Colorado Couple May Lose Home In ‘Open Space’ Eminent Domain Seizure
“The county claims that it is seizing the property through eminent domain in order to preserve open space, according to an Associate Press report. The Barries say they have no plans to develop the land at all, and even let hikers travel through their property. Open space “is all it’s ever been,” Andy Barrie said.
The Barries use an ATV to reach their home via a 1.2-mile mining road through the forest. After the U.S. Forest Service told the couple that they could not use a motorized vehicle to get to their property, the Barries claimed a legal right to use the road and are preparing to challenge the Forest Service in court.
When Summit County commissioners offered to buy the land, the Barries declined to sell. The county commissioners then voted to condemn the property on October 25, endorsing a staff report that “public motorized access” threatened the local environment by damaging the streams, alpine tundra, and the habitat of the lynx.
In 2005, the Supreme Court decided in Kelo v. City of New London that government could exercise eminent domain in order to transfer property from one private owner to another if the government believes the latter will generate greater economic activity. However, governments rarely use eminent domain to ostensibly keep land undeveloped.
A 2008 Colorado State Supreme Court case, Telluride v. San Miguel Valley Corp., provides precedent for the use of land seizure to preserve open space. In Telluride, the court ruled that the city could seize land from a private owner to preserve it for “park or recreational purposes.””
Torres, Alec. National Review Online 19 February 2014.