preserve, easement owned by CDLT.
2004: “History of the Land: The Fiester Preserve,” by Maryann Gaug is published and created by the CDLT with a grant from the Summit Foundation.
2013: Bill’s Ranch neighborhood association, Summit County Open Space and volunteers plant trees to restore space after beetle kill, entryway sign designating the open space is restored.
2019: CDLT merges with Colorado Open Lands, which acquires all of CDLT’s landholdings and liabilities.
December 2019: Summit County Board of County Commissioners approves resolution directing staff to find a way to extinguish conservation easement, develop land for senior assisted living, workforce housing.
“We’ve never experienced a situation where there’s been an intention to condemn an entire easement,” Caligiuiri said. “This is a different case for us, where there is an attempt at total extinguishment. We are not aware that there’s ever been a complete extinguishment of a conservation easement in Colorado since open space preservation efforts began here.”
The push to protect Colorado’s open spaces began in Boulder in the late 1960’s in response to the city and state’s exploding population growth. The idea of communities buying and protecting their local open spaces spread across the state like conservation wildfire, preserving over a million acres of wild land across the state and protecting it from future development.
Colorado Open Lands representatives see those agreements as sacrosanct and immutable. The concept of protecting open spaces — regardless of how valuable it may be for human use — has become such a part of the Colorado way of life that undoing agreements to protect those lands is not a trivial process
“An easement is a contract to not subdivide or develop a property in perpetuity, and when easement is donated, it’s with the intent of preserving conservation values forever,” Caligiuiri said.
County Manager Scott Vargo has said that the needs of the county have changed significantly over the years, as has the natural character of the Fiester Preserve. The preserve was marred by the mountain pine beetle outbreak, and most of the trees originally standing on it have been cut down.
But that argument holds no water for Caligiuri. He pointed out how after wildfires, entire forests aren’t just leveled and developed when they burn down. Instead, they are allowed to recover and regrow, with the hope of a healthier, new forest growing in its place over time.
In the case of Fiester Preserve, which was once verdant and green, he sees it healing itself and getting restored to its original state over time, creating a similar or perhaps even better visual buffer as it was when the conservation easement was created in the late ’90s. Those conservation values don’t just disappear because the land changes over time.
“Whether it’s creating a visual buffer, high scenic values, those conservation values are recognized by the IRS,” Caligiuiri said. “The only time that someone can extinguish an easement, outside of condemnation, is to argue in court that the conservation values that were being protected no longer exist. But here, the original intent and values exist.”
Over the past few years, new pine trees have been planted, with some growth coming up to five or six feet. It is yet to be seen if those trees will survive to grow to their full potential height.
Caliguri intentionally sidesteps issues concerning the county’s need for senior facilities or the preservation of the character of Bill’s Ranch, which will pretty much become merged with the rest of the developed county if Fiester Preserve gets razed. His organization does not want to interfere in arguments that are considered matters of local politics.
“Some of the other arguments for or against condemning the property are much more in the realm of political arguments, which we totally respect, but they are sort of irrelevant when it comes to the condemnation process,” Caligiuiri said. “Are there better places for development? Is there really a need for senior housing? Those are really arguments that exist outside the four corners of the easement.”
Caligiuiri said while the easement itself is being protected, it’s not just what’s on the easement that matters but how its place provides benefits, such as the mountain scenery beyond.
“It obviously has legal conservation values as a scenic viewshed, with a public benefit to keep that view open because it’s a scenic view,” Caligiuri said.
He used another conservation easement Colorado Open Lands owns as an example.
“That easement is for a two acre parcel of mowed lawn,” Caligiuiri said. “It happens to be at the end of the street and provides a spectacular view. If you look at it, by itself it’s just two acres of bluegrass, and you can say it’s ecologically not that significant, but it provides a really important viewshed. It’s not necessarily about biology or ecology, it’s about the purpose of the land.”
Caligiuri maintains that this is also not just about these 6 acres, but the thousands of acres across Colorado currently protected and potentially condemned if the government always gets its way.
“I don’t want to go down the path of developing open space,” Caligiuri said. “It’s about maintaining the integrity of conservation easements in general. It’s a promise made in perpetuity.”
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