Chapter 2 - § 2.2 • AUTHORITY TO CONDEMN

• Jurisdiction: Colorado

§ 2.2 • AUTHORITY TO CONDEMN

As discussed in Chapter 1, for home rule towns and cities, the legal authority to condemn property for a variety of public uses and purposes under Article XX, Section 1 of the Colorado Constitution has almost always been upheld against legal challenge. However, where the authority to condemn is based on a statutory delegation instead, the ability to condemn has not as consistently been approved by Colorado courts. As previously discussed in § 1.3 of this book, the statutory authority to exercise the power of eminent domain must exist either in "express" terms or by "necessary implication." Referring once again to the language in Mack v. Town of Craig,¹ if the statutory language regarding the power is "vague or doubtful," or if the statute is "silent" as to the right to condemn, the power will not be recognized. It is not enough that a statute may authorize an entity to "acquire" property; the statute must reference the power to condemn the property with some degree of certainty.²

The legal authority to condemn depends on the statutory language relied on to assert the power. On a few occasions, in reviewing the applicable statutory language, courts have determined that the power to condemn is lacking. In one of the earliest cases to address this issue, Potashnik v. Public Service Co., the supreme court found under then existing statutes that a utility provider was without legal authority to condemn private property for the expansion of an electrical generating plant.³ And in Beth Medrosh Hagodol v. City of Aurora, decided in the same year as Potashnik, the supreme court overturned an immediate possession order and dismissed a condemnation action brought by Aurora to condemn part of a cemetery for the construction of a water tower.⁴ Aurora, then a statutory city, was deemed not to possess sufficient legal authority to condemn property already devoted to a public use.⁵ Years later, following the principles of Mack, Potashnik, and Beth Medrosh, the supreme court held in Board of County Commissioners v. Intermountain Rural Electric Ass'n, that Arapahoe County was without legal authority to condemn property for county offices under various statutes that charged counties with the responsibility of providing, building, and maintaining such accommodations.⁶ In applying the "necessarily implied" standard, the court reasoned that because the statutory language was essentially silent on the county's ability to exercise the power of eminent domain for such purposes, the right did not exist.⁷ Under such circumstances, the court held that it is presumed that the condemnor must negotiate the acquisition of the property by contract or lease like other parties involved in the private real estate marketplace. After the Intermountain case, the legislature enacted a statute that expressly gives counties the right to condemn for county offices.⁸

A 2012 supreme court case similarly found legal authority lacking in the condemning entity. Larson v. Sinclair Transportation Co.⁹ involved a pipeline company's efforts to condemn under C.R.S. § 38-5-105 to install a second petroleum pipeline in a pre-existing easement containing the first pipeline. In a sharply divided 4-3 opinion, the court narrowly construed the language of the statute, ruling that the term "pipeline company" would be interpreted consistent with the definition in C.R.S. §§ 38-5-101 and -102 as "any domestic or foreign electric light power, gas, or pipeline company authorized to do business under the laws of this state." Relying essentially upon the...