Getting serious on eminent domain

Legislative fix a good first step

Wednesday, May 3, 2006

Somebody finally lit a fire under the legislature before the furor over last June's outrageous Supreme Court decision on the condemnation of private property was allowed to dissipate.

Several bills and a proposed constitutional amendment from the legislature that would have curbed the worst abuses had fizzled. So enacting House Bill 1411, which was introduced Friday and passed the House on Tuesday, would signal progress.

Under the bill, state and local agencies could no longer condemn private property for economic development, or to expand the tax base. And governments would have to satisfy tougher burdens before they could declare private land blighted and then seize it.

House Speaker Andrew Romanoff is the most prominent backer of HB 1411, and that's a good thing. The session ends May 10, and any 11th-hour legislation needs powerful allies.

But a statute does not offer Coloradans a sufficient defense against well- heeled developers who are tight with local governments - and who might persuade future legislatures to dilute or dissolve the protections in this bill.

So while HB 1411 should become law, it represents the first step, not the destination. Coloradans should see these safeguards enshrined in the state constitution.

HB 1411 says neither economic development nor the "enhancement of tax revenue" could constitute a "public use" that would let government condemn private property - even if the condemning agency offers compensation to the owners.

This straightforward proposal should help prevent a Colorado version of last year's Kelo decision involving a private redevelopment agency in New London, Conn. In that case, the court approved the condemnation of a handful of private residences so that a developer could build waterfront offices and condominiums that would generate more tax revenues than the homeowners had paid.

The bill would also tighten the definition of blight, a catchall excuse for government seizures. The bill would force the government to defend any declaration of blight that was challenged by the landowner by presenting "clear and convincing evidence" in court that the taking is for a public use. That's a tougher standard than the current "preponderance of evidence." Blight-related seizures could also not benefit another private party unless it's a utility seeking right-of-way.

Rep. Al White, R-Winter Park, tried to convince lawmakers to go beyond mere legislation. He proposed a legislative referendum that would let voters add these protections to the Colorado Constitution. He did not succeed.

Even so, several citizen groups are gathering signatures to place a similar amendment on the ballot. We wish them success.

Government should not strong- arm property owners at the behest of developers. It is supposed to condemn property only for legitimate public purposes - not just because seizing a parcel of land would fatten local tax coffers.