A Roundabout Way to Eminent Domain? Ft Collins CO Weekly, 3/20/07

Libertarian Mark Brophy says traffic signals at Harmony and Shields would amount to “theft” of his property

By Greg Campbell

It’s a Libertarian’s worst nightmare—government drawing up plans that require taking some of your property.

That’s what outspoken Fort Collins Libertarian Mark Brophy faces in the current debate over whether a traffic roundabout or a more traditional—but more robust—use of traffic lights is most appropriate for the intersection of Harmony Road and Shields Street. Brophy owns the property at the southwest corner of that intersection and he faces losing property to the city in either case, either through a voluntary sale or the use of eminent domain.

But — like the city staff, which analyzed a number of pros and cons for both options to present to City Council — Brophy prefers the roundabout. Although it will be the largest traffic roundabout in Northern Colorado, it will require less space to build than additional lanes for traffic lights, meaning less of his property will go to the government. Perhaps more importantly for him, it will preserve the existing access to his property; it’s likely that a signalized intersection will require his driveway be relocated farther west along Harmony Road, making left turns coming and going considerably more difficult.

The problem is that even though the roundabout looks better on paper, public sentiment is quite vocally against it … and City Council seems to be listening to those who would prefer a typical signaled intersection.

“‘On paper’ is the key phrase there,” says Dean Klingner, the engineering department’s project manager. “At the end, what we’re talking about is what is the right way to introduce bigger roundabouts into the city. There’s a learning curve and they’re going to take some getting used to. The advantages on paper are weighted against a smart way to introduce roundabouts to Fort Collins over time.”

But for a devoted Libertarian like Brophy — who’s made a name for himself locally by championing private rights — choosing traffic signals over the roundabout would be ignoring matters like increased safety and efficiency in favor of pleasing a vocal mob; to him, this is tyranny of the masses in action.

“What upsets me is that the City Council is bowing to the demands of the mob,” he says from Mexico, where he is on vacation. “Basically, I think that you don’t have rights if they can be taken away by a mob. All seven of the City Council members know that a roundabout is better than a signalized intersection for this intersection … but they’re going to vote for a signal.”

And if they do, he says he’s going to try to make them pay, not only for the value of the property that they would require from him, but also for the inconvenience a widened and improved signaled intersection would cause him. Brophy says he would like the city to pay him $300,000 in addition to the property settlement, mainly because he would have to relocate access on his property from Harmony Road.

“The $300,000 does not include any land,” he says. “That’s merely for the loss of access.”

From a purely objective point of view, a roundabout seems the logical answer to dealing with traffic at one of the city’s busiest intersections. A presentation to City Council in February shows that the only advantage traffic signals have over the roundabout is that the intersection would be easier to navigate for bicycles and motorcycles. The roundabout is expected to reduce congestion and wait times at the intersection — which currently sees about 38,000 cars pass through it each day — and cause fewer accidents because it will reduce the speeds. Because cars won’t be idling at red lights, it will also reduce emissions. Better yet, it will cost nearly a million dollars less than traffic lights because it will have a smaller footprint.

And for Brophy, that’s no small point.

“It’s likely that if the roundabout gets built I lose some of my property,” he says. “But most of it could be put on Front Range Community College land (on the southeast corner) and it wouldn’t need to take very much land from any private person.”

A signaled intersection, on the other hand, will result in more delays, more accidents and more emissions from idling cars than a roundabout, according to the pros and cons presented to City Council. It will also take up more space as engineers have designed double turn lanes and bike lanes to handle what is estimated to be a daily traffic volume of 50,000 cars by 2026.

Despite its higher price tag and larger footprint, most citizens who’ve weighed in on the plan prefer signals.

For them, a large roundabout poses a number of problems. One is fear that drivers won’t know how to use them, and another is that it would be far more difficult and dangerous for pedestrians to cross the street even though staff’s assessment is that safety for pedestrians would improve as a result of slower vehicle speeds through the roundabout. As noted in a recent letter to the editor of the Coloradoan, the intersection is within walking distance of a number of schools, a college and a public library. The northwest corner of the intersection will likely be home to a grocery store and other businesses in the future that will attract foot and bike traffic from the surrounding neighborhoods. In its work session presentation to City Council, staff acknowledged that the roundabout’s practical benefits might not be enough to overcome the public outcry.

“Based on comments that we’ve received to date, the public generally opposes a roundabout at this location,” according to the analysis given to City Council to consider. “Although staff believes that a roundabout will work well in this location, staff also perceives that this may be ‘too much too soon’ and the traveling public many not be ready for a roundabout at this time.”

Brophy’s fear is that council will agree with the “traveling public” and vote in favor of stoplights, costing him more of his precious property and the possibility that his property values will decline due to the impaired access. For him, public sentiment shouldn’t be a factor when someone’s private property is in jeopardy and there is a less impactful alternative.

According to the law, the city will be required to compensate Brophy and other landowners for the property they take for the project.

“Eminent domain is the very last resort for us,” Klingner says. “We’ll go through great lengths to negotiate an agreement. There’s a lot of protections built in … but the most basic of that is the concept that we would pay fair market value.”

Fair market value is determined by before-and-after appraisals of the property to figure out how the project affected the value. If the signaled intersection decreases Brophy’s property value, the city will pay appropriately, Klingner says, adding that the city wouldn’t be likely to entertain an “arbitrary” fee like $300,000 in addition to the assessed value.

“We would try to stay away from anything but a professional determination of what the actual value of this property will be,” he says. “If there’s a real impact on the value of his property that would be taken into account as part of the appraisal process.”

Perhaps not surprisingly, Brophy takes a dim view of these proceedings and disagrees with Klingner that he’ll get a fair shake out of the deal.

“Eminent domain is their first resort and they don’t care about property owners,” he says. “They point a gun at your head and then you ‘volunteer’ to give them your land. Eminent domain is the gun. … I have to agree on a price with them before they steal it from me.”

Brophy says he can appeal the assessed value to a quasi-jury composed of landowners, and that he can make his case for additional compensation over impaired access to a judge if he’s not satisfied with the city’s offer.

If eminent domain were used to take his land, “a judge would be the one who would decide if this is a public use,” he says. “We’re not having eminent domain for a public use. What we have here is a theft. If the public use is met by a roundabout and it causes less damage to my property, then I don’t think a mob should be stealing my property from me.”

Klingner emphasizes that a decision hasn’t been made about the future of the intersection. Currently, the city is hosting a variety of open houses so that citizens can learn more about each project and give their input.

“At the end of the day, it’s a taxpayer-funded project and it’s built for the people of Fort Collins and they have a lot of say in that,” he says.

And while he understands Brophy’s arguments and concerns, he says it’s important to realize that a property’s value has a lot to do with where it’s located — the value of Brophy’s property, he says, would be quite different if it were located in a city “where there were no organized efforts to improve the streets.”

“The value of that property is very tied to the fact that it’s in the city of Fort Collins,” he says. “There’s a high quality of life here in Fort Collins. I see the debate, but sometimes what gets overlooked (is that) the overall value to everyone’s property is having a competent, well-organized government.”

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