Tcl - Eminent Domain Law in Colorado - Part I: the Right to Take Private Property - September 2006 - Government and Administrative Law
| Publication year | 2006 |
| Pages | 65 |
2006, September, Pg. 65. TCL - Eminent Domain Law in Colorado - Part I: The Right to Take Private Property - September 2006 - Government and Administrative Law
September 2006
Vol. 35, No. 9 [Page 65]
Government and Administrative Law articles provide information to attorneys dealing with various state and federal administrative agencies, as well as attorneys representing public or private clients in the areas of municipal, county, and school or special district law.
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Part I of this article discusses the exercise of the power of eminent domain, including sources of authority, public purpose, necessity, and negotiations, as well as practical issues related to the filing of a condemnation action and obtaining immediate possession.
This article provides a general overview of the procedural and substantive law of eminent domain, the process by which one party condemns or "takes" the real property of another on the payment of just compensation. It is written for the practitioner who does not specialize in eminent domain law, but who may represent either a party with eminent domain authority or a property owner faced with the prospect of condemnation.
This article will be published in two parts. Part I discusses the prerequisites for the proper exercise of the power of eminent domain and the means by which "immediate possession" of property may be acquired pending a valuation trial. Part II, which will be published in the November 2006 issue of The Colorado Lawyer, will address the process and rules by which "just compensation" is assessed.
Eminent Domain Authority
The right of eminent domain (or condemnation) is an inherent aspect of sovereignty possessed by the federal government and each state.(fn1) Although a condemnation action usually is brought by a government authority, in some instances, a private party may condemn property rights for certain specified purposes.
The right of condemnation under Colorado law is primarily derived from and constrained by two provisions of the Colorado Constitution: Article II, §§ 14 and 15. Section 14 addresses the taking of property for private use, and limits such acquisitions for private ways of necessity and land rights that are necessary for reservoirs, drains, flumes, or ditches for agricultural, mining, milling, domestic, or sanitary purposes.(fn2) Private property may be taken for private use only for one of the specific purposes listed.(fn3) This right is available to any party needing a right-of-way for such purpose; however, a public entity already possessing the power of eminent domain normally may not invoke the right to bring a private condemnation under § 14.(fn4)
Article II, § 15 of the Colorado Constitution addresses the taking of property for public use. This provision governs most condemnations in Colorado and provides the constitutional requirement that just compensation be paid for any taking, whether for public or private use. Furthermore, § 15 states that private property cannot be "taken or damaged" without the payment of just compensation.(fn5) Thus, when only a portion of a landowner's property is taken, just compensation may include any resulting diminution in value to the remainder of property, as well as payment for the property rights actually taken.(fn6)
CRS § 38-1-202
In 2006, the general assembly passed and Governor Owens signed Senate Bill 154, which is an attempt to collect in a single statutory location all of the circumstances in which eminent domain authority may be exercised. This information, to be codified at CRS § 38-1-202, lists the entities that have been expressly granted the power of eminent domain and lists the statutory source of that authority. This provision does not grant, restrict, or in any other way affect the substantive or procedural aspects of eminent domain law, but simply and conveniently provides one location in the Colorado Revised Statutes where this information can be found.
Public Entities
The right of eminent domain for a public use may be exercised by the federal government, the State of Colorado, or by any political subdivision thereof that has been expressly granted the power of eminent domain, including administrative agencies, municipalities, counties, and certain special districts. The State of Colorado possesses the power of eminent domain as an independent sovereign; however, any agency of the state or other political subdivision, with the exception of home rule municipalities exercising their authority under Article XX of the Colorado Constitution, must have express or necessarily implied statutory authority to exercise the power of eminent domain.(fn7) Although the right to condemn for certain purposes may be implied from a legislative scheme that clearly evinces a legislative intent to provide for the right,(fn8) there is a presumption against finding an implied right of eminent domain not expressly granted by statute.(fn9)
Thus, statutory cities and towns, counties, special districts, and agencies of the state usually must be able to point to specific statutory authority to exercise the power of eminent domain. The statutory eminent domain authority granted to these political subdivisions often is limited in scope to acquiring property interests necessary to perform specific functions.(fn10) The eminent domain authority of home rule municipalities, on the other hand, arises from Article XX of the Colorado Constitution and generally may be exercised, at least with respect to matters of local concern, without regard to statutory limitations imposed by the general assembly.(fn11) Article XX has been held to provide home rule municipalities with as much authority over local affairs as constitutionally could have been conferred to a municipality by the legislature under a republican form of government.(fn12) Thus, home rule municipalities have broad eminent domain authority with respect to matters of local concern.
Private Entities
In addition to various government agencies and political subdivisions, certain private entities have express statutory authority, over and above any rights granted by Article II, § 14, to condemn private property. Among these are pipeline and other transmission companies, as well as certain utility providers.(fn13) Although they may be private, for-profit corporations, these companies have the right to condemn private property in furtherance of their essential functions, largely on the premise that their functions are public in nature, and because their services often are regulated by the government, are available to all citizens, and provide a benefit to the public at large.(fn14)
Inverse Condemnation
A condemnation action affirmatively initiated by a party with the power of eminent domain should be distinguished from an inverse condemnation action. In an inverse condemnation action, a property owner initiates a claim that a governmental entity, which has the power of eminent domain, has taken or damaged private property for a public purpose, but has failed to initiate a condemnation action to assess compensation.(fn15) Although not specifically addressed in this article, inverse condemnation actions generally are tried pursuant to the same substantive and procedural rules applicable to traditional condemnation actions.(fn16)
Property Subject to Condemnation
Both real and personal property are subject to condemnation, although there is little reported use of eminent domain authority to acquire personal property independent of real property. Usually, there is no need to condemn personal property, because most types of personal property are fungible and can be purchased instead of condemned. Only specific real property is unique.
Property that already is dedicated to a public use is subject to the "prior public use" doctrine. This rule provides that property dedicated to a public use still is subject to condemnation, but only to the extent the new use does not materially interfere and is consistent with the prior public use.(fn17) As such, a public park may be subject to condemnation for an underground pipeline easement, provided that the surface is restored after installation, because the use of underground pipelines normally is not inconsistent with the prior public use of the surface as a public park. However, a public park would not be subject to condemnation for a new public highway without express constitutional or statutory authority allowing what likely would be considered an inconsistent public use.
Where a government authority has been expressly granted the power of dominant eminent domain, it may condemn other public property irrespective of a conflict with a prior public use.(fn18) However, property owned by the State of Colorado may not be condemned by a party claiming dominant eminent domain authority under Colorado law,(fn19) and property of the United States cannot be condemned under Colorado law.(fn20)
Public Use or Purpose
All condemnations under Colorado law in some way must be justified...
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