Officials: Silverton seizure about safety
September 7, 2005
San Juan County’s first attempt to take a resident’s land has echoes of a U.S. Supreme Court ruling that set off protests by property-rights advocates and elected officials nationwide.Aspen businessman Jim Jackson says the county’s seizure of his land will primarily benefit the private Silverton Mountain Ski Area. The Supreme Court ruled in June that New London, Conn., could seize people’s homes to make way for a private development, which city leaders said would be good for the economy.That ruling spurred immediate calls by state legislators and members of Congress to change laws to prevent eminent domain seizures.But San Juan County officials say they are taking the land for avalanche control – not to aid the promising new ski area just outside Silverton that is boosting the town’s historically depressed winter economy.”I just don’t understand the argument that just because somebody’s paying to ski, you shouldn’t make the road safe for them,” said San Juan County Administrator Willy Tookey.Snowmobilers, snowshoers and others use the road in the winter, in addition to Silverton Mountain skiers. The county needs to make the road safe for everyone, he said.”We’re not pursuing this on an economic-development basis,” Tookey said.And lawyers for the Colorado Legislature say condemnation is not illegal even though a private party stands to benefit.Under eminent-domain proceedings, a municipality can force a property to be sold as long as the owner receives just compensation.San Juan County commissioners officially served notice to Jackson on Aug. 26 that they are condemning his land in order to do avalanche control on county roads 110 and 52.The dispute dates to 1999, when Jackson and Aaron Brill had competing plans for ski resorts in the area. Brill’s was the only plan to take off, opening on a limited basis in the winter of 2000-01. His Silverton Mountain charges expert skiers from $99 to $129 a day for guided skiing on the mountain.Jackson filed a lawsuit against Brill last December, claiming skiers at Brill’s resort trespass on Jackson’s land and that Brill’s employees trespass when they’re doing avalanche control.Jackson’s lawyer, Thomas Johnson, said the ski area will be the big winner if the county gets its way.”The most egregious instances of trespass have occurred for the purpose of recreational skiing, not for avalanche control,” Johnson wrote in an argument for the district court in San Juan County.Even so, the Supreme Court case – Kelo v. New London – will not apply to the Silverton dispute, Johnson said.”In Kelo, there was a Connecticut statute that specifically provided for eminent domain for economic development. In Colorado, there is no such statute,” he said from his Denver office.Jackson can fight the condemnation in District Court in Silverton. His lawyer advised him not to talk to reporters while the case is ongoing.Jackson and his lawyer “intend to aggressively defend any condemnation action, on the grounds that there exists no ‘public use’ for [his] property,” Johnson wrote in a court filing.For the ‘public good’?But state courts have used a broad definition of “public use,” according to a memo the state Legislature’s lawyers prepared on eminent domain.State Rep. Mark Larson, R-Cortez, who has been watching the Kelo case, said the key for Silverton is that the county is not condemning Jackson’s property to sell it to private industry.”They’re doing it for the public good, which is pretty much the traditional use of condemnation,” he said.Tookey, the San Juan County administrator, agrees that the Kelo case won’t make much difference in Silverton.”The fact that this [case] came out didn’t hurt us any, but it has minimal impact on what we’re trying to do,” he said.The county plans to keep control of the condemned land, or maybe swap it with the Bureau of Land Management sometime in the future, Tookey said.”The plans are to keep this open for public use and recreation,” he said.Skiers at Brill’s resort would most likely be allowed to use the condemned land, Tookey said.Brill disputed the argument that the condemnation will mainly serve his own interests.”That’s just not true,” he said. “There are a lot of people who use the roadways up here. There’s a high-voltage power line up here. There are several homes. There’s a mine. It’s simply not the case that it’s just for us.”The county has contracted with Brill and the Colorado Department of Transportation to do avalanche control on the road since 2003, when CDOT turned control of the road over to the county, Tookey said.Colorado probably won’t have to change any laws in response to the Kelo ruling, lawyers at the state Legislature said last week.The nonpartisan Office of Legislative Legal Services put out a memo in response to questions from lawmakers who wondered if Colorado needed new laws in the wake of the Kelo case. The memo wasn’t related to the Silverton dispute.”The Colorado Constitution arguably provides more protection for private property owners than the federal Constitution,” according to the memo.Colorado has an extra layer of protection because judges have the power to rule that a condemnation wasn’t primarily for public use. The federal Constitution doesn’t explicitly spell out court approval.However, the fact that a private party, such as Silverton Mountain Ski Area, might also benefit from a condemnation doesn’t make it illegal, as long as some public purpose is being served.Colorado’s existing law is good enough for Larson.”I don’t think we need to do anything legislatively,” he said.This article is reprinted with permission from The Durango Herald.