Here is the reply that Rep. Richard Decker sent to me after I emailed him about SB-230. My reply to him follows.
----- Original Message -----
From:
To:
Sent: Monday, April 25, 2005 5:42 PM
Subject: Re: SB-230
HOUSE REPORT
3-16-2005
POWERS OF EMINENT DOMAIN
Although the origins of "eminent domain" are lost in antiquity, its use
as it pertains to English Common Law goes back almost a thousand years to the
time of William the Conqueror. In 1066 William the Conqueror invaded England
and defeated the Saxon King Harold Godwinsson at the Battle of Hastings. As
"king" William the Conqueror took whatever lands he wanted for his personal
uses. Some of the land he assigned to his generals, knights, closest friends and
allies for their personal oversight. The common people who formerly owned
the land then became vassals or serfs of the nobles, as was common practice
during the "feudal" period. In return for a share of the crops (taxes?) the Lord
of the manor would provide "protection" and some other benefits. Over time,
the serfs came to consider the land they farmed and tended as their own. If
the King or the Lord wanted some or all of the serfs land for some royal purpose
such as building a road, he was perfectly within his rights as the "true"
owner to use it as he saw fit. These were the beginnings of "eminent domain"
under English common law.
As time went by, the powers of the English kings became less and less
absolute and the property held by the lords and to some extent the vassals again
became considered to be "private" complete with "private property rights"
By the time of the American Revolution, the framers of our Constitution
were willing to break with feudal Common Law tradition and embody those rights
into our own law. The Fifth Amendment to the Constitution's Bill of Rights
partially reads, "… nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use, without
just compensation. The Fifth Amendment to the Constitution says that private
property can be taken for public use, but not with out due process and just
compensation. This part of the Constitution has become known as the "takings
clause."
While most people accept the notion that governments may use eminent
domain when a nexis (connection) can be proven for the public "good," most feel
condemnation proceedings should not be used by governments to condemn so-called
blighted properties and turn them over to the developer of a strip mall so
they can collect more taxes. HB 04-1203 CONCERNING LIMITATIONS ON POWERS OF
GOVERNMENTAL ENTITIES by (then) Representative Shawn Mitchell and Senator Mark
Hillman was passed and signed into law by Governor Owens last year to address
the above concerns. Most of the controversy in the U.S. about eminent domain
revolves around this issue.
Even though it is currently in law, and because of discussions around HB
05-1030-Super Slab, there has been concern whether corporations should be
able to use powers of eminent domain. The current Colorado law for powers of
eminent domain for corporations as contained in the Colorado revised Statutes is
as follows: 38-2-101. Who may condemn real estate, rights-of-way, or other
rights. If any corporation formed for the purpose of constructing a road, ditch,
reservoir, pipeline, bridge, ferry, tunnel, telegraph line, railroad line,
electric line, electric plant, telephone line, or telephone plant is unable to
agree with the owner for the purchase of any real estate or right-of-way or
easement or other right necessary or required for the purpose of any such
corporation for transacting its business or for any lawful purpose connected with the
operations of the company, such corporation may acquire title to such real
estate or right-of-way or easement or other right in the manner provided by law
for the condemnation of real estate or right-of-way. Any ditch, reservoir, or
pipeline company, in the same manner, may condemn and acquire the right to
take and use any water not previously appropriated. The statute was amended in
1891, 1908, 1953, 1963 and 1979.
Many are quick to condemn the powers of eminent domain for corporations
but enjoy the public benefits of eminent domain without ever really thinking
about it. In some areas of the state, it is impossible to flush a toilet, turn
on a light, heat your house, make a telephone call, make a cell phone call,
get a drink of water or pump a tank of gas into your car without enjoying the
benefit of eminent domain. Yes, some of the afore mentioned uses are the
result of public condemnation, but most are corporate. Last week, I ask
representatives of utility companies, pipeline companies and railroads if their company
had and used powers of eminent domain. They all responded yes but said it was
very rarely necessary to use the powers. Xcel Energy for an example said
that out of hundreds of sitings in the last two years, eminent domain was used
once in 2003 and once in 2004.
Eminent domain came about precisely because the market could not solve
the endless bargaining problem. Human beings adopted it to solve a problem-to
keep projects moving ahead that are deemed to have a solid connection to the
"public good." Eminent domain is itself a solution to market imperfections.
Eminent domain and condemnation and current fair market value are part of the
due process and just compensation mentioned in the Fifth Amendment to our
Constitution.
If you have questions or concerns regarding this article or other
issues, please contact me. I can be reached by phone at the Capitol at
303-866-2946, at home at 719-390-8312 or e-mail at the capitol at
richard.decker.house@state.co.us or at home at richardddecker@cs.com My mailing address is 7035
Loveland Terrace, Fountain 80817. Also, see my website at:
www.richarddecker4cohd19.com