Richard Carlson points to a weed-choked foundation where he once planned a picnic gazebo on his ranch north of Boulder. But county officials said he couldn’t build it because the residential tone of the outdoor alcove didn’t jibe with his agriculturally zoned home.
Now Boulder County has its own plans for his property: a trail connecting Lyons and Boulder that would cut through the land. If Carlson and his neighbors won’t sell, the county is ready to take the land through eminent domain.
“We understand the need for eminent domain for things like roads and hospitals, but most property owners draw the line at recreation,” Carlson said. “I did. I am not selling. They are going to have to take it.”
Besides, he said, “I can’t put a picnic table here, but the county wants to let 40,000 people come through my backyard?”
Eminent domain, in which a governmental body takes the land under the premise of the public good, has been controversial before. In 2006, Gov. Bill Owens signed a bill to limit government’s ability to declare property “blighted” after complaints the designation was being used too casually to clear land for economic development.
The use of eminent domain for recreation is rare, but it has happened — most recently in Boulder when the City Council used it to seize commercial property to expand a bike trail along 30th Street.
Takings called a “last resort”
In Carlson’s case, two potential paths of the trail would take it through his land along the Boulder Feeder Canal.
He and about 60 other rural landowners along the proposed trail have joined him in opposing the county’s plans. While the county’s transportation department studies three possible alignments for the trail, and expects to make a recommendation this fall, the threat of eminent domain is on the table for securing access.
But only as a “last resort,” said Boulder County Commissioner Will Toor.
“We have never used (eminent domain) for this purpose and we certainly hope to avoid that,” Toor said. “I believe the trail is an important public amenity, and we should move forward with it.”
Carlson said the only way the county will get access to his land is to seize it.
A trail near the Boulder Feeder Canal has been a part of Boulder County’s grand plan for a spiderweb of regional trails since 1979. The idea is to offer routes between the county’s communities, such as Longmont, Erie, Superior, Lyons and Boulder.
One advantage of this trail is to offer an alternative to the trespassing bikers, joggers and dog walkers who frequent the canal’s access road. It’s a road known as “Certain Death Trail,” a moniker borrowed from the warning signs that flank the steep canal, which swells with swiftly flowing water and features deadly underwater siphons.
“The signs don’t deter people,” said Jim Struble, the real estate manager for the canal’s owner, the Northern Colorado Water Conservancy District.
Connecting scattered parcels
Julie McKay, planning division manager for the county’s transportation department, said the proposed routes try to connect scattered parcels of municipal open space and follow the canal.
“By no means is this trail premised on private property,” said McKay, noting that only a few small portions of the proposed alignments cross private land.
Still, officials like McKay are weathering harsh criticism from a well-organized group of landowners who make up the “No Trail Alliance.”
Opponents emphasize their view that the trail is purely recreational and not viable transportation. They talk about trail users going to the bathroom near their homes and crowding their narrow streets with parked cars. They wonder if the trail is necessary.
“There is all kinds of access to Lyons right now,” said Gary Zimmerman, a founding member of “No Trail Alliance.”
“Many roads out here have been expanded to allow bike traffic, so I don’t see the need for a flat, meandering trail.”
So far, Zimmerman said, no landowner adjacent to the proposed trail has expressed an interest in selling access rights to the county.
“We have total solidarity against this,” he said.
Whether opponents could succeed in a legal battle is unclear, but there is precedent allowing eminent-domain condemnation for open space or recreation.
Telluride’s valley floor case
In 2004, the town of Telluride condemned its 572-acre valley floor, a pristine meadow where a developer had long envisioned a residential and commercial village. The town wanted the parcel protected as undeveloped open space.
The Colorado Supreme Court weighed in on the Telluride valley floor case and overturned legislation that had restricted open-space takings. Ultimately, Telluride was allowed to condemn its valley floor but had to pay the developer $50 million for rights to the land.
“It is not nearly as common as roads or utilities, but it certainly is not unheard of here in Colorado,” said Jack Sperber, an attorney with the Denver firm Faegre & Benson, who specializes in eminent-domain issues.
Sperber said because Colorado has statutes allowing for open-space or recreational condemnation, and the Telluride case established a precedent showing open space as a valid public service, any legal challenges boil down to one point.
“The question is, how valuable is the public service when it comes up against private-property rights,” Sperber said.
He sees two conflicting movements in Colorado: Planners trying to meet the needs of a recreation-minded populace, and a vibrant anti-eminent domain sentiment, stemming from the West’s embrace of property rights.
“Those two competing public-policy and personal-value systems play out in the West more than other places,” Sperber said. “Life is messy and sometimes there is not a completely right or wrong answer. There are very good, legitimate viewpoints on both sides of the table.”
The Telluride case emboldened Colorado municipalities to consider recreation when pondering eminent domain, said Jessica Corry, a policy analyst with the free market-focused Independence Institute in Golden.
The state hasn’t seen more land grabs because municipalities are struggling with dwindling revenue right now, Corry said.
“When coffers start to return to normal levels, I’d predict we’ll see more attempts,” she said.
Jason Blevins: 303-954-1374 or jblevins@denverpost.com
