Capitol Review

By State Senator Mark Hillman

April 23, 2004

Private property rights -- the red-headed stepchild of our constitutional protections -- are under increasing attack by local governments that believe the ends justify the means.

House Bill 1203, introduced by Rep. Shawn Mitchell, seeks to limit local government’s power to take property of taxpaying citizens through condemnation or eminent domain.

The bill attempts to right two wrongs.

First, cities or "urban renewal authorities" condemn property in order to have it redeveloped to create more tax revenues. Citizens now have little opportunity to object or to access the same incentives offered to big developers.

Second, some resort communities have attempted to reach beyond their boundaries to condemn property for open space.

A landowner is "darned if you do, darned if you don’t." Property can be condemned because the owner hasn’t developed it or precisely to prevent the owner from developing it.

As the bill’s Senate sponsor, I am amazed by the hubris of a handful of city officials. Certainly, cities have an interest in promoting the local economy and preserving community character. But when a property owner doesn’t share government’s "vision," must she forfeit her property as a consequence?

Along the Front Range, landowners are outraged by economic development plans that drive longtime residents and local businesses off their property in favor of high-density housing and big-box retail chain stores.

Rosemarie Pomponio, 87, whose Northgate Shopping Center and neighboring hay meadow are the target of a condemnation fight in Westminster, testified that her family has owned the land for over 100 years.

"It’s not the money; it’s the principle," she told senators. "They shouldn’t be bothering us."

Others are frustrated that the very communities they’ve supported for years by creating jobs and paying taxes are now trying to take their property, forcing them to spend thousands of dollars on attorneys just to keep what they have.

"I was hoping this would be my retirement and I could pass it on to my son," said Buzz Kilker, who owns a body shop in Aurora. "Apparently, now that won’t happen."

Federal and state constitutions limit government to taking private property only for "public use," but in 1954, the U.S. Supreme Court – in yet another example of amending the constitution through judicial fiat – redefined public use to mean "public purpose," which seems limited only by the creativity of government officials. Courts have turned constitutional protections into little more than a requirement for "just compensation."

City officials in Telluride, a community encompassing 450 acres, are intent upon condemning 560 acres beyond the city limits because they want it for open space. An attorney representing Telluride protested that "condemnation is only necessary because the landowner has consistently refused to negotiate a purchase price."

Telluride residents told the Senate committee that local voters "overwhelmingly" approved a tax increase to fund the land grab. Never mind that voting to tax yourself is quite different from your neighbors voting to take your property just because they want to.

Here, the recalcitrant owner just wants to keep the land he’s owned for 20 years and apparently doesn’t care how much money the city offers. Because the landowner lives in California and owns the property under the name of a corporation, some locals speak of him with disdain – a stark contrast from their attitude toward rich, out-of-state celebrities who have helped drive the average cost of a Telluride home to $1.5 million.

Courts have emboldened cities to condemn property for the cause du jour. However, citizens shouldn’t be compelled to defend their rights only in courts where they are outgunned by attorneys paid with taxpayer dollars. For legislators, defending the rights of the people often means limiting the power of government – precisely the purpose of HB 1203.