Reject Amendment 74’s threat to good land use policy

Colorado voters should soundly reject Amendment 74.

The innocuous sounding ballot initiative promises to ensure Colorado property owners receive just compensation when a government action reduces the “fair market value” of their property.

But adding 11 words to the Colorado Constitution could open up a world of trouble.

It’s a risk this board doesn’t think the public should take.

The amendment is written in a way to intentionally allow the courts to figure out what it means, as they have by interpreting the existing language in the Constitution that requires the government to compensate people for “taking” their property. That means that there will likely be an increase – the Colorado Municipal League’s executive director, Sam Mamet, predicts a flood – of lawsuits against every city that would dare to make changes to land use policies.

The best example we can think of to illustrate the danger of this amendment is Denver City Council’s recent decision to change its building code to no longer allow the construction of slot homes – town homes, condos or apartments that are built with the units facing an alley down the middle rather than the street. The building style maximizes the number of units that can be put on a small lot, but they are an eyesore and damage our communities.

The City Council’s action was the right thing to do for its constituents, but there’s no doubt that it reduced the ability of developers to maximize their profits on land slated for slot homes.

Amendment 74 would encourage developers to sue to see if the court would grant them compensation for the lost “fair market value” of their yet-to-be-developed property.

And it is taxpayers who will foot both the legal costs and the possibility of either a settlement or a monetary award.

Chad Vorthmann, executive vice president of the Colorado Farm Bureau, says the courts would likely continue to interpret the Constitution narrowly, limiting takings claims only to those who had made substantial progress toward development.

Certainly if a city were arbitrary or capricious in its decision making, or had ripped the rug out from under a developer who was already digging the foundations of a slot home that would be unacceptable. But in those cases, developers would have other legal remedies available to them aside from using the “takings clause” something the courts have reserved for eminent domain seizures of property.

We are staunch advocates of property rights, but this amendment is simply too broad. If there are egregious examples of government abuse, we haven’t seen many. And even then, we’d advocate for a narrow legislative solution.

And the oil and gas industry has muddied the waters further.

Protect Colorado — a political action group funded by a number of oil and gas companies — spent $1.2 million to help pay for signature gathering to get the amendment onto the ballot.

Clearly the industry thinks this will help protect their mineral rights, just in case voters in Colorado pass a separate ballot measure that aims to implement 2,500 foot setbacks from homes, schools and water, for oil and gas development.

Fear of an outcome that hasn’t occurred yet is not a good reason to amend our Constitution.

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