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County approves condemnation for road to upscale development

click to enlarge In El Paso County, buyer beware.  Cindy Miller, who - lives on the west side of the park. - BRUCE ELLIOTT
  • Bruce Elliott
  • In El Paso County, buyer beware. Cindy Miller, who lives on the west side of the park.

El Paso County is trying to force a group of homeowners near Black Forest Regional Park to sell slices of their yards to help construct a road that would run to a luxury housing development.

The plan has residents rallying yet again to block the proposed extension of Milam Road, which they say will ruin their neighborhood north of Colorado Springs as well as the nearby regional park. Opponents maintain that the road will be to the sole benefit of a private development company that wants to build an exclusive, 160-home subdivision called Cathedral Pines.

"When they can tear down trees and ram a road across your property and through the park, they can do it anywhere," said Cindy Miller, a flight attendant who lives on the west side of the park and anticipates receiving a letter from the county within days notifying her of condemnation proceedings. "In El Paso County, buyer beware."

Two weeks ago, county commissioners voted 3-2 to use eminent domain power to take private property. Commissioners Chuck Brown, Tom Huffman and Wayne Williams support the plan to extend Milam Road about a half mile and to realign Shoup Road.

"We need Milam Road to continue growth through the north part of the county," Brown said in an interview.

The developer of Cathedral Pines, King's Deer, will save taxpayers money, Brown added, by paying for road construction and donating 208 acres to the regional park.

The company, owned by local developer Dan Potter, has already put $210,000 in the bank for condemnations costs, which could cost the county up to $630,000.

The plan has angered Friends of Black Forest Regional Park, a conservation-minded group that successfully prevented the county from laying Milam Road inside the regional park. The El Paso County District Court ruled that since part of the park was acquired from the U.S. Forest Service, it was subject to the Sisk Act, which calls for land to be maintained the way it was before transfer, meaning a road couldn't be built. The case was upheld by the Colorado Supreme Court and again by the Court of Appeals in April 2003.

Sweetheart deal

But the county has continued its push to extend Milam Road to the Cathedral Pines development. In December of 2002, commissioners approved resolutions highlighting the use of eminent domain, mapping a route for Milam through a section of the park not subject to Sisk provisions.

Gary Schinderle, a spokesman for Friends of the Black Forest Regional Park, said a road would ruin a park long celebrated for ponderosa pines that whisper in the wind and dozens of bird species.

"The road cuts the park in half -- it's the most ludicrous thing I've ever heard of," he said.

Colorado Springs attorney Ken Sparks is representing several homeowners who describe the proposal as a sweetheart deal for King's Deer. Sparks declined to discuss specific legal strategies, but alluded to a possible court battle.

"We intend to question whether this is an appropriate use of condemnation law," he said.

But County Attorney Bill Louis said officials have worked about two years on the plan and are fully confident the condemnation serves legitimate public purposes.

"I strongly disagree this is a condemnation for private purposes," he said.

Some opposed to the county's efforts point to a Michigan Supreme Court ruling that could potentially have implications beyond that state. In a unanimous decision late last month, the court overturned a 22-year-old landmark case that let the city of Detroit raze 1,600 homes, businesses and churches for a General Motors plant the city said would spur job and tax growth.

The main reason

But that ruling, which dealt specifically with condemnation in the name of economic development, might not apply to Black Forest homeowners. Public roads, along with public buildings such as police stations and post offices, are generally favored in eminent domain cases.

If the public can freely travel on the road, "that makes it very different from a road that would be used for private development," said John Kramer, a spokesman for the Washington, D.C.-based Institute for Justice, a libertarian law firm.

But opponents of condemnation point to prior court rulings on Black Forest Regional Park, which concluded the main reason for building the road was to benefit King's Deer, rather than improved access to the regional park, improved safety and donation of land to the regional park, cited by the county in the case.

"While these uses may be legitimate, we agree with the trial court that they are secondary to the road's primary purpose -- access to [the] developer's new housing development," the Colorado Court of Appeals wrote last year.

Miller, who said she and her husband expect to reject a county offer of roughly $100,000 for land near her bedroom window, wonders why Milam Road is needed at all. At least two dirt roads, she said, go to the area King's Deer is seeking to develop.

Accepting the money would amount to selling her serene $400,000 home of 23 years for a discount, she said, trading hummingbirds and deer for dump trucks and traffic congestion.

-- Michael de Yoanna

  • County approves condemnation for road to upscale development

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