Legal battle imminent over Fiester Preserve condemnation by Summit County
FRISCO — The Summit County Housing Authority opted to delay discussion about the condemnation of a conservation easement at Fiester Preserve at its meeting Tuesday, Feb. 18. The discussion already had been postponed twice before at the Housing Authority’s meetings Jan. 28 and Feb. 11, leaving the fate of the easement in continued limbo.
County Manager Scott Vargo said the discussion was postponed once again because legal negotiations are ongoing with Colorado Open Lands, the open space nonprofit that owns the conservation easement. The county, which owns the land itself as part of its County Commons, is trying to remove the easement to develop senior housing.
Vargo said the county has sent a final offer letter to Colorado Open Lands to purchase the conservation easement: $4,000 for the easement itself and $4,000 for associated legal and other costs.
The county also has sent a “121 notice” to Colorado Open Lands. Under Colorado law, a condemning authority must give notice of its intent to condemn a property to all parties who have an interest in that property along with a final offer letter if agreement over fair market value for the property is not reached.
A dozen members of the Bill’s Ranch neighborhood, presenting as Friends of the Fiester Preserve, were in attendance at Tuesday’s meeting to voice their protest to the condemnation.
Though they do not own the easement nor have any legal means to fight condemnation, the group long has claimed a vested interest in keeping the space free of development, as it serves as a physical and visual buffer between the neighborhood and County Commons. Several members of the neighborhood group offered public comment to the commissioners, urging them to reconsider their decision.
Karen Little, a Bill’s Ranch resident and one of the leaders of Friends of the Fiester Preserve, claimed the county had not been adhering to a proper public process for condemning Fiester and that the commissioners had been ignoring public feedback.
As evidence of the feedback, Little pointed to the many letters to the editor submitted to the Summit Daily News that opposed the condemnation as well as disapproving statements from the Summit Association of Realtors and the conservation nonprofit Friends of the Lower Blue.
1996: Summit County amends its planned unit development to designate a 6.13-acre area as a conservation easement and trailhead, which provides 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 Continental Divide Land Trust.
2004: “History of the Land: The Fiester Preserve,” by Maryann Gaug is published by the Continental Divide Land Trust with a grant from The Summit Foundation.
2013: Bill’s Ranch neighborhood association, Summit County Open Space and volunteers plant trees to restore area after beetle kill. Entryway sign designating the open space is restored.
Aug. 19, 2016: Summit County buys 31 Bobwhite Way for $335,000.
Aug. 16, 2019: Summit County buys 188 Miner’s Creek Road for $749,900.
Oct. 23, 2019: Continental Divide Land Trust merges with Colorado Open Lands, which acquires all landholdings and liabilities.
December 2019: Summit Board of County Commissioners approves resolution directing staff to find a way to extinguish conservation easement, develop land for senior assisted living, workforce housing.
“These are your voters that you should include into your consideration,” Little told the commissioners. “Please think about going back to the drawing board with this.
“I think you’ve sensed a great frustration from the people and across the county in terms of the process. Two of three of the commissioners are term-limited and never have to face the voters again. We’ve had no opportunities to speak to you. It’s just been a one-way conversation at these meetings, where we speak at you while you sit silently, or you speak at us while we sit silently. There’s been no public debate.”
Vargo denied that there had been any problems with the board’s process, saying that the public meetings had been properly noticed and held, and that all public input was being considered. He added that the county was dealing with Colorado Open Lands for the legal issue and that those negotiations continue to take place.
Vargo added that even with successful condemnation, the public process would continue to take place.
“Assuming the conservation easement is removed, there is still an extensive public process that would be associated with any sort of rezoning or any sort of development of the site,” Vargo said. “From the beginning of the process, we have expressed that to Bill’s Ranch and encouraged them to be part of the process going forward, to discuss issues like what a buffer should look like, what the development should look like, how it can fit into the character of the Bill’s Ranch neighborhood, those sorts of things.”
Vargo added that any development would be “on the smaller side,” implemented in phases over two decades and should involve a mix of housing that would include up to 28 independent senior living apartments, up to 32 housing units for assisted living, up to 45 skilled-nursing units as well as six memory care units.
Vargo acknowledged that the number of units would not go far enough to solve the senior housing issue, but he said it was the first step in the right direction from where the county is now, which is no senior housing.
Tony Caliguiri, president and CEO of Colorado Open Lands, acknowledged Thursday the receipt of the county’s official notice of intent to condemn the easement as well as the final offer to purchase it outright. He said the organization rejected that offer.
Caliguiri said his organization’s stance on the easement had not changed and that it is legally obligated to defend the easement. He acknowledging the county has the legal right to condemn it and said he wished the board would change its mind.
As far as why his organization would not consider a “land swap” for the easement, where the county would protect another bigger and better parcel of land in exchange for the easement, Caliguiri said it was because the word “swap” is a misnomer.
December 2019 January 2020 February 2020
“You can’t call that a swap because they’re just extinguishing one easement and creating a whole new one,” Caliguiri said. “They’re legally two different transactions. We’re happy to discuss putting more land in easement, but that would be a separate matter from extinguishing this easement.”
Caliguiri said Colorado Open Lands also would be happy to consider condemning less than 100% of the easement if the county wished to only take a piece of the land. While the nonprofit legally should oppose that, Caliguiri said, he understood that it might be politically more favorable to nearby residents.
When asked about Commissioner Karn Stiegelmeier’s assertion at a previous meeting that the concept of saving open space “in perpetuity” was not a reasonable one given how times and people change, Caliguiri was taken aback. He said the entire concept of land conservation at the local, state and federal levels was rooted in the concept of “in perpetuity” and that it underpinned all the work Colorado Open Lands and other land trusts do.
Caliguiri added that he had deep concerns that weakening the basis of conservation easements would hinder the work of open space trusts like his. He said he already had heard from landowners across the state who worried about placing conservation easements on their land if there is no guarantee the easement will be upheld and not be prone to condemnation in the future.
“The concept of perpetuity is just as important as the concept of public trust,” Caliguiri said. “It’s a public policy promise, and citizens should expect that promises are kept. While we acknowledge that condemnation is a legal mechanism, one the county is likely to succeed in using. We have to be very careful and very judicious in how it is used and understand that the entire system of conservation is underpinned by the concept of perpetuity.”
Vargo said the next Housing Authority discussion and possible action to condemn the easement will take place March 10.
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