Local officials and municipal attorneys say they are worried a proposed constitutional amendment – backed by the Colorado Farm Bureau and the oil and gas industry – will blunt the ability of cities, towns and counties to make many land-use decisions.
The measure is Initiative 108. Backers are currently gathering signatures in hopes of placing the measure on the fall ballot.
It would enable property owners to seek compensation if a law or regulation reduces their land’s “fair market value.” Under current law, a government has to compensate only if a property is taken by eminent domain or its action leaves the land with no economic use.
Switching from a total taking to fair market value could spawn countless lawsuits over a myriad of basic local land-use decisions such as zoning and siting municipal facilities, said Robert Widner, an attorney who represents cities, towns, counties and special districts.
“Every time government acts, it is going to ask, ‘Are we putting ourselves at risk?’” Widner said. “It is totally burning the forest down on a very large scale.”
Sam Mamet, executive director of the Colorado Municipal League, said, “My advice to counties and municipalities is if this passes, don’t do anything ... no zoning, no ordinances.”
The initiative’s supporters say the critics are exaggerating the proposed constitutional amendment’s impacts.
“The fact that municipal governments are scared and have a sky-is-falling scenario is indicative that we need this to protect our property,” said Shawn Martini, the farm bureau’s vice president of advocacy. “The other option is giving up some of our rights under the constitution.”
The farm bureau’s support begins with its right-to-farm concerns. The oil and gas industry, which is backing the measure through its advocacy group Protect Colorado, is worried about local actions limiting access to fossil-fuel reserves.
“I understand their concerns, but local and county government is collateral damage here,” Mamet said.
Martini said that courts have set “an extremely high standard on taking” and that is unlikely to change, legal rulings could help define and limit the scope. The law has already established that nuisance, health and environmental regulations do not come under the takings standard, he added.
Some municipal officials and attorneys remain unconvinced.
“I don’t think we as public officials disagree that people have to be compensated for the taking of property, but now every rezoning could require compensation,” said Matt LeCerf, town manager of Frederick in Weld County.
LeCerf said the town is currently looking at rezoning a commercial-hotel parcel to residential. There is plenty of land zoned for hotels in the town and the parcel in question is flanked on three sides by residential zones, he said.
“Rezoning makes sense, but is it exposing local government?” LeCerf said.
Frederick has a right-to-farm ordinance and several oil and gas drillers operating in the town.
“If that’s the concern, the solution should be more narrowly focused. Do it through legislation, not changing the constitution,” LeCerf said.
Martini said the bureau’s concerns extend beyond the farm field to other land uses and that a showing of “non-speculative damage” has occurred would have to be made.
“Depending on the circumstances, you could have a really hard time proving that,” he said.
Embedding policy in Colorado’s constitution – from the Taxpayers Bill of Rights to legalizing marijuana – has often created policy and management problems after the fact, said Richard Collins, a professor of constitutional law at University of Colorado Boulder law school.
“You can’t anticipate everything in an amendment,” Collins said. “There is a lot of stuff that is in our constitution that in a rational world would be in statute, which is easier to correct.”
Part of the reason for Colorado’s constitutional amendment onslaught was that it was easy to get the initiatives on the ballot, Collins said.
That changed with the passage in 2017 of a constitutional ballot measure, “Raise the Bar,” that increased the vote needed for passage to 55 percent from 51 percent. “Fifty-five percent is gigantic. Few initiatives have received a 55-percent vote,” Collins said.
A second provision requiring at least 2 percent of petition signatures be gathered in each of the state’s 35 Senate districts was ruled unconstitutional by a federal district court, but is operative this election while the ruling is under appeal. The petitions for this November’s ballot must be submitted by Aug. 6.
As for Initiative 108 and the five variations of the measure also submitted to the Colorado secretary of state, Collins said, “It would certainly be a bargain for lawyers. There would be a lot of work for lawyers.”
“If one of those things passes and it is in the constitution, it could cause a lot of trouble,” Collins said.