
Bailey: " This can happen to anybody in the land of the free!"
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.
Breckenridge is the prototypical Colorado ski town that attracts
hordes of ski bums, tourists and residents because of its position at
the foot of the sweeping Tenmile range, swaddled in preserved land.
Among those it lured are the Barries, who run a firm that provides
Christmas wreaths to nonprofits and have a residence in the Chicago
suburbs.
The couple came to Colorado annually on golf trips with some of Andy's old high school pals.
On a 2011 journey, Ceil met friends in Breckenridge and found a
restored cabin nestled in a woodsy subdivision just outside the town
boundaries. It was a century-old property built on top of a creek that
one could watch burble below through a transparent floor in the master
bedroom. And it was for sale along with 10 acres just up the ridgeline.
The Barries stayed there that summer and hiked up the county open
space trail on the old mining road behind the lower house, through the
national forest, to the old cabin at tree line.
The view won them over. They decided to sell their second home on a
Wisconsin lake and buy the lower and upper property in a package deal
for $550,000. The transaction closed in late 2011 and came with a
converted All-Terrain vehicle they could use to drive up the road in the
winter.
That's when the trouble began.
The U S. Forest Service told the Barries they couldn't use a
motorized vehicle on the road to access their 10 acres, which float like
an island in the 2.1 million acres of the White River National Forest.
The Barries countered that they had a legal right to traverse the old
road and prepared a court challenge. Summit County contacted the
Barries and asked to buy the land. The Barries said it wasn't for sale.
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 drove up the winding mining road to the
cabin. Inside the compact, unheated structure was a set of bunk beds and
a coffee table garnished with a copy of Cabin Life magazine, as well as
a single light powered by a solar panel outside.
The Barries said they were frustrated. They would have happily
demolished the cabin if needed -- they say they'd be happy to spend warm
evenings up there in a yurt or tent -- and had been trying to give some
of the land to conservation groups.
They 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.