Legal Foundations of Boulder’s Open Space Program

By Joseph De Raismes

Note: At the Open Space 50^th Anniversary event last October, former Boulder City Attorney Joe de Raismes (1979-2003) gave a brief presentation regarding the Open Space Department and the City Charter. Due to time constraints, he was unable to deliver the entire piece. This is the full text of his presentation, via Ruth Wright.

Growth Management

Aside from preserving wildlife habitats, passive recreational opportunities and scenic vistas, the Boulder Open Space Program has had an important role in the community’s management of its growth, and that of its region:

By mitigating the effects of Boulder’s growth on wildlife and the environment.
By compensating owners of close-in property who otherwise would have campaigned for annexation and development.
By blocking annexation and new transportation/growth corridors into the Boulder Valley.
By deterring right of way designation and potential condemnation of Boulder Valley land for the W470 beltway, originally due to come through Boulder—it was kept seven miles from the city and four miles from the Open Space boundary at the top of Davidson Mesa.
By buying some (though not enough) industrial and commercial land to help redress the city’s jobs/housing imbalance, the city has reached more than ninety percent of residential and seventy-five percent of non-residential buildout under its comprehensive plan. Ultimately, the city needs to preserve—that is, acquire or rezone—all of the remaining non-residential development land that can be preserved within the Boulder Valley planning area.
And by establishing sharp urban edges to the north and the south of the city, and with the help of the parks program, on the west as well, leaving the east as the city’s only area of sprawl. This area now must be addressed.

1973 Ordinance and 1974 Plan

After the program was formalized in 1973, the 1974 Open Space Plan set “priorities” for the acquisition of particular properties near the Mountain Parks and the city limits. But these were ignored in practice as the plan proved to be unworkable. Negotiations focused on acquisitions outside the boundaries of the plan—building in instead of building out, as the 1974 plan had proposed.

Targets of Opportunity

Subsequent acquisitions focused on targets of opportunity, going for more remote and more environmentally sensitive land first, responding to motivated sellers, and seeking to anticipate rather than to follow development pressure.

Jeremy Thomas

1986 Charter Amendments

The Open Space Department and Board of Trustees functioned under Ordinance No. 3940 (1973) alone until 1986, when significant concern was raised about the lack of legal protection of Open Space lands. The City Council responded and approved a charter vote, enacting Charter Sections 170-177:

“OPEN SPACE LAND” was defined very broadly in CHARTER SECTION 170 as “any interest in real property purchased or leased with the sales and use tax pledged to the open space fund pursuant to the vote of the electorate on November 7, 1967, or proceeds thereof, any interest in real property dedicated to the city for open space purposes, and any interest in real property that is ever placed under the direction, supervision, or control of the open space department, UNLESS DISPOSED OF AS EXPRESSLY PROVIDED IN SECTION 177 BELOW.”
ENVIRONMENTAL PRESERVATION AND PASSIVE RECREATION. The provisions dealing with the department and the board paralleled quite closely those relating to Parks and Recreation. But, unlike “parks lands,” “Open Space” was restrictively defined, and more passive uses were prescribed. This responded to gathering anxiety over the open-ended uses to which Open Space land might be put. The specific purposes for which land may be acquired under the Open Space Program were defined in CHARTER SECTION 176 as follows:

“Open space land shall be acquired, maintained, preserved, retained and used only for the following purposes:

(a) Preservation or restoration of natural areas characterized by or including terrain, geologic formations, flora, or fauna that are unusual, spectacular, historically important, scientifically valuable, or unique, or that represent outstanding or rare examples of native species;

(b) Preservation of water resources in their natural or traditional state, scenic areas or vistas, wildlife habitats, or fragile ecosystems;

(c) Preservation of land for passive recreational use, such as hiking, photography or nature studies, and, if specifically designated, bicycling, horseback riding, or fishing;

(d) Preservation of agricultural uses and land suitable for agricultural production;

(e) Utilization of land for shaping the development of the City, limiting urban sprawl, and disciplining growth;

(f) Utilization of non-urban land for spatial definition of urban areas;

(g) Utilization of land to prevent encroachment on flood plains; and

(h) Preservation of land for its aesthetic or passive recreational value and its contribution to the quality of life of the community.”

CHARTER SECTION 176 PRECLUDES DEVELOPMENT. “Open space land may not be improved after acquisition unless such improvements are necessary to protect or maintain the land or to provide for passive recreational, open agricultural, or wildlife habitat use of the land.”
Significantly, while CHARTER SECTION 176 endorsed growth management, the residual category of “preservation for future land use needs” was rejected. Thus, the charter amendment, while rejecting the concept of using the Open Space Program for “land banking,” endorsed the use of Open Space to define the edges of the urbanized area, as it does on three sides of the city.
DISPOSAL OF OPEN SPACE LAND was restricted under CHARTER SECTION 177: Disposal must first be approved by at least three members of the Open Space Board of Trustees and then by a majority of a quorum of the City Council, subject to a five percent referendum petition, filed within sixty days following the date of City Council approval, which triggers an election.
The definition of “disposal” has recently become a concern. The question has arisen whether or not Open Space land can be “disposed of’ to another City department (for example, trails on Open Space to be maintained by the Transportation Department). Does this land lose the protection of CHARTER SECTION 176 due to such an internal reassignment of duties?
The Charter does not remove Open Space land from the definition of CHARTER SECTION 170 or the protections of CHARTER SECTION 176 by reassignment of management functions within the City. CHARTER SECTION 177 states “No open space land owned by the city may be sold, leased, traded or otherwise conveyed … until approval of such disposal [by the Charter-mandated process].” So, “disposal” does not occur until title is “conveyed” by one of the specified means. Open Space land remains Open Space because the City of Boulder is the owner and is unable to grant title to a subpart of itself, nor has it attempted to do so. The protections of CHARTER SECTION 176 survive a transfer of functions within the City. They are lost only upon a conveyance to an outside entity.
In the recent trail maintenance reassignment, the City Council necessarily determined that the construction, maintenance and use of the trails that Transportation will now take over CAN be accomplished consistent with the restrictions of CHARTER SECTION 176. The City as owner of the land permitted Transportation’s assumption of responsibilities on that Open Space land (1) To spare use of Open Space funds for a Transportation function, AND (2) SUBJECT TO the ongoing constraints of 176.
Compliance with CHARTER SECTION 176 is a question of fact. If science shows that transportation or other non-Open Space functions are jeopardizing the Open Space functions listed in CHARTER SECTION 176, the City must make whatever adjustments are needed to protect the Open Space. This is a legally enforceable duty.
In conclusion, since no internal transfer of management responsibility can affect the use restrictions of CHARTER SECTION 176, and any conveyance to an outside entity is subject to a double veto and a referendum, Open Space land is well protected under the City Charter.

In a poignant reversal of the old western story, Boulder’s Open Space program managed to get the railroad (W470) to run seven miles outside of town. Boulder has exported regional growth to the east and disciplined growth in the Boulder Valley. This is perhaps Boulder’s ultimate growth management achievement.

But the goal was higher still. The lasting legacy of the Open Space program that we are justly celebrating today is the protection of much of scenic beauty and ecological integrity of the Boulder Valley, on the ground and in the hearts of Boulder citizens, truly, “as long as the grass shall grow and the rivers shall run.” Strict interpretation and implementation of CHARTER SECTION 176 is the key to keeping that promise.