Colorado Hostage Land Deals


Post by WildSnow.com blogger | April 14, 2010      

While appalled at developer Tom Chapman’s tactics, I also get a chuckle out of what he’s doing. Chapman is notorious for buying Colorado land located in backcountry areas perceived to be development free, then developing or threatening to develop his land. Result is Chapman ends up making money. Government entities buy or land swap him out, or he ends up with developed property in unique locations (such as a luxury home within Black Canyon National Park).

Chapman’s latest action is to buy parcels in backcountry skiing terrain that’s accessed from Telluride resort in Colorado, then announce the property closed under Colorado trespass law. (Details hereand here)

I laugh because Chapman brings out the reality of important land issues we have here in the west; issues that are all to frequently ignored. Prime example: It is amazing how much private land actually exists in areas you might think are 100% National Forest and even legal Wilderness. You might be crossing such private land every time you hunt, fish, backcountry ski or whatever — and not even know it. Then along comes an owner who sticks up some no trespassing signs. Suddenly you find out that the the land you thought was public, is, well, just like the land under your house. Only you’re not the owner.

Like most backcountry users I’m deeply concerned about what Chapman is doing in Telluride. But my reaction is not the knee-jerk “oh-my-god what a greedy so-and-so.” Instead, my take is that Chapman brings up an incredibly important political issue out there for us backcountry recreators, that of access. I’m concerned because over the years I see our access eroded by all manner of things (private land, road closures, to name a few). Yet at the same time, the pop culture attitude is we need more “preservation,” (e.g., more legal Wilderness with actually less access) and vastly more energy goes towards that end.

Making sure our backcountry isn’t destroyed is a good thing (provided preservation is done with reason rather than fanaticism). But reality is most of our Colorado backcountry is in fine shape. Indeed, It will still be in fine shape with even more cabins and houses on inholdings.

Thus, in my opinion what we should be devoting more energy towards is making sure we can access said backcountry. In trying to close off his Telluride land, Chapman makes it obvious how important this is.

Solutions to the issue of private land blocking public access are not easy, as the concept of private property is one of the strongest threads in the fabric of modern civilization.

Altruism helps. One of our family dreams is to own a backcountry cabin and we’re constantly working on making that happen — but we’d never in a million years think of restricting access to property in order to profit from it. Many backcountry property owners (if not the majority) feel the same way. But money talks and the Chapmans of the world are all too common.

Ironically, one thing that drives the “Chapman syndrome” is entities such as the Trust for Public Lands and the Forest Service working out deals that profit the private land owner. In turn, other land owners look at the numbers, and think, “hey, I wonder how much I can get for my land?” If you look at the records for the last couple of decades, you’ll see Chapman isn’t the only one who’s been playing this game. He’s just one of the most blatant.

Perhaps what we ultimately need is a two pronged solution. First, more limits on the scope and size of backcountry development so even if land does get built on, resulting structures are more fitting for the backcountry environment. Second, what if private land in backcountry areas had more public “freedom to roam” than what is normally associated with land in the United States?

The former (limited scope and size) is already being done through zoning in many areas. But the latter (increased public freedom to roam) is as far from reality as a third eye popping out on my forehead this minute. So, any other solutions?

For starters, it always interests me that public entities such as county governments don’t work more with tools such as prescriptive easements and condemnation to solve Chapman-esque problems. Anyone know why we don’t pursue such solutions more often, rather than enriching private land owners who hold us hostage?

As always, your comments are gold.



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Comments

30 Responses to “Colorado Hostage Land Deals”

  1. Mike April 14th, 2010 8:50 am

    Shouldn’t terrain that’s been used like that for countless years fall under adverse possession?

  2. John April 14th, 2010 8:54 am

    Hopefully the bottomed-out luxury home market is calling his “threaten-to-develop” bluff these days, though I’m not versed on the state of that sector down in CO. Lou, I’d imagine Aspen is always Aspen-ish, which is to say insulated to a degree?

  3. Bryan April 14th, 2010 8:57 am

    Lou,

    I’m no lawyer, and I’m no psychic, so I can’t say I know the law or the true motivations of people like Tom Chapman. What I can say is that you see the same thing, with even greater consequences in the mountain biking community. When riding a mountain bike you must use the trail (there’s no way around it), so if a 50 foot section of a 5 mile trail needs to go through private property and the owner doesn’t like it? Lights out for the entire trail. Sometimes re-routes are possible, but you don’t see it very often.

    Which brings me to the question (somewhat off topic): why do people like Tom start trying to enforce the no trespassing law?

    I’ve heard about mountain bike trails crossing private property in wide spread fashion in and around SLC, and it’s been suggested that this works in SLC due to a law that Utah has on the books absolving the liability private land owners are responsible for IF they have a public trail on their land, and IF a user should try to sue them.

    This is 100% hearsay, but I wonder, if Tom Chapman is concerned about his own personal liability as a property owner? I can understand that if you own the land, and someone dies in an avalanche on the land, you may choose to shut it down if you are exposing yourself to a lawsuit.

    Again, this is somewhat off topic, but I think it’s relevant to the discussion as a whole.

  4. Lou April 14th, 2010 8:58 am

    Mike, I think it’s a matter of political will. Seems like the powers in County government are very leery of doing much about this stuff except playing around with zoning.

  5. Lou April 14th, 2010 8:59 am

    Bryan, the liability issue is huge but from what I know it’s pretty nuanced. For example, if someone on your property gets struck by lighting, are you liable?

  6. Jerry April 14th, 2010 9:28 am

    In liability law there is something called “coming to the nuisance” the concept is if you create an attraction (say leave a boat on shore and someone drowns) and someone gets hurt you are most likely liable for your actions. A simple trail is not that and there is not precedent for collecting from the property owner. But that is not the issue with Chapman.

    The issue is his ability to leverage weaknesses in our historical land settlement patterns for greed pure and simple. He understands how residents freak out when their backyard wilderness is developed. The simple tactic would be to let him build and then let it burn like we do in most wilderness situations.

    Lou’s position is self-centered. As long as the land appears to be intact with development, and he has access to ski, then everything is okay. What a narrow view of the world. All the scientific literature documents the impacts on large predators, migratory herds, and ecological function (i.e. fire) being compromised by backcountry development – especially the homes and roads that come with second homes.

    The mountain bike issue is particularly relevant where, as a user group, they are threatening to jump in bed with motorized recreation over a few miles of lost trail access. Seems to me that here in the West we have more than enough backcountry for everyone and, where possible, we should err on the side of preservation. Turning a blind eye to Chapman-like developments as long as we enjoy access across his land is a short-term recipe that invites long term declines.

  7. Derek April 14th, 2010 9:33 am

    Great post
    In Wyoming this is not as prevalent but it is starting to grow rapidly. We have to come up with a way to allow Rights Of Way for access to these huge areas of public land. If I buy 50 feet of land all the way around the mountain then I own the mountain for all intensive purposes, and that’s a problem. For hunting in Wyoming we have an option when we buy a tag to donate money to (Access Yes) which works with land owners to set up access through there land. I don’t know how well it works it is fairly new so we will see I guess. In the end the land owner is still being paid off so…….?

  8. Andrew April 14th, 2010 9:47 am

    If I was in charge, I’d call their (Tom & Co.) bluff. We have that situation in the Wasatch where people own old mining patents and threaten that if they can’t develop them, they will close them to the public, which the do. The result is that they have to actively patrol and enforce the no trespassing, which means they sit around in the winter waiting for people to trespass, then yell at them, perhaps catch them, and in a few cases, issue them tickets. To enforce the tickets means they have to show up in court, have exact proof of where the incident took place (GPS), witnesses, lawyers, etc.. In the Wasatch instance, the cases have all been dropped and eventually the landowner decides he has better things to do with his time.

    When they threaten to develop the land, it is often under strict develop codes, which makes building anything a five-star PITA, especially with water and sewage. On top of that, they may own the land, but if it is an island of land in the middle of a sea of public land, they can’t build a road, so what good is a mega mansion or guest lodge with no easy way to get customers there?

    What I’ve seen happen is that the public, and thus Government, panics and buys the land or trades it for something. In the end the public wins, but the developer wins even more so.

  9. Lou April 14th, 2010 10:34 am

    “What I’ve seen happen is that the public, and thus Government, panics and buys the land or trades it for something. In the end the public wins, but the developer wins even more so.”

    This is exactly what seems to happen around here pretty frequently. Trust for Public Lands has the money, and their job is to spend it. Wilderness advocates panic, contact the Trust, and the rest is profit.

  10. Ralph S. April 14th, 2010 10:50 am

    We have the same issues here in Boise-fornia. The City actually passed a bond to buy land that is outside the City’s area of impact to keep “open space”.

    http://www.cityofboise.org/Departments/Parks/Foothills/Conservation/page11820.aspx

    The kicker is that most of the purchased land is owned by the family of a counsel member!

  11. Steve April 14th, 2010 11:07 am

    Unless this has been recently resolved this is/was the exact problem with access to Silverpick basin.

  12. Gray Petty April 14th, 2010 11:22 am

    Mike-

    Unfortunately adverse possession doesn’t work for the public. To get land under adverse possession you must have open and notorious possession. Or act like the land is yours. And you have to be using the land. There is also the issue of time. How long someone has had possession, which differs in every state.

    So use by the public doesn’t count as adverse possession. There may be other ways such as zoning or eminent domain that a state could use, but those solutions have their own problems.

  13. Bryan April 14th, 2010 11:23 am

    Lou,

    I understand dismissing the liability question altogether, but the interesting question to me is why the landowner wants to enforce the colorado no trespassing law.

    Just because he can?

    There’s no doubt that he’s found “the loophole” in the system and is exploiting it to the short term detriment of backcountry users, but is there another reason beyond sheer capitalistic greed?

    On that topic, who can blame him? I’m all for keeping wilderness wilderness…and for the proliferation of open spaces, but I’m also not going to sit on my soapbox and say it’s a terrible thing if people are playing the game “within the current rules” of our system.

    As such, I arrived back at my original question: If I were the land developer, would I restrict access (what if my lawyers recommended it)? If I did, what is the specific reason for the action?

  14. eric April 14th, 2010 11:32 am

    I understand the argument that allowing land swaps and buyout encourages these types of threats,but the USFS or whoever are usually acting in a public intrest. We have an intrest in access so they make a swap. I don’t think it’s fair to blame the management agencies in these cases. And, while I see this as an exploitive use of property rights, it is their land.

    Respectful users and accress advocates (ie Access Fund) can, and have, done quite a bit to mitigate the petty issues, like the 50 feet of MTB trail. I don’t think the two are really related.

    I will say this issue is growing fast. It seemsd access is one of the most dominate topics on outdoor forums and blogs these days.

  15. Frank K April 14th, 2010 12:59 pm

    Generally speaking, it’s almost more amazing how much land IS accessible vs. how much is closed off due to private property in most of the Elk range around CB at least. Whetstone is about the only one, and even then I’ve never heard of the landowner not granting permission when asked. Meanwhile, as another CO example, much of the Sangres are a pain in the butt to get permission.

    Chapman may be as slimy as they come, but who can blame him, really? He’s found a loophole and a way to make money, it’s the american way.

    Just picturing the Scandinavian law over here is hilarious. Just picture some rancher walking up to you, gun in hand, while you tell him “I get to camp on your land for a night or two, it’s the law.” If only…

  16. Andrew April 14th, 2010 1:14 pm

    It’s too bad that the government isn’t more proactive and just buys the land before they are almost blackmailed into it by Tom & Co.. In a local Wasatch case, there was a 180 acre parcel which had no access and could only have one house built on it. The original value was around $800k, but the County ended up paying 2.3 million for it. I’m glad they did and years from now it may be considered a drop in the bucket, but they basically paid three times the appraised price just because the Realtor said they were going to dam the stream and turn it into a fishing pond (illegal and incredibility unlikely as fish can’t survive in the pond in question).

    I guess I’d do it if I had the cash. In the worst case you’d end up with a private backcountry stash.

  17. jerimy April 14th, 2010 1:25 pm

    Maybe one could argue for an easement based on historical prior use?

  18. Lou April 14th, 2010 1:38 pm

    Frank, yeah, I was having the same fantasy. Wild concept.

    I’ve enjoyed the “freedom to roam” in Austria, where when avy danger is high you can ski the steep mountain pastures and stuff like that, mostly private land and used by thousands and thousands of people for ski touring. Really cool to see the sharing.

  19. Lou April 14th, 2010 1:41 pm

    Eric, indeed, folks were laughing at me 10 years ago for ranting about access. They’re not laughing any more. The issues have shifted. Good example is the Hidden Gems wilderness proposal in this area. It’s not particularly popular, and seems kind of irrelevant and rather problematic to many of us. Sort of a throwback to the 1980s.

  20. Jim Knight April 14th, 2010 2:43 pm

    Also in the Wasatch – thanks to our outdated mining laws (that practically give land away) a patented mining claim was sold to the highest bidder looking to make a killing. Knowing he couldn’t prevent access due to historical easements, the part-owner began to rape the landscape through surface mining as a tactic to outrage the public, inflate the value of the property and threaten destruction as a means of getting what he really wanted – you guessed it – a big fat land swap with the USFS. This kind of hostage-taking of land at risk is even worse than restricted or zero access. It’s predatory. It’s legal. It’s wrong.

  21. Jim Knight April 14th, 2010 3:06 pm

    re: Easement – Hi Jerimy, We formed a Facebook group of 3,000 names and gathered online and written surveys of the historical recreational usage of the threatened land. Now we are sitting on a trove of data and support, ready to file a prescriptive easement claim against the destructive owner if needed. Thanks to our activism, this unrestricted recreational use of the threatened land took place decades before current ownership, and it can be proven.

  22. mike April 14th, 2010 3:59 pm

    I live in a backcountry cabin. (2 1/2 mi. from the nearest drivable road in winter.) It’s easy for me to understand why a private land owner would not want any one on their land, ever. Because if there’s something stupid to be done, (like ignoring no tresspassing signs, building fires, poaching, vandalism, stupid driving tricks, needing rescue..) it will be done… I’ve seen it over and over…it’s true that a few clueless people can ruin the fun for everyone.

  23. Lou April 14th, 2010 4:42 pm

    Mike, I can certainly see your point. My take would be to let people pass through certain sections of the land, but not let them squat, and I’d of course have a posted area around our hut just for privacy. I can also see why one would post their whole chunk of acreage as well. To be true to my own ethic, I’d especially try to avoid restricting access across the land if it was required to reach public land. Again, each situation would be different. I most certainly respect private property rights.

  24. Colin in CA April 14th, 2010 8:02 pm

    First of all, it wouldn’t be adverse possession, it would be a prescriptive easement. Adverse possession confers an actual possessory interest, whereas a prescriptive easement is merely a usufructuary interest.

    Second, if there was a well-traveled trail through this land, people who had actually used it over the years could very likely enforce their right to it. The problem with BC skiing in this context is that snow falls and melts and ski tracks aren’t permanent, so there’s no specific trail or road to lay a claim of continuous use to. Makes things a bit trickier, although maybe not impossible. I’m not at all familiar with CO’s caselaw on this stuff, I just know the common law stuff and how CA reads it.

    Jim Knight has it right. I know of a trail near I-80 in the upper Sierra Foothills that was through private land that a new owner tried to close. A bunch of locals sued and were granted a prescriptive easement through said land.

    And TPL’s “Checkerboard Initiative” is doing great work on this issue here in the Sierra… i.e. buying up the old ex-U.P. parcels from the private owners.

  25. Tim April 14th, 2010 9:12 pm

    Speaking to the prescriptive easement question, this is probably why Chapman posted his “no trespassing” sign; to start the process of removing access over his land from the public domain.

    If I am not mistaken, if an owner does not post, and does not prevent access, after a length of time (Colin?) then prescriptive easement can come into play.

  26. Chris April 14th, 2010 9:53 pm

    The no trespassing signs do not defeat any prescriptive easement that is already created through open and continuous use. The best defense to prescriptive use, actually, is to grant permission. Permission creates a license, and licenses are generally revocable. Prescriptive use rights arise when there is no legal right to use the property, but use is nevertheless made in a continuous and consistent manner for more than 18 years without regard for the rights of the owner.
    The no trespassing signs are a tactic to get something else.

  27. Nick April 15th, 2010 7:59 am

    For some background on one bit of history surrounding the freedom to roam, take a look at:

    http://kindertrespass.com/

    Different land, different time, different laws, different culture and maybe a different concept of what constitutes ‘backcountry’ but the basic premise remains the same.

  28. Lou April 15th, 2010 8:29 am

    Nick, that is some great stuff, thanks.

  29. Cory April 16th, 2010 1:06 pm

    Lou- I’ll give you this: at least you’re consistent when it comes to access being limited (no matter if it is public or private). Speaking of which, can I borrow your shop this weekend? :angel:

  30. Lou April 16th, 2010 2:10 pm

    Access is limited.

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