Experts forecast future of eminent domain abuse in Colorado

Face the State Staff Report

At an Independence Institute event Tuesday evening, property rights expert Jessica Peck Corry and land use attorney Bob Hoban presented their latest findings about eminent domain in a "post-Kelo" world. They say RTD's potential takings for transit-oriented development could usher in a new era of eminent domain abuse in Colorado.

In 2005, the U.S. Supreme Court sent shock waves through the nation with its ruling in Kelo vs. New London. In a 5-4 decision, the heavily divided court upheld a Connecticut government's ability to take a woman's small home for the purpose of transferring ownership to a privately-owned pharmaceutical giant that could purportedly generate greater tax revenue. While the Colorado legislature responded by strengthening protections for property owners, Corry and Hoban say too many loopholes remain.

According to their most recent publication, "From New London to Telluride and Beyond, Legal Developments Surrounding Eminent Domain in Colorado from 2004-2009," Corry and Hoban predict that the future of eminent domain abuse in Colorado will likely come in the form of transit-oriented development, commonly called TOD. The planning philosophy is marked by dense, multi-use zoning, with access to public transit. TOD's lead backers frequently include local urban renewal authorities, municipal governments, environmentalists, and transit organizations, including RTD.

In 2004, the Arvada Urban Renewal Authority condemned Paul Kozik's land to make way for a mixed-use development and in anticipation of light rail. A recent Face the State investigation revealed the project, now redeveloped as a retail center, sits almost entirely vacant with the taxpayer tab now at nearly $800,000 and counting.

In 2007, Lakewood property owners Kim Snyder and Galen Foster began their battle with RTD after it threatened to use eminent domain to condemn their home and small business for transit-oriented development surrounding RTD's FasTracks light rail westward expansion. The couple settled with RTD in March and will be required to vacate their property in nine months.

"Galen and I are a microcosm of what is going on across the country with eminent domain abuse," said a teary-eyed Snyder at Tuesday's event. "We learned that whoever controls the property controls the people."

Prior to FasTracks’ passage in 2004, much of the public debate surrounded the general feasibility of light rail, as well as direct costs associated with RTD’s own proposal. According to Corry and Hoban, missing from the conversation was how or whether RTD would pursue eminent domain for private TOD. According to the FasTracks Web site, “RTD’s TOD mission is to help facilitate TOD opportunities that increase ridership or enhance transit investments throughout the District through station design and close coordination with local jurisdictions and developers.”

RTD representatives deny they are involved in any illegal use of eminent domain, for TOD or otherwise.

"RTD follows all applicable federal and state regulations regarding property acquisitions, and we pay fair market value for all properties that we acquire for our transit projects," RTD spokesman Scott Reed wrote in an e-mail. "We can only acquire property for transit projects, as we cannot and do not acquire property for development purposes through eminent domain."

Hoban represented Snyder and Foster and disagreed with Reed's assessment.

"We were told from the very beginning this property would be used for transit purposes," said Hoban. "But used for transit purposes worth millions of dollars [over the assessed value] and full of amenities, not actual transit."

Full disclosure: Corry serves as an editorial contributor to Face the State.