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GOVERNMENT AS BULLY

Part 1 of 4: Degradation of the Constitution

Eminent domain -- the government’s right to take private property -- has been in the news nationally and locally due to the U.S. Supreme Court’s shameful ruling allowing the town of New London, Connecticut, to condemn private property for the use of different private party.

Most Americans understand the need, on rare occasion, for the government to condemn private property in order to build a much-needed road or put in a key utility service. Having a road built straight or utilities put in a certain way, for example, often create efficiencies, convenience, and cost-savings which make good sense.

What Americans do not support, however, is the idea of a private business using a government entity’s ability to condemn private property so it then can be handed over to another private entity for profit and gain at the expense of the original property owner. Sadly, that is what was allowed in the New London case.

The Supreme Court used a common practice of torturing logic -- elevated to an art form by many lawyers -- to overcome the obvious barrier presented by the United States Constitution. The Constitution requires condemned property be used for public purposes. Specifically, the Fifth Amendment of the Constitution states, “No person shall be... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Most Americans consider a “public use” to mean what it says -- a public facility. Roads, utilities, government structures, and similar truly public facilities come to mind -- not privately owned shopping centers.

The Supreme Court made a gross distortion of the Constitution by concluding the practice of allowing one business to replace another business or other private party via condemnation was legitimate because the public might gain a net tax or other benefit from the new business enterprise. Suddenly, the constitutional requirement of “public use” was erased from the Constitution and “indirect public benefit” replaced it.

The Supreme Court did not even require the condemnation process to require the new business guarantee any net gain. The government entity condemning the private property also had no formal obligation to assure that a net benefit to the public would occur. Hence, the Supreme Court approved a process which was a roll of the dice, with no actual net benefit guaranteed to the public.

Next -- Part 2 of 4: Come Join The Condemnation Party!

Aaron Harber hosts "The Aaron Harber Show," seen Fridays at 9:00 pm and Sundays at 2:00 pm on PBS Station KBDI-TV Channel 12. Please go to www.HarberTV.com for more information. Send your comments and topic suggestions for both columns and TV shows to Aaron@HarberTV.com. You also may view programs on a 24/7 basis via the “Broadcast Videos” section of the Website. Many of Aaron's columns also are available on the Website on the page entitled “Aaron’s Opinions.”

GOVERNMENT AS BULLY

Part 2 of 4: Come Join The Condemnation Party!

What most citizens in Colorado don’t even know is that any government entity can condemn private property and take it at any time without any justification whatsoever. This includes quasi-governmental entities, most of which the public is completely unaware. Today there are several thousand governmental entities which can condemn property in Colorado and take it away from its owners.

Most Coloradans probably believe that, if a government entity wants to take someone’s private property, it has to justify the decision and explain the reasoning behind its decision. Nope, not in Colorado. In Colorado, if a government entity wants your property all it has to say is, “We want your property” and, voila, it’s theirs.

Government entities do not even have to prove the intended use of your property is for the direct or indirect benefit of the public. There is no standard in Colorado which says a condemning agency has to demonstrate the use of someone’s property actually will benefit the public. All the entity has to do is decide it wants the property. Believe it or not, that’s it.

Even worse, there is almost no accountability regarding who has the power to condemn private property. There is no single entity through which condemnations must go through. And there is no agency providing oversight for the use of this extraordinary power. Instead, every governmental agency and quasi-governmental entity has this extraordinary, unchecked power.

There are approximately 5,000 different government entities in Colorado which have the power to condemn property and take ownership of it -- and then transfer it, if they wish, to private companies. There is little accountability because very few of these entities are elected by the citizens of the State. Most of these entities are governed by boards who are appointed by small groups, with the general public having little or no involvement. Colorado clearly needs to introduce more accountability into the process.

Next -- Part 3 of 4: Condemnation Process Legal Fee Games

GOVERNMENT AS BULLY

Part 3 of 4: Condemnation Process Legal Fee Games

One of the biggest problems with condemnation actions is the cost of legal fees to a property owner. This is very expensive for large property owners but just as problematic for smaller property owners. In fact, many owners of smaller properties give up because the cost of their legal fees could exceed the value of their properties or, at the minimum, the value of the dispute. Today, property owners recover their legal fees only if the amount they collect if they go to court is 130% of the amount they were offered prior to any condemnation litigation.

For example, if a property owner has been offered $20,000 for his or her land and believes it is worth $40,000, spending $20,000 on legal fees (which, these days, can be done quite quickly), either may not be possible for someone without a lot of cash on hand or simply may not make any sense. The result is the property owner, who may be unable to take the risk that he or she will get the higher amount, is forced to accept a payment which could be 50% less than what would be fair.

Government entities using eminent domain know all of this and play the game accordingly. As a result, they have the opportunity to make offers at below market values -- knowing full well the property owner would be irrational to not accept the low-ball offer. Hence, when these circumstances come into play, the authority seeking a property often knows it can make a relatively low offer and force the owner to sell.

While not all government entities act in such a despicable manner, many do. Their attitude is that, because they are saving their customers, taxpayers, or users money, it is acceptable to minimize the payments they make to property owners. It doesn’t matter if a property owner is an elderly person who is depending on the subject property to provide funds for retirement or if the property owner is a wealthy person who can afford the best legal assistance -- every property owner can find themselves on the losing side of the condemnation equation.

If the law is changed so all (i.e., 100%) of a property owner’s reasonable legal fees always are reimbursed by the condemning authority, it would create a disincentive for government entities to use the threat of condemnation to gain ownership of a property. It would create a level playing field and force government entities to more frequently make fair and reasonable offers so everyone avoid the wasteful entanglement of the legal process.

Next -- Part 4 of 4: Colorado’s Latest Condemnation Bully

GOVERNMENT AS BULLY

Part 4 of 4: Colorado’s Latest Condemnation Bully

The most recent prominent dispute in Colorado involves an elderly 87 year-old widow, Marie Wissler, who owns and lives on a 814-acre ranch in El Paso County. The Lewis-Palmer School District asked her to sell 60 acres for a new high school site. Ms. Wissler unequivocally told the District she was not interested in selling her property.

The School Board, in turn, then threatened her by noting it has the right to condemn her property and take it whenever it wished. Under the U.S. and Colorado Constitutions, indeed, the School Board does have that right. It does not have to justify why it wants the property and has no obligation to demonstrate there are not other suitable properties. It simply can say, “We want you land -- tough luck.”

In a recent Rocky Mountain News story, a former School Board president who happens to be a Realtor stated, “We did negotiate with the owners of several other parcels but they weren’t much interested.” This appears to be an admission that other suitable parcel exist but that the elderly widow was a more attractive condemnation target.

Many government entities argue they rarely, if ever, use the powers of eminent domain they have. This is true. But, because it is true, these same entities should not resist efforts to make the condemnation process more evenhanded. No reasonable or fair-minded person should object to improving a process which remains terribly unbalanced, as the Wissler case poignantly demonstrates.

It is time to change Colorado law so condemning authorities are required to justify to the public their decisions to use eminent domain. Property owners should be reimbursed for all legitimate expenses contesting a condemnation. And the powers of condemnation should not be vested in any agency or entity that is a derivative of an elected body or position. Accountability for these decisions is needed and only entities who are elected directly by the public, and hence accountable to voters, should have condemnation authority.

If these changes were made, the use of eminent domain to acquire private property against the wishes of the property owner would decrease. And when these powerful rights are invoked, there would be the level playing field U.S. citizens want for everyone and which American justice should require. Making the process fair and holding elected officials accountable are themes which should be encouraged. Current eminent domain laws discourage fairness and accountability. It now is time for the Colorado General Assembly to act.

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