Condemnation of Property for Economic Development by Home Rule Municipalities
| Publication year | 1996 |
| Pages | 53 |
| Citation | Vol. 25 No. 1 Pg. 53 |
1996, January, Pg. 53. Condemnation of Property for Economic Development by Home Rule Municipalities
The charters of most home rule municipalities grant the right of eminent domain. The constitutional authority for these charter provisions is contained in Article XX of the Colorado Constitution. Although Article XX states specific grounds for the exercise of eminent domain, subsequent judicial interpretation has expanded the scope of the condemnation power:
[T]his amendment was designed to give as large a measure of home rule in local municipal affairs as could be granted under a republican form of government[.] [W]e have no doubt that the people of Colorado intended to, and in effect did, thereby delegate to Denver full power to exercise the right of eminent domain in the effectuation of any lawful, public, local and municipal purpose.(fn1) [Emphasis added.]
Because a municipality may condemn for any lawful, public purpose, the municipality may condemn in furtherance of economic development activities as long as the activity meets the criteria for a public purpose.
The scope of what constitutes a public purpose has evolved over the years from its original narrow interpretation to the currently dominant broad view.(fn2) The Colorado Constitution, § 15 of Article II, provides in pertinent part:
Private property shall not be taken or damaged, for public or private use, without just compensation. . . . [W]henever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without any regard to any legislative assertion that the use is public.
Therefore, if a challenge is filed to an assertion of public purpose in Colorado, the court must determine whether the use is public rather than merely deferring to the legislative determination of public use. Colorado courts have recognized no rigid definition or formula for determining the private or public nature of a use, but a trend toward employing a broader interpretation of public use has developed in Colorado.
Historically, there has been a dichotomy in interpretations of the term "public use" because of the susceptibility of the word "use" to two different definitions---"employment" or "advantage."(fn3) If use is equated with employment, the public must actually employ or utilize the real property in order for the use to be considered public. If, on the other hand, public use only requires that the public is advantaged or benefitted, the actual function to which the land is dedicated is not as limited. Colorado has long recognized the theory of public benefit and advantage as the appropriate standard.(fn4) Since early statehood, likely in recognition of the need to develop a raw frontier through private investment, private entities such as tunnel, pipeline and common carrier companies have been granted by the legislature the power of eminent domain.(fn5)
In adopting the public benefit or advantage theory, Colorado courts have recognized that "the definition of 'public use' must be such as to give it a degree of elasticity capable of meeting new conditions and improvements and the ever-increasing needs of society."(fn6) A use has been recognized as providing a public benefit and advantage in Colorado even if the number of persons who could avail themselves of the benefit of the proposed project were limited. For example, in Tanner v. Treasury Tunnel, the condemnation for the purpose of building a mining tunnel was recognized to...
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