County Commissioners sanction theft of a golf course.

By Seth Richardson

Sometimes, a neighborhood deserves to lose. In this case, the selfish people living along the links of the Gleneagle Golf Course deserve to be chastised for their avarice and disregard for their neighbor’s property rights.

In his column in the Gazette Sunday, Bill Vogrin points out that the El Paso County Commissioners gave Miles Scully, the owner of the Gleneagle Golf Course, “about a year to submit a development agreement that essentially protects the remaining 93 acres of the golf course from development.” Vogrin didn’t mention if the Commissioners offered to buy the golf course and protect it as a park or as open space. However, I seriously doubt that acquiring the property is on the table. But it should be.

Scully owns the golf course, which has been losing money hand-over-fist for years. The residents who bought homes fronting on the greens are NIMBYing Scully into being an involuntary good Samaritan. They are greedy, avaricious people who think that they have a right to dictate what their neighbor does with his property merely because they live next door. Buying a house fronting on a golf course without a contract that ensures the golf course will always be there does not entitle a homeowner to interfere with the golf course owner’s right to redevelop his property.

Vogrin quotes Commissioner Wayne Williams as coercing Scully by demanding that Scully come up with a plan to preserve 93 acres of the golf course from further development. “This is a critical issue. If it’s not addressed, your zoning goes away,” said Williams.

Problem is that it’s doubtful that the Commissioners have the legal authority to extort Scully this way.

Conditioning the granting of a zoning change on the dedication of private property for public use is an unconstitutional taking of private property without just compensation as required by the Fourth Amendment. Several Supreme Court cases uphold this principle, including Nollan v. California Coastal Commission, 483 U.S. 825 (1987), where the court found unconstitutional a condition applied by the California Coastal Commission to Nollan’s application to demolish and rebuild a seashore bungalow that required Nollan to grant an easement for the public to cross his property to reach the beach.

Justice Scalia authored the ruling, saying, “Had California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking. To say that the appropriation of a public easement across a landowner’s premises does not constitute the taking of a property interest but rather (as JUSTICE BRENNAN contends) “a mere restriction on its use,” is to use words in a manner that deprives them of all their ordinary meaning. Indeed, one of the principal uses of the eminent domain power is to assure that the government be able to require conveyance of just such interests, so long as it pays for them.”

In another case, Dolan v. City of Tigard, 512 U.S. 374 (1994), the City Planning Commission conditioned its approval of Dolan’s application to pave her parking lot and expand her store on a requirement that Dolan to dedicate a public greenway for flood control purposes and to provide a pedestrian/bicycle pathway. The Court held that the dedication requirement was an uncompensated taking of private property for public use because “the government may not require a person to give up a constitutional right in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit. In evaluating Dolan’s claim, it must be determined whether an “essential nexus” exists between a legitimate state interest and the permit condition.”

In Dolan, the Court found unconstitutional the requirement that Dolan leave 15 percent of her property as open space not because it might be required for flood control mitigation, but because the city mandated that the greenway be open to the public. In doing so, the City took one of the most essential of the “bundle of sticks” of private property rights, the right to exclude others, which the Court has repeatedly ruled is, without further judicial review, in and of itself an uncompensated and therefore unconstitutional taking. Dolan requires, in addition to protection of the right to exclude, a “rough proportionality” in any conditions imposed on a landowner, and that the conditions imposed have a “nexus” or “reasonable relationship” to the development proposed.

So the question here is what the Commissioners hope to achieve by conditioning Scully’s zoning application to build 47 patio homes on 10.5 acres on a requirement to dedicate 93 acres of unproductive, six-figure loss-making golf course to the use and enjoyment of the public?

It seems perfectly clear that the Commissioners seek to obtain 93 acres of public open space for free as a condition of allowing the building of 47 homes on 10.5 acres. I see no proportionality, nexus or reasonable relationship to Scully’s proposal that would authorize the Commissioners to engage in this unconstitutional extortion. I hope Scully sues the County.

Depending on what the zoning is for the rest of the golf course, the Commissioners should not attempt to extort a promise for the remaining acreage, it should simply judge each application on its merits at the time it’s presented. At the moment, all Scully wants to do is close the driving range and convert the economically underperforming land to a more profitable venture.

This in itself is a financial benefit to the county, which will realize more revenue from property taxes associated with high-end residences than it will from a non-performing driving range.

In many places, that factor alone is sufficient justification for the government to forcibly buy the property under Eminent Domain laws and sell it to a developer who will “better use” it and provide more revenue for the government involved. This particular bit of noxious court precedent comes from the Supreme Court case Kelo v. City of New London, Slip Opinion No. 04-108, (2005). Here, the Court held that “Promoting economic development is a traditional and long accepted governmental function, and there is no principled way of distinguishing it from the other public purposes the Court has recognized.”

The same reasoning applies here, and would apply to any future development of the remaining 93 acres of economically moribund golf course. If Scully wants to improve the economic yield of his property, the County ought to take that into consideration before kowtowing to the complaints of NIMBYs who now enjoy Scully’s property without paying for it.

If, on the other hand, open space and parkland is important to the NIMBY neighbors in the Eagle Villas neighborhood and to the Commissioners, then they should put together financing and buy the property from Scully at a fair market price and dedicate it to parks and open space purposes.

But to steal Scully’s land, and his right to economic gain from it by seizing the vast majority of his land as public open space as a condition of allowing him to use ten percent of it for development is as immoral as the Kelo decision, which spawned state legislation in 42 states, including Colorado, that significantly restricts the state’s ability to seize private property merely to enhance tax revenues.

Here we have exactly the opposite. The NIMBY neighbors like the view and want the Commissioners to act as their designated hit-men to preserve their view. But it’s not their view, it’s Scully’s, and if they want to preserve it then they need to pony up and buy it from Scully, not try to persuade the Commissioners to steal it from him.

© 2009 Altnews

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