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.
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