Is that open field next to the property I want to buy really open space?

So, you have just found your new dream home or property, and you are particularly happy to have found a home with a large, open field next to it. Several people have told you the field was, “open space.” What does that mean? Will it always be an empty field, or are you going to wake up one morning and find that there will soon be a shopping center just off of your deck?

It is best to learn the answer before you buy the property.

This is without a doubt one of the most interesting aspects of land-use law, and one of the most controversial. When I was the legal counsel for the planning department and planning commission of a city, we would often hold hearings on the application for a large development project.

Invariably, a  long line of concerned citizens would speak before the planning commission to voice their opposition to the project, and they shared a common refrain: “I was told by (fill in the blank) that the property next door to me was open space.”

Well, it most likely was open, and undoubtedly space, but it wasn’t “open space.” In Colorado, as well as other states, open space has a legal definition. In Colorado open space is commonly defined as: publicly owned land that is preserved from urbanization (paving or building). Open space is usually accessible to the public, but may also be leased for agriculture.

So, the empty field located next to or near your dream home may look like open space, as these spaces do not usually have the improvements found in parks, such as trash cans, benches and restrooms. If someone told you it was “open space” it would not be hard to see why you wouldn’t believe it was. How do you know for sure?

Well, you could ask the real estate agent, but I don’t believe that would be the best thing to do. The agent may also mistakenly believe it is in fact open space, as might the neighbors. And, your real estate agent should probably not make statements of fact about properties other than those the agent is legally representing. The agent might say something about the aesthetics of the property, but not its legal status.

You could search the county records, but that might be tedious and not up to date. There are some rural, Colorado counties that have not yet put their records on a searchable database.

The best place to start is the planning department for the local government. First, you have to ascertain whether the open space is in the city or the county, and which county, because often times your dream house might be on a county line and the open space is in the next county. Where do you go to do this research? You should start your search with the county or city you believe the property to be in. Once you have determined where the property is, go to that city or county planning department. Now, in larger metropolitan areas, such as Denver, Colorado Springs and Boulder, every area of the city might have its own designated planner. In smaller towns and less populated counties the planners may cover the entire area, if the local government even has a planner. If not, they will have someone in the office who can help you.

Your research is going to be much more accurate if you know both the address and the tax schedule number for the property in question. This also helps the planner determine which property you have questions about.

So, now you have found the planner, and you have correctly identified the property you believe to be “open space.” Either it is legally open space or it is not. If it is legally open space you can be pretty confident it will remain so, because many local government use special funds and grants to purchase open space, and those funds usually come with restrictions. In accepting those funds the local government often agrees to keep the property as open space in perpetuity, also known as forever. At this point I would ask the planner which funds were used to acquire the open space, and if you can have a copy of the grant which funded the open space. Under the Colorado Open Records Act, (CORA) you have a right to a copy provided you pay the small charge for copying the grant. The property may also have been gifted to the local government, and it is often the practice that the party donating the property placed a deed restriction on the gift to ensure the property remained as open space. You may also request a copy of any such deed.

What if the property is not legally open space? Well, you then want to ask the planner several questions. First, what is the zoning designation of the property? A note of caution here; just because the land is zoned agriculture today does not mean it is going to remain that way. Taxes are lower on land zoned agriculture, so a developer may leave it in an agriculture zone until it is time to develop the property. When the developers come to the planner with a proposed development plan they will also come in with an application to change the zone to another use to fit the development plan.

What use, you ask? Well, again, that depends. If the land is within the government’s master plan there may be a suggested use, or uses for the land. The problem with master plans it that they are not binding on the government. In other words, they can best be described as the hopes, wishes and dreams of the community. What was once proposed to be high-priced, luxury, condominiums may end up being apartments, or something entirely different.

The planner can also tell you if the owner of the field next to your house has made any applications for a change of zoning or submitted a development plan. This will give you up-to-date information, but the owner can submit an application the day after you visit with the planner.

This would also be a good time to ask the planner how the planning process works, and to keep you informed of any changes on the property in question,

What does this small effort give you? Knowledge. You will know whether the open field next to you is in fact legally open space. If it is not, you will know what its zoning designation is, and what some of its potential, future uses might be. With this knowledge you will make an informed decision.

There is one more thing you can do before you even start searching for your dream house; stop at your local planning office and obtain a copy of the local government’s planning map. While it may not provide detailed information about every piece of property, you will have the “lay of the land” so to speak. You will be able to instantly see current parks and open spaces, as well as the zoning around any prospective you might be interested in.

Cheers, Mike