Lawmakers will seek to limit eminent domain: Pueblo (CO) Chieftan, 12/2/05


By Lewis Entz, CO State Senator

One of the most critical issues that the Colorado General Assembly will take up in the coming session is the limitation of eminent domain. Eminent domain is the process that the government uses to take private property away from landowners and use it for the public good, such as for a highway or a school.

Last June, the U.S. Supreme Court delivered a very troubling ruling, in Kelo v. City of New London, that expands eminent domain powers far beyond this traditional role. The Kelo ruling allows governments to take land from one private owner and give it to another private owner for no reason other than to generate more tax revenue. I’ve received many cards and letters from constituents concerned about the abuse of eminent domain following that widely reported court decision. I’m writing to let all my constituents know I’ve heard your concerns on this important issue - and I’m on your side.

Any time the government takes land by force and gives it to another private party, we’re treading on dangerous ground. But this Kelo decision sets such a low standard for justifying it - that there be some vague “public benefit” - that abuse is all but certain.

I’ve been serving in the Legislature long enough to know that the “public benefit” usually is not in the best interests of the homeowner or the business owner.

As Justice Sandra Day O’Connor pointed out, this new standard places all private property at the whims of politicians: "The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

The good news is that Colorado can still place legal restrictions on eminent domain in order to curb the ability of local governments to condemn private land. The scope of eminent domain is a perennial issue in the Legislature, but this year there will be need to comprehensively review and define the limitations of government takings.

Even before the Kelo decision, many local governments in Colorado have used eminent domain to supplant private property with more lucrative big-box developments. These abuses have generally taken place in the Denver metropolitan area, and it is unlikely that they would occur in the San Luis Valley and other rural areas. However, property rights are too fundamental to our way of life to leave this to chance.

There are other concerns here as well. As unlikely as it might seem, the Kelo ruling could open the door for local governments to pursue other agendas at the expense of landowners. It could easily be used to turn private property into open space for environmental protection. More radically, it could be used to condemn gun shops, shooting ranges, and hunting lands in an indirect attack on gun rights. I think we can all agree that such pursuit of political agendas would be unacceptable, and an unconscionable abuse of eminent domain.

As the Legislature works next year to clearly define what is and is not a legitimate use of eminent domain, I will be making sure that property rights of all kinds are protected from egregious abuses. The standard for taking property from one private party and giving it to another needs to be a very, very high hurdle.

Pueblo Chieftan: www.chieftain.com

Lewis Entz represents Senate District 5, which includes Alamosa, Conejos, Costilla, Mineral, Rio Grande, Saguache, Delta, Pitkin, Chaffee, Gunnison, and Hinsdale counties. He serves on the Senate Agriculture Committee and the Senate Local Government Committee. He can be reached at the capitol at 303-866-4866 or by email at lewis.entz.senate@state.co.us.