Eminent domain brings out the best and worst

City Councilor Joel Miller’s attempt to rewrite Colorado Springs eminent domain ordinances may seem well-intentioned. But laws, like elected officials, are not always what they seem to be.

Miller had unveiled his ordinance at the group’s work session on Monday, and he insisted upon bringing it up for a vote on Tuesday. City Attorney Wynetta Massey had never seen it, nor had any community stakeholders.

A dozen of Miller’s supporters showed up, making 3-minute presentations that were, shall we say, as questionable as they were orchestrated.

“We’ve heard a lot of untruths, half-truths and misstatements,” said Urban Renewal Authority Chair David Neville, who did his best to correct the Millerites.

Eminent domain, as described in the Fifth Amendment to the U.S. Constitution, is the process by which private property is acquired by a governmental entity from an unwilling seller. The words of the Constitution are clear:

“No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

In the hands of a
competent attorney, this ordinance is indeed a loaded gun.

Colorado’s Constitution contains similar language. These provisions prevent the use of eminent domain for private benefit, restricting its use to necessary and beneficial public uses. Examples would include utility easements, roads, fire stations and schools.

Settled law also permits the use of eminent domain for certain private/public uses, including urban renewal projects.

To their credit, elected officials in Colorado Springs have been reluctant to use eminent domain. During the multi-year construction of the Southern Delivery System, Colorado Springs Utilities has been frequently criticized for overpaying property owners for land and/or easements required for the project.

CSU managers knew what they were doing. One recalcitrant property owner — or, worse still, a group of angry property owners — could stall work for years. It was a lot cheaper to offer property owners premium prices and get the deals done.

It was also the right thing to do. The Constitution calls for “just” compensation. That doesn’t mean market price. Most of us would agree that an involuntary sale should be priced well above the market, thereby generously compensating the unwilling seller.

That may sound reasonable, but the ordinance proposed by Miller is restrictive and ambiguous. As written, it would have the practical effect of removing eminent domain from the city’s toolkit and would end urban renewal projects such as City for Champions.

In Colorado Springs, the problem is not that the city has misused its authority to condemn property. If anything, the city has been too reluctant to use it, eminent domain or not.

To the exasperation of Westside residents, the city has refused to take action against owners of derelict, quasi-abandoned property. In one well-known case, anti-tax activist Douglas Bruce bought a fire-gutted duplex on West Kiowa Street in 1993 for $10,000 — and has left it to decay ever since. It’s not the only uninhabitable ruin on the Westside, but there’s little prospect that the city ever will do anything about it.

In Tuesday’s prolonged and contentious City Council meeting, Miller characterized the use of eminent domain, or even the possible use of it, as “holding a gun to a property owner’s head.”

Under the proposed ordinance, the city could only use eminent domain to acquire property for “streets, highways or public utilities.” That would bar its use for police, fire and transit needs, airport expansion or any other municipal purpose. The ordinance also would forbid the city from acquiring property “that might be used [to support] private economic development.”

In the hands of a competent attorney, this ordinance is indeed a loaded gun — one that would be available to property owners intent on profiting from the city’s impotence. Any project, however urgent, could be tied up in court for years — so pay up, Colorado Springs!

Classic Homes CEO Doug Stimple did his best to defend the reality-based community.

“I’ve learned that there are three words that you shouldn’t use,” he said. “Always, never and only. [Miller’s ordinance] uses them all — eminent domain is always and only for a public purpose, and can never involve private interests. I was at Coors Field last Friday for opening day, and there must have been 100,000 people in LoDo. I don’t think that they would agree that private-public urban renewal initiatives are always bad.”

Miller didn’t win this battle, as Council voted 5-4 to table the proposed ordinance until May 13, giving everyone sufficient time to learn and prepare. When that day arrives, you can be sure, both sides will come fully armed.

10 Responses to Eminent domain brings out the best and worst

  1. I think it is time that we are looking at some of these persons in City council and start a recall election. They are fighting a political battle instead of being part of a process which is looking for solutions to bring our city as a whole forward. I am not saying that you must support city for champions but having as an only stance being against something and no ideas on what we should do as a community bodes ill for these elected leaders.

    peter miller
    April 15, 2014 at 1:49 pm

  2. This sort of reminds me of the backlash that resulted after the Supreme Court ruled on the issue of Kelo vs. City of New London.

    As a reminder, the following quick recap of this case from Wikipedia:

    “Kelo v. City of New London, 545 U.S. 469 (2005)[1] was a case decided by the Supreme Court of the United States involving the use of eminent domain to transfer land from one private owner to another private owner to further economic development. In a 5–4 decision, the Court held that the general benefits a community enjoyed from economic growth qualified private redevelopment plans as a permissible “public use” under the Takings Clause of the Fifth Amendment.”

    After this ruling, several States (Colorado included) made an attempt at legislation to try and curb the “abuses” of eminent domain. In Colorado’s specific example, there was an effort to curb the use of Urban Renewal projects in the belief that urban renewal, by its very nature, forces municipalities to use eminent domain.

    In my testimony before the legislative committee, I spoke to the reluctance, particularly in the Western United States, about using eminent domain because of a real sense of individual property rights. And in particular with regards to Colorado Springs, I stated that we had never used eminent domain for urban renewal projects.

    So what are we really fighting here? And what is the problem? Eminent Domain is a tool available for use by municipalities, but it is very seldom used, for any purpose, in Colorado Springs. In my ten years on City Council, I can only remember it being used a couple of times, and my memory is it was only used for a couple of utility easements.

    If there ever was an occasion to use it in an urban renewal project, then North Nevada would have been it. And even though some property owners held out for exceptionally high prices (which resulted in excess acquisition costs), the City never resorted to its use. The deciding authority (City Council) made it known to both the Urban Renewal Authority and the private developer that eminent domain was not to be considered.

    And therein lies the rub: why does City Council need to pass an ordinance telling itself what it can and cannot do when they have the final say anyway? And why pass an ordinance to stop itself from doing something it rarely, if ever, does?

    Doug Stimple is right: in local governance the three words that should not be used are “always, never, and only”. Who knows what circumstances might pop up five or ten or twenty years from now? I, for one, am content to trust my elected officials in the future to make the right decision as it pertains to the specific circumstances at that time. And not be bound by some all encompassing rule passed years earlier that didn’t allow for just consideration.

    Scott Hente
    April 15, 2014 at 6:39 pm

  3. Well said Scott. We need more foward thinking in our elected officials.

    David H. Moore
    April 16, 2014 at 9:36 am

  4. It I striking to me how strengthening what any liberty-loving American would call a fundamental individual right, is viewed with suspicion, a call for recall and disbelief that it is necessary. Although Colorado Springs has rarely used eminent domain for projects like NorthNevada and SW Downtown, letters threatening the use are used as a very “coercive tool” or what I call a loaded weapon to encourage “good faith” negotiations. For the North Nevada project, indeed, a handful, of letters sent out by the CSURA threatened the use of eminent domain. A property owner in SW downtown was threatened with “immediate possession” by a developer’s attorney. http://www.joelmillercoloradospringscitycouncil.com/uploads/5/3/4/5/5345303/fischer_letter.pdf

    Maybe people are okay with that. I am not. Not now. Not ever. As for Mr. Stimple’s exhuberance for “economic development,” it seems that when large projects in SW Downtown were first proposed, he went before the URA at the time saying it would be nearly impossible to assemble land without using eminent domain, but now proclaims to be a property rights advocate. http://www.joelmillercoloradospringscitycouncil.com/uploads/5/3/4/5/5345303/laden_article_eminent_domain.pdf

    The Institute for Justice represented Susette Kelo at the Supreme Court in the landmark “Kelo vs. New London.” Attorney’s from the IJ have been interested in the strengthening of property rights here precisely because Colorado Law leaves a huge loophole for “blight” to be used as a basis for eminent domain to mask economic development.

    If eminent domain abuse is necessary for urban renewal projects that the author of this piece seems to imply, then I can do without the projects. Life, liberty and property. The premise is also a flawed one. Please see some common myths and realities about eminent domain here:

    http://www.joelmillercoloradospringscitycouncil.com/uploads/5/3/4/5/5345303/cc_myths_reality_final.pdf

    Joel Miller
    April 16, 2014 at 9:26 pm

  5. While property rights must be taken into consideration, passing more laws is not the answer. No sense in proposing solutions without a problem.

    David H. Moore
    April 17, 2014 at 10:07 am

  6. The “reality-based community” – i.e. the mayor and city leaders – want the tool of eminent domain available for economic revitalization projects in addition to its historic use for public projects. Doug Stiple doesn’t think the 100K people at Coors Field “would agree that private-public urban renewal initiatives are always bad” – implying that these same 100K people are happy that their tax dollars paid for the stadium in a developer-govt partnership.

    The city has used the THREAT of eminent domain for economic development projects to encourage private property owners to sell. An ordinance is needed to protect the citizenry from developer-govt collusion. To level the playing field, as it were. A citizen’s property rights – as guaranteed by the Constitution – is of highter importance than any economic revitalization scheme concocted by a developer and forced upon the citizens by the the strong arm of govt.

    Scott Hente says an ordinance is not necessary because 1) “the City has never resorted to its use. The deciding authority (City Council) made it known to both the URA and the private developer that eminent domain was not to be considered” and 2) he is content to “trust my elected officials in the future to make the right decision as it pertains to the specific circumstances at that time.”

    The fact that 1) the city has not yet used eminent domain for economic projects does not reassure me that it won’t use it now or later and 2) I prefer to place my trust in laws, not people. Ours is a “nation of laws”, which means that the law is the final authority and not the arbitrary judgement of future city council members who will make decisions based on circumstances.

    j lee
    April 17, 2014 at 10:24 am

  7. It seems to me that this “law” is just another method that is used to obstruct C4C without giving us anything in it’s place.

    David H. Moore
    April 17, 2014 at 12:32 pm

  8. well said david,

    MR. Miller is against everything, has no ideas how to bring our city forward and loves himself talk. We need leaders with ideas and vision not guys like him

    peter miller
    April 20, 2014 at 12:51 pm

  9. The mayor and his hand-picked team have only one idea and that idea will fail in all of its objectives. A stadium will not 1) revitalize downtown or 2) create good paying permanent jobs or 3) attract companies to set up business in COS or 4) attract tourists in the numbers hoped for or 5) revive the airport. Job creation will come only when 1) city govt loosens regulations and the tax code and 2) entrepreneurs with viable plans for start-up companies are encouraged to bring their ideas to fruition in COS. Entrepreneurs and the venture capital their ideas will attract is what will rescue COS from predicted bankruptcy. These entrepreneurs as well as the citizens of COS have lots of ideas, but the mayor is committed to the stadium/event center and will allow no competing ideas to be brought to the table.

    j lee
    April 21, 2014 at 9:42 am

  10. What if founders said, “we’re a bunch if liberty-loving individuals and among us we’d never consider limiting free speech or a right to bear arms or due process or habeas corpus…a Bill of Rights is really unnecessary…”

    That is the analogy here. Do you trust that future elected officials will have a respect for property rights? If Mr. Moore had been elected, perhaps the stars in his eyes for “progress” and “vision” would have blurred his vision for fundamental American rights. Give me a law in place of a politician’s commitment to liberty any day.

    Joel Miller
    April 24, 2014 at 6:57 am