Chapter 3 - § 3.7 • CONTRACTING AWAY OR RESTRAINING THE POWER TO CONDEMN PROPERTY

• Jurisdiction: Colorado

§ 3.7 • CONTRACTING AWAY OR RESTRAINING THE POWER TO CONDEMN PROPERTY

Many years ago, in State of Georgia v. City of Chattanooga, the United States Supreme Court stated:

The taking of private property for public use upon just compensation is so often necessary for the proper performance of governmental functions that the power is deemed to be essential to the life of the state. It cannot be surrendered, and, if attempted to be contracted away, it may be resumed at will.⁶³

The foregoing principal of law, that the sovereign power of eminent domain cannot be contracted away, has been followed in nearly all jurisdictions, including Colorado, where it was first recognized in Public Service Co. v. City of Loveland.⁶⁴ There, the Colorado Supreme Court held in a condemnation action involving Loveland's attempt to acquire an electric lighting plant, that the company owning the plant had no legal right to request that the city forego condemnation of the company's other lands in exchange for the conveyance of the lands needed for the plant. As stated by the court on this issue:

But the company asks too much; the city does not have to take property that it does not need, nor have the city authorities any power to execute a disclaimer upon behalf of themselves or future city councils depriving them of the free exercise of their municipal powers upon behalf of the inhabitants that under the mandate of the statute must be and are expressly reserved to the city.⁶⁵

The court went on to make the point more strongly:

The engaging hope of a perpetual franchise and immunity from condemnation proceedings that threads the entire brief of counsel for the company must be destined to disappointment.⁶⁶

For similar holdings on this issue, attention is directed to Direct Mail Service, Inc. v. Best, holding that persons may not restrict, whether by contract or otherwise, the state's exercise of its lawful eminent domain authority,⁶⁷ and Smith v. Clifton Sanitation District, holding that neighboring landowners' placement of a restrictive covenant on their land to prevent its use for a sanitary deposal system could not preclude the sanitation district's exercise of the power of eminent domain for that purpose.⁶⁸

In Wheat Ridge Urban Renewal Authority v. Cornerstone Group XXII, L.L.C., the issue facing the court was whether a contractual obligation contained in a redevelopment agreement to exercise the power of eminent domain could be enforced by specific performance against an...