Opinion: Is using an outhouse passive recreation?


If nothing else, this hopefully got your attention. It may even have conjured up some unusual thoughts or images. And you may have wondered just what I could possibly be up to.
This has to do with Boulder’s charter and the bike race that will now end up on Flagstaff, part of Boulder’s open space system. All parts of open space are limited in what activities can occur there, and on Flagstaff the relevant use is “passive recreation.” The city administration is making the following argument relative to Summit Drive (the road from the gate to the Amphitheater), according to the city attorney’s quote in last Wednesday’s Camera, “‘If driving on a road is not passive recreational use, then a road is not open space as contemplated in the charter,’ he said. ‘If council considers that road to be open space under the charter, we probably should consider banning cars, though that would be a significant change from its historic use.'”
Driving on a road, or parking in a lot, is not generally what I think of as “passive recreation.” But there are a lot of things on open space that aren’t directly used for “passive recreation” — access roads, parking lots, outhouses, fee boxes, signs, retaining walls, gates, etc.
The drafters of this part of the charter apparently anticipated the need for such improvements in the final phrase of Charter Section 176, which, as with many parts of the charter, covers a lot of ground in few words: “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.” So, although peeing in an outhouse or driving on a road may not be “passive recreation,” it appears that outhouses and roads can still part of open space.
As I said in my previous column, the council meeting last Tuesday would be interesting. I can certainly appreciate the enthusiasm for the race, although there was a lot of hype about the Boulder stage being “iconic,” which I found a bit over-the-top. But what I found most disturbing was the lack of critical discussion by the council about the approaches being put forward to deal with charter restrictions on the use of open space. Statements that should have been questioned were accepted, and issues that should have been brought up were avoided.

One example was the staff assertion that certain permits to be issued for the race would not be “exclusive.” Their argument was that charging $500 to access a VIP area is not “exclusive” since if you pay, you can get in. The only reason I can see to make this assertion is to avoid having to submit an “exclusive license or permit” to a vote of the Open Space Board of Trustees as Charter Section 177 requires. But avoiding the OSBT wouldn’t have solved their problem, since the Boulder Revised Code 8-8-9, which addresses commercial permits on open space, is unambiguous: “No person who has obtained a permit from the city manager under this section shall assert or attempt to assert an exclusive right to use a particular place, site or area, nor shall any such person remove or exclude, or attempt to remove or exclude, any other person from a particular place, site or area.”
Apparently in response, the administration proposed an “emergency ordinance” that, among other things, would allow the city manager to issue these exclusive “non-exclusive” permits “notwithstanding anything in this code to the contrary.” And, although preparations have been going on for almost half a year, the council was supposed to act in one evening. From my observation, the council was not well set up to consider this ordinance in any logical way, and alternatives were coming in right until the last moment. Even though the ordinance was clearly focused on this race, the administration’s plan was to make its language somewhat general to avoid the constraints of Charter Section 17, which says in part, “No ordinance making a grant of any franchise or special privilege shall ever be passed as an emergency measure.”
Sometimes interpreting the charter may require a bit of flexibility. But what occurred last week was well past the breaking point.


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