Limiting eminent domain: (Sterling CO) Journal-Advocate, 2/21/06

Lawmakers try to restrict government land grabs

By K C Mason

Northeast Colorado lawmakers are among the sponsors of six bills and two resolutions for a constitutional amendment to rein in the use of eminent domain.

Rep. Cory Gardner, R-Yuma, and Sen. Greg Brophy, R-Wray, are teaming up in House Bill 1099 to completely ban the use of condemnation by a government entity if the property is then transferred to a private party to generate economic development.

Rep. Kevin Lundberg, R-Berthoud, who calls the use of eminent domain an attack on private property rights, guaranteed in the U.S. Constitution, is sponsoring House Bill 1208 to require compensation to the owner of up to 100 percent above the fair market value of the property taken.

"In order for compensation to be just, we must address the question of what the owner has lost," Lundberg said. He cited the example of a man who had to put off retirement for six years because he lost his home in a condemnation action.

Most of the bills to put more restrictions of government use of eminent domain are motivated by a controversial U.S. Supreme Court decision last summer.

"The Kelo vs. New London decision was astonishing," Gardner said during a hearing on his bill before the House State Affairs Committee. "It said private homes could be demolished to make way for private offices and parking lots create more tax revenue."

Jerry Sonnenberg of Sterling, a member of the Colorado Farm Bureau's Board of the Directors, testified on behalf of Gardner's bill that farmers and ranchers are worried about protecting their property rights.

"Our private land can be taken and given to another private party just because that private party might be able to make more money and pay more taxes from the property than we did," Sonnenberg said.

"Agriculture lands on the fringe of urban sprawl are especially at risk of Kelo-type condemnations."

Taken to the extreme, Sonnenberg said, eminent domain could be use to take water from agriculture or other entities to promote economic development.

The committee, chaired by Rep. Paul Weissmann, D-Louisville, took testimony last week but no action on Gardner's, Lundberg's and a third bill from Rep. Lynn Hefley, R-Colorado Springs, which sets strict conditions under which a new special district could exercise its power of eminent domain.

"I pulled them off the table because I wanted to make sure what we do, if anything, makes sense and doesn't conflict with existing statutory provisions," Weissmann said. "If we had voted on them right away, I don't know that any of these three would have been successful. I might have done them a favor by not killing them."

One proposal for a constitutional amendment has been introduced by Rep. Al White, R-Winter Park, and another is expected from Sen. Bob Hagedorn, D-Aurora. Both would require two-thirds approval from the Legislature before they could by placed on the November ballot for a statewide vote.

White said he wants to make it more difficult for anyone to take property for the purpose of economic development unless it's for the public's health, safety or welfare.

"Because of the high (two-thirds) threshold, it's not likely to pass the Legislature, so we are taking a parallel approach to collecting signatures and put it on the ballot that way," White said. "Citizens truly are repelled by the Kelo case."

"My (constitutional) amendment would make it very clear that eminent domain is a power solely given to a government entity and not a private sector or private sector entity," he said. "I also want to try to reduce the local government's use of eminent domain solely for economic purposes."

Hagedorn said his proposal, which he expects to introduce later this week, differs from White's in that it would leave the definition of blight in the statutes.

"As times change, the use or need for eminent domain will change so it's better not to lock it into the constitution," Hagedorn said. "Mine is an alternative to the citizen's initiative which, while well intentioned, is too extreme."

The Senate State Affairs Committee took testimony Monday on two other eminent domain bills. No action was taken a bill from Sen. Lois Tochtrop, D-Thornton, (SB169) to limit blight as a condition that allows urban renewal, but the committee approved a bill from Sen. Ron May, R-Colorado Springs, (SB154) to create a central reference point for all eminent domain statutes.

The only eminent domain bill to achieve any success so far this session is SB78, sponsored by Sen. Tom Wiens, R-Castle Rock. It eliminates condemnation powers for privately-owned toll roads, such as the highly-controversial "super slab" project on Colorado's eastern plains.

After an agreement was reached with Gov. Bill Owens to allow for privately-funded toll roads authorized by the Colorado Department of Transportation, the Wiens bill unanimously passed the Senate and is awaiting a hearing in the House Transportation and Energy Committee.

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