The effect of the Kelo decision on Colorado law: Colorado General Assembly, Office of Legal Services

Memorandum — Summary of opinion

Issued by the Office of Legislative Legal Services concerning Colorado law on condemnation for economic development and private toll roads in the wake of Kelo v. City of New London
The effect of the Kelo decision on Colorado law on eminent domain especially for urban renewal purposes
In Colorado, the Kelo decision should not result in a dramatic change in state law governing eminent domain, particularly eminent domain as exercised by urban renewal authorities. Colorado courts have for many years consistently interpreted the term "public use" in addressing takings claims brought under section 15 of article II of the Colorado constitution in a broad and expansive manner similar to that provided by the Kelo court in addressing petitioners' claims arising under the federal constitution. However, Colorado courts have also held that the condemnation must be supported by a public purpose, notwithstanding the fact that an incidental and secondary consideration of the condemnation may result in a transfer of ownership of the property at issue to another private party. In the urban renewal context, long-standing case law has held that the remediation of blighted or slum conditions constitutes a valid public purpose. Thus, it has long been held that section 15 of article II of the Colorado constitution permits the taking of one person's private property for ultimate transfer to another private party as part of an urban renewal plan designed to eliminate slum or blighted conditions.

Because of its explicit requirement that the determination of whether a taking is a public use be made by the judiciary, the Colorado constitution arguably provides more protection for private property owners than the federal constitution. Colorado courts have exercised constitutional authority in this field to invalidate condemnations where it appeared that the primary purpose of the condemnation was to further private interests.

In addition, propelled at least in part by major statutory modifications to Colorado's Urban Renewal Law ("URL") over the past several years by the General Assembly, Colorado law contains a series of requirements on the ability of a public entity to condemn land for urban renewal purposes that do not appear to have been part of the system in place in Connecticut to regulate the use of eminent domain at the time of the condemnation actions giving rise to the Kelo case. For example, in Connecticut at the time of the Kelo decision, it was not necessary for property to be a slum or in a blighted condition for it to be taken for economic development purposes. However, under the URL, the only valid public purpose for which an urban renewal plan may be adopted (with accompanying powers by the authority to condemn property) is to eliminate or prevent the spread of slum or blight. Thus, an attempt in Colorado to exercise eminent domain powers to condemn property solely for economic development purposes in the absence of a blight determination would seem to be expressly precluded by the requirements of the URL.

The effect of the Kelo decision on the power of a private toll road company to exercise the power of eminent domain
The Kelo decision does not appear to directly affect the power of a private toll road company to exercise the power of eminent domain. It has long been unquestioned that the construction of roads and highways is a public use and that governmental entities may exercise the power of eminent domain when necessary for highway construction. Consequently, Kelo would change Colorado eminent domain law with respect to private toll road companies only if it provides to such companies an ability to exercise the power of eminent domain that they did not already have or overrides the power of the state to prospectively restrict private toll road companies from exercising the power of eminent domain. Because section 38-2-101, Colorado Revised Statutes, has long authorized private toll road companies to exercise the power of eminent domain, Kelo cannot logically provide such companies with any new eminent domain power. Moreover, because the Kelo court stated that states may place further restrictions on their exercise of the takings power, Kelo does not affect the plenary power of the General Assembly to restrict the exercise of the power of eminent domain by private toll road companies.

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Colorado General Assembly, Office of Legislative Legal Services
State Capitol Building, Room 091
200 east Colfax Avenue
Denver CO 80203-1782