The Antiplanner

How to Protect Your Scenic View

26th November 2007

How to Protect Your Scenic View

posted in News commentary |

Boulder, Colorado residents often describe their city as “twelve square miles surrounded by reality.” A couple of recent stories illustrate just what they mean.

Suppose you have a house with a nice view. However, someone owns the lot in front of you, and if they ever build on it, they could block your view.

You could buy it from them. But Richard McLean, former slow-growth mayor of Boulder, Colorado, had a better idea. He simply trespassed — or claimed that he trespassed — on a part of his neighbor’s land for twenty years. Under the common law of adverse possession — also known as squatter’s rights — McLean could claim the land as his own. Under Boulder’s zoning codes, the lot that remains in his neighbor’s hands is too small to build on.

As a former judge and elected official who was once a member of Denver’s regional transit agency, McLean has many connections. When his neighbors (who lived in another house just 200 yards away) heard that someone had designs on their property, they started to build a fence. Within two-and-one-half hours, McLean obtained an injunction to stop the fence. He then convinced a local judge (and former colleague) to transfer the property to him.

That’s one way to get slow growth! In today’s market (which is hugely distorted by Boulder’s greenbelt), a buildable view lot in Boulder is worth at least $800,000. Effectively, McLean has taken $800,000 from his neighbor.

The doctrine of adverse possession was developed centuries ago in England, when nearly all the land in that country was owned by a few wealthy nobles. The theory was that, if someone wasn’t using some of their land and someone else came along and started using it, the squatter was making a greater contribution to society than the person who was letting the land go to waste. They thus were more deserving of having title to the land.

Adverse possession continued to make sense in the early history of this country, when the federal government owned most of the land west of the Appalachians and was doing little with it. Many people tried to use this doctrine to claim land as their own. They often had the support of state judges, but until the Homestead Act the federal courts rarely agreed.

Today, it seems outrageous to many people that this ancient rule could be used in so crass a manner. One writer blames it on Boulder progressives, which is a stretch considering that most of Boulder is on the side of the landowners who lost their land. Those landowners hope to overturn the decision in a higher court.

Tomorrow, we’ll cover another Boulder land-use issue.

This entry was posted on Monday, November 26th, 2007 at 12:00 am and is filed under News commentary. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

There are currently 6 responses to “How to Protect Your Scenic View”

Please feel free to submit comments. Constructive debate is welcome. Ad hominem attacks and name-calling will reveal the shallowness of the author. Foul language may be deleted. Your first comment will require moderation; after that, all comments will be approved unless they contain too many links in which case the software may hold them for approval as potential spam.

  1. 1 On November 26th, 2007, davek said:

    I don’t know much about squatter’s rights, so I wonder… if someone owns property and pays their property taxes, why wouldn’t their right to keep the area as wilderness be recognized? Adverse possession might have been sensible when there was a more agrarian society, but I don’t see any merit to it now. Any thoughts, anyone?

    posted on November 26th, 2007 at 9:14 am

  2. 2 On November 26th, 2007, The Antiplanner said:

    Davek,

    Under the adverse possession rule, you can keep your land if you defend it. If someone builds a house on your land and live there without interference from you for 20 years*, you can lose the land. But if you ever evict the trespasser, then the clock starts again.

    In the Boulder case, no one was “occupying” the land. Under the common law, occupation has to be “exclusive” and “open and notorious.” McLean claims he walked across it from time to time and that his trail was his occupation. That may not hold up on appeal.

    *The 20 years may vary from country to country or state to state. In some places, it is as little as 12 years.

    posted on November 26th, 2007 at 10:36 am

  3. 3 On November 26th, 2007, Borealis said:

    I don’t understand why the tresspasser would be awarded title to one-third of the lot. At most, the adverse possession was for an easement to continue using the path to access the tresspasser’s own property. The tresspassing was only intermittent, so the adverse possession right could only be intermittent. The facts smell badly and the ruling will probably be overturned on appeal once it is heard by a fair court.

    posted on November 26th, 2007 at 10:58 am

  4. 4 On November 26th, 2007, Dan said:

    I’m pretty sure this won’t withstand appeal unless the adverse possessors (IIRC former Mayor and lawyer) are able to get a favorable judge. If this happens again, it will be appealed again, and there will likely be far smaller chance to get favorable judge at the next level.

    DS

    posted on November 26th, 2007 at 11:11 am

  5. 5 On November 26th, 2007, johngalt said:

    In Oregon it is 10 years.

    posted on November 26th, 2007 at 3:27 pm

  6. 6 On November 27th, 2007, JimKarlock said:

    Wow, what an efficient process.

    In Oregon they had to pass SB100 then create 1000 thieves to guard the law. Guess Oregon is no longer the leader in Progressive land theivery.

    Thanks
    JK

    posted on November 27th, 2007 at 9:28 pm

Leave a Reply

You must be logged in to post a comment.