Revision of condemnation powers unneeded, costly: Rocky Mountain News (Denver CO), 2/4/06

Opinion

By Sam Mamet
Right now, the [Colorado] legislature is considering laws that would limit eminent domain after last year's U.S. Supreme Court decision in Kelo v. City of New London. City and town leaders are quite concerned with the outcome of the debate, which seems to be long on emotion and short on facts.

Part of the problem with measures like House Bill 1099, which would limit the condemnation of private property to only "public use," is its lack of clarity.

As one key example, the definition of public use in this legislation - a key part of the bill - is not entirely clear and raises doubts whether traditional urban renewal projects could continue. We also think the legislative declaration of the bill interprets the existing case law imprecisely in an effort to give an advantage to individuals who wish to sue local governments.

The current state of Colorado law is well-settled and firmly established as to the do's and the don'ts of condemnation and urban renewal.

We anticipate costly lawsuits will be necessary to clarify the bill's application to the efforts of municipalities to revitalize themselves. And, when the municipality gets sued, it's the taxpayer's pocket that gets picked.

As lawmakers ponder this and other measures regarding eminent domain this session, we hope these facts might be considered:

1. Cities and towns do not use eminent domain loosely; in fact it is hardly ever used for redevelopment purposes.
   
   Research conducted by the Colorado Municipal League indicates that between 1999 and 2005, of the 40 urban renewal authorities currently active in the state, 31 have not used their condemnation powers at all. Only six have completed eminent domain proceedings in order to assemble properties for redevelopment purposes. Urban renewal authorities are the only local entities that can use eminent domain for redevelopment. There is simply not an indiscriminate use of this power by municipal officials.
   
   
2. In 2004, lawmakers spent all session crafting HB 1203, which significantly and substantively amended the state's urban renewal law to provide new protections to private property owners when condemnation is used.
   
   Now, in order to use eminent domain solely for economic development purposes, a city council or town board must first determine that a property meets certain standards regarding slum conditions or blight. Lawmakers have also narrowed the definition of blight in the past several sessions.
   
   
3. The Colorado Supreme Court weighed in on this in 2004 as well. The justices ruled that urban renewal authorities lacked both the legal authority and a valid public purpose to take property through condemnation without a proper and legally constituted blight analysis.

Eminent domain can be an important tool to advance the redevelopment of our cities and towns when a strict finding of blight is made.

Just look at the Broadway Marketplace, which replaced the old Montgomery Ward site on South Broadway, or the Colorado Business Bank building, at the core of Denver's downtown.

Lakewood's Belmar project has been nationally recognized as a prime example of smart growth and infill development. Riverside Plaza in Estes Park became a crown jewel as a revitalized riverwalk, after the devastating Lawn Lake dam broke and wiped out much of the downtown core of Estes Park in 1982.

All of these projects are successful because eminent domain was used as part of the urban renewal process.

Could all of these proposals be done just the same under the constraints of measures like HB 1099? Who knows?

The proponents of the bill will say, "No problem." And that's exactly the problem.

Before state lawmakers start to slice and dice urban renewal this session, we hope that they reflect upon the facts as well as the emotion of this complex issue. They might start by picking up the phone and calling a mayor or two.

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Rocky Mountain News: www.rockymountainnews.com

Sam Mamet is the executive director of the Colorado Municipal League, a statewide association of 265 cities and towns. He can be reached at smamet@cml.org.