Eminent domain battle

Cities couldn't use it outside limits under proposal

By Ed Sealover, Rocky Mountain News

Friday, July 18, 2008

Brian Lehmann / The Rocky

Gary Smith owns American Design and Landscape in Parker. He and the city are battling over property, which the city condemned. Now, they're waiting for a court to decide the price. Behind Smith are Grant Myles, 10, and Chase Becker, 10, Smith's grandson.

The decade-long battle over whether cities have the right to condemn property outside their boundaries for parks and open space could be settled by voters in 2010.

House Minority Leader Mike May, R-Parker, has written a proposed constitutional amendment to outlaw the practice and wants to put it on the next general election ballot after November.

Republicans and property rights advocates are expected to jump behind the proposal, but May still must get it past opposition from cities and possibly from legislative Democrats.

May drafted a concurrent resolution on the matter last week, slightly more than a month after the Colorado Supreme Court overturned a similar law that passed in 2004. That law, dubbed the "Telluride Amendment," was ruled unconstitutional because it infringed on the power of home rule cities.

The minority leader heard from property owners concerned with the amount of power cities can use over land outside of their limits and felt it should be a question for voters to decide. The amendment would trump the Supreme Court decision and let cities condemn unincorporated land for open space, scenic vistas or conservation only if the county approves such a move.

"Who is going to represent that property owner other than the state?" May asked in explaining his plan. "When cities trample on local property rights, sometimes the state has to get involved."

Telluride action cited

The case that spawned the court battle and the earlier law involved Telluride condemning 572 acres that were set for development outside the city and buying the land for park space. But May noted other current battles that pushed him into drafting the amendment.

Most prominent is a proceeding that Parker has filed against Gary Smith to acquire 77.5 acres of Smith's 91-acre unincorporated enclave in the city for addition to its regional park.

Smith frequently asked the city if it wanted to buy the land for $4 million, but the city offered $2.7 million, so the city condemned the land and is waiting for a court to decide the price.

Smith, who owns a landscaping and tree business on part of the property, wants to sell the land. He does not feel it is right, however, that a city in which he doesn't even live can dictate the price to him.

"In private enterprise, if someone offered you something and you decline, you don't get the chance to come back . . . and use eminent domain to buy this," Smith said.

Parker Mayor David Casiano countered, however, that cities need such power in an instance like this where Smith's property is essential to the Cherry Creek trail system and where there is an impasse in negotiations over the price. He is happy to see that May wants to take the issue to the voters rather than try to reinstate it legislatively. But he questioned whether there aren't more important issues that the legislature needs to discuss.

Municipal group opposes

Sam Mamet, executive director of the Colorado Municipal League, which represents most of the cities in the state, said his group will oppose the measure strongly as an infringement of local rights. Plus, while May has a narrow focus to his measure, Mamet is worried legislators could expand it to disallow eminent domain in unincorporated areas for purposes like roads or public safety purposes, too.

"In this day and age, the preservation of open space and recreational areas is a huge priority for municipalities," added Telluride Town Manager Frank Bell. "The people want open space."

Sen. Bob Bacon, a Fort Collins Democrat who leads the Senate Local Government Committee, said he is willing to listen to arguments and contemplate the measure. But he also wants to see if there are ways to structure any law to require cities to annex such land - also a difficult, often contentious process - rather than condemn it.

May's draft is one of the first major pieces of legislation to surface, six months before the opening of the 2009 legislative session.

sealovere@RockyMountainNews.com or 303-954-5438