Face the State

Two Council Members Step in on Behalf of Property Owner
Face The State Staff Report

PARKER - Two members of the Parker Town Council plan to introduce Monday an ordinance which would reverse the town's previous efforts to condemn private land located outside the town's limits. The duo argues that the town's extraterritorial condemnation efforts violate property rights reforms passed into law by the state legislature in 2004.

Council members Debbie Lewis and Tina Long, sponsors of the measure, plan to argue in a council study session that the sale oversteps the town's authority as a home rule municipality under the Colorado constitution. *

The property in question is owned by Linda and Gary Smith. The couple uses the 80-acre parcel in question to operate their small business, American Design and Landscape. Parker wants to acquire the property for use as open space and parkland. The Smiths and town officials discussed the sale of the property for years, a once amicable process which ended in 2006 when the town cut off negotiations after the two sides couldn't agree on a purchase price.

At that point, town leaders opted to condemn the property at their preferred price, citing authority in its home-rule charter which asserts, "The Town shall have the right of eminent domain for all municipal purposes whatever, either within or without the limits of the Town."

Town spokesperson Elise Penington argues that Parker's position as a home rule municipality under Article XX of the Colorado constitution, and the Smiths' shared border with the town, establish proper grounds for a condemnation for public use even if it isn't inside town limits.

The constitution specifically defines home rule cities as having a population of 2,000 or more residents and having the power to "make, amend, add to, or replace the charter of said city or town, which shall be its organic law and extend to all its local and municipal matters."

The Smiths contend that the town's authority is limited by a 2004 state law that specifically prohibits condemnation by any home rule municipality seeking eminent domain outside its physical boundaries.

General Assembly Took Up Question in 2004

These facts will sound familiar to residents of Telluride, where voters approved a sales-tax fund to purchase land outside of city limits to prevent development on the nearby "valley floor." The affected property owner, Neil Blue, did not want to sell, and after Telluride leaders began condemnation proceedings, he took his case to court.

While the litigation was still pending, a bi-partisan majority of the General Assembly came to Blue's defense, passing HB 1203, legislation championed by state Sen. Shawn Mitchell, R-Broomfield. The bill specifically set strict limits on such takings for the purposes of securing open space and parks, requiring cities and towns to seek the permission of the county in which the targeted land resides for permission to condemn.

In the aftermath of the measure's passage, however, San Miguel District Judge Charles Greenacre ruled against the statute, refusing to dismiss Telluride's condemnation suit against Blue.

Citing Article XX, Greenacre ruled that the state legislature did not have the power to limit the eminent domain powers of a home rule municipality like Telluride. "There is simply no authority for the proposition that the General Assembly may regulate, much less prohibit, a home rule municipality's constitutional eminent domain powers," he wrote.

This case is currently on appeal to the Colorado Supreme Court with a ruling expected in early to mid-2008.

Aware of the legal challenge and political implications of the Telluride case, Parker's ordinance acknowledges the law exists but nevertheless claims the town's home rule status trumps state law. The town council voted to condemn the Smiths' land on June 19, 2006.

"The court of appeals has upheld the power of the town of parker [to condemn]," Penington told Face The State. But that case, Town of Parker v. Norton, no longer applies since the General Assembly has acted, according to the Smiths' lawyer, Bruce Smith (no relation.)

"This is pretty heavy-handed stuff," he said of the town's tactics. He believes the general assembly was justified in creating a law establishing checks on cities' power to condemn. "You don't expressly have this right outside of your territory for open space and [the legislature] is defining that right...because they oversee not just cities but counties and we expect that statute to be honored."

Smith has filed a petition to dismiss the town's condemnation order in Douglas County Court.

Douglas County's entire state legislative delegation sent a letter earlier this month to Parker Mayor David Casiano objecting to the town's condemnation efforts. Citing the 2004 law's intent to stop "predatory condemnation actions by local governments," asked the Mayor to "do what is right and not just what is easy."

Why Now?

Lewis, a co-sponsor of the effort to repeal the condemnation effort, questions the town's timing in forcing sale. With the Colorado Supreme Court expected to rule on the Telluride case within a matter of months, "I can tell you I can't see any need to rush," she said.

Recreational users of the Cherry Creek Trail, which passes alongside the Smiths' land, already have unencumbered access to those public lands and the town will not miss any deadlines or opportunities for the land, Lewis reports. "The middle of next year is just as good as now."

Even so, the town continues to defend its position in court, pushing for a sale before the Supreme Court issues its ruling in the Telluride case.

"They knew this Telluride decision was pending and that would definitively determine rights one way or another and went ahead with this kind of measure, and we think that's in bad faith," said Gary Smith, the property owner's husband.

The proposal to repeal the condemnation order will be heard in the town council's study session Monday night. Councilwoman Lewis is philosophical about the prospects of her ordinance, but will push for a public hearing even if she and Ms. Long can't assure a majority in early vote-counting. Generally, the council seeks to reach "consensus" to proceed with an ordinance in order for it to be placed on the agenda but the proponents say they'll file for a hearing if that fails to occur.

"I'm against condemning property outside the town boundary regardless of the reason," said Lewis.

As for Gary Smith and his family business, he says he's willing to sell, and would like to continue talking with the town without the threat of eminent domain proceedings. "I'd rather see a park than homes, and so does everyone who lives here, I just wanted to see good faith negotiations."

For More Information About Extraterritorial Condemnation in Colorado, See:
"Tower Tussle: The Colorado Battle Over Extraterritorial Condemnation" at i2i.org.

Note: Face The State reported the councilmembers would argue "negotiations with the affected property owner were not carried out in good faith," in addition to the sale being an unconstitutional overextension of town power. While they do oppose the purchase and are seeking a repeal of the ordinance, they are not arguing the town is negotiating in bad faith. That is the position of Mr. Gary Smith, the property owner, not the councilmembers.