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Colorado case new wrinkle in use of eminent domain

Ceil and Andy Barrie stand by their mining cabin near Breckenridge, Colo. Summit County wants to take their 10 acres to preserve it as open space. The county is claiming eminent domain. (Nicholas Riccardi/The Associated Press)

Ceil and Andy Barrie stand by their mining cabin near Breckenridge, Colo. Summit County wants to take their 10 acres to preserve it as open space. The county is claiming eminent domain. (Nicholas Riccardi/The Associated Press)

BRECKENRIDGE, Colo. – 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 3-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.

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 back country,” 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.

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 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.

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