Eminent Domain Case Proves Need for Colorado Property Rights Amendment

Last week’s Colorado Supreme Court decision affirmed lower court decisions allowing Telluride to condemn private land outside of its municipal boundaries. This Denver Post house editorial condemns the ruling (no pun intended). (Hat tip: The Independence Institute’s Property Rights Project)

The Colorado Supreme Court's recent decision in a Telluride eminent domain case is a troubling expansion of the condemnation power of home-rule cities.

The court found that home-rule cities can use their eminent domain powers to reach outside their borders and condemn land for open- space purposes.

We think the court went too far. Open-space preservation isn't among the purposes the state constitution lists as examples of proper eminent domain use. If a city goes beyond its legal borders to take land, it should be restricted to the purposes listed in the constitution.

The property owners relied on limitations on annexation purposes listed in Article XX, Section 1 of the Colorado Constitution. From a reading of the text, these limitations appear to apply only to Denver and Broomfield, the two consolidated city-counties. From the Colorado Supreme Court’s actual published decision, the court seems to take an expansive but fair reading of a home-rule municipality’s extraterritorial annexation powers.

Section 6 of article XX gives each home rule municipality all powers “necessary, requisite or proper for the government and administration of its local and municipal matters.” These article XX powers are vested in municipalities through their home rule charters. Telluride’s charter gives it the “full right of self-government on local and municipal matters,” and further provides that the town has “the right of eminent domain to acquire property both within and without the boundaries of the Town for any purpose deemed by the Town council to be in the Town’s best interest.”

While the Denver Post is upset with the outcome, the judicial process appeared to work in this instance. Since the 2005 US Supreme Court eminent domain decision Kelo vs. the City of New London (Connecticut), most judicial decisions tend to take an extensive view on the eminent domain issue. This is just a continuation of that trend. 

The Post closes:

A restrained approach in condemning land outside municipal borders is best. At this point, it may take a change in the state constitution to get there. [emphasis added]

Open-space protection is important to Colorado. But home-rule cities should not have carte blanche to condemn private property outside their borders to accomplish that laudable goal.

The Denver Post is exactly right. A constitutional amendment to preserve private property rights against governmental takings is the only solution to this problem. Such an amendment should prescribe specific, narrow language detailing allowable legal circumstances for an eminent domain taking e.g. public roadways. It should also remove or severely limit the power of municipalities to use eminent domain to take land outside their borders.

Property rights are one of the primary foundations of this country. Under most circumstances, a landowner should be able to do what she or he wants with that land. It is bad enough that municipal and county planners abrogate these rights by utilizing extremely restrictive zoning and land use regulations. “We the People” must amend the constitution to prevent eminent domain abuse by well-meaning, but misguided, government entities.

by Civil Sense

Comments

[Allen]

Thank you for the excellent explanation of this ruling.