June 25th, 2008

Eminent Domain in Edgewater

From Councilman Adam Gardner:

Edgewater, CO - June 24th, 2008.

The citizens of Edgewater adopted an update to their Home Rule Charter. The new charter, a complete re-write of the existing charter, includes a significant protection for personal property rights. The approach is believed to be unprecedented among Colorado municipalities. Councilman Adam Gardner said of the unique provision protecting property rights, “My only hope is that this action serves as a reminder to governments across Colorado that they do not have the last word on eminent domain. The people have the last say, if they will only stand up and be counted.” Councilman Gardner also thanked noted property rights attorney Bob Hoban and Independence Institute Senior Fellow Dennis Polhill who’s input helped shape the property rights provisions which Councilman Gardner proposed to the Charter Commission.

The provisions of the new charter essentially double the amounts paid to property owners if their land is taken using eminent domain and later sold to private developers. in effect, the language balances the need for government to use eminent domain power for public infrastructure, but heavily dis-incents misuse of eminent domain for private development. No property in Edgewater is currently being threatened with eminent domain, and Edgewater has not used its eminent domain power in nearly twenty years, but the commission felt that recent court decisions at the federal and state levels warranted reinforcement of property rights in Edgewater.

The language of the provisions are as follows:
19.5 Eminent domain. (1) The City shall have the full powers of eminent domain as provided by the
Constitution of the State of Colorado. No entity established by the City which has the power of eminent
domain shall exercise that power except upon the terms and conditions established by the City Council by
ordinance.
(2) The preferred interpretation of this Section 19.5 shall be to provide a disincentive to the City against
using its power of eminent domain to take private property from one owner in order to transfer it to another
non-governmental owner, including any entity created by a governmental entity for the purpose of
participating in a lease-purchase agreement with a private entity. This Section 19.5 shall not be interpreted
to limit the City’s power of eminent domain, to alter the definition of “just compensation” as established by
statutory and common law, or to alter the definition of “public use” as established by statutory and common
law.
(3) In the event that title to land or improvements that was obtained by the City or any entity of the City
using its power of eminent domain is transferred to a non-governmental owner at any time within ten (10)
years of the original taking, the City shall pay the former property owner the actual value of the property as
reported by the County assessor’s records as of the date of the original taking by the City in addition to the
amount of just compensation paid to the property owner at the time of the taking.
(4) Additional compensation due a property owner pursuant to Section 19.5(3) above shall be reduced by
any amount paid pursuant to the Uniform Relocation Assistance Act of 1970, 42 U.S.C. § 4601, et seq., as
may be amended from time to time, and by any other amount paid by the City over and above the just
compensation amount paid at the time of the taking.
(5) The City shall not attempt to circumvent the intent of this Section 19.5 by the use of leases or other
financing mechanisms. The City shall make the payment specified in Section 19.5(3) if a lease or other
financing mechanism is granted to any non-governmental entity that permits the possession or use of the
taken property, with the exception of leases that permit the minor and incidental use of the property.
(6) Easements for public utilities and common carriers are specifically excluded from the requirements of
Section 19.5(3).
(7) Nothing shall prohibit an owner of land or improvements from releasing the City from the obligations
imposed on it by Section 19.5(3) by written agreement.