Face the State Staff Report
As the 2009 state legislative session gets underway, two lawmakers have plans to protect property owners from property rights abuses.
As part of their effort, Rep. Cory Gardner, R-Yuma, and Sen. Greg Brophy, R-Wray, plan to introduce two bills, with the first designed to limit the use of eminent domain by railroads in eastern Colorado, and the second changing the current appraisal mechanism they allege leads to the undervaluation of private property targeted for condemnation.
"The relocation of freight and passenger rail has the potential to impact hundreds of property owners in eastern Colorado," said Gardner. He emphasized that his proposed legislation would permit the railroad to make private deals for relocation of rail lines while preventing potential abuse of the state's eminent domain statute by prohibiting the undervaluation of private property. Eminent domain is the taking of private property for a public purpose. While the U.S. Constitution guarantees property owners just compensation in such cases, defining compensation is frequently the source of great debate.
Gardner and Brophy's move comes as residents from the state's eastern plains become increasingly concerned about the prospect of eminent domain abuse by the Rocky Mountain Railroad Authority, an intergovernmental organization created to receive Colorado Department of Transportation grants for rail transit and to conduct feasibility studies. The landowners fear that the RMRA's long-term goal of relocating freight rail and passenger rail sixty miles east from its current location could mean that they lose their farms at unfairly low prices and have organized as a grassroots coalition known as Citizens against Railroad Relocation.
The second bill seeks to change the appraisal mechanism for properties targeted by eminent domain. A 2008 Rocky Mountain News feature demonstrated cases where Lakewood property owners were offered compensation for their land less than its appraised value.
"If the government has to pay a higher price for land, we're hoping that they will think twice about taking away someone's home or business," said Gardner.
This isn't the first time Gardner and Brophy have worked together to protect private property rights. In 2006, they introduced House Bill 1099, legislation designed to limit eminent domain by public entities. The legislation died in the State Affairs Committee. Gardner says he is more optimistic about his prospects this session.
Colorado has seen growing public interest in eminent domain cases after recent land seizures by the Regional Transportation District for its FasTracks project and a controversial Telluride extraterritorial condemnation case.
FasTracks, now billions of dollars over budget, is expanding directly in the path of hundreds of private properties. Gardner is banking, in part, on public interest to help carry his legislation out of committee and onto the House floor.
Gardner recognizes that he and Brophy are likely to face strong resistance from lobbyists for RTD and the Denver Urban Renewal Authority, which have defended Colorado's eminent domain law as "the most restrictive in the nation."
DURA executive director Tracy Huggins said although she is unfamiliar with Gardner and Brophy's plans, any action to restrict the power of eminent domain for urban renewal will pique her organization's interest. "It is fair to say that we possess the power to use eminent domain, but DURA understands the powerful nature of this tool and feel that it needs to be used only as a last resort and appropriately," she said. "We will have a greater concern if it looks like the ability to use that tool is threatened to be taken away."
Denver land-use attorney Bob Hoban has worked with Gardner on the upcoming legislation and agrees public support is crucial to overcoming likely resistance.
"A simple bill about fair assessed value could pass," he said. "People understand that and relate to it, but reshaping the valuation process for condemned property, while necessary, is likely to be blocked by organizations with a vested interest in condemnation and redevelopment." Hoban suggested that Gardner and Brophy's legislation is more likely to be successful if it includes a component that would give money back to homeowners after their property is seized for a public use but instead redeveloped for private gain.
Gardner and Brophy are awaiting committee assignments for the two bills.