Position Statement

Land Use Coalition Supports the BLM Land Acquisition Plan

November 12, 1999
The Land Use Coalition
P.O. Box 20265
Boulder, CO 80308-3265
http://landusecoalition.org

Many members of the Land Use Coalition, like most residents of Boulder County, support the acquisition of open space, and have encouraged the Commissioners to commit tax money for its purchase. If the County does not have sufficient funds to buy the land it has targeted for open space, it may be tempted, as it has in the past, to resort to methods to devalue such land, or enact abusive land use regulations to prohibit or discourage development. The tax extension approved by the voters in the November 2 election ensures that Boulder County will have enough money to purchase the lands it has proposed to acquire from the BLM, and enough money to pay fair market for privately held lands.

In short, we'd rather have the County buy its open space than steal it.

The Land Use Coalition supports the County’s acquisition of BLM land as open space, along with appropriate safeguards for the rights of private property owners whose land may be purchased or impacted by the purchase of such properties.

We urge the County to allow discussion of these important public issues in a public forum, and not a "behind closed doors" attitude. It is from a full free exchange of views and issues that the most workable plan will evolve. We believe this approach promotes a "win-win" solution, and is in everyone’s best interest.

A. WHAT EXACTLY IS THE BLM PROPOSAL?

The proposal as drafted by the County is incomplete, a sketchy outline, or "conceptual" offer, in the words of the Commissioners. The BLM’s response has been helpful filling in the blanks, and directly addresses the important public issues involved. A copy of the County’s proposal and the BLM outline is attached, and helps to define the terms under which the exchange will take place. BLM requires that the lands be transferred subject to numerous regulations, and relies on active participation and cooperation between landowners, the County and the BLM. In discussions with our membership, with BLM officials and public meetings, we have identified several issues of public concern:

1.  WHAT IS THE NUMBER OF POTENTIAL BUILDING SITES FROM THE BLM LAND?

Although the County Land Use Director has previously stated that as many as 200 lots would become available if the BLM land fell into private hands, this is not the case. The BLM has stated that the number could be as few as 20 additional building lots under the County’s policies and Land Use Code, although aggregation of fractionalized land could result in more. The Commissioners state that the number falls somewhere between 60 and 80 potential sites, and the BLM calculated the maximum number at 71 for the purpose of establishing fair market value. Which is accurate? It makes a substantial difference in determining fair market value based on highest and best use, which is of course is as building sites. It’s not easy to pin this number down, since the County may have rules preventing the aggregation of fractionalized parcels not recognized by the BLM. Setting aside the non-buildable mountain lots, the acres which could be dedicated to Recreational & Public Purposes Act (R&PP), the fractionalized nature of the BLM land, the lack of any possible access to some of this land, and the legal limits of Senate Bill 35 (requiring 35 acres per single family dwelling), the Land Use Coalition believes the maximum number of additional lots to be closer to an estimate of 20 than 200. As taxpayers, we need to be mindful of spending millions of taxpayers' dollars to prevent a mere 20 to 70 additional homes from being built in an area which is already heavily developed. A quick calculation of 71 sites times $150,000 (a conservative value for a large 10 to 35 acre building site) and we’re talking about $11,000,000. Add to that the administrative and survey fees of $1.7 million, and it’s a lot of public money to prevent at the most 20 to 80 homes from being built in an area which already contains hundreds of homes.

2.  DEVELOPMENT PRESSURE.

The BLM has reported that there is no imminent pressure from anyone to purchase and develop the BLM land even if it should become available.

Even if we assume that it’s worthwhile to prevent these few houses being built (the impact of a few dozen additional homes in the mountains being negligible), it doesn’t make sense to commit millions of Boulder County citizens’ tax dollars without knowing how much development we are preventing.

B. THE ACCESS ISSUES

1.  TO PRIVATE PROPERTY – CURRENT ACCESS

This has been identified as an issue of public concern by the BLM, and addressed in its response to the County’s proposal. The BLM plan will require all current rights of way to be made perpetual, and guarantee that easements (which will run with the land, not the holder) would convey equal or increased rights to the current holder. The most disturbing message from the County has been its failure to take a strong proactive stance on behalf of private landowners regarding access to their property, and it is reassuring that the BLM will make this a condition of any exchange. The BLM also requires that public access will be reserved on existing roads and trials, continuing to provide the current level of access opportunity to the public. Until now, the Commissioners have stated only that Boulder County will recognize existing access easements on any lands it might acquire from the BLM. Significantly, the Commissioners’ silence does not assure private landowners (who do not currently have access) that they will ever be able to gain access across County open space in the future.

2.  FUTURE ACCESS TO PRIVATE PROPERTY

This issue has also been identified as an issue of public concern by the BLM, and is addressed in its response: the BLM will continue to accept and process right of way applications until a specific date. All landowners in the area will be notified of the date well in advance. This will resolve the problem of obtaining easements and rights of way in the future (for landowners that do not presently have access easements) and renewing of already existing easements. Replacement easements granted by the County would be placed in escrow until the exchange is actually completed.

Many mountain landowners are of limited financial means, and may also find the paperwork involved in applying for easements intimidating. To avoid anyone falling into the cracks, we strongly urge the County to facilitate landowners in obtaining their rights of way, by offering financial assistance (in the form of grants or loans) and other help in completing the necessary application process. For example, it would be easy for the County to include in the mandatory notification to affected landowners an application form and instructions for its completion.

The BLM historically and consistently has worked with private landowners with inholdings to provide access to their property. Their policy is to grant easements for a fixed period of time, usually 30 years, and to automatically renew them as long as the easement terms are met.

There are landowners who predict that, without BLM safeguards, if they want to build on their property in the future, they will find their access blocked by a County determined to prevent use of publicly owned open space. These people will have no chance to build, and no possibility to sell. Essentially, their land will become valueless, and the only buyer will be the County, at a much reduced price.

The Coalition has learned that these citizens have good reason to be skeptical because Boulder County has in the past conducted itself in ways that make this scenario not only probable but inevitable, without the safeguards of the BLM regulations. Even now, the County is litigating cases where access is the sole issue. One County Attorney has been publicly quoted as stating that the purpose of the County’s intervention in a pending access case was to drive the value of the property down by $1,000,000, and then to acquire the land as open space at a bargain price. This is wrong.

The BLM conditions, including making rights of way perpetual, will resolve any issues of renewal of easements and future access if the County obtains all BLM land, and we believe this is one of the most important provisions of the BLM’s proposal.

Public access across public land will be guaranteed by the BLM. BLM land is now open to all the public. It is disturbing to learn that as much as two thirds of Boulder County open space is closed to the public, and the BLM proposal does not guarantee that access will continue. Even more disturbing is Boulder County’s written policy excluding public access to open space: "Except for requests for easements or rights-of-way for utility purposes, in no case shall Boulder County consider granting access to property for which no legal access currently exists." (This open space regulation was approved by all three currently sitting Commissioners on October 2, 1997).

The County will need to amend its policy to conform to the BLM conditions.

3.  PUBLIC ROADS

Commonly referred to as "RS2477" roads, these roads are open to the public, and often criscross-cross over many privately held as well as BLM and Forest Service lands. We all have a right to use these roads, and many of us depend on them for access to both public and private land. The transfer from federal to County ownership puts at risk the loss of citizen’s rights to continue use and access of these historic public roads. However, the BLM’s conditions of exchange will guarantee continued use and access of these roads to the public.

4.  TRESPASS

We are particularly encouraged to see that the BLM will guarantee the rights of the homeowners in Ward, and other areas, that have inadvertently trespassed onto BLM lands. There are numerous situations where, due to the lack of accurate survey, landowners have partially or entirely located improvements on BLM land, believing it was on their own property. The BLM historically has worked with such situations, and allowed the private landowner to purchase this land.

Ownership by the County of public inholdings may create other problems: it will encourage trespass across private lands by citizens trying to reach open space. Open space management teams will need to obtain legal access to these public lands in order to properly manage them.

5.  CITIZEN ACCESS TO OPEN SPACE

100% of BLM land is available now to the public. A significant portion of the County's open space is closed to the public. The Land Use Coalition supports the County’s purchase of several large tracts of land under the R & PP (Recreation & Public Purposes Act), which would be appropriate for at least several distinct areas in Boulder County, and would guarantee that this property would be available to all citizens: Tillie Butzell Hill, Big Horn Mountain, and possibly one or two other areas are good examples. The County’s current policy excluding people from using public lands will preclude this unless the County is willing to put together a plan which complies with the requirements of the Act.

The County has indicated that if it buys the BLM land by direct sale they will in turn sell off some parcels (retaining conservation easements) before designation, how will the County determine which BLM property will be sold, and which will be retained? What criteria? What process? What options would the County promote in utilizing these pieces of land? The County has not yet responded to these critical questions.

C.  OTHER ISSUES

1.  MINING ON OPEN LANDS. No BLM land with unpatented mining claims on it will be exchanged unless the County can reach agreement with the owners "that meets the needs of both parties". What will happen to the dozens of unpatented mining claims which are now located on BLM lands, and how will the County approach this challenge? The owners retain the right under federal law to mine these claims. What will the County do about mining activity on its open space land? These questions need to be answered.

The County has proposed that the BLM exchange its land for other Boulder County lands, this way preserving twice the amount of public land. Unfortunately, however, there is little land in Boulder County that is suitable for such an exchange, and the BLM has made it clear that it will not be limited to Boulder County for acquisition of replacement lands. Other problems with this exchange is that it is not flexible: To "swap", the other federal land must be identified, sold and purchased simultaneously for equal or greater value in order to make the exchange happen. The County, if it has identified specific exchange properties in Boulder County which it believes are appropriate for an exchange, has so far not been willing to disclose them. It is a long, unwieldy and uncertain process to arrange such an exchange, and the BLM proposes a three phase process which may take up to 7 years to complete. Acquiring all the BLM land will require negotiating with private property owners, taking private land out of private ownership, and can easily be derailed by a stubborn landowner or multi-leveled government bureaucracies. If the County acquires a key parcel, however, it can buy it and hold it until the transaction takes place.

It should be noted that, in the event of a direct sale, rather than an exchange, the cash paid by Boulder County citizens for the BLM land will go into the general fund in Washington, and will not be dedicated for improved resource management (unless authorized by special federal legislation).

3.  SURVEY COSTS AND ADMINISTRATIVE FEES WILL COST AS MUCH AS $1,400,000.

It will cost as much as one and a half million dollars to survey these lands and administer the exchange, and these fees will need to paid by the County in advance. The parcels are often as hard to find as they have been to manage. The most direct financial loss to the County is the annual payment in lieu of taxes (PILT) now being paid now by the BLM to Boulder County. The County should do a cost-benefit analysis showing the trade-off of tax dollars not collected if land is not owned by private landowners who pay taxes, including all these lost revenues and additional costs. This analysis should then be made available to the public.

4.  NOTIFICATION TO AFFECTED LANDOWNERS.

Until now, the County has made no effort to notify landowners who will be directly affected by this proposed disposal of public lands. The BLM will require that area landowners be notified and given an opportunity to participate in the process, and to purchase easements. Will the County step up to the plate and take responsibility for this? When and how will need to be determined in the process.

1.  "INTERSTITIAL" BLM HOLDINGS SHOULD BE SOLD TO PRIVATE LANDOWNERS

These slivers of land, fractionalized by mining claims, many of them overlapping, are often referred to as "interstitial" holdings. The County will be charged with the cost of the survey and administrative costs, to be paid in advance (estimated to cost as much as $1,400,000, see above) and which will need to be completed before any exchange can occur. Who will buy these little slivers of land, especially with a conservation easement on it, as the County proposes? These parcels will remain open space no matter who owns it, and who would voluntarily assume the liability and expense associated with real estate ownership on land that can never be used? The County will be stuck with many small pieces of land, some as narrow as one foot wide, which, as the BLM has found, is not only unmanageable but cannot even be accurately located. If the only way people could access this public land is to cross over private land, the County would have to acquire the access to it through condemnation proceedings or some other legal process, which the County may opt not to do. If the County wants to sell these pieces, it will have to sell at a net loss of taxpayers’ money: Even if the County could find private landowners willing to buy it, the land’s fair market value will be worth less than its purchase price, because it will be sold with a conservation easement on it.

2.  MANAGEMENT OF BLM LANDS – NO ONE HAS DONE A COST BENEFIT ANALYSIS.

Ron Stewart has publicly stated that the purchase of this land will add substantial cost to the Parks & Open Space Department, and that more staff will need to be hired to manage these lands. It is clear that the County is unable to manage the open space it has: much open space land is now closed to the public because the County has not been able to develop the properties sufficiently to allow public use. The current budget for POSD is $ 8 million per year. This money comes out of the general fund, as well as the open space tax. Finally, without a survey, neither the county nor the BLM even knows where exactly the land is located, much less whether it can be managed. Keep in mind that the main reason BLM wants to dispose of this land because it is nearly impossible to manage.

LAND USE COALITION GOALS

A.  THE COALITION IS WILLING TO ACT AS A BRIDGE BETWEEN LANDOWNERS AND THE COUNTY IN AN EFFORT TO RECONSTRUCT TRUST, FACILITATE JOINT OBJECTIVES AND ACHIEVE MUTUAL GOALS, INCLUDING THE ACQUISITION OF OPEN SPACE AND THE PRESERVATION OF PRIVATE PROPERTY RIGHTS.

B.  THE CREATION OF PUBLIC PARKS FOR THE BENEFIT OF ALL CITIZENS.

The Land Use Coalition is willing to join with the County to develop plans creating public parks that can be used by all citizens, either under the R & PP or by direct purchase. Although the R & PP route is more economical -- the land is free -- it may be very difficult to qualify for. The County will need to deal with the holders of mining claims located on public land as well as acquire sufficient private land to consolidate to qualify. Purchase under the R & PP may be appropriate for three large tracts of BLM land, and creating parks and trails would make this property available to all citizens. Currently Tillie Butzell Hill, Big Horn Mountain, Horsefall Flats and possibly one or two other areas would be good candidates. Big Horn Mountain is probably the best example of an appropriate parcel of land, and acquisition under the R&PP would not only save millions of taxpayers’ dollars, but also guarantee the public land will remain open to all residents. Although Commissioner Stewart has stated that there are no Boulder lands eligible for purchase under the R&PP the Coalition believes that in fact we can comply with BLM regulations and develop some of these sites. The County’s current policy of excluding people from public lands will otherwise preclude this type of recreational use unless the County is willing to put together a plan which adheres to the provisions of the Act.

C.  PRESERVATION OF ACCESS.

The County needs to publicly commit itself to comply with current BLM policies and regulations as to access and rights of way. Otherwise, the Coalition is concerned that dozens if not hundreds of Boulder County property owners risk losing the value of their land. The Commissioners should make this commitment, not only because the BLM regulations require it, but because it is the right thing to do. If the County is unwilling to adopt this approach, we would ask that the BLM reserve to itself the power to grant access and easements. We support the granting of easements to landowners in perpetuity, running with the land, so their rights will not be compromised by a change in ownership or government or policy.

The Coalition concludes that Boulder County leadership needs to work with adjacent landowners to achieve the optimum disposition of BLM lands: A mutual plan should be developed and promoted in which the County acquires the larger parcels for parks and open space and adjacent private landowners may purchase the smaller parcels to act as buffer or to resolve access problems.

Such an arrangement will provide for better, more efficient management of the small parcels, create actual recreational parks as well as open space for citizens, save taxpayers millions of dollars, resolve access and trespass problems, and create few, if any, new building sites for development.

However, this approach requires the County to actually work WITH its citizens rather than AGAINST them.

We encourage the Commissioners to enthusiastically support the BLM’s proposal, and to initiate public discussion with citizens directly addressing the critical issues of public concern raised in the BLM’s response. The Coalition has offered to facilitate this effort.

For more information contact the Land Use Coalition at info@landusecoalition.org or call 303-666-7903.

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