Towns face abandonment issues: Telluride CO Daily Planet, 5/3/07

Governments rarely walk away from eminent domain after the trial's over

By Reilly Capps

A city wants a park. So they offer a landowner what they think is a fair price. He turns them down. The town uses its powers of eminent domain to take the case to court. A jury says the land is worth more than twice what the town offered. The city doesn't have the money. So it abandons the effort.

And so today, Fort Worth, Texas, has one fewer park.

This was in 1929, and the town couldn't come up with the $81,000 a jury awarded the landowner.

It was a precedent-setting case in eminent domain law. It helped establish the fact that governments have the right to abandon cases for any reason, at any time. In Colorado, it's enshrined in the statutes.

It could happen in Telluride next week.

Fundraisers still need $2 million in private donations. And this town is full of affluent and generous people.

But if donors don't come through by Friday, May 11, Telluride will have to give up its eminent domain taking of 570 acres at the last possible moment. It will have to pay the lawyers and throw in the towel.

It would be an unusual move.

It doesn't happen very often, lawyers said, that towns fall short of cash.

“In most situations, the condemning authority won't undertake condemnation unless they've got the money set aside,” said Allan Hale, a lawyer for the Denver firm Hale Friesen who works on eminent domain issues. “I'm not aware of a case where they actually had to abandon the case [due to a high verdict]. Frankly, it constitutes poor planning.”

Many Telluriders hold that same opinion. They feel that voters should have accepted a settlement deal last February that would have preserved 91 percent of the land as open space.

Though the power of governments to take away property through eminent domain is broad and well-established, towns regularly abandon those takings for all kinds of reasons, big and small.

In Jacksonville, Fla., for example, the government wants to build a port for cruise ships, but worries the port won't pay for itself. A Los Angeles area redevelopment plan starts to look like an economic loser, and the town council drops it. In both cases, like the majority of cases where the eminent domain action is abandoned, the government gave up the case before it went to trial.

“[Abandonment] typically happens in the planning stages, and before they file the lawsuit,” said Andrew Brigham, partner in a Florida firm that represents property owners. “It is not the usual case that the government decides to abandon when they've already filed suit.”

Jim Cornehls, a law professor at the University of Texas at Arlington, said he almost never hears of governments coming up short of money.

“I've been teaching land use law for 20 years. I thought I would've run across something like this,” Cornehls said. “If it's $50 million and they're only $2 million short, why can't they come up with the money?”

Telluride - though big in its own mind - is a little town. And $50 million is a lot of money. It represents almost twice what the government spends to run the town every year.

In the event the town fails, some might feel sorry for Telluride, but Brigham doesn't, exactly. Governments can always walk away from cases and lose only legal fees. The landowners he represents can't.

While the Delta jury favored the landowner in this case, Brigham said he's seen too many cases where the jury favored the government, and he felt the property owner was shortchanged.

“Condemnation takes away the owner's right to say ‘no thank you,'” Brigham said. “This is kind of an unusual case in that it's the government who maybe risks getting their rights trampled.”

And the town of Telluride that risks having one fewer park.

Telluride CO Daily Planet: http://www.telluridegateway.com