Vexing court ruling, local excesses demand new law: Rocky Mountain news, 2/4/06


By Rep. Cory Gardner

As Americans, we believe that property rights transcend government authority. This is deeply embedded in our political traditions. Founding Fathers such as James Madison understood the necessity of placing protections for private property in the Bill of Rights.

The Fifth Amendment, which Madison wrote, declares that private property may be taken only for "public use."

Since the adoption of the Bill of Rights, though, courts have driven a stake through the heart of private property rights.

This was brought home in last summer's astonishing Supreme Court decision, Kelo v. City of New London. In Kelo, the court allowed the city of New London, Conn., to use its eminent domain authority to take private homes away from their owners to make way for private office space and parking lots.

The court's justification for such a broad exercise of state power was the "public benefit" of creating more tax revenue.

In a strong dissent, Justice Sandra Day O'Connor summed up the brave new world ushered in by Kelo. "The government," she wrote, "now has a license to transfer property from those with fewer resources to those with more."

But there is cause for hope. While Kelo allows the government to transfer property from one private party to another, states can enact laws to prevent this from happening. This is why Colorado must act swiftly and decisively to defend private property rights from the ever-growing threat of eminent domain abuse.

Some think Colorado law is already clear - that Kelo could never happen here. But urban renewal authorities still possess significant tools to condemn private property by declaring such property "blighted." Still, the definition of blight is so subjective, so fraught with loopholes, that a clever lawyer can drive a Mack truck through it. And therein lies the threat.

Examples of eminent abuse are, unfortunately, abundant. In 2005, the Lakewood Reinvestment Authority performed a blight study. It found a "blighted" area 4 miles long and 4 blocks wide, which includes more than 1,000 homes and businesses.

Inclusion within this "blighted" area, alone, is justification for the use of condemnation power. It was a breathtaking overreach, but one that is justified under current state law.

In Arvada, the Arvada Urban Renewal Authority determined that a lake was "blighted" in order to accommodate the wishes of a commercial developer. In addition, Arvada has designated open space as "blighted" in order to facilitate a large-scale development project. These are not legitimate uses of eminent domain.

The truth is that it is not necessary to use the condemnation powers of eminent domain to accomplish urban renewal, but local governments have been trained to use it as tool of first resort to assemble large-scale projects.

With the use of market-based mechanisms, tax incentives such as the enhanced sales tax incentive program offered by many local governments, project overlays, and simple enforcement of local land use and zoning ordinances, properties will not become "blighted" and the need for invasive governmental takings will be obviated.

The government's role is not to be a developer, but rather to facilitate conditions that are friendly to business. The use of condemnation takes this role too far.

That is why I have introduced House Bill 1099, a bill that will prevent government from taking private property and giving it to a private party for the purpose of economic development or to increase tax revenues. By forcing government to condemn land for a true "public use" and not merely for economic development or tax increases, the bill restores the fundamental right of private property, a right our Founders guaranteed.

Rocky Mountain News: www.rockymountainnews.com

Rep. Cory Gardner, R-Yuma, joined the Colorado General Assembly in July 2005. He serves on the Agriculture and Natural Resources Committee, Appropriations Committee, as well as the Judiciary Committee.