BRECKENRIDGE, Colo. (AP) — 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.
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