Government Directed to Pursue Condemnation

[On June 25, 2002, Telluride residents voted 609-385 in a special election to pursue eminent domain—a government’s right to acquire private property at fair-market value from an unwilling seller—for 570 acres on the south side of the Valley Floor to be placed under a conservation easement in perpetuity. Following is the ordinance that voters approved:]

AN INITIATED ORDINANCE OF REGISTERED ELECTORS OF THE TOWN OF TELLURIDE, COLORADO, AUTHORIZING THE TOWN OF TELLURIDE TO ACQUIRE THE SOUTH SIDE OF THE VALLEY FLOOR WHICH IS WEST AND ADJACENT TO THE TOWN OF TELLURIDE, FOR OPEN SPACE PARK PURPOSES THROUGH EMINENT DOMAIN; SUCH ACQUISITION WILL NOT REQUIRE NEW TAXES BUT WILL BE FUNDED THROUGH AVAILABLE FUNDS, PREVIOUSLY DEDICATED REVENUES, AND APPROVED DEBT AUTHORITY.

WHEREAS, the Town of Telluride (Town) has duly determined that it is of critical importance that it acquire through eminent domain for public open space park purposes the South Side of the Valley Floor, generally described as the land lying west of the Town of Telluride western boundary, south of highway 145, and on both sides of the San Miguel River to the Society Turn portion of the highway; and

WHEREAS, such public open space park land consists of approximately 570 acres of unimproved real property purportedly owned by San Miguel Valley Corporation, Boomerang Holdings, LLC, and Alley Oop Holdings, LLC, and is the real property referred to herein as the South Side of the Valley Floor, particularly described in Exhibit A, incorporated herein; and

WHEREAS, the Town Council of the Town of Telluride, and/or if submitted to the qualified electors of the Town, a majority of the registered electors voting in an election, have determined that the acquisition in fee simple absolute, of the South Side of the Valley Floor, described in Exhibit A, together with all water and mineral rights associated with said real property is necessary and required for public purpose and use as open space park land, including: perpetual maintenance of an open space scenic view corridor at the foot of the Town of Telluride; maintained recreational uses such as nature walks, trails and areas for hiking, bicycling, running, cross country skiing, hang/para glider landing; temporary associated uses, such as public sanitation facilities, parking and camping; and other public park purposes not requiring improvement of the land or placement of structures; and

WHEREAS, acquisition of the South Side of the Valley Floor is consistent with the goals and objectives of both the Town’s Master Plan and Land Use Plan, and the Town of Telluride Open Space Commission has determined that such acquisition is of the highest priority of the Town of Telluride; and WHEREAS, the National Trust for Historic Preservation, Washington D.C., has designated the (South Side) Valley Floor as one of America’s Eleven Most Endangered Historic Places, recognizing the public interest in preserving and restoring parts of the unique ecological sub-structure of the South Side of the Valley Floor; and

WHEREAS, there has been sustained support from the citizens of the Town of Telluride for the acquisition of the South Side of the Valley Floor to serve the public as open space park land, the purpose for which this acquisition is being Ordained; and

WHEREAS, in 1993, the citizens of the Town approved the issuance of revenue bonds for the acquisition of open space, and the Town Council may in its discretion make funds or funding available for the foregoing acquisition from the Open Space Fund, the Municipal Land Reserve Account in the Capital Improvement Fund and such other revenues which may become available from the budgeting process; and WHEREAS, the Town Open Lands Plan identifies the South Side of the Valley Floor as a priority for open space 87 acquisition; and

WHEREAS, acquisition of the South Side of the Valley Floor through eminent domain is consistent with the goals and objectives of all the foregoing: maintaining open space, protecting and restoring environmentally sensitive areas, riparian and wildlife habitats and the San Miguel River, and maximizing and preserving scenic vistas, view planes, and particularly preserving and enhancing the scenic corridor areas adjacent to the south side of Highway 145 to the San Miguel River while maintaining public recreational uses adjacent to the Town and indigenous to the region such as hiking, bicycling, running and cross country ski trails; and

WHEREAS, the Town of Telluride, a Home Rule Municipality within the State of Colorado, has the legal authority to exercise the power of eminent domain to acquire the South Side of the Valley Floor for the public purposes identified, pursuant to Article XIV, Section 14.1 of its Home Rule Charter, and Article XX, Section 1, and Article XX, Section 6, of the Colorado Constitution; and

WHEREAS, the acquisition of the South Side of the Valley Floor is necessary and beneficial for the health, safety and welfare of the citizens of the Town, will enhance, preserve and protect the Town’s primary asset, its natural setting, irrevocable loss resulting in subdivision development; and

WHEREAS, the Town Clerk has performed her compliance check and has certified the sufficiency of the Initiation Petition to Town Council regarding submission of the required number of signatures of registered electors of the Town of Telluride and compliance with the dictates of Article VI, et seq., of the Home Rule Charter of the Town of Telluride, Colorado; and

WHEREAS, The Town Council pursuant to Section 6.6, of said Charter, has either adopted this Initiated Ordinance, or submitted this ordinance to a vote of the qualified electors of the Town of Telluride.

NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF TELLURIDE:

1. The Town Council and, if appropriate, the electors of the Town of Telluride, hereby find and determine that the acquisition in fee simple of the property and property interests identified herein and described on Exhibit A attached hereto, is in the best interest of the Town, is necessary and in furtherance of the general goals, objectives and policies of the Town, and also is necessary for the health, safety and welfare of the citizens of the Town.

2. The Town Council and, if appropriate, the electors of the Town of Telluride, hereby find and determine that the specific public open space park use or uses to be made of the various parcels that make up the South Side of the Valley floor are consistent with the public uses noted above and, in any case, will be conducted in accord with restoration and maintenance of the indigenous ecological qualities of the land and San Miguel River, and as open space park land, including: perpetual maintenance of an open space scenic view corridor adjacent to the foot of the Town of Telluride, maintained recreational uses such as nature walks, trails and areas for hiking, bicycling, running, cross country skiing, hang/para glider landing; temporary associated uses, such as public sanitation facilities, parking and camping; and other public park purposes not requiring improvement of the land or placement of structures.

3. It is the intent of the Town Council and electors that all portions of the South Side of the Valley Floor described in Exhibit A, shall be designated as preserved for open space in accord with the foregoing public purposes and uses, and shall be protected as such in perpetuity. Following acquisition the Town shall prepare a Report identifying degraded areas of the Valley Floor which may be the proper subject of restoration and/or remediation. Such areas may include, but shall not be limited to the San Miguel River, wetlands, wildlife habitat, vegetation, and sites of abandoned public and private use. The Report shall also include implementation strategies. The South Side of the Valley Floor shall then be protected in perpetuity through a conservation easement(s) consistent with the foregoing by way of an appropriate land conservation entity or person(s).

4. Following the effective date of this Ordinance, the Town Council is hereby authorized and directed to expeditiously initiate the process of acquisition through its powers of eminent domain as provided by the Town Home 88 Rule Charter and Colorado Statute, beginning with retention of attorney(s), surveyor(s) and other experts and consultants necessary to prepare an update to existing Town appraisal(s) and certification of the legal description of the subject property; providing for any necessary financial appropriations, and then tender of the Town’s required good faith offer for acquisition of the South Side of the Valley Floor to the land owners and, if necessary, to then continue expeditiously by filing a Petition in the District Court of San Miguel County condemning the property described in Exhibit A, for the foregoing public purposes and uses.

5. In pursuit of the foregoing process outlined in paragraph 4. above, the particular portion of the real property described in Exhibit A., known as the Denver Placer and specifically described in Exhibit B., incorporated, is to be acquired through eminent domain, subject to the Federal primacy of the action titled: State of Colorado v. Idarado Mining Company, et al., case No. 83-C-2385, Federal District Court for Colorado, and the obligations and burdens, of the defendants and other responsible parties named and referenced in that certain Consent Decree filed in such action, 83-C-2385, July 6, 1992, respecting the land described in Exhibit B.

6. Further, the Town Council is authorized to contract with and to pay all reasonable fees and expenses of such attorney(s), surveyor(s), appraiser(s), consultants and expert witness(es) for services rendered, and to pay any other costs associated with the condemnation action, including all fees and other costs that must be borne by the Town pursuant to Statute all of which shall be duly appropriated in the Town budget.

7. The acquisition of the South Side of the Valley Floor shall be funded by revenue bonds approved by the voters in 1993 for open space acquisition, together with current and future funds which the Town Council, within its discretion may make available for this purpose from the Open Space Fund and the Municipal Land Reserve Account in the Capital Improvement Fund, and such other revenues which may become available from the budgeting process. Such available funding does not require new taxes for the foregoing acquisition because it is consistent with the valuation of the South Side of the Valley Floor contained in part of the Town’s previously commissioned appraisal including any updates thereof.

8. Following an Order of the District Court determining valuation of the South Side of the Valley Floor, if any further funds in excess of those provided in paragraph 6. above are necessary to acquire the land described in Exhibit A., they shall be generated from private contributions or other sources outside the Town. In the event private contributions are not forthcoming and the Town Council determines the need for funds in excess of those that may be provided in paragraph 6. above, any consequential increase in taxation or debt shall be submitted to the Telluride electorate for approval.

9. This Ordinance shall become effective after the date of publication of notice of its adoption and passage by the Town Council of the Town of Telluride in a newspaper of general circulation within the Town of Telluride; and if submitted to the electorate by Town Council pursuant to Section 6.6, A. 3., of the Telluride Home Rule Charter, upon publication of notice that a majority vote of registered electors of the Town have voted in an election in favor of the foregoing Initiated Ordinance.