2007 Eminent Domain Report Card: Colorado Gets A “C”

Matt Powers
Matt Powers · June 6, 2007

Arlington, Va.—Colorado home and small business owners have reason to be concerned according to a 50-state eminent domain report card released today.  In the two years since the infamous Kelo eminent domain ruling from the U.S. Supreme Court that allowed eminent domain for private gain, Colorado made moderate improvements to the state’s “public use” requirements, but the state still needs a sufficiently narrow definition of what constitutes a public use.  In Colorado, “clear and convincing evidence” is now required for blight designations, but the definition of blight is still considerably vague.

“Colorado homeowners are not much more protected from eminent domain abuse today than they were the day the Kelo decision was announced,” said Steven Anderson, director of the Castle Coalition, a national grassroots organization that examined and graded eminent domain laws for each of the 50 states since the Kelo ruling.  Read the report at:  www.CastleCoalition.org/publications/report_card.

According to the report, “Even before the Supreme Court handed down its decision in Kelo, Colorado had an unfortunate history of municipalities abusing eminent domain for the benefit of wealthy private developers.”

In 2006, however, the Colorado General Assembly improved the state’s eminent domain laws by passing House Bill 1411, which amended the public use definition to “not include the taking of private property for transfer to a private entity for the purpose of economic development or enhancement of tax revenue” and stated, “Private property may otherwise be taken solely for the purpose of furthering a public use.”

Although it was definitely a step in the right direction, HB 1411 left room for improvement.  The new law allows municipalities to continue using eminent domain to seize so-called blighted properties, and the state’s definition of blight is sufficiently vague to allow for considerable abuse.  The good news is that in HB 1411, the legislature did take measures to tighten the blight loophole by requiring government officials to prove by clear and convincing evidence that “the taking of the property is necessary for the eradication of blight.”

The report stated that, “The General Assembly missed a golden opportunity in that same session when it considered but did not pass an amendment to the state constitution that would have prohibited the condemnation of private property for economic development.”  Although the statutory protections it did eventually adopt will, for the time being, provide some increased protections from the government condemning people’s homes, businesses, farms, and places of worship—unless condemnors convince a court that the property is in fact blighted—those protections may eventually be stripped away if the public fails to guard carefully against those who can find personal gain through the abuse of eminent domain.”

The report concluded, “Hopefully the legislature will revisit the possibility of a constitutional amendment and Coloradans will have the chance to provide themselves with the most enduring type of protections for their fundamental right to keep what they properly own.”

Among the states that passed the strongest reforms protecting property owners are Florida, Michigan, Nevada, New Mexico, North Dakota and South Dakota, each of which received an A or A- grade.  States that received F’s were:  Arkansas, Connecticut, Hawaii, Maryland, Massachusetts, Mississippi, New Jersey, New York, Oklahoma and Rhode Island.

“In only two years since Kelo, 41 states have reformed their laws to offer greater protection to small property owners,” said Jenifer Zeigler, legislative affairs attorney with the Castle Coalition.  “But much more work remains if homeowners, small business owners, churches and farmers in Colorado and beyond are to be safe from the unholy alliance of tax-hungry governments and land-hungry developers.”

The report seeks to step back and evaluate the legislative work that has been done and is left to do.  It finds, “Some states have passed model reforms that can serve as an example for others.  Some states enacted nominal reform—possibly because of haste, oversight or compromise—and need to know what is left to fix.  And finally, there are those states that have failed to act altogether, leaving home, farm, and business owners threatened by Kelo-type takings and beyond.”

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[NOTETo arrange interviews on this subject, journalists may call John Kramer, the Institute for Justice’s vice president for communications, at (703) 682-9320 ext. 205 or in the evening/weekend at (703) 527-8730.  For more information on eminent domain abuse, visit www.ij.org or www.castlecoalition.org.]