A ruling too far
Supreme Court gives home-rule cities alarming power
Rocky Mountain News
Published June 5, 2008 at 12:05 a.m.
Aland rush may soon be on in Colorado, and the prospectors could be home-rule cities seeking property outside their boundaries.
At least that's how we read one possible outcome of Monday's state Supreme Court decision letting Telluride use eminent domain to seize 600 acres of private property sitting outside the town limits.
The opinion distorts the straightforward language in the state constitution regarding the relationship between home-rule cities and the state. And in the process, the court has enabled those cities to condemn land in nearby counties or non-home-rule towns, with state lawmakers powerless to stop them.
Using this logic, for example, Denver might even condemn property in Western Slope counties for water reservoirs or pipeline right-of-way.
The dispute arose when Telluride officials condemned the Valley Floor parcel, which frames the entrance to Telluride, to preserve it as open space. The landowner - who wanted to build a golf course and a resort - challenged the condemnation in district court and lost. Last year a jury valued the property at $50 million.
The city came up with the money, but a big problem remained: The Valley Floor is in unincorporated San Miguel County. A 2004 law signed by then-Gov. Bill Owens stated that a home-rule city cannot condemn land outside city limits for "parks, recreation, open space, conservation, preservation of views or scenic vistas, or for similar purposes." It can buy the land, but it must involve a willing seller.
The Colorado Constitution spells out when Denver can condemn property outside its boundaries. Section 1 of Article XX allows such "extraterritorial condemnation" for "water works, light plants, power plants, transportation systems, heating plants, and any other public utilities or works or ways local in use and extent."
For home-rule cities in general, Section 6 of Article XX simply says that when a conflict arises between state law and a home-rule city's charters or ordinances, the city "shall supersede" state law "within the territorial limits."
The 2004 law shouldn't have been necessary. But it provided clarity, saying the limited public uses allowing Denver to condemn land outside its territory applied to other home-rule cities, too.
Monday's 6-1 majority would have none of this. It struck down the 2004 measure, saying it "prohibit[s] home rule municipalities, including Telluride, from exercising constitutional powers of eminent domain" - as if cities' powers superseded state law outside their territorial limits, too.
Indeed, the justices said "Article XX grants home rule municipalities the power to condemn property for any lawful, public, local, and municipal purpose," including "extraterritorial condemnation of property for open space and parks" (our emphasis).
Sounds like open season for land grabs. And we aren't alone in that conclusion. The sole dissenter, Justice Allison Eid, wrote, "The majority holds that a home rule municipality has the constitutional authority to condemn property outside of its boundaries essentially for any valid purpose - a broad standard indeed."
Evergreen attorney Bob Hoban, who's representing landowners in disputes over FasTracks condemnations, thinks the ruling could empower fast-growing home-rule cities to condemn property outside their borders even to grab water rights.
There's no easy remedy for this disturbing ruling. Lawmakers could ask voters to support a constitutional amendment restricting what home-rule cities can do outside their borders, but getting two-thirds of lawmakers to vote for such a measure would almost certainly be a reach.
In the meantime, we can only hope officials in home-rule cities exercise restraint. Their jurisdictions do have boundaries - yes, really - despite what a court majority implied this week.
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June 5, 2008
4:18 a.m.
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Shadow writes:
This is nothing new. The city of Denver has grabbed land for years claiming it as city park. Go and buy a topo map of Colorado and look closely at land in the foothills over twenty miles from the city limits. There are all sorts of park land.
There are several examples of this around the Tiny Town area, and North Turkey Creek.
Look at Golden and then Evergreen in their land grabs for the water sheds.
The only people looseing out are the rightful owners of the property who get a deflated (rather a real value over market value) rate for their property.
June 5, 2008
6:56 a.m.
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anarchist writes:
Yet another example of politicians "knowing" whats best for all, they have ignored the premise of government of the people, for the people,and by the people. When will the populace tell the politicians enough, or has that been declared politically incorrect and the sheep stay to the left and march to the shearings? Property rights of individuals are under attack, as are your right to petition government and to own arms, wake up, or perish.
"The penalty good men pay for indifference to public affairs is to be ruled by evil men."
- Plato -
June 5, 2008
10:16 a.m.
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AngelontheSidelines writes:
Nobody grabbed Neil Blue's land. Neil bought a rider to the eminent domain law that Owens signed. This rider was specifically written to apply retroactively to the Telluride case.
The district judge ruled it unconstitutional and then moved the trial to Delta where Telluride hippy hating property rights friendly jurists voted to give the owner the maximum value to be paid for the land.
Town Council and the owner's representatives negotiated a required deal where Telluride pays SMVC to develop the land, then town voters refused the sweetheart deal and ordered the condemnation to proceed.
This case would be moot if Telluride citizens failed to raise the 25 million dollars in record time. In this case the people of Telluride paid for the land. There is no taking, no rights lost, no government knowing anything.
June 5, 2008
11:27 a.m.
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peterpi writes:
Pssst, ... Rocky Mountain News editorial writers (that means you, Vincent). Suburbs grab land all the time. The RMN doesn't raise a peep. Then Telluride tries to obtain land for open space, meaning (gasp!) to leave it just as it is, a developer tries to retroactively prevent it, gets paid $50 million, and the RMN goes bananas.
So suburbs grabbing land to create more suburbs is OK, but cities buying land to leave it alone is wrong. Gotta love that logic.
June 5, 2008
12:13 p.m.
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Acemon writes:
Maybe RTD can plan some light rail and steal the land from Telluride.
June 5, 2008
12:49 p.m.
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rickg19611 writes:
The "reward" for voting in liberal judges..... just as the 4 liberals + 1 waffler Supreme Court justices on the US Supreme Court chose to allow their back scratching cronies in government to use eminem domain for tax raising purposes.
June 5, 2008
12:51 p.m.
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temurlan writes:
I have been using that land for 18 years. I store my firewood on it. Look at the path I wore across it...
June 5, 2008
12:53 p.m.
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rickg19611 writes:
Using the braindead logic of the handful of nuts that support eminem domain tactics.....
Colorado Springs should condemn Boulder and turn it into a sewage treatment plant.
Ft Collins should condemn Telluride and turn it into a garbage dump.
Highlands Ranch should condemn Aspen and turn it into "free range parking space" for Hummers.
The state would be better off that way.
June 7, 2008
6:52 a.m.
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TheOldIndian writes:
Of course, our people (American Indian, Native, whatever you want to say) are rather used to having our land - and ourselves - "condemned" and over-run by European descendants.
June 7, 2008
9:04 a.m.
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anarchist writes:
aged aboriginal indigenous one, maybe it was the treaties your leaders, dare I say, Chiefs, signed, and arent reservations autonomous, that's why so many have casinos? Happy Columbus day.