'No Eminent Domain for Private Gain'
by Ari Armstrong, September 20, 2005
At first glance, the September 15 meeting of the Transportation Legislative Review Committee was just another off-season legislative bull session. Senator Suzanne Williams proposed a bill to tighten disclosure requirements about emissions when selling a used car. A guy from Legislative Services told the panel, "Granted, most people probably wouldn't look at the statutes at all." With statute books that stack several feet high, how could the average person hope to keep track?
But the meeting also showed signs of a populist upheaval, a movement intent on protecting property rights following the Supreme Court's ruling in Kelo v. New London. That decision puts responsibility for protecting property rights with state governments. Related Colorado statutes need some changes. In this case, the reforms would place greater restrictions on local governments and developers in their use of the coercive power of eminent domain.
Chuck Saxton stood in the basement lobby of the capitol wearing a T-shirt that sums up popular sentiment: "No Eminent Domain for Private Gain." In Colorado, a couple of examples of abuse have helped create a bona fide reform movement. The Front Range Toll Road, a.k.a. "superslab," prompted the creation of a group that recently developed into Colorado Citizens for Property Rights (CCPR). In Arvada, an attempt to condemn property led to a Save the Lake campaign.
Allan Hale, an attorney, spoke at a September 1 CCPR meeting. He discussed some of the legislation from the last session. He also offered an overview of the concept of "public use." He described five broad categories in which governments get involved in forcibly transferring ownership of property.
The first category is "way of necessity." In other words, a property owner has a right in having physical access to his or her property. Arguably, this category does not involve transferring ownership of property, but rather properly establishing property rights.
The second category covers utilities. The third involves roads. (Railroads, Hale said, fits into both those sections.) Fourth is urban renewal, and fifth is "public nuisance."
Chuck Shaw and Marsha Looper discuss strategy at a September 1 meeting of Colorado Citizens for Property Rights.
Hale said of eminent domain involving urban renewal, "This is the biggest problem right now." Eminent domain is used in urban renewal cases to "convey property to a private owner who's going to develop it." Hale described the related problems of labeling a property under "blight," "obsolescence," and "underutilization." This may be an area most worth reforming, Hale said.
Hale mentioned, "I never have seen a blight study that didn't find blight." Arguably, that's because the economic misincentives are too strong, and the restrictions on the use of force to transfer property are too weak.
CCPR also met on September 14, in part to discuss the legislative hearing the next day.
At the September 15 hearing, Senator Tom Wiens (shown at the right of the photograph) pledged to reintroduce legislation -- vetoed last year by Governor Bill Owens -- to rein in the use of eminent domain by private toll roads. Wiens said he wanted to refer the measure to the voters in order to avoid another veto.
The committee's chair, Representative Jack Pommer, said he also wanted to introduce legislation pertaining to toll roads.
One senator asked whether Wiens would pursue his bill even if the committee didn't approve it. Pommer said, "Were hell to freeze over, I think it's safe to assume that Senator Wiens would go forward with it."
Wiens replied, "You're quite accurate about that."