I send an email when there are new developments. Send me an email at info@stupidslab.com to be added to the list.
****************New on 05/05 - HB-1007 Likely to Pass. On Friday the conference committee on HB-1007 held a second session and reached agreement on a new amendment to the bill. This amendment was then returned to the house and senate for their approval. The senate passed it on Friday on a 32-3 vote. It is on the schedule for the house to hear on Monday and there is little doubt that it will pass. Wednesday is the last day for the 2008 legislature so they will be done one way or the other by then.
The senate amendment added last week specified that any existing toll road corridor "IS VOID AND SHALL NOT BE DEEMED TO GIVE THE FILING TOLL ROAD OR TOLL HIGHWAY COMPANY ANY PROPERTY RIGHT OR EXCLUSIVE DEVELOPMENT RIGHT OF ANY KIND WHATSOEVER WITHIN THE CORRIDOR." The conference committee deleted the words "IS VOID" and amended the words "ANY KIND WHATSOEVER WITHIN THE CORRIDOR" to say that if the company meets the start of work requirements they will have the exclusive right to seek approval for the road.
Where the senate amendment would have eliminated existing corridors entirely, the committee amendment leaves them in existence but makes it more explicit that they only signify the first step of the approval process. There is really very little difference in the status of the existing corridors before and after this bill if it passes. Here are the differences as applied to the Super Slab.
Currently: Front Range Toll Road Company has the exclusive right to develop the toll road subject to all of the required approvals.
If HB-1007 passes: Front Range Toll Road Company has the exclusive right to seek all of the required approvals and if successful has the exclusive right to develop the toll road.
It's hard to believe that this slight difference will give much relief to depressed real estate prices. Only time will tell.
The bill still contains the immunity from lawsuits for toll road companies and title insurers and the requirement that title insurers omit any mention of toll roads in their searches and policies. The legislature was very concerned with protecting the "rights" of the Front Range Toll Road Company but not so much with the rights of the people who actually own the land in the corridor.
New on 04/30 - Conference Committee Results. The joint conference committee met this morning on HB-1007. They made some minor wording changes put primarily they have stripped the amendment that nullifies toll road corridors. We need to email the members of the senate and ask them to "adhere to the the senate version" of the bill.
(Update: The committee will meet again on Friday. Send an email if you haven't yet.)I have set up a link to create an email HERE.
New on 04/29 - Conference Committee. The House has rejected the Senate amendment to HB-1007 which would eliminate all toll road corridors. The bill will now be heard by a joint conference committee tomorrow to see if they can arrive at an agreeable version. Considering the committee membership (Sens. Tapia, William, Cadman and Reps. Looper, McFadyen, Butcher) they will almost certainly strip the Wiens amendment out of the bill and send it back for a final vote. If that's how it goes we'll ask the house and senate to kill the bill and as a last resort we'll ask the Governor to veto it. The conference committee will be Weds., April 30 at 8:15 a.m. in Room 0109.
According to a recent article in the Pueblo Chieftain Senator Abel Tapia was told by legislative lawyers that "any measure that effects laws retroactively is a guarantee for a lawsuit." It is unbelievable (almost) that legislative lawyers would give such a mistaken report and disappointing that the President Pro Tem of the Senate wouldn't know better. The legislature passes bills every year which act retroactively or impose new obligations. The Colorado Supreme Court applies a number of tests to determine whether a retroactive statute is constitutional. Their criteria are listed below.
Note that the proposed elimination of the three-mile wide Super Slab corridor does not prevent the company from building the toll road, it just changes the procedure. Statutes which only effect procedures are not retrospective, they are constitutional. I've highlighted that and a few other relevant parts.
It seems to be only the proponents of this bill warning of a lawsuit. During committee testimony this year the Super Slab lawyer was asked if they would sue if their corridor were eliminated. He said that they have never discussed bringing a lawsuit.
This is the section of a 2006 Colorado Supreme Court case which explains the criteria for determining whether a retroactive statute is unconstitutional. The case, City of Golden v. Parker, can be read HERE.
Under the Colorado Constitution, the General Assembly is prohibited from enacting any law that is “retrospective in its operation . . . .” Colo. Const. art. II, § 11.
The general prohibition against retrospective legislation is intended to prevent any unfairness that might result from the application of new law to rights already in existence. In re Estate of DeWitt, 54 P.3d 849, 854 (Colo. 2002). Legislation is presumed to operate prospectively unless there is legislative intent to the contrary. Id. Retroactive application of a law, although disfavored, is not necessarily unconstitutional and may be permitted if the law at issue effects a change that is procedural or remedial. Kuhn v. State, 924 P.2d 1053, 105657 (Colo. 1996). In order to distinguish legislation that is merely retroactive, we use the term “retrospective” only in regard to legislation that “impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.” Ficarra v. Dep’t of Regulatory Agencies, 849 P.2d 6, 16 (Colo. 1993) (citations omitted)
We use a two-step inquiry to determine whether or not a law is retrospective in its operation. DeWitt, 54 P.3d at 854. First, we look to the legislative intent to determine whether the law is intended to operate retroactively. Id. We require a clear legislative intent that the law apply retroactively to overcome the presumption of prospectivity. Ficarra, 849 P.2d at 14. However, express language of retroactive application is not necessary to find that a law is intended to apply retroactively. Id.
If we find intent of retroactive application, the second step of the inquiry is to determine whether the retroactively applied law operates retrospectively. A law is retrospective if it either “(1) impairs a vested right, or (2) creates a new obligation, imposes a new duty, or attaches a new disability . . . .” DeWitt, 54 P.3d at 855. We consider each of these prongs of the retrospectivity analysis in turn. In regard to the first prong, we have found that a right is vested only when it has an “independent existence.” People v. D.K.B., 843 P.2d 1326, 1331 (Colo. 1993). A vested right may be derived from a statute or the common law, but “once it vests it is no longer dependent for its assertion upon the common law or statute under which it may have been acquired.” Ficarra, 849 P.2d at 15.
We do not employ a fixed formula or a brightline test for determining whether a right is vested. Id. at 17. Rather, we look to three factors: “(1) whether the public interest is advanced or retarded; (2) whether the statute gives effect to or defeats the bona fide intentions or reasonable expectations of the affected individuals; and (3) whether the statute surprises individuals who have relied on a contrary law.” DeWitt, 54 P.3d at 855.
A determination that retroactive application of a law impairs a vested right is not dispositive of the retrospectivity inquiry because such a finding “may be balanced against public health and safety concerns, the state’s police powers to regulate certain practices, as well as other public policy considerations.” Id. Retroactive application of a law that implicates a vested right is only permissible, however, if the law bears a rational relationship to a legitimate government interest. Id. In past cases, we have “appl[ied] a balancing test that weighs public interest and statutory objectives against reasonable expectations and substantial reliance.” Kuhn, 924 P.2d at 105960 (quoting Ficarra, 849 P.2d at 17).
If a vested right is not implicated, we consider the second prong of the analysis. Under this prong, “retrospectivity may result from the creation of a new obligation, imposition of a new duty, or attachment of a new disability with respect to” past transactions or considerations. Dewitt, 54 P.3d at 855. Application of a law is not deemed retrospective, however, “merely because the facts upon which it operates occurred before” its adoption. City of Greenwood Village, 3 P.3d at 445.
Because we review legislation with the presumption that it is constitutional, see, e.g., In re Submission of Interrogatories on House Bill 991325, 979 P.2d 549, 554 (Colo. 1999), our cases have not often found a law retrospective. However, we have prohibited retrospective application of a statute when the reasonable expectations and substantial reliance of a party vested prior to the enactment of the statute. Kuhn, 924 P.2d at 1060 (statute could not be retrospectively applied to defeat attorneys’ right to court-ordered reasonable fee paid out of common fund).
New on 04/25 - A Question for the Judiciary. HB-1007 passed its final reading in the senate Thursday by a vote of 28-5-2 with the amendment to abolish all corridors intact. It is scheduled to be heard in the house Friday for a decision on whether they agree to the senate amendments. They can either pass it, reject it, or send it to a joint house-senate conference committee to attempt a compromise.
I'm told that there is still some concern that this bill would be unconstitutional. The Colorado Supreme Court has said not. They have said that even a telephone company which had done business for decades did not have a vested right but "merely one to continue until the state, which granted the privilege, desires to modify, alter or withdraw it." (see the 4/12 entry below) Even if there were a vested right the Court said in 2006 that they apply "a balancing test that weighs public interest and statutory objectives against reasonable expectations and substantial reliance.” Is it reasonable for a company to encumber 630 square miles of other people's property indefinitely? The Super Slab lawyer has pointed to the $500,000 they have spent as substantial reliance on having a corridor. $500k on a $5 billion project is 1/100th of 1% of the total cost. For comparison, if you were planning a $200,000 house 1/100% would be $20. Maybe you could get a sheet of plywood and a single 2x4. That doesn't show much commitment. They have no reasonable expectation nor substantial reliance to justify keeping their corridor claim.
Article XV Section 3 of the state constitution says that the legislature can revoke, alter or annul a corporation's terms "whenever in their opinion it may be injurious to the citizens of the state, in such manner, however, that no injustice shall be done to the corporators. The Colorado State Constitution: A Reference Guide discusses this section and points out that "injustice" is a question for the justice system, i.e. the courts. IT IS AGREED ALL AROUND THAT TOLL ROAD CORRIDORS ARE INJURIOUS. IT IS THE LEGISLATURE'S DUTY TO CORRECT THAT AND IT IS A QUESTION FOR THE COURTS WHETHER THAT IS DONE UNJUSTLY. In other words, if Ray Wells wants to go to court to try to get the bill thrown out he can do that. He will lose but he can try. It's not the legislature's job to sort that out. Their job is to use their power to correct the injury to the citizens.
Friday's Colorado Springs Gazette mentions the bill and amendment. It says it "would eliminate all plans filed by the road backers and make them start over under stricter rules." I have to disagree with that. There is no starting over because the company hasn't done anything yet. They say they are evaluating engineering companies and preparing to do an environmental proposal. They don't need to redo a thing. When they are ready they start the approval process the same as they would do under the current law. And there are no stricter rules; the rules stay the same.
The story also says that Rep. Looper "hopes to remove the voiding of the corridor when House and Senate members get together to work out differences in their bills." Why? Which side are you on Marsha? She claimed to support the earlier bill, HB-1343, but now that we have all but achieved the same thing she's taking the side of the toll road company. (See Gazette Article.)
We're getting a late start but please email the members of the House of Representatives asking them to Vote Yes on HB-1007. It should pass as is without going to a conference committee. An email link is HERE.
New on 04/23 - IMPORTANT NEWS!! Please read ASAP. During second reading of HB-1007 on Wednesday an amendment by Senator Tom Wiens was adopted which would abolish toll road corridors and eliminate any perpetual powers to develop a toll road. The amendment says that any existing corridor including the Super Slab corridor "is void and shall not be deemed to give the filing toll road or toll highway company any property right or exclusive development right of any kind whatsoever within the corridor."
This is the biggest development we have ever had. It would still need to pass a third reading and vote in the Senate and then the amendments would need the approval of the House. If it clears those hurdles it goes to the Governor. Representative Looper who introduced the bill has said she supports the abolition of old and new corridors but felt that abolishing old corridors couldn't be done until next year. Now this could do both this year and it is one day away from passing the Senate.
PLEASE SEND AN EMAIL TO THE SENATE ASAP. The subject should ask them to vote yes on HB1007 WITH the Wiens amendment (L019) A link that will format it for you is HERE.
Or to do your own: Subject: Vote YES on HB-1007 with the Wiens Amendment (L019) Dear Senator,
The L019 amendment to HB-1007 corrects the problem created in 2006 of allowing toll road companies to claim a corridor. Before 2006 any such claims were made without any justification in the statutes. These corridor claims have caused great harm and will cause even more if they are not abolished.
Please vote YES on HB-1007 with Senator Wiens L019 amendment which was passed on Wednesday.
Sincerely, Your Name Your Address
With commas: abel.tapia.senate@state.co.us, bbacon@peakpeak.com, betty.boyd.senate@state.co.us, bill.cadman.senate@state.co.us, brandon@brandonshaffer.com, chris.romer.senate@state.co.us, dan.gibbs.senate@state.co.us, electkenkester@hotmail.com, gail.schwartz.senate@state.co.us, greg@gregbrophy.net, isgarsenate@frontier.net, jennifer.veiga.senate@state.co.us, john.morse.senate@state.co.us, joshpenry@gmail.com, ken.kester.senate@state.co.us, ken@kengordon.com, lotochtrop@aol.com, mike.kopp.senate@state.co.us, nancyspence@qwest.net, nwden34@yahoo.com, peter.groff.senate@state.co.us, ron.tupa.senate@state.co.us, scott.renfroe.senate@state.co.us, senatorkeller2002@yahoo.com, SenBob@msn.com, shawnmitch@aol.com, steve.johnson.senate@state.co.us, steve.ward.senate@state.co.us, ted.harvey.senate@state.co.us
With semicolons: abel.tapia.senate@state.co.us; bbacon@peakpeak.com; betty.boyd.senate@state.co.us; bill.cadman.senate@state.co.us; brandon@brandonshaffer.com; chris.romer.senate@state.co.us; dan.gibbs.senate@state.co.us; electkenkester@hotmail.com; gail.schwartz.senate@state.co.us; greg@gregbrophy.net; isgarsenate@frontier.net; jennifer.veiga.senate@state.co.us; john.morse.senate@state.co.us; joshpenry@gmail.com; ken.kester.senate@state.co.us; ken@kengordon.com; lotochtrop@aol.com; mike.kopp.senate@state.co.us; nancyspence@qwest.net; nwden34@yahoo.com; peter.groff.senate@state.co.us; ron.tupa.senate@state.co.us; scott.renfroe.senate@state.co.us; senatorkeller2002@yahoo.com; SenBob@msn.com; shawnmitch@aol.com; steve.johnson.senate@state.co.us; steve.ward.senate@state.co.us; ted.harvey.senate@state.co.us
New on 04/23 - Keep sending email. The second reading of HB-1007 in the senate was postponed on Tuesday and is on the schedule for Wednesday. If there is a third reading it may be a few days later so it might not come until next week. So there is still time to send an email asking the senators to vote no. There is a link that will automatically format an email for you HERE.
That link sends a short, basic message. For a more detailed message here is the one sent by the El Paso County group. You can copy it or write your own. The address lists are below. -------------------------------------------------------------------------------------------------- Dear Senators,
Citizens throughout the "corridor" are opposed to this bill! We respectfully request you vote ‘no’ on HB-1007 for the following reasons:
HB-1007 offers private companies immunity for “unspecified” illegal behavior and denies citizens due process to recover if damaged.
HB-1007 gives title companies immunity to deceive future property buyers, which is dishonest. The witness from Land Title Company testified it would be fraudulent to remove the current notice from titles and that is why they need immunity. Similar immunity for misrepresenting property does not extend to sellers and realtors who remain at risk of a lawsuit for non-disclosure.
The disclaimer on property titles is NOT an unintended consequence, but rather proper notification that residents in the “corridor” fought for (SB06-115 & HB06-1003) two years ago! Property buyers are entitled to know all possible conditions that may affect their financial investment.
The attorney for the Super Slab, David Foster, testified that removal of the DISCLAIMER of interest notice on our titles might actually imply an interest on the part of the toll road company that does not presently exist, creating even more problems!
HB-1007 specifies a separate process for a PREEXISTING PRIVATE toll road company (there is only one) and another process for all subsequent “new” toll road companies. This bill would create an unfair advantage for the Super Slab, over other companies and HB-1007 removes accountability provisions placed in statute only two years ago.
The bill does not remove the stigma the Super Slab has placed on property owners because the "corridor" still exists and continues to have an adverse affect on business and property values.
Members of five large toll road coalitions spanning six counties along the Front Range oppose amending HB-1007. Citizens from Adams, Arapahoe, Elbert, El Paso, Pueblo and Weld County organizations have been in existence over three years. We have three websites, blogs and extensive membership lists. Pueblo County emails to over 1300 families, Weld County has 900 email and phone contacts and Elbert has almost 500 members. The El Paso County coalition has over three hundred active members and many of these people inform neighbors affected by the toll road. There is a column in the Elbert County News that exclusively addresses toll road concerns.
Your action on this complicated transportation issue will affect THOUSANDS of families and this bill will further complicate their situation. More study is needed and a better bill presented next year.
We appreciate your sincere desire to help us. We respectfully request you vote ‘no’ on this terribly flawed bill.
Sincerely, Your Name Your Address
With commas: abel.tapia.senate@state.co.us, bbacon@peakpeak.com, betty.boyd.senate@state.co.us, bill.cadman.senate@state.co.us, brandon@brandonshaffer.com, chris.romer.senate@state.co.us, dan.gibbs.senate@state.co.us, electkenkester@hotmail.com, gail.schwartz.senate@state.co.us, greg@gregbrophy.net, isgarsenate@frontier.net, jennifer.veiga.senate@state.co.us, john.morse.senate@state.co.us, joshpenry@gmail.com, ken.kester.senate@state.co.us, ken@kengordon.com, lotochtrop@aol.com, mike.kopp.senate@state.co.us, nancyspence@qwest.net, nwden34@yahoo.com, peter.groff.senate@state.co.us, ron.tupa.senate@state.co.us, scott.renfroe.senate@state.co.us, senatorkeller2002@yahoo.com, SenBob@msn.com, shawnmitch@aol.com, steve.johnson.senate@state.co.us, steve.ward.senate@state.co.us, suzanne.williams.senate@state.co.us, ted.harvey.senate@state.co.us
With semicolons: abel.tapia.senate@state.co.us; bbacon@peakpeak.com; betty.boyd.senate@state.co.us; bill.cadman.senate@state.co.us; brandon@brandonshaffer.com; chris.romer.senate@state.co.us; dan.gibbs.senate@state.co.us; electkenkester@hotmail.com; gail.schwartz.senate@state.co.us; greg@gregbrophy.net; isgarsenate@frontier.net; jennifer.veiga.senate@state.co.us; john.morse.senate@state.co.us; joshpenry@gmail.com; ken.kester.senate@state.co.us; ken@kengordon.com; lotochtrop@aol.com; mike.kopp.senate@state.co.us; nancyspence@qwest.net; nwden34@yahoo.com; peter.groff.senate@state.co.us; ron.tupa.senate@state.co.us; scott.renfroe.senate@state.co.us; senatorkeller2002@yahoo.com; SenBob@msn.com; shawnmitch@aol.com; steve.johnson.senate@state.co.us; steve.ward.senate@state.co.us; ted.harvey.senate@state.co.us
New on 04/20 - Emails to the full senate needed. Please send an email to the Senate opposing HB-1007. I've set up links to help you send an email to the members of the Senate. Details are HERE. Please email them ASAP to kill HB-1007 which has a second reading on Tuesday, April 22. If that passes the final reading could be on Wednesday. The Senate Committee added an amendment making homeowners responsible to disclose the toll road corridor when selling property. Toll road companies get full immunity, title insurers get immunity whether or not they comply with this new law which requires them to hide the corridor. Only homeowners will have any liability. This is the "help" they want to give us!
New on 04/18 - HB-1007 with Amendment. The current form of the bill is HERE. The amendment added by the Senate Veterans and Toll Road Affairs Committee requires landowners to disclose the toll road situation to buyers. County Clerks are to cover it up, title insurers are to cover it up, landowners are the only ones who will be held accountable.
New on 04/16 - HB-1007 Passes Committee on 3-2 Vote. HB-1007 was passed today by the Senate State, Veterans and Military Affairs Committee on a 3-2 vote. The state website says it was passed with amendments. I haven't seen the amendments yet but will post the bill when I get it at (probably tonight or tomorrow). Voting yes were Senators Tapia (the committee chairman and sponsor of the bill), Cadman and Romer. Voting no were Senators Windels and Schultheis.
Rep. Looper introduced the bill on the first day of the legislature in early January but didn't have a senate sponsor until late March. At that point it was being laid over day-by-day in the House of Representatives because a bill is required to have a senate sponsor before its third reading in the house. On March 24 Senator Tapia's name was added as a sponsor and the bill moved on to the Senate. The obvious committee assignment for a toll road bill would be the Senate Transportation Committee but it was assigned instead to the State, Veterans and Military Affairs Committee whose chairman, Senator Tapia, is also the President Pro Tem of the Senate.
Now the bill goes back to the whole senate for a second and third reading. If it passes the third reading vote it goes on to the governor for signature. The second reading could be as soon as tomorrow (Thursday). Judging by the way the sponsors sidestepped the Transportation Committee I expect they will try to rush it through the additional readings ASAP.
New on 04/15 - Committee Vote Wednesday. The Senate State, Veterans and Military Affairs Committee is scheduled to complete their action on HB-1007 Wednesday at 1:30pm. If you haven't yet sent an email to the committee please do so now HERE. If you have already sent one you can send a thank you message to the committee HERE.
If you have property in the Super Slab corridor that you are trying to sell please contact Sharon Croghan about your position on HB-1007. She is assembling information from property sellers who are opposed to HB-1007. It was suggested that anyone currently trying to sell land would surely support the bill but all of those we've contacted are more ethical than to want a law allowing them to toss the hot potato. It's important to have this information for the senate committee.
Last year and this, after we have generated hundreds of emails, letters and phone calls and presented overwhelming testimony at a hearing we learn that our senators and representatives are being told that we have changed our minds and now support a bill that we were dead set against 48 hours earlier. It's hard to counter that when we've all gone home or stopped emailing and people who work in the building are there every day to plant the seeds of doubt. I have not heard of a single opponent of HB-1007 who now supports it. It wouldn't make sense since nothing has changed. I hope that members of the legislature will not ignore all that they've heard because of a rumor. We've also been accused of spreading misinformation but no example is ever given. If you're told that the opponents of HB-1007 are using misinformation ask what that misinformation is and please pass it on to me. I doubt if you'll get an answer. The tactic is to cast aspersions and count on not being questioned.
You can read the minutes of the committee hearing HERE. Take a look at attachments B, C and D particularly. Even attachment A, a letter in suport of HB-1007 from El Paso County Commissioner Amy Lathen, says that HB-1007 doesn't get to the root of the problem and another bill will be needed next year. Representatives of the Land Title Association of Colorado testified that without the immunity given by the bill they would be sued for fraud for not reporting the toll road situation to their clients.
Updates from two of the oppostion groups are below. Also see frontrangetollroad.blogspot.com for their news. --------------------------------------------------------------------------------- The fight is not over. HB-1007 was laid over for further consideration and will be heard 16 March 2008 for action only. This time allows PFPE and other supporters of 1007 to lobby the committee members and with 30 + lobbyists working to see this bill passed, we need a voice there continuing to carry our message.
Save Our Homes hired an outstanding lobbyist, Jae, who has made a tremendous difference for us with the committee members. Jae did a marvelous job organizing testimony for the hearing, assuring all the important facts were covered by the people giving testimony. She is there today, talking to the senators, making sure our position isn’t forgotten or looked over. She will be there tomorrow and Monday, again contacting the senators, continuing to carry our message.
Jae’s presence at the capital has been invaluable, the professional lobbyist seems to make headway with legislators which the citizen is unable to do, along with lobbying for us, she is able to bring pertinent information to us on a daily basis on breaking information and concerns raised by legislators, she also keeps the opposition’s lobbyists busy, as they follow her around the Capital keeping an eye on what she is doing. That is a good thing, because that means the opposition is worried about her and our influence with the senators.
If we are to keep Jae working to protect your property rights we need financial support from throughout the corridor. I realize money is tight, but if this bill passes, we will be faced with the existence of the SuperSlab corridor in perpetuity, with little hope of ever removing the corridor and the cloud it puts over everyones property, as the bill gives legitimacy to the one existing corridor in Colorado, the SuperSlab.
In the House Transportation Committee, the influence of the lobbyist during the extended time the bill was laid over, became apparent, with the overwhelming support the bill received when it was finally voted on. While the committee members listened intently to our concerns for the bill, over time, our words were dimmed or forgotten, with the constant influence of the lobbyists.
Citizens from throughout the corridor have spent days down at the Capital speaking to legislators, those contacts are key in our efforts as it puts names to faces, but it does not equal the time lobbyist are able to achieve by daily face to face interactions with the legislators. A full time lobbyist is key to our efforts to stop this bill.
Please send any amount you are able: Save Our Homes Coalition PO Box 575 Keenesburg, CO 80643
While, SOH is a non-profit, your donations are not tax deductable, as we are a lobbying group.
Thank-you for your support. Peace, Sharon --------------------------------------------------------------------------------- Dear Colorado State Senator,
Opponents to HB-1007 do not want a “perfect” bill. We simply request an honest bill that does not offer immunity for wrongdoing and will not remove our due process to recover damages.
Giving immunity to title companies to deceive future property buyers is dishonest. The witness for Land Title Company testified that it would be fraudulent to remove current language from titles. Similar immunity for misrepresenting property does not extend to sellers and realtors who remain at risk of a lawsuit for non-disclosure.
The disclaimer on property titles is NOT an unintended consequence but rather proper notification that residents in the “corridor” fought for (SB06-115 & HB06-1003) three years ago! Property buyers are entitled to know all possible conditions that may affect their financial investment.
Removal of the DISCLAIMER of interest may actually imply an interest on the part of the toll road company that does not exist, creating even more problems!
HB-1007 specifies a separate process for a PREEXISTING PRIVATE toll road company (there is only one) and another process for all subsequent “new” toll road companies. We believe laws should fairly apply to all companies and not create an unfair advantage for one company over others.
Members’ of five large toll road coalitions spanning six counties along the Front Range oppose amending HB-1007. Citizens from Adams, Arapahoe, El Paso, Elbert, Pueblo and Weld County organizations have been in existence over three years. We have three websites, blogs and extensive membership lists. Pueblo County emails to over 1000 families and Elbert has almost 500 members. The El Paso County coalition has over three hundred active members and many of these people inform neighbors affected by the toll road. There is a column in the Elbert County News that exclusively addresses toll road concerns. Your vote on this complicated transportation issue will affect the lives of THOUSANDS of families.
Thank you for accepting our testimony on HB-1007. We appreciate your sincere desire to help us. We respectfully request you NOT amend HB-1007 but vote NO to kill this terribly flawed bill.
Respectfully, The El Paso County Transportation Coalition Barbara Fillmore, Co-Chair & Carolyn Myers, Co-Chair
New on 04/12 - Supreme Court says right cannot be vested by statute.
In the 1960s the City of Englewood was trying to force Mountain States Telephone Company to renew their franchise with the city which had expired after twenty years. Englewood lost their case when the Colorado Supreme Court said that a state law passed during the twenty year period gave Mountain States "the right to construct, maintain and operate" their telephone lines, so they no longer required a franchise from the city. "This does not mean," the court added "that a perpetual right has vested in the utility, by virtue of any statutory grant, for such would violate Article II, Section 11 of the Colorado Constitution. The right is merely one to continue until the state, which granted the privilege, desires to modify, alter or withdraw it."
The Front Range Toll Road has a right by virtue of a statutory grant, "to develop or seek approval to develop a toll road or toll highway." They claim their right is vested, perpetual and constitutionally protected. Wrong, wrong and wrong.
Article II, Section 11 of the constitution says that no law "making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly." In Englewood the Supreme Court says that a power or privilege given to a company by a statute cannot become a vested, perpetual right or it would violate this article. The lawyer for the Front Range Toll Road has said time after time in committee hearings this year that HB-1003, passed in 2006, gave them a vested right that exists in perpetuity. If he's right then the statute is unconstitutional and their corridor is invalid. If he's wrong (and he is) then their toll road corridor can be taken away by a repealing statute. Either way the legislature can abolish toll road corridors including the pre-existing ones.
When the court says that the state may "modify, alter or withdraw" Mountain State's right to operate they are no doubt referring to Article XV Section 3 of the Colorado Constitution which says "The general assembly shall have the power to alter, revoke or annul any charter of incorporation...whenever in their opinion it may be injurious to the citizens of the state, in such manner, however, that no injustice shall be done to the corporators." The combination of these two articles say that there is no vested right in a corridor and that corridors can be abolished. If the Supreme Court says that a telephone company that has been doing business for decades can have their franchise revoked then obviously the same applies to a company that has not even begun construction. The Court has called these sort of rights to pursue something "unexercised opportunities" and says they are not vested rights. They have said that a right like this "does not exist in the sense of a vested right until it is exercised" and it is not unconstitutional to take such a right away.
The Senate State, Veterans and Military Affairs Committee is reluctant to kill HB-1007 because they think it is the best that can be done for us. It is not. The best thing would be to postpone this bill indefinitely rather than further complicate the situation. The Office of Legislative Legal Services has not been consulted on the constitutional issues that are causing so much debate. The legislature is relying mostly on the word of the Superslab lawyer who, besides giving only one side, actually misinterpreted the rule of one the key cases (See the 04/02 entry below ) More study needs to be done and a better bill presented next year.
New on 04/10 - HB-1007 on Life Support On Wednesday the Senate State, Veterans and Military Affairs Committee heard testimony on HB-1007 which would void documents filed by the Front Range Toll Road Company but would leave the actual claim of a toll road corridor intact. I'll send more details later but the opponents presented a strong case and in the end the senators laid the bill over until next week. That happens frequently when a bill doesn't have the votes to pass but they are willing to give the sponsor one more chance to amend it and fix the problems. The danger is that an eleventh hour amendment might seem to address the problems well enough but the changes haven't been through the several months of discussion that is normal for the process. The last thing we want is more unintended consequences caused by last minute changes. And this bill would need almost all of its language replaced to fix the problems. The best plan is probably to regroup and get it right next time. I'll let you know what develops.
Thanks to everyone who sent emails. This graph shows how the web traffic jumped on Tuesday as people used the formatted email message. Your response made the difference. It really got their attention!
New on 04/08 - Last call. Please do your part. Committee members are getting lots of your emails opposing HB-1007 but the Super Slab lobbyists are also at the Capitol every day promoting this bill. I've set up a link that will automate sending an email for you. You can change the message or leave it alone. Just fill in your name at the bottom and send. Or use the example in yesterday's post.
GO TO THIS PAGE TO SEND AN EMAIL TODAY. THE HEARING IS WEDNESDAY.
Also attend if you can at 1:30pm Wednesday. Info on parking etc. is below.
The map below is the one created by Adams County for the Front Range Toll Road Company. The purple line is the three-mile wide corridor that they initially asked for. The light yellow shaded area is the five-mile wide corridor that the company asked for a short time later. All of those lots in the yellow area that are outside of the purple line should not have gotten the certified letter telling them that they were in a toll road corridor and that their land might be taken by eminent domain but they did. It was no mistake. The company had the correct map and then asked for a wider corridor. I pointed this out in my September 7, 2006 post. A few days later the Pueblo Chieftain contacted the Super Slab spokesman for a comment. So they have definitely known about it for 19 months but they have not fixed it. They could have amended the map and sent letters to the people incorrectly notified but they have not. In January 2007 they recorded the list of property owner names with the Clerk and Recorder for the five-mile width causing all of those people to have problems with title searches. NOW THEY WANT IMMUNITY for doing that and Rep. Looper is working like mad to get it for them. One of Looper's advisors and her partner in submitting plagiarized articles to El Paso County newspapers (see CS Indy article. ), Andrea Castro, is lobbying in favor of the bill for the developer of the Ellicott Towne Center project.
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This is the latest from www.frontrangetollroad.blogspot.com It gives parking & travel info.
We went to the Capitol today to speak with the members of the Senate Veterans and Military Affairs Committee. We were told that they are receiving many emails and phone calls from citizens against HB08-1007. One Senator was intrigued that there had been NO phone calls or emails from citizens in the corridor who are for HB08-1007. What a surprise. I hear crickets.
Please continue to write and call your Senators. It is having an impact, and their learning curve on toll roads seems to have increased dramatically in the past few days. We will be there again tomorrow to speak with our legislators, and we hope that you are able to come to the Capitol on Wednesday, April 9, @ 1:30 PM, Rm. SC 356. Bring your neighbors, your family, your friends, anyone who will be impacted if this bill proceeds. Let's get that room packed with Eastern Plains residents. If possible, sign up to testify. (You may want to write your testimony down, practice reading it, and try to keep the length at approximately 3 minutes, in case the Committee Chair decides to limit the time people may speak.)
FYI - There are some $4 'all day' parking lots southwest of the Capitol, on the west side of Broadway. You can also catch the Light Rail @ Lincoln. (Adult round trip is $8, $4 for senior citizens.) Take the F Line. Get off @ California St., take the free shuttle to Broadway and Colfax, and walk one block east to the Capitol. Remember to enter the building on the South side, basement. You will have to go through a security check. Allow yourself enough traveling time (approx. 1 hr on the Light Rail). If you drive, park and walk, allow walking time to the Capitol.
Thank you for taking the time out of your busy lives to come downtown and stand up against HB08-1007.
New on 04/07 - When you're in a hole, stop digging. Short version: 1. Please go to Denver Wednesday at 1:30pm for the hearing on HB-1007. 2. Please send an email to the members of the Senate asking them to kill HB-1007. 3. The legislature should not pass any more toll road laws until next year when they have obtained opinions on the relevant legal issues.
Long version: First a clarification. In my last email I said that no one including CDOT objected to the railroad portion of HB-1343 but then "they" changed their minds and voted it down. CDOT did NOT flip-flop on this; they remained neutral on the bill after it was amended to address only the eminent domain of railroads. ------------------------------------ By passing HB-1007 the House of Representatives has recognized that toll road companies shouldn't be allowed to claim a wide corridor. But the bill only eliminates that possibility for future toll roads and not for existing ones like the Front Range Toll Road. By doing it this way the bill's sponsor avoided opposition from the Front Range Toll Road Company but also avoided solving the problem of the blight on 630 square miles of the eastern plains. The House rejected a more comprehensive bill, HB-1343, after the lawyer for the Super Slab testified that it would be unconstitutional. Questions were raised during the committee hearing of HB-1343 about issues like vested rights and retrospective laws that would bear on the constitutionality but there were no answers available from an impartial, authoritative source.
The legislature has access to at least two such sources of information. The Office of Legislative Legal Services (OLLS) is an agency of the General Assembly that will issue legal memoranda on any issue when requested by the legislature. They do it routinely including a 23 page memorandum on eminent domain (including for toll roads) that they drafted in 2005 (see it at HERE.) The memoranda "are intended for use in the legislative process and as information to assist the members in the performance of their legislative duties" and they "generally resolve doubts about whether the General Assembly has authority to enact a particular piece of legislation" according to the notes in several recent memoranda.
Another avenue is an interrogatory to the state supreme court. Article VI Section 3 of the Colorado constitution says "The supreme court shall give its opinion upon important questions upon solemn occasions when required by the governor, the senate, or the house of representatives; and all such opinions shall be published in connection with the reported decision of said court." For example, in an interrogatory in 2004 one of the questions asked was "Can House Bill 04-1098 constitutionally exclude from the definition of “custodial moneys” any moneys granted by the federal government to Colorado for the support of general or essential state government services of the type for which expenditures are made in the most recently approved annual general appropriation act, including but not limited to additional payments received by the state under the 'Jobs and Growth Tax Relief Reconciliation Act of 2003'?" (see it at HERE.)
One or both of these sources needs to be tapped so that a decision not involving guess work can be made. There is also an expert on retrospective legislation at the DU Law School who could be consulted.
The bill that would have addressed the whole problem of corridors this year has already been killed. It needs to be brought up again next year and the legal issues researched by the OLLS and, if necessary, the Supreme Court. HB-1007 is an attempt to put a Band-Aid on a gash that needs 100 stitches. Besides that it raises its own constitutional issues by offering immunity from lawsuits for actions in the past. It is rejected by all of the citizens' toll road groups including the El Paso County group formed by former allies of Marsha Looper. Rep. Looper seems to want a toll road bill victory so badly that she doesn't care what the bill says. She's at the Capitol every day which gives her plenty of time to convince the other members that she has the popular support of the people in the eastern plains. We need to let them know that that isn't so. Details for sending emails and attending the hearing are below. --------------------------------------------------------------- There is more information on HB-1007 in the recent postings at Toll Road Warriors Blog. Here is their sample email and committee hearing info:
Dear Toll Road Warriors,
The campaign to kill HB08-1007, is well under way. We hope that you, along with your family, neighbors and friends, will be able to attend the hearing this coming Wednesday, April 9th, 1:30pm at the State Capitol. Your presence and testimony will be imperative.
Emails and phone calls will also be extremely helpful. Contact information is listed at the end of this blog entry. When you email a Senator, sent along a picture of your family and your ranch, your property, your animals, whatever is dear to your heart on the Eastern Plains. If you are able to come to the hearing on Wednesday, but your neighbor(s) is not, please bring a picture of your neighbor and his family to share with the Committee. Our Senators need to see the faces of the citizens who are being minimalized and would be deeply harmed if this bill should pass.
Below is a sample letter that you are welcome to use or modify to send to the Senate Veterans and Military Affairs Committee.
Dear Senator _____,
This coming Wednesday, April 9th, you will be hearing Rep. Looper's toll road bill, HB08-1007 in the Veterans and Military Affairs Committee. I urge you to vote NO on HB08-1007 for the following reasons:
1) HB08-1007 addresses "preexisting" private toll roads (the Prairie Falcon Parkway Express) and future toll roads. They are addressed differently in HB08-1007 giving the PFPE unfair advantages over future toll roads. One piece of legislation should not be written specifically for one private project.
2) HB08-1007 hides disclosure from the public. Potentially impacted citizens would not know about the project until it was adopted into the statewide transportation plan.
3) HB08-1007 does NOT clear property titles clouded by the Super Slab. In this bill, a disclaimer of interest or map filed or recorded is 'declared VOID' but does not require title companies to record the void on affected (preexisting) titles.
4) New toll roads will not be required to file maps of the routes with the County Commissioners (required now for 'preexisting' private toll road companies). Again, avoiding proper disclosure to the citizens of Colorado.
5) HB08-1007 grants special immunity to "preexisting” private toll roads (read: PFPE) and to title companies for incorrect filings. Citizens will have no legal recourse if they have been damaged (and they have!).
6) The Super Slab corridor will still exist if HB08-1007 passes. Property owners will continue to watch the value of their properties/businesses decline with no legal recourse.
HB08-1007 does NOT solve the problems that have been created by the Super Slab. It benefits one toll road company while damaging the residents (over 5000) of the Eastern Plains. We need toll road legislation which will properly address real transportation problems in Colorado, not legislation which protects and promotes the greed of one private corporation. I ask you again to please vote NO when you hear HB08-1007.
Respectfully, Name County Contact information --------------------------------------------------------------------- This is from Sharon Croghan of the Save Our Homes Coalition with a sample email from the El Paso County group:
SOHC has hired a lobbyist and we are making headway against this bill, but our success is dependent on your participation! You need to stand up now and put an end to HB08-1007.
Write the 5 State Affairs Committee members. Call their offices. Tell them that under no circumstances do you want this bill passed.
Most importantly, SHOW UP next Wednesday, April 9th @ 1:30 PM! Take the day off of work. Bring your kids. Bring your neighbors. Bring pictures of your families and your property. Please, please get involved and help to stop this bill.
If HB08-1007 passes, it will be very difficult to undo the damage it will cause.
Below is a clear and concise list of reasons to oppose HB1007 put together by Barbra Fillmore and Carolyn Myers from El Paso County. Feel free to copy and paste the whole letter or just take a few points from it:
HB08-1007 is a transportation bill that has been assigned to the Senate State Affairs Committee. Citizen organizations throughout the Super Slab corridor are opposed to this bill. Please vote NO for the following reasons.
1. HB08-1007 specifies a separate process for a PREEXISTING private toll road company (formerly called the Super Slab) and another process for a new private toll road company, thereby creating an unfair advantage for one company over others. Laws should fairly apply to everyone, not be crafted for just one company.
2. HB08-1007 hides disclosure of private toll roads from the public. This bill would conceal a private toll road project from citizens until the project is included in the statewide transportation plan. At that point, it is too late for citizens to express concerns on the project!
3. A "new" private toll road will not be required to provide a map of the route to County Commissioners as required by "preexisting" private toll roads. A property owner will have no way to learn if they may be in the path of a private toll road! This is not proper disclosure.
4. This bill presents a huge liability issue for SELLERS and REAL ESTATE BROKERS. Colorado state law requires realtors and homeowners to fully disclose any adverse condition affecting a property to future buyers. This bill creates a BUYER BEWARE scenario and would defraud homebuyers.
5. HB08-1007 grants special legal immunity to the Super Slab, a private company, (also called a preexisting toll road company) and to title companies. This would prevent due process for property owners that may have been damaged.
6. HB08-1007 does NOT clear property titles that have been clouded by the Super Slab. In the bill, the written notice, disclaimer of interest or map filed or recorded is declared void, but does not require the title companies to record the void on affected titles! The title company will only record the “void” upon sale of the property. Therefore, the cloud will continue to adversely influence property value. With this bill, title companies will receive immunity and property owners will have NO LEGAL remedy for the possible harm.
7. This bill does not remove the stigma the Super Slab has placed on property owners because the “corridor” still exists and therefore continues to adversely affect business and property values.
HB08-1007 is terribly flawed. Please vote NO on HB08-1007.
Respectfully, Name County Contact information ------------------------------------------------------------------------- Addresses: State, Veterans and Military Affairs Committee Senator Abel Tapia, Chairman Email: abel.tapia.senate@state.co.us Phone: 303-866-4878
Senator Chris Romer, Vice-Chairman Email: chris.romer.senate@state.co.us Phone: 303-866-4852
Senator Bill Cadman Email: bill.cadman.senate@state.co.us Phone: 303-866-2737
Senator David Schultheis Email: senatorschultheis@gmail.com Phone: 303-866-4835
Senator Sue Windels Email: senatorwindels@comcast.net Phone: 303-866-4840
With semicolons: abel.tapia.senate@state.co.us; chris.romer.senate@state.co.us; bill.cadman.senate@state.co.us; senatorschultheis@gmail.com;senatorwindels@comcast.net With commas: abel.tapia.senate@state.co.us, chris.romer.senate@state.co.us, bill.cadman.senate@state.co.us, senatorschultheis@gmail.com,senatorwindels@comcast.net
New on 04/02 - The Wrong Bill Advances. 1. HB-1343 (the good bill) was killed by the House Transportation and Energy Committee on Tuesday. We've seen this coming and the planning for getting a bill passed next year has already begun. We won't stop until there is a solution to the corridor situation.
2. HB-1007 (the bad bill) was passed by the House and has a hearing before the Senate State, Veterans and Military Affairs Committee next Wednesday. We need your email, phone calls and attendance to stop this bill. Details are below. If it passes it becomes even more difficult to get it done correctly in the future.
House Bill 1343, which would have eliminated toll road corridors until they passed a preliminary approval, was voted down on Tuesday. The full committee hearing on this bill was several weeks ago. Today they only considered amendments which would have stripped the bill down to the language limiting the use of eminent domain by railroads. At the earlier hearing everyone including CDOT and the lawyer for the Super Slab said that the railroad language was acceptable but they apparently changed their minds in recent weeks. It was clear after the first hearing that the bill was sunk. In the past, when committees have wanted to help us with a bill, their questions and criticisms were constructive and they worked with us to get the bill into a form they would pass. This time it was like they were immediately throwing their hands up and saying this is so confusing, I just can't understand it. I suppose we could have done a better job of explaining the bill but I think they chose to go with the bill that wasn't being opposed by the Prairie Falcon Parkway Express.
The agreement that was apparently made regarding Rep. Looper's bill, HB-1007, gave the Super Slab something they wanted (immunity from lawsuits) in exchange for their not opposing something they didn't even care about (voiding the recorded notices and disclaimers.) The Super Slab company has no reason to care what happens to the documents filed with county clerks. They don't care if they're voided, expunged, shredded or printed on milk cartons. There was no need to give them anything in exchange for the documents being voided. It is the worst deal made since Jack traded his cow for some worthless beans. And when HB-1007 was introduced it only gave immunity for documents that were "lawfully" filed but that word has been deleted. Now they would get immunity even for intentional and unlawful filings such as the situation in Adams County.
Another change to HB-1007 since it was introduced is that any future toll road incorporations will not involve corridors. When they apply for approval of their project they name the route, not a corridor. There is never any perpetual 3-mile wide corridor created. The bill has about doubled in length to make sure that every section has a version for "pre-existing" toll roads and another for "new" toll roads. This way the Super Slab gets to keep a 3-mile wide corridor but no one else can ever have one. This approach is predicated on the Super Slab's claim that they have a vested exclusive right to develop a toll road in their corridor that can't be taken away from them. It is highly debatable whether such a vested right exists. During hearings committee member and attorney Rep. Claire Levy thought not and retired attorney Rick Brown of the High Plains Coalition for Responsible Transportation Policy didn't buy it either. The Super Slab lawyer, David Foster, actually made an error in arguing this point before the transportation committee. He cited the Colorado Supreme Court decision in the DeWitt case which says that "when considering whether a vested right is implicated, we consider (1) whether the public interest is advanced or retarded." Foster argued that building a toll road would provide infrastructure and thus advance the public interest. The problem is that the test is supposed to be applied to the statute in question, not to the potential right. So the question would be whether HB-1343 advances or retards the public interest. And the answer is that it would advance the public interest by solving the "clouds on titles" problem. So, the issue Foster raised is a winner for toll road opponents and not for the Super Slab.
[My reading of In Re Estate of DeWitt is supported by the discussion of the DeWitt language given by Professor Jan Laitos of the DU Law School in his book "Law of Property Rights Protection: Limitations on Governmental Powers." Laitos, who was formerly a clerk to the Chief Justice of the Colorado Supreme Court, has written extensively on retroactive legislation. See https://law.wustl.edu/journal/52/159.pdf and http://books.google.com/books?id=__JIToDu0DsC ]
A bill should not be passed with all of this double language for new/old toll road companies. The legislature has the power under at least three provisions of the state constitution to apply one set of rules to all toll road corporations. House Transportation Committee members asked a few questions about ex post facto (retrospectivity) issues during hearings but there were not many answers given. The friendly man from the Super Slab put out his side of the story (mistakes and all) but no experts were consulted. For the legislature to abolish corridors but exempt the only company that is actually causing a problem would be unforgivably remiss.
-------------------------------------------------------------------- We haven't been asking for crowds of people to go to the capitol since 2006. At that time we were getting about 400 people to each hearing. The committees were well aware that there were a lot of us and they had heard our personal stories so we stopped pushing attendance. We haven't had a hearing with this committee before and I think the legislature in general may have decided that not that many of us are still motivated. So please attend the hearing if you can. It is scheduled for Weds., April 9 at 1:30pm in Room SCR 356. -------------------------------------------------------------------- The "Save Our Homes Coalition" is the Super Slab opposition group in Weld County. They have been working for us since 2005 and they would welcome donations to help meet expenses. Send a check if you can to: SOHC PO Box 575 Keenesburg, CO 80643 -------------------------------------------------------------------- Please email or call the members of the Senate State, Veterans and Military Affairs Committee. Ask them to kill HB-1007 because it doesn't solve the problem of the Super Slab corridor (which CAN be solved) and it gives immunity from liability even for reckless and intentionally improper acts. Addresses are below. -------------------------------------------------------------------- Senator Abel Tapia, Chairman Email: abel.tapia.senate@state.co.us Phone: 303-866-4878
Senator Chris Romer, Vice-Chairman Email: chris.romer.senate@state.co.us Phone: 303-866-4852
Senator Bill Cadman Email: bill.cadman.senate@state.co.us Phone: 303-866-2737
Senator David Schultheis Email: Sentorschultheis@gmail.com Phone: 303-866-4835
Senator Sue Windels Email: senatorwindels@comcast.net Phone: 303-866-4840
abel.tapia.senate@state.co.us; chris.romer.senate@state.co.us; bill.cadman.senate@state.co.us; senatorschultheis@gmail.com; senatorwindels@comcast.net abel.tapia.senate@state.co.us, chris.romer.senate@state.co.us, bill.cadman.senate@state.co.us, senatorschultheis@gmail.com, senatorwindels@comcast.net
New on 03/10 - HB-1007's Unconstitutional Grant of Immunity. The short version: Giving immunity from lawsuits for past acts of negligence is retrospective and therefore unconstitutional.
The long version: On Tuesday the House Transportation and Energy Committee held its hearing on HB-1343 which would dissolve all toll road corridors and enact a new process for approval of toll road projects. CDOT had opposed the original plan to require every toll road proposal to enter a public-private initiative agreement but they withdrew their objection when that process was amended. A lawyer for the Super Slab, David Foster, told the committee that the bill was unconstitutional because it acted retrospectively (retroactively and unfairly) which is forbidden by the state constitution Article II, Sec. 11. His analysis was correct as far as it went but he ignored important factors that go into the decision of whether a statute is retrospective. In 2006 the Colorado Supreme Court gave a good explanation of the issue in City of Golden v. Parker. Read "Section III. Analysis" HERE. A paragraph from that opinion tells us what Mr. Parker didn't:
A determination that retroactive application of a law impairs a vested right is not dispositive of the retrospectivity inquiry because such a finding “may be balanced against public health and safety concerns, the state’s police powers to regulate certain practices, as well as other public policy considerations.” Retroactive application of a law that implicates a vested right is only permissible, however, if the law bears a rational relationship to a legitimate government interest. In past cases, we have “appl[ied] a balancing test that weighs public interest and statutory objectives against reasonable expectations and substantial reliance.”
But Foster's take on the issue seemed to be enough to give the committee the willies and it may be the death of the bill.
On Thursday the committee heard another toll road bill, HB-1007, which would void the notices recorded with county clerks. It would also give immunity from lawsuits for three categories of actions: 1. The act of preparing, filing, or recording the documents 2. The voiding of those documents 3. The inclusion or exclusion of toll road corridor information by title insurers
The committee had apparently forgotten the constitutional concerns of two days before. If not, they would have seen that the item #1, immunity for the filing of documents, is unconstitutionally retrospective. The first issue in that determination is whether the bill acts retroactively. The bill is intended to remedy the situation created by the Front Range Toll Road Company filing documents in 2006 and 2007. After the enactment of this bill companies will no longer file with county clerks. So #1 is always retroactive and never prospective. The other issue is whether the statute would impair a vested right. If the Super Slab filed the required documents incorrectly (and they did in some cases), the landowners have a right to sue which is a vested right. A statute which denies them that right is retrospective and therefore unconstitutional.
In 2006 the Supreme Court of Georgia declared a newly enacted tort reform statute to be unconstitutional because it prevented certain lawsuits even if the injury occurred before the enactment date. There is a similar controversy in Missouri (and probably elsewhere.) In 2007 the Colorado Supreme Court issued its opinion in City of Colorado Springs v. Powell. The issue was whether immunity from liability created by a 2003 statute was retrospective and therefore unconstitutional. They determined that that statute did not act retroactively so the statute was constitutional. But the case shows that the Colorado court would reject a statute barring lawsuits retroactively. That would be the case with HB-1007's immunity for acts that occurred in 2006 and 2007.
Item #2, immunity for voiding documents, would never be retroactive so there is no problem with it. But it seems unnecessary. The statute declares the documents void and doesn't tell anyone to remove them or take other action. So I don't know who could be at risk.
HB-1007 tells title insurers that they are not to include the voided corridor documents in their reports and policies. But then item #3 gives them immunity from lawsuits whether or not they obey the law. What's the point of passing a law if there are no consequences for violating it?
So there are several problems with the immunity language in this bill. Most importantly the unconstitutional attempt to bar lawsuits for wrongs already committed by incorrectly filed disclaimers, maps and notices. That paragraph should be deleted and the other two either deleted or made logical in some way.
The committee passed the bill on a 10-2-1 vote. It now goes to the full House. The bill is HERE.
New on 03/03 - Amended Bill. The House committee hearing is still scheduled for Tuesday the 4th at 1:30. If you haven't emailed the committee members yet please do so and ask them to support the strike-under amendment of HB-1343. CDOT has reconsidered their earlier position against the bill. There is no official word from CDOT management yet but Rep. Stafford has worked with their representative and with ours to address the objections. The resulting amendment still voids the corridors but does so without requiring a public-private initiative (PPI) agreement in every case. You can read it HERE.
Even Ray Wells shouldn't object to this bill. It is designed to address the problem of clouded titles and not to throw obstacles in the way of toll road developers.
The House Transportation and Energy Committee:Chair: Buffie McFadyen Ph: 303-866-2905 Vice Chair: Gwyn Green Ph: 303-866-2951 Alice Borodkin Ph: 303-866-2910 Randy Fischer Ph: 303-866-2917 Claire Levy Ph: 303-866-2578 Don Marostica Ph: 303-866-2947 Frank McNulty Ph: 303-866-2936 Michael Merrifield Ph: 303-866-2932 Diane Primavera Ph: 303-866-4667 Joe Rice D Ph: 303-866-2953 Christine Scanlan Ph: 303-866-2952 Jerry Sonnenberg Ph: 303-866-3706 Spencer Swalm Ph: 303-866-5510 Glenn Vaad R Ph: 303-866-2943
Semicolon separated: glenn.vaad.house@state.co.us; spencer.swalm.house@state.co.us; jerry.sonnenberg.house@state.co.us; christine.scanlan.house@state.co.us; joe.rice.house@state.co.us; dianne.primavera.house@state.co.us; michael.merrifield.house@state.co.us; claire.levy.house@state.co.us; aliceb321@aol.com; buffie2006@hotmail.com; gwyngreen@yahoo.com; randyfischer@frii.com; don.marostica.house@state.co.us
Comma separated: glenn.vaad.house@state.co.us, spencer.swalm.house@state.co.us, jerry.sonnenberg.house@state.co.us, christine.scanlan.house@state.co.us, joe.rice.house@state.co.us, dianne.primavera.house@state.co.us, michael.merrifield.house@state.co.us, claire.levy.house@state.co.us, aliceb321@aol.com,buffie2006@hotmail.com, gwyngreen@yahoo.com, randyfischer@frii.com, don.marostica.house@state.co.us
New on 2/28 - Message From CDOT: Don't like it? Too bad! The committee hearing for HB-1343 was postponed again. It is on the schedule for next Tuesday at 1:30. In the meantime we have received a CDOT memo opposing the bill for the flimsiest of reasons. They say it is "Two Years Too Late - The Legislature Has Already Acted." By that logic the legislature shouldn't be considering any bills dealing with taxation, education, water, mining, employment, and on and on, it's all been settled before. They also don't want pesky homeowners picking on them when they're trying to find a sugardaddy.
HERE is the CDOT memo and here is my letter to Governor Ritter asking him to have CDOT get a second opinion:
Dear Governor Ritter,
I am writing concerning the position that CDOT has taken on HB-1343. A CDOT memo that I have posted at www.stupidslab.com/CDOT1343.htm lists 12 bullet points summarizing the current requirements for the construction of a private toll road. That is followed by the message "Two Years Too Late - The Legislature Has Already Acted. HB 1343 seems to 'pile on' an already constrained process for accepting private investment in our state transportation infrastructure. VOTE 'NO' on HB 1343"
This strikes me as a very shallow and insensitive response to a problem that is clouding the titles of more than 6,000 parcels of property in eastern Colorado. When the previous legislation passed in 2006 in was acknowledged by a committee member, during the hearing, that future adjustments would probably be necessary. There are more than 500 bills in the legislature each year and I suspect that relatively few of them are limited to all new subject matter. The rest deal with shortcomings in the existing statutes' ability to handle new situations. That is the case with HB-1343. Lists of the properties in the Front Range Toll Road corridor have been recorded with county clerks and notes are listed on any title search of the properties. Owners have been denied refinancing and buyers denied loans to buy property because of these notes. CDOT apparently feels that the door was shut two years ago and no relief is deserved because it might inconvenience toll road speculators.
In most cases HB-1343 will add no new requirements to the existing process. It only changes the order of the steps to prevent prematurely reporting a toll road corridor on title searches. HB-1343 requires a company to enter a public-private initiative with CDOT but unless they could buy 100% of their right-of-way from willing sellers they will already need a PPI to allow the use of eminent domain. It is unlikely that any but very short toll roads wouldn't need a PPI. For the 210-mile long Front Range Toll Road corridor it is extremely unlikely.
Article XV Section 3 of the Colorado Constitution says "The general assembly shall have the power to alter, revoke or annul any charter of incorporation now existing and revocable at the adoption of this constitution, or any that may hereafter be created, whenever in their opinion it may be injurious to the citizens of the state, in such manner, however, that no injustice shall be done to the corporators."
Article II Section 11 says "No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly."
Most states have reserved these powers to "alter, revoke or annul" and to prohibit irrevocable grants of privileges and franchises. Several states with identical language have had cases go to the U.S. Supreme Court. The court has upheld the state's right to exert these powers in every case. The court has said that it is a matter for the legislature to determine if there is injury to the citizens and to weigh it against any potential injustice to corporations. In this case the increased burden on corporations is so slight that it in no way compares to the damage to property values and clouds on titles that are being experienced by thousands of citizens.
The CDOT memo complains that "piling on" by HB-1343 may discourage private investment in infrastructure. This is a dubious claim and in no way justifies denying relief to the residents of the 630 square-mile Super Slab corridor. I would ask that the Executive Director of CDOT intervene to see that CDOT works to get a bill passed that will allow private investment without financially ruining everyone within the toll road corridor.
Sincerely, Rob Dougherty Avondale, CO Webmaster of www.stupidslab.com and corridor resident.
New on 2/25 - Hearing Update. The committee hearing for HB-1343 WILL BE HELD on Tues. 2/26 at 1:30pm in Room 0107 at the Capitol. The hearing was postponed last week. It will be heard Tuesday, Feb. 26 at 1:30 PM in Room 0107 at the Capitol. If you haven't sent an email to the committee members yet please do so (or call) tonight or Tuesday before 1:30. I'd suggest a subject line of "Please Support HB-1343". That may be all that they see before the meeting time. You can read the bill here (pdf file). It abolishes toll road corridors, voids the documents previously recorded with county clerks and requires toll road companies to enter into a public-private initiative agreement. The Super Slab lobbyists are working to defeat this so let the representatives know that the landowners need this protection from projects that may never be built.
New on 2/21 - Hearing Update. The committee hearing for HB-1343 will not be held on Thurs. 2/21 as originally scheduled. Check frontrangetollroad.blogspot.com for updates on the re-scheduled date and time.
New on 2/19 - New Bill Will Abolish the Corridors. In 1879 Thomas Alva Edison invented the lightbulb. In 1986 Ray S. Wells invented the toll road corridor. In that year he incorporated the Front Range Toll Road Company and specified a 12-mile wide strip, 210 miles long, where his road would be located. There was no justification in the law for doing this. The law at the time said that the incorporation document "shall state the termini of said road or highway and the route of the same, as near as may be." The requirement "as near as may be" surely was intended to mean as precisely as the technology and other circumstances will allow. Ray Wells took it to mean that if you hadn't given it much thought then you really weren't able to say where the road would be. So he described a 2500 square mile box and claimed to have exclusive toll road construction rights within it. Ten years later Wells' associate William Tolbert incorporated toll road companies named JICRO, KIWI, KIWI II, CTRI and a railroad named JICRA each claiming a 12-mile wide corridor. There was hardly anything between I-25 and Limon that wasn't in a toll road corridor. Another would-be toll road tycoon, Lindsay Case of Colorado Springs, incorporated more than half a dozen toll roads each claiming a corridor between one and two miles wide. That seems reasonable compared to a 12 mile width but there was still no justification in the law for doing it.
Why did Ray Wells choose a 12-mile width? His incorporation papers specify that the road will be within the limits of Range 63 West and Range 64 West. Those are 6-mile wide strips running from north to south that are part of the grid used by surveyors to describe the land. So it appears he did it that way because it was easy. It didn't require any actual thought about where a highway could best be built. And by choosing two ranges he could put it anywhere from Falcon nearly to Calhan. His corridor included Elbert, Elizabeth, Kiowa, Bennett, Watkins, Keenesburg and numerous other small towns. This in no way satisfied the legal requirement to specify the route "as near as may be."
The plans for the Super Slab never went anywhere in 1986 and a second attempt ten years later also fell flat. The third revival in 2005 hasn't produced anything but a brief public relations blitz in 2006. But this time landowners found out that someone had designs on their property. Wells said that the toll road corridor was like a mining claim that he had "proved up" on making it his for the purpose of toll road development. Landowners were not pleased to hear someone claiming such rights to their property.
In 2006 the legislature passed HB-1003 which placed a number of controls on private toll road construction. The bill also limited future toll road companies to a three-mile wide corridor. The thinking was that three miles wide was a big improvement over twelve miles wide. That may be true but the problem as I see it is that they had no right to claim twelve miles in the first place. It was a bit like letting a bank robber keep 25% of the money; there was no reason to bargain with someone whose claim was illegitimate in the first place.
There is a provision in HB-1003 that was intended to require existing toll road companies to narrow their corridors to three miles but a careful reading of the bill shows that it doesn't really require that. CRS 7-45-101(4) says that a company has the exclusive right for ninety days to amend their corridor. It doesn't say that they must amend or that there is any penalty if they don't. And for some reason Ray Wells has kept filing annual reports for the KIWI II and JICRO toll road companies which claim twelve-mile wide corridors parallel to the Super Slab. Maybe he believes it is worth keeping the option open to try to use this additional 24-mile wide area for his toll road. There are a number of other companies that haven't complied with HB-1003 but are still paying the fees and filing the reports to keep the companies alive. In short, the Super Slab corridor is bad enough but the situation may actually be much worse than is generally known.
Help is on the way. A new bill was read in the House of Representatives Monday. HB-1343, sponsored by Rep. Debbie Stafford and Sen. Tom Wiens, will repeal the status given to three-mile wide corridors given by HB-1003. Furthermore, it will make it clear that all of those other existing corridors of various sizes have no legal standing; they are null and void. And no future toll road company can claim a corridor in their incorporation papers. They will have to enter into a public-private initiative (PPI) with CDOT before there is any official status to a corridor. As a practical matter a toll road company already needs to enter a PPI because that is the only way that eminent domain can be used to get property from landowners unwilling to sell. Before CDOT enters into a PPI they evaluate the project and only approve the PPI when they agree that the project has enough credibility to move forward to the next step. The project still has to go through all of the evaluations and approvals instituted by HB-1003.
Each time we've achieved a goal in the last three years I've heard from one or two people saying if they can still build the road what good did this do? The truth is that if HB-1343 passes it won't put the Super Slab out of business. They can pursue a PPI, which they already needed to do, and then begin with the applications. The difference is that there won't be the cloud on titles while Ray Wells spends another ten or twenty years doing nothing. There are now good regulations to control the decision whether to build a toll road and how to build it. But there are no protections against the damage done by a company that never moves forward. The Front Range Toll Road has enjoyed a corporate charter from the state for twenty-two years without returning any value to the people of the state nor earning a penny in profits. If they want to continue doing that, fine; but it's time to release the hostages and see that it doesn't happen again.
The bill isn't available online yet. I should have it sometime on Tuesday and will post it at HB08-1343 PDF file.
The Toll Road Warriors email update is reproduced below. Please send an email to the members of the House Transportation and Energy Committee BEFORE THIS THURSDAY. Ask them to vote yes for HB-1343 to help remove the cloud on over 6,000 land parcels in the Super Slab corridor. The email addresses are below.
Senator Wiens is working to help the people in the Leadville area get a solution to the danger of possible flooding and contaminated water caused by the collapse of mine drainage tunnels. Read his site and the Save the Arkansas site for details and to find out how to help. TomWiens.com SaveTheArkansasRiver.com ---------------------------------------------------------------------------------------------------------------- frontrangetollroad.blogspot.com www.abe21.net
Dear Toll Road Warriors,
It is with immense pride and gratitude that we announce that Representative Debbie Stafford's toll road bill, HB08-1343, "Nongovernmental Transportation Development Limits" was read across House Speaker Andrew Romanoff's desk this afternoon at approximately 4:30 PM.
This is the piece of legislation which residents of the Super Slab corridor have been waiting for, for over two years. We, along with corridor leadership, up and down the 7 impacted counties, have been working closely with Rep. Stafford for months on this legislation.
The general intent of this bill is that it eliminates the toll road corridor concept. It voids documents currently clouding the title work of property owners living in the Super Slab corridor. It eliminates the back door attempt of a toll road company to regain powers of eminent domain by claiming they are a bona fide railroad company. In order to make that claim, this bill requires that they possess rolling stock and maintain track. It does not eliminate a PTR (private toll road) company from building a toll road if meets all of the prerequisite steps outlined in HB06-1003. It does not keep bona fide railroad companies from building toll roads. It is fair, transparent and solves problems without trying to protect PTR's from reckless acts or negligence. It eliminates the problems of disclosure.
HB08-1343 is already listed as being available online via the Colorado General Assembly website: HERE. However, we are having difficulties downloading it. Please read through the highlights below, (or the summary & 'draft' of the bill @ www.abe21net) and then...now is the time, once again, to grab the following emails and write a brief letter to the committee members and let them know that you support HB08-1343.
HB08-1343 will be on the calendar for this coming Thursday, February 21st by the House Transportation and Energy Committee. According to the bill's sponsor, it will be the third item on the agenda. If there are changes to this information, we will post them ASAP. If you have questions about the bill, please feel free to contact us.
We encourage you to attend and support Rep. Stafford in this historical moment. It will be your choice to testify on Thursday, but it is not necessary: Committee Chairperson Buffie McFadyen has made it clear that the Transportation and Energy Committee understands the concerns, that testimony on a previous toll road bill was extremely thorough in clarifying all of our/your issues.
Upon recess Room 0107 Transportation & Energy HB 1227 Madden--Sunset Continue Public Utilities Commn HB 1244 Scanlan--Sunset Passenger Tramway Safety Board HB08-1343 - Stafford--Nongovernmental Transportation Development Limits HB 1198 Liston and Merrifield--Duty To Write Accident Repts (For action only) HB 1007 Looper--Modify Toll Road Notice Requirements (For action only) ======================================================== There is a chance that HB08-1343 may have its Second Reading (by the entire House of Representatives) as soon as Friday, Feb. 22. When it goes to the Senate Transportation Committee, we will have Senator Tom Wiens as a Sponsor in the Senate. Senator Wiens put forth one of the initial pieces of toll road legislation in 2005 (taking away Ray Wells' power of eminent domain via private toll roads). He is an advocate for property rights and understands our concerns. We are honored to have him as the Senate Sponsor of Representative Stafford's bill.
Thank you ALL for your patience! This has been a long, arduous journey, but we feel, (and hope that you do, too, once you've read the language of HB08-1343) that we finally have the legislation along with strong sponsorship which will change the course that the Eastern Plains residents have been forced to follow and provide powerful toll road laws for the future in Colorado. ======================================================== Below are highlights of Representative Debbie Stafford’s Toll Road Bill, HB08-1343:
“NON-GOVERNMENTAL TRANSPORTATION DEVELOPMENT LIMITS” Amendments to HB06-1003
1. Except as otherwise provided by amendments, toll road companies may not propose or establish transportation corridors subsequent to effective date of amendments.
2. Transportation corridors described in formation documents prior to effective date of amendment, as required by current provisions of C.R.S. sec 7-45-101(1), are null and void.
3. Upon effective date of amendment containing provision in Item 2 above, maps or notices recorded pursuant to C.R.S. sec. 7-45-108(1) are null and void.
4. Toll road or other companies may enter into Public-Private Initiatives ("PPI's") with C-DOT pursuant to C.R.S. sec. 43-1-1201, et seq. for construction and operation of toll roads. The PPI agreement entered into for the construction and operation of a toll road shall provide:
a. A specification and map of a corridor, no more than three miles in width, within which a toll road will be located, including identification of the general location of the termini within the corridor;
b. Implementation of the PPI is subject to completion of planning, project review, and environmental requirements of C.R.S. secs. 7-45-105 and 7-45-106 and inclusion of project in relevant metropolitan, regional and statewide transportation plans;
c. That no work on any element of the project may commence until planning, project review, and environmental requirements of C.R.S. secs. 7-45-105 and 7-45-106 have been met and the project is included in relevant metropolitan, regional and statewide transportation plans;
d. Right-of-way acquisition shall be in accordance with C.R.S. secs. 7-45-104 and 38-2-101; and
e. Work on the project, including but not limited to planning, design, environmental mitigation, and other preconstruction work must begin within one year of receiving all necessary approvals for the project and for construction or the agreement, including the corridor described therein, is null and void.
5. Nothing in Item 4 shall be interpreted as requiring C-DOT to enter into a PPI agreement for any toll road project.
6. Nothing in Item 4 shall be interpreted as requiring any Metropolitan Planning Organization or Regional Planning Commission or the State Transportation Commission to include a toll road or toll highway in a Regional Transportation Plan. Any such decision is governed by the requirements of C.R.S. secs. 7-45-105 and 7-45-106 and the record of proceedings before those organizations.
7. Within 30 days of execution of the PPI agreement described in Item 4, the company shall comply with the recording and notification requirements in C.R.S. sec. 7-45-108.
AMENDMENTS TO HB06-1003: LIMITING EMINENT DOMAIN POWERS OF "PRETEND RAILROADS"
....provided, however, that a corporation formed for the purpose of constructing a railroad line may not exercise the power of eminent domain for any purpose unless
(a) the corporation was operating rolling stock, carrying passengers or property and maintaining track on the effective date of this act; or
(b) the real estate, right-of-way, or easement or other right is necessary solely for the construction of a light rail system. =========================================================
Email List: don.marostica.house@state.co.us, glenn.vaad.house@state.co.us, spencer.swalm.house@state.co.us, jerry.sonnenberg.house@state.co.us, christine.scanlan.house@state.co.us, joe.rice.house@state.co.us, dianne.primavera.house@state.co.us, michael.merrifield.house@state.co.us, claire.levy.house@state.co.us, aliceb321@aol.com, buffie2006@hotmail.com, gwyngreen@yahoo.com
STAY FOCUSED. STAY INFORMED. STOP THE SUPER SLAB. Gaye Thomasson, Tollman
New on 2/7 - HB-1007 Awaiting Decision. Last week the House Transportation and Energy Committee heard testimony for and against House Bill 1007. They didn't make a final decision but rather laid the bill over for two weeks. So they are expected to bring it up next week for a decision on whether to pass it on to the full House of Representatives or stop it from going further. I listened to the hearing over the internet and it sounded to me like the committee members didn't see much to recommend the bill. Members commented that voiding some paperwork without actually changing the status of the toll road corridor was unlikely to improve the situation. One member worried that keeping information from property buyers might lead to lawsuits despite the immunity provisions of the bill. Another said that they are receiving lots of email from corridor residents who oppose the bill.
Several landowners spoke in support of the bill saying it will clear up the cloud on titles created by the toll road corridor. They were outnumbered by owners who said they want a solution but not one that victimizes future purchasers of land. Speaking in opposition were leaders of the El Paso Transportation Coalition, the High Plains Coalition for Responsible Transportation Policy, the Adams Arapahoe County Citizens Group and the Save Our Homes Coalition.
A major point of contention is the immunity from lawsuits that toll road companies would be given for issues related to filing toll road documents. The bill's sponsor, Rep. Marsh Looper, maintains that the immunity only applies where a company has complied with the law. But they wouldn't seem to need any immunity for complying with the law and it seems wildly optimistic to believe that they would never claim their gross negligence is also excused from liability. The bill doesn't make any distinction between the two situations.
At her website Rep. Looper also says that "County Clerk & Recorders SHALL IMMEDIATELY remove the existing toll road documents" but that is nowhere to be found in the language of the bill. What the bill says is that the documents will be declared void. Declaring something void doesn't remove it from the clerks office. If you've ever been divorced your marriage license wasn't removed from the files. Discussing a similar bill last year, a county recording supervisor told me that (paraphrasing) it will be a cold day in hell before any documents are removed from the clerk's office. They log things in and keep them, period. Someone may file later documents that dispute or amend the earlier ones but it all stays in the record. Until there is some actual change in the legal status of toll road corridors it would be best not to complicate the situation with more documents voiding the earlier ones. When you're in a hole, stop digging.
The approach of HB-1007 is to be an anti-sunshine law keeping information from people who are entitled to have it. There is really no way that it can be amended into something positive. The Transportation and Energy Committee should kill this bill when it comes up again. And for the record I own a home in the Front Range Toll Road corridor.
The minutes of the hearing are HERE.
New on 1/24 - Kill HB-1007. The House Transportation and Energy Committee's hearing of HB-1007 has been moved to Tuesday, Jan. 29 at 1:30 p.m. in Room 107. This is Rep. Marsha Looper's bill that would nullify the toll road notifications that we worked so hard to get in 2005 and 2006. The bill doesn't go after the real problem of toll road corridors it just attempts a cover-up. It also hands out legal immunity to toll road companies for their involvement even if intentionally or recklessly wrong.
HB-1007 is essentially a pared down version of last year's bill HB-1068. It includes the absolute worst features of the final draft of HB-1068 and nothing else. That draft was opposed even by the corridor residents who initially supported the bill. You can see the names and comments I received in opposition to HB-1068 last year HERE (and this was BEFORE the immunity language had slipped in.)
Below are two messages from Sharon Croghan posted at www.goodneighborlaw.com. Sharon and her group, the Save Our Homes Coalition, have hosted the toll road meetings and led the effort for the northern corridor counties. She includes a sample email and instructions. Please email the committee members asking them to kill this bill which attempts to repeal our last three years of progress. There is a better bill that will be introduced this year and we don't want this bad bill to muddy the waters.
Check for updates at here and at www.frontrangetollroad.blogspot.com
From www.goodneighborlaw.com/BreakingNews/2008BreakingNews/1-16TollRoadSCroghan.htm:www.goodneighborlaw.com:
Breaking News: January 16, 2008 Toll road
Greetings, Rep. Marsha Looper is once again running legislation which will cloak the existence of a private toll road corridor, rather than eliminate it, and insulates private toll road companies from litigation, rather than holding them responsible for the damage they are doing to corridor residents.
Did you know, last session Rep. Looper successfully ran legislation requiring increased disclosure for properties sold which were on a private well, it seems counter to her own standards to hide an existing toll road corridor from potential buyers. While title disclosure of the existence of a toll road corridor is difficult for buyers, sellers and realtors, it is the right thing to protect people from unknowingly purchasing property within a toll road corridor, as many of us did.
Unsolicited toll road corridors such as the Super Slab, should not be allowed.
Rep. Looper’s bill will only hurt us. It is imperative you send/ call Rep. Looper with a strong message: do not hide a toll road corridor under a cloak of invisibility. Do not further harm private property owners and insulate private toll road companies from wrong doing. Instead she should support efforts to write meaningful toll road legislation which will eliminate the ability to file for private toll road corridors while still fostering useful transportation projects. Something is not better than nothing.
Cap: 303-866-2946 E-mail: MarshaLooper@gmail.com
Peace and Grace,
Sharon K Croghan Save Our Homes Coalition Weld County Colorado
------------------------------------ From www.goodneighborlaw.com/BreakingNews/2008BreakingNews/1-21TollRoad.htm:
Breaking News: January 21, 2008 Toll road
Marsha Looper’s toll road bill, HB1007, is scheduled to be heard in committee 24 Jan 2008, despite efforts by toll road opposition leadership to pull this bill. Ms. Looper believes she is making a good decision for all corridor residents, despite the sentiments brought to her by many corridor residents.
Efforts must now be mounted to stop this bill in committee.
Please feel free to copy/paste or otherwise use parts or all of the letter below or use the simple statement included into an email or fax and send on the committee members as soon as possible.
This bill serves to either hide the fact that the corridor exists from buyers or lenders or will serve to make buyers or lenders think the corridor has been removed, because a document in the title would says the original notice is void.
The corridor still exists. This bill does nothing to correct that fact. By passing this bill the legislature may think that there is nothing more they need to do to get the corridor removed.
Notes: Please find a sample letter to the Representatives sitting on the Colorado House Transportation Committee. Please feel free to edit, modify or use this letter as is.
Contact information for the House Transportation Committee Members is located at the end of this Update.
Sample letter:
Dear Representative _______,
On Tuesday, January 29th, you will be hearing HB08-1007, Representative Marsha Looper’s toll road bill, in the House Transportation and Energy Committee. I am writing to ask you to please kill this bill in committee.
HB08-1007 does NOT solve the issues facing residents of Colorado regarding private toll roads. Below are just a few reasons why HB08-1007 is a bad bill and needs to be killed:
1 HB08-1007 allows the corridor (Prairie Falcon Parkway Express) to continue in existence, but removes notice of its presence from public land records 2 Future landowners, who rely on information recorded with the county clerk, would not learn of the corridor unless sellers tell them 3 Future sellers, knowing how the corridor would impact their sales, would be tempted to not make full disclosure 4 Information about toll roads would be filed with planning agencies instead of with the county recording offices 5 HB08-1007 allows insulation from litigation to the toll road companies, title insurance companies and county clerk and recorders
We need comprehensive toll road legislation, but unfortunately HB08-1007 is not the bill which will help protect the citizens of Colorado from what is still an enormous land-grab.
Respectfully,
Your name address w/ county phone number
House Transportation Committee Members and Contact Information:
Chair: Buffie McFadyen D, HD 47 Fremont / Pueblo Ph: 303-866-2905 Email: buffie2006@hotmail.com
Vice Chair: Gwyn Green D, HD 23 Jefferson Ph: 303-866-2951 Email: gwyngreen@yahoo.com
Alice Borodkin D HD 9, Denver Ph: 303-866-2910 Email: aliceb321@aol.com
Claire Levy D HD 13, Boulder Ph: 303-866-2578 Email: claire.levy.house@state.co.us
Don Marostica R HD 51, Larimer Ph: 303-866-2947 Email: don@donmarostica.com
Frank McNulty R HD43, Douglas Ph: 303-866-2936
Michael Merrifield D HD 18, El Paso Ph: 303-866-2932 Email: michael.merrifield.house@state.co.us
Diane Primavera D HD 33, Adams Ph: 303-866-4667 Email: dianne.primavera.house@state.co.us
Joe Rice D HD 38, Arapahoe Ph: 303-866-2953 Email: joe.rice.house@state.co.us
Christine Scanlan D HD 56, Eagle Ph: 303-866-2952 Email: christine.scanlan.house@state.co.us
Jerry Sonnenberg R HD 65 Logan Ph: 303-866-3706 Email: jerry.sonnenberg.house@state.co.us
Spencer Swalm R HD 37 Arapahoe Ph: 303-866-5510 Email: spencer.swalm.house@stateco.us
Glenn Vaad R HD 48 Weld Ph: 303-866-2943 Email: glenn.vaad.house@state.co.us
Group Email List:
Comma separated: glenn.vaad.house@state.co.us, spencer.swalm.house@stateco.us, jerry.sonnenberg.house@state.co.us, christine.scanlan.house@state.co.us, joe.rice.house@state.co.us, dianne.primavera.house@state.co.us, michael.merrifield.house@state.co.us, claire.levy.house@state.co.us, aliceb321@aol.com, buffie2006@hotmail.com, gwyngreen@yahoo.com
Semicolon separated: glenn.vaad.house@state.co.us; spencer.swalm.house@stateco.us; jerry.sonnenberg.house@state.co.us; christine.scanlan.house@state.co.us; joe.rice.house@state.co.us; dianne.primavera.house@state.co.us; michael.merrifield.house@state.co.us; claire.levy.house@state.co.us; aliceb321@aol.com; buffie2006@hotmail.com; gwyngreen@yahoo.com
New on 1/11 - No thanks...again. The state legislature convened on Wednesday and a toll road bill was introduced by Rep. Marsha Looper. HB-1007 is intended to remedy the problem of property titles being clouded by the existence of toll road corridors. Unfortunately, it takes the approach we disagreed with last year of trying to void the notices recorded with county clerks and handing out legal immunity for damages suffered by property owners. The bill doesn't address the root cause of the problem which is Colorado's system of allowing a corridor to be staked out without first having its worthiness evaluated.
A bill passed in 2006, HB-1003, requires a company to record a disclaimer of interest and a notice of intention to build a toll road with the county clerk. This addressed landowner's complaints that title searches hadn't alerted them to the existence of the toll road corridor. This new bill would void those notices and actually forbid title insurers from reporting the recorded documents in a title search. If this were to pass we would be back to the previous situation of buyers getting no warning but with a significant difference. When these new landowners learn that they are in the Super Slab corridor they'll also learn that the title insurer they paid for a search and policy withheld the information from them. They'll learn that the previous owners got the legislature to void valuable notices, put a gag order on title insurers, and grant immunity from lawsuits to everyone involved. It's bad public policy.
Rep. Looper has said in several newspapers and on her website that the language in HB-1003 requiring documents to be recorded was a "drafting error" made by the lawyers. I emailed her some time ago asking for an explanation but have had no reply. The language in question is the same language that was in a bill in 2005 that was vetoed by Governor Owens. That bill, HB-1342, was put forward by Marsha Looper's group, the Eastern Plains Citizen's Coalition. They hired lawyers to negotiate a bill and lobby for it. So if there was an error she didn't pick up on it in 2005 nor 2006. Another bill passed in 2006, SB-115, has nearly identical filing requirements. So, three bills were promoted by the eastern plains residents and two of them were signed into law. There was no drafting error. They are good bills and need to be left alone.
I don't expect any of the Super Slab opposition groups to support this bill. The Elbert County group has posted a message on the subject at A Better Elbert. A bill that will get to the root of the problem has been discussed and I expect we will be hearing more about that before too long.
You can read the bill here: (pdf file). -------------------------------- There is a company that wants to mine uranium in the area between Nunn and Wellington using a controversial in situ leaching method. This method requires drilling lots of wells and pumping a solvent into some wells while pumping the dissolved uranium out of others. The problem is that they can't guarantee that some of the uranium (and other dissolved substances) won't get into the aquifers. The area is only about 6 miles from Ft. Collins and there are aquifers beneath that supply a number of cities. Jim Woodward, who does our "Not For Sale" letters has an excellent website with information at Powertech Exposed and another group is at Nunn Glow. -------------------------------- Ken Johanson of Elbert County would like people to visit these sites to learn about Elbert County's plans to change its adjacency rules for developments: http://groups.google.com/group/elbertcitizens http://groups.google.com/group/elbertcitizens/web/elbert-county-master-plan-changes
The 2007 entries have been moved here. The 2006 entries have been moved here. The 2005 entries have been moved here.