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Colorado Springs to Consider Eminent Domain Protections

At tomorrow’s Colorado Springs City Council meeting, Councilman Joel Miller’s eminent domain ordinance will be open for Colorado Springs citizens to provide input on what would become one of the nation’s strongest local protections from eminent domain proceedings.

Eminent domain has been used repeatedly over the years to forcibly transfer property from one owner for the benefit of politically connected developers and other large corporate entities through governments across our country.

The 2005 Kelo vs. New London U.S. Supreme Court decision upheld a Connecticut state constitutional provision permitting exercise of eminent domain for “public benefit,” rather than the stricter test of “public use” in the Fifth Amendment. The ruling ratified an ongoing abuse of eminent domain to raise the tax base, rather than to provide specific public services.

America’s Founders had included that provision in order to make clear that a title-holding individual citizen held true precedence in the ownership of his property. The Fifth Amendment provision marked a sharp break from the English system in which the Crown ultimately owned all property, with individual landowners merely “holding” the title.

The Supreme Court’s 2005 Kelo ruling does not preclude state and local governments from further restricting their own eminent domain powers in order to forestall cronyism.

Miller drafted the proposed ordinance with the aid of the Institute for Justice, a public interest law firm dedicated to civil liberties and freedom with an exceptional record of success. The Institute hopes this ordinance will be a blueprint for communities all over the U.S.  According to Miller, a Boulder resident already has expressed interest in modeling a similar eminent domain statute for that city.

In 2006, in response to Kelo, Colorado tightened its law regarding eminent domain. First, the General Assembly made clear that “public use,” not “public benefit,” would be the standard for a taking:

For purposes of satisfying the requirements of this section, “public use” shall not include the taking of private property for transfer to a private entity for the purpose of economic development or enhancement of tax revenue. Private property may otherwise be taken solely for the purpose of furthering a public use.

 

It also placed the burden of proof on the state, and established the legal standards for satisfying that burden:

Notwithstanding any other provision of law, in any condemnation action, without the consent of the owner of the property, the burden of proof is on the condemning entity to demonstrate, by a preponderance of the evidence, that the taking of private property is for a public use, unless the condemnation action involves a taking for the eradication of blight, in which case the burden of proof is on the condemning entity to demonstrate, by clear and convincing evidence, that the taking of the property is necessary for the eradication of blight.

Nevertheless, Colorado’s law provides insufficient protections for the state’s property owners, leaving them vulnerable. In addition to definitions that are subject to abuse, the law puts individual property owners who face eminent domain at a huge disadvantage when it comes to fighting for their property. Miller’s proposed ordinance would level the playing field, by preventing developers from using the powers of condemnation on their behalf, and forcing them to negotiate for property in the open market.

Miller’s ordinance establishes restrictions on property acquisition by the city to include “…the City, its enterprise or entity acquiring property or a property interest for or on behalf of the City or its enterprise or entity will own the property or property interest…“, followed by a very strong stipulation that any property taken through eminent domain must remain in ownership of the city or its enterprises, such as Colorado Springs Utilities, and not be transferred or sold to a private entity for 10 years. This stipulation is an important part of the statute, in that it places government in the role of only obtaining property for absolute public use rather than the nebulous “public benefit.”

The proposed ordinance also narrows the definition of blight substantially by turning to county building codes and further constricts it to the health and safety of occupants or the public. Blight statutes traditionally have been defended on the basis that they prevent neglected or damaged property from impairing surrounding property values, or preventing the natural growth and development of a city.

However, Colorado’s definition of blight (CRS 31-25-103) under urban renewal authority is similarly subject to broad interpretation, and has been used as recently as last month to force the sale of inconvenient, rather than dangerous or damaging, property.

The Housing and Building Association of Colorado Springs has circulated an email denouncing Miller’s ordinance, claiming that it directly conflicts with Colorado law. While the state’s urban renewal law defines various conditions which could constitute blight, this city ordinance in essence delineates the city as a separate entity from an urban renewal authority and further protects property owners against the city’s using gaps.

It also lends teeth to “public use” and essentially throws out the idea of “public benefit” when defined outside the confines of an urban renewal authority. That idea left Ms. Kelo and her neighbors’ properties vacant nine years after SCOTUS’s decision.

This is an important distinction for the rights of property owners. It dissects eminent domain so that an urban renewal authority still works under state law but all other endeavors by developers in conjunction with the city gives a property owner legal backing before eminent domain proceedings even begin.

For most property owners, eminent domain is a costly proposition to encounter. In order to negotiate or to fight eminent domain they can sink tens of thousands of dollars before they even schedule a court date. The reality is, most property owners are unable to move further than threatening letters and don’t have the financial resources to combat government. The burden is then predetermined and the city will have little question whether it can move forward with eminent domain.

According to Miller, his ordinance does not conflict with Colorado state law at all and only serves to protect all property owners in Colorado Springs from future government abuse. He noted that the state’s blight loophole “is big enough to drive a bulldozer through” and the citizens need the preventative measure enacted before a property owner faces a highly intimidating and costly process. Thus, much like a vaccine, the ordinance prevents the disease before it can attack its host.

The Colorado Springs City Council has a wonderful opportunity to set a precedent for property rights and protections in the state of Colorado and across the country if this ordinance is passed. It removes gaps and strengthens these protections that were the very reasons the Fifth Amendment was written.

Liz Oldach

Former Libertarian Party of El Paso County Chair, Colorado Blogger behind LibertarianLiz.com, marketing/web designer, small business owner

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