Chapter 35 - § 35.2 • EMINENT DOMAIN UNDER STATE LAW
| Jurisdiction | Colorado |
§ 35.2.1—Entities with Power of Eminent Domain
The power of condemnation lies dormant in the state until the General Assembly speaks.29 The authority to condemn may be conferred expressly by statute or by necessary implication from the rights, powers, and duties conferred by the General Assembly.30 Narrow construction is the rule determining the scope of the condemnation power delegated.31 For example: (1) a municipal corporation has no power to acquire land for a cemetery by eminent domain;32 (2) a county cannot condemn facilities for public offices;33 and (3) the department of highways has no authority to condemn a private way of necessity on behalf of landowner.34 An entity which fails to exercise its power to condemn in a manner consistent with law is "not authorized by law" to proceed with the condemnation.35
In 2006, the Colorado Legislature listed in C.R.S. § 38-1-202 all of the governmental entities, corporations, and persons that may exercise the power of eminent domain under state law. (This section is set out in an Appendix to this chapter.) The findings upon which this listing was made are as follows:36
(a) The power of eminent domain allows the federal government, the state, counties, cities and counties, municipalities, and various other types of governmental entities to condemn property when necessary for public use and allows individual property owners and corporations to condemn property in certain circumstances when condemnation is necessary to create a private way of necessity or to allow beneficial use of private property.
(b) Although both the state constitution and state statutes require the payment of just compensation to any person whose property is condemned, the exercise of the power of eminent domain nonetheless substantially impacts fundamental property rights.
(c) Because of this substantial impact, it is necessary and appropriate to ensure that Coloradans can easily determine which governmental entities, corporations, and other persons may exercise the power of eminent domain and to further ensure that Coloradans can easily identify the procedural requirements that entities, corporations, and other persons must follow when exercising the power of eminent domain.
Counties have been granted the power of eminent domain (1) to acquire land or buildings, or both, for the provision of court and district attorney facilities, jails, and other necessary facilities specifically related thereto;37 (2) to acquire water facilities or sewerage facilities, or both, and to acquire lands, easements, and rights in land in connection therewith;38 (3) to acquire private lands for county roads,39 and for the improvement or construction of state highways.40
Municipal corporations have been granted the power of eminent domain (1) to extend a street, alley, or highway over or across, or to construct a sewer under or through, a railroad track, right of way, or land of a railroad company within the corporate limits;41 (2) to acquire waterworks, gasworks, and gas distribution systems for the distribution of gas of any kind or electric light and power works and distribution systems, or heating and cooling works and systems for the distribution of heat and cooling obtained from geothermal resources, solar, or wind energy, hydroelectric or renewable biomass resources, including waste and co-generated heat, and all appurtenances necessary to any of said works or systems;42 (3) to appropriate so much private property as is necessary for the construction and operation of water, gas, heating and cooling, or electrical light works;43 (4) to appropriate water, gas, heating and cooling, or electric light works not owned by the municipality;44 and (5) to take private property for the purpose of supplying the municipality with water.45 Effective January 1, 2004, no home rule or statutory municipality may either (1) acquire by condemnation property located outside of its territorial boundaries or (2) provide any funding, in whole or in part, for the acquisition by condemnation by any other public or private party of property located outside of its territorial boundaries (except for condemnation for water works, light plants, power plants, transportation systems, heating plants, any other public utilities or public works, or for any purpose necessary for such uses).46 Effective January 1, 2004, no home rule or statutory municipality may either (1) acquire by condemnation property located outside of its territorial boundaries for the purpose of parks, recreation, open space, conservation, preservation of views or scenic vistas, or for similar purposes; or (2) provide any funding, in whole or in part, for the acquisition by condemnation by any other private or public party of property located outside of its territorial boundaries for the purpose of parks, recreation, open space, conservation, preservation of views or scenic vistas, or for similar purposes, except where the municipality has obtained the consent of both the owner of the property to be acquired by condemnation and the governing body of the local government in whose territorial boundaries the property is located.47
A municipal corporation can exercise the right of eminent domain only to the extent to which the power has been conferred upon it by statute.48 The power of eminent domain may be restricted49 or denied altogether.50
On and after June 6, 2006, a toll road company does not have the power to exercise the right of eminent domain to acquire any part of the right-of-way of the three-mile corridor of a proposed toll road or toll highway specified in the filed formation document of the company.51
The power of eminent domain cannot be delegated to a private party, and a private party may not obtain specific performance of a contract requiring a governmental entity to exercise the right of eminent domain.52
§ 35.2.2—Property Subject to Eminent Domain
Public property or land in the public domain is not subject to condemnation or appropriation in the absence of a statute authorizing it.53 Property already dedicated to a public use cannot be taken for another in such manner or to such an extent that the use to which it is devoted will be wholly defeated or suspended, unless the power to so take be granted expressly or by necessary implication, or in cases where a public exigency requires that it be taken. Land that is not employed in, or needed for, such use is not within the reason or operation of the rule.54 Thus, the right to take property already dedicated to a public use for another public use exists in some cases, but such right must be by specific grant of authority.55 Under article XVI, § 7 of the Colorado Constitution, a municipality has the right to condemn a right of way for its pipeline through the streets and alleys of another municipality.56 A municipal corporation or a public corporation does not have the power to condemn state-owned lands dedicated to a public use, unless that power is clearly and expressly conferred on it by statute.57
§ 35.2.3—Initiation of Eminent Domain Proceeding
Eminent domain proceedings are special statutory proceedings concerning issues of governmental possession and compensation for use of private property. Collateral or extraneous issues that change the scope of eminent domain proceedings are not permitted.58 Good faith negotiations are a prerequisite to the initiation of condemnation proceedings.59 The good faith requirement is satisfied where the condemning authority makes a reasonable good faith offer to reach an agreement with the owner of the property and allows the owner sufficient time to respond.60 (The property interests contemplated by this provision are interests of record.61 ) Failure to agree upon compensation is a prerequisite to the initiation of a condemnation proceeding, and the petitioner has the burden to establish a failure to agree.62 The requirement of failure to agree is met if the condemnor has initiated negotiations with the property owner and if further attempts to reach an agreement would be futile.63
The petition must describe the property to be taken so as to enable the court to enter a rule and order,64 and must describe in detail the nature of the use to be made of the land so that the burden on the landowner may be accurately evaluated.65
§ 35.2.4—Inverse Condemnation
The Colorado and United States Constitutions forbid the taking of private property without just compensation.66 Inverse condemnation actions, as well as eminent domain actions, are based on these provisions,67 and are tried as eminent domain proceedings.68 Inverse condemnation is a shorthand description of the manner in which a landowner recovers just compensation for a taking of his or her property when condemnation proceedings have not been instituted.69 Inverse condemnation is the mirror image of eminent domain. It is the taking, without compensation, of private property for public or private use by a governmental or public entity which has refused to exercise its power of eminent domain.70 To pursue an inverse condemnation claim under the Colorado Constitution, that is, to compel a public entity to provide compensation to a property owner, the property owner must establish that (1) there has been a taking or damaging of a property interest, (2) for a public purpose, (3) without just compensation, (4) by a governmental or public entity that has the power of eminent domain, but which has refused to exercise that power.71 An inverse condemnation action is not barred by sovereign immunity.72
Injuries resulting from public improvements may be subject to an action for damages rather than inverse condemnation.73 An inverse condemnation claim is barred by a two-year statute of limitations.74
Taking
As a general rule, the taking of property occurs when the entity clothed with the power of eminent domain substantially deprives a property owner of the use and enjoyment of that...
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