The Constitution Already Protects Private Property Rights

By Rebecca Love Kourlis, former Colorado Supreme Court Justice

Amendment 74 sounds like a good idea. The ballot issue asks voters: “Shall there be an amendment to the Colorado constitution requiring the government to award just compensation to owners of private property when a government law or regulation reduces the fair market value of the property?”  Pretty simple – seems like a no-brainer answer ‘yes.’

But, please reconsider. It is not a good idea. It is unnecessary and quite dangerous.

I am particularly interested in 74 because I wrote a concurrence in a Colorado Supreme Court case in 2001 that is being cited in support of the amendment. I want to explain why my opinion does not support what is now being proposed.

The case involved a sand and gravel company in La Plata County. The company purchased 46.57 acres of land in 1961, at a time when no regulations controlling sand and gravel operations existed. In 1993, La Plata County adopted a land use plan that regulated development and activities in certain areas — for flood control and aesthetic reasons. The company had a permit to mine gravel from approximately 10 acres, and the county designated those acres industrial. The remaining acreage was placed in the river corridor district, which did not permit sand and gravel mining. The company sued for inverse condemnation, claiming that their property had been condemned by the operation of the land use plan and they were entitled to compensation.

The case reached the Colorado Supreme Court, where I was then a justice. The majority of the court determined that a landowner can prove a regulatory taking either by showing that the taking makes the land economically idle, or showing that, even though some economic value remains, the level of interference is very high. The court also held that the case had to be sent back to the trial court to allow the company to introduce evidence about the actual economic impact of the land use plan and the plan’s impact on the company’s investment-backed expectations. In other words, what had the company done in reliance upon its ultimate ability to mine sand and gravel on the property, and what amount of money were they really losing?

I wrote a separate opinion. I agreed that the case needed to go back to the trial court for more evidence and a fact-based determination. But, I noted some differences in how I saw the case. For example, I pointed out that a land use plan is different from zoning or subdivision regulation and should not be treated the same way. I also clarified that the property owner could indeed be compensated for something less than a complete taking of the property but would still need to introduce evidence of the extent of the damage. In other words, the taking need not be of the whole property — it can result in damage to the property values without resulting in a whole taking. 

Over time, the courts in Colorado have applied that standard on a measured case-by-case basis to come to reasoned outcomes. Our courts have protected private property interests under the authority of the Constitution as written. The cases have turned on the extent of the taking, the reasonable expectations of the property owner and the remaining uses of the property. Those are all legitimate questions.

The Constitution is not to be tinkered with. There is a rich history of the courts applying the Constitution to protect property owners appropriately. Amendment 74 wipes out that careful development of case law and attempts to create an absolute right to compensation whenever the fair market value of property is reduced by government action — no facts necessary to prove investment, reasonable expectations or the other uses of the property. That is using a bulldozer to dig a tulip garden — rather than a trowel.

Coloradoans’ reasonable expectations for the use of their property are protected — and the courts are well positioned to balance governmental interest versus private interest.

That balance should not be upset, and my concurring opinion does not suggest otherwise.  Count me out on Amendment 74. 

— Rebecca Love Kourlis is a former Colorado Supreme Court justice.