State still needs to limit eminent domain: Rocky Mountain News (Denver CO), 7/19/05


In its own peculiar way, the U.S. Supreme Court figured out how to unite the country.

Its 5-4 ruling last month in Kelo v. the City of New London, which expanded the right of local governments to use eminent domain for private development, offended conservatives and liberals alike. The former generally resist all condemnation except for legitimate public facilities while the latter understood the decision gave the Wal-Marts of the world a political tool they don't need and shouldn't have. Those made happiest by the ruling were municipal governments and some business groups.

On Monday, the Institute for Justice, which represented Kelo, asked for a rehearing on the case - which they have virtually no chance of getting. But more important, across the country legislators and citizens are already trying to figure out what they can do at the state level to further restrict public condemnation for private gain.

In Colorado, the first proposal comes from Rep. Al White, R-Winter Park, who wants to draft a state constitutional amendment that would prohibit local governments from taking property from one person and turning it over to another. White's amendment is a long way from even draft form, but there's a good chance we will be for it.

Yet we also predict it will not get the two-thirds majority it needs in both chambers of the legislature. That's because of the unholy alliance of revenue-hungry local governments and big developers who promise them more sales taxes. Both groups wield disproportionate clout at the Capitol.

Fortunately, Colorado already has strong constitutional protections against private-to-private condemnation, stronger than most states. For example, our courts don't accept at face value a claim by local government that a taking is for a public purpose, as was the case in Connecticut. The taking has to meet a certain objective standard, usually based on a prior "blight" designation covering the property eyed for seizure. That designation was created to expedite so-called "urban renewal."

The blight designation has been badly abused over the years by local government, and state Sen. Shawn Mitchell, R-Broomfield, has passed a bill limiting its use somewhat. But attempting to limit it further, or to eliminate it altogether, will be met with strong resistance.

We hope White has allies who are willing to circulate petitions. An initiative has a better chance of making the ballot than a referendum. But finding a group that supports individual property rights with the experience and money to mount a petition drive may be difficult.

Rocky Mountain News: www.rockymountainnews.com