News
Following my recent article about “private condemnation,” which is the power private individuals have to condemn access to their landlocked land, several readers asked me to write about condemnation by the government (which is known as “eminent domain.”) This is an important local topic right now in light of, among other reasons, the potential for the Town of Silverthorne to use eminent domain to expand an existing trail easement.
Whenever an eminent domain case arises, the court will determine preliminarily whether the entity pursuing the condemnation has authority to do so. Eminent domain is considered an inherent power of federal and state governments. In many cases, the State of Colorado has delegated the power by statute to its administrative agencies, municipalities, counties and special districts. It has also granted the power to certain private entities that serve public purposes such as utility companies.
Home-rule towns such as Silverthorne enjoy the power of eminent domain, not by statute, but rather by Article XX of the Colorado Constitution. This power can be limited by the town charter, which explains why certain Silverthorne citizens affected by the potential eminent domain action are seeking to amend the town charter to prevent the taking of the trail. As I discussed in my November 2009 article titled “Home-rule vs. state power: An ongoing struggle,” home-rule towns are not subject to state law with respect to matters of purely local concern (as opposed to matters of statewide concern or mixed concern). Whether or not the Silverthorne trail is a matter of purely local concern would likely be determined by the court early on in any case, and that would determine the applicability of state condemnation statutes.
Condemnation is not permitted unless it advances the public interest in some way. What constitutes the public interest is determined by the courts on a case-by-case basis. Acquiring land for public use — whether for public streets and highways, parks, schools or water facilities — serves a clear public interest. Other situations, such as urban renewal authorities condemning one person's private land for economic development by another private person, are not so clear. Colorado law only permits this practice to eliminate “blight or slum conditions” as defined by statute.
Condemnation is only permitted where it is a “necessity” in terms of timing and the size, location and proposed use of the condemned land. However, courts will find necessity exists with regard to otherwise proper condemnation proceedings unless an affected property owner can prove bad faith or fraud by the condemning authority. Bad faith includes such things as pursuing a condemnation that will result in great loss to a property owner that could be easily avoided or using condemnation to secretly promote personal interests of the condemning authorities' board of directors.
Under Article II, section 15 of the Colorado Constitution, private property may not be taken or damaged without just compensation. Once the right to condemn is established in terms of the authority of the entity, existence of public interest and necessity, a condemnation case will often focus on the value of the land taken or damaged that must be compensated by the condemning authority. The court will determine one value for the overall land, and then affected parties — such as the landowner and mortgagee — must resolve separately how the funds will be apportioned between them.
The law of eminent domain seeks to strike a balance between the competing interests of the larger community's welfare and individual private property rights. When used properly, it is a vital tool to promote growth, economic developments and public facilities … but it should always be exercised carefully.
Noah Klug is principal of The Klug Law Firm, LLC, a general law practice in Summit County emphasizing real estate, litigation and business law. He may be reached at (970) 468-4953 or Noah@TheKlugLawFirm.com.
Whenever an eminent domain case arises, the court will determine preliminarily whether the entity pursuing the condemnation has authority to do so. Eminent domain is considered an inherent power of federal and state governments. In many cases, the State of Colorado has delegated the power by statute to its administrative agencies, municipalities, counties and special districts. It has also granted the power to certain private entities that serve public purposes such as utility companies.
Home-rule towns such as Silverthorne enjoy the power of eminent domain, not by statute, but rather by Article XX of the Colorado Constitution. This power can be limited by the town charter, which explains why certain Silverthorne citizens affected by the potential eminent domain action are seeking to amend the town charter to prevent the taking of the trail. As I discussed in my November 2009 article titled “Home-rule vs. state power: An ongoing struggle,” home-rule towns are not subject to state law with respect to matters of purely local concern (as opposed to matters of statewide concern or mixed concern). Whether or not the Silverthorne trail is a matter of purely local concern would likely be determined by the court early on in any case, and that would determine the applicability of state condemnation statutes.
Condemnation is not permitted unless it advances the public interest in some way. What constitutes the public interest is determined by the courts on a case-by-case basis. Acquiring land for public use — whether for public streets and highways, parks, schools or water facilities — serves a clear public interest. Other situations, such as urban renewal authorities condemning one person's private land for economic development by another private person, are not so clear. Colorado law only permits this practice to eliminate “blight or slum conditions” as defined by statute.
Condemnation is only permitted where it is a “necessity” in terms of timing and the size, location and proposed use of the condemned land. However, courts will find necessity exists with regard to otherwise proper condemnation proceedings unless an affected property owner can prove bad faith or fraud by the condemning authority. Bad faith includes such things as pursuing a condemnation that will result in great loss to a property owner that could be easily avoided or using condemnation to secretly promote personal interests of the condemning authorities' board of directors.
Under Article II, section 15 of the Colorado Constitution, private property may not be taken or damaged without just compensation. Once the right to condemn is established in terms of the authority of the entity, existence of public interest and necessity, a condemnation case will often focus on the value of the land taken or damaged that must be compensated by the condemning authority. The court will determine one value for the overall land, and then affected parties — such as the landowner and mortgagee — must resolve separately how the funds will be apportioned between them.
The law of eminent domain seeks to strike a balance between the competing interests of the larger community's welfare and individual private property rights. When used properly, it is a vital tool to promote growth, economic developments and public facilities … but it should always be exercised carefully.
Noah Klug is principal of The Klug Law Firm, LLC, a general law practice in Summit County emphasizing real estate, litigation and business law. He may be reached at (970) 468-4953 or Noah@TheKlugLawFirm.com.
