Chapter 2 - § 2.3 • PUBLIC USE AND PURPOSE
| Jurisdiction | Colorado |
Article II, Section 15 of Colorado's constitution requires that private property be taken for a "public use." This provision goes on to state that "the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public." In Potashnik v. Public Service Co., the Colorado Supreme Court held that the purpose of this provision is to place a limitation on legislative enactments so that the legislature will exercise care in declaring what constitutes a public use in order that it will "meet the legal tests of such use as determined by the judiciary."23 In this section several aspects of the public use doctrine will be discussed, including recent statutory enactments that affect what constitutes a proper public use for which property may be condemned under Colorado law.
§ 2.3.1—Defining Public Use and Purpose
A century ago, in the 1906 case of Tanner v. Treasury Tunnel, Mining & Reduction Co.,24 the supreme court fashioned a broad and flexible definition of the term "public use" that encompasses "public benefit and advantage." This definition has subsequently guided numerous other Colorado courts in determining whether condemnation actions do or do not satisfy the constitutional mandate of serving a "public use." In approving the condemnation of private property by a corporation formed to construct certain tunnel and drainage facilities as part of a mining operation, the supreme court stated in Tanner:
No definition, however, has as yet been formulated which would serve as an infallible test in determining whether a use of property sought to be appropriated under the power of eminent domain is pubic or private. No precise line is drawn between the uses which would be applicable in all cases. Doubtless this arises from the fact that the 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. Consequently, we find, in examining the authorities, that, in determining whether or not a use is public, the physical conditions of the country, the needs of a community, the character of the benefit which a projected improvement may confer upon a locality, and the necessities for such improvement in the development of the resources of a state, are to be taken into consideration.25
The Tanner court went on to say that while legislative determinations of public use are not "conclusive" upon the courts, they are "entitled to careful consideration and great weight."26 But this language may contradict the provisions of Article II, Section 15, which clearly provides that the issue of "public use" is a "judicial question," to be determined "without regard to any legislative assertion that the use is public."27
Given the broad definition of "public use" under Colorado case law, rarely have condemnation actions brought by governmental entities been successfully challenged on lack of "public use" grounds. The majority of published cases on this subject therefore deal with situations similar to the one in Tanner, that is, where the condemning entity is viewed as a private company or private corporation, arguably seeking to acquire property for private purposes. However, even in these situations, Colorado courts have generally approved the condemnation on "public use" grounds. For instance, in Union Pacific Railroad Co. v. Colorado Postal Telegraph Cable Co, the court rejected a railroad's assertion that a telegraph company was condemning for private purposes, finding that the company's business was "public in its nature."28 And in Buck v. District Court, in applying the Tanner definition of "public use," the construction of dust levees on property being condemned by a railroad company was determined to "enhance the operational efficiency and safety of the public rail services" being provided by the railroad.29 Thus, the condemnation was deemed a proper public use. Similarly, in Larson v. Chase Pipe Line Co., the court held that a pipeline company, acting as a common carrier under the jurisdiction of the Interstate Commerce Commission, was condemning for a proper public use in seeking to acquire private property for pipeline purposes.30 And finally, in Public Service Co. of Colorado v. Shaklee, the filing of a condemnation action by an electrical utility provider for the construction of a transmission line was approved, despite assertions by the owner that the line would only be used by the Adolph Coors Company, a private entity.31 Citing once again to the broad language in Tanner, the court reasoned that a public use was served so long as the public had the "same right of access to use the power from this transmission lines, on the same terms as Coors."32 Referencing evidence in the record, the court concluded that the line would eventually serve other customers, as well as Coors, on an equal basis.
On at least two occasions, however, condemnation actions brought by special districts have been dismissed by the Colorado Court of Appeals on lack of public use grounds. In one such case, Denver West Metropolitan District v. Geudner, a condemnation action brought by a metropolitan district to acquire private property for a rechannelization project was found to lack both a public use and a necessity for the taking.33 The trial court concluded that the primary purpose of the condemnation was to further a private commercial real estate transaction involving property owned by the district that it wanted to sell to another party. In affirming the trial court's dismissal of the case, the court of appeals stated that in reviewing a condemning authority's finding that a proposed taking is for a public use, "the court's role is to determine whether the essential purpose of the condemnation is to obtain a public benefit."34 Further, if the primary purpose underlying the condemnation is to advance private interests, "the existence of an incidental public benefit" will not preclude a court from otherwise invalidating the action on lack of necessity grounds.35 The record in the case revealed that the engineering firm hired by the special district had prepared at least three alternative proposals for the rechannelization project, none of which would have required the taking of the subject property, but all of which would have required the taking of the district's own land. The court concluded that the district had acted in "bad faith" in rejecting all of these plans in favor of one that did require the taking of the property, while avoiding the parcel of land the district was seeking to sell.36
In Silver Dollar Metropolitan District v. Goltra, the court of appeals was again called on to decide whether a special district's taking of property satisfied the "public use" requirement.37 In this case the district was seeking to condemn the property in order to conduct core drilling that would assist it in obtaining geotechnical data deemed necessary to complete design plans for a proposed tunnel project near Black Hawk. The record revealed that the tunnel project was but one of five transportation alternatives being evaluated by state and federal agencies, none of which had been selected as the final plan. The project also would require a number of permits and approvals that had not yet been obtained by the district. From a determination by the trial court that the district was acting in "bad faith" by seeking to condemn property prematurely for a project that might never be built, the district appealed.
On appeal, the district argued that contrary to Colorado law, the trial court had impermissibly inquired into the "feasibility" and "practicality" of the tunnel project. Citing case law, the district argued that these issues could not be inquired into when determining the "necessity" for a taking of property.38 The district also argued that Colorado law did not require it to prove that it would obtain the permits and approvals that were required for its project prior to being able to condemn property.
Ruling first on the district's argument that the trial court improperly considered the "feasibility" of the project, the court of appeals stated:
In our view, the court's comments did not relate to the feasibility of the tunnel project, but rather to whether there would ever be a project for which the property could be lawfully condemned. As discussed below, such inquiry was relevant to the issue of public use.39
The opinion went on to address the court's role in determining whether a "public use" exists and the factors identified in Tanner that a court should consider in making that determination. Relating such factors to the proposed tunnel project, the court stated, "Here, the needs of the community, the character of the benefit, and the necessities for the project are matters yet to be determined. As stated by the trial court, the condemnation is premature."40
Finally, the court also found that the trial court correctly considered the lack of permits for the tunnel project. Citing to the 1989 case of Public Service Co. v. Shaklee,41 the court held that "the likelihood that a condemning authority will obtain the necessary permits and approvals" was relevant to a trial court's determination of public use.42
Applying the general factors for determining a public use as set forth in Tanner and Shaklee, in Board of County Commissioners v. Kobobel,43 the Colorado Court of Appeals upheld a trial court ruling dismissing a condemnation action brought by Morgan County to acquire property for a road on lack of public use grounds. Under circumstances where the road would provide access to a cemetery being operated by a private enterprise and would be in a remote area where there was little public need for access since there were no surrounding public facilities or uses, the...
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