[BoulderCouncilHotline] Condemnation of CU South

[Carr, Thomas]

A question has arisen about whether the city can condemn CU South.  In 2017, my office asked our outside condemnation counsel to look into the issue.  The short answer is that the city could file a condemnation case, that such a case would most likely lead to lengthy litigation and that there is no guarantee that the city would prevail.
To condemn, the condemning entity must first show that all of the property it is acquiring is necessary for a public purpose.  The necessary part generally limits the condemning entity to the smallest portion of the property owners' property necessary for the public purpose.  Whether all or part of the property could be condemned would depend on the public purpose for the condemnation and the amount of property necessary for that purpose.
There are also limitations on the City's ability to condemn land that is already publicly owned.  No entity can condemn state owned land unless the power is "clearly and expressly conferred on it by statute."  The city has no such statutory authority.  However, the Colorado Constitution give home rule cities equal authority to regulate on matters of local concern.  Thus, the city could argue that the home rule authority gives the city the power to do so.  There is no case law on this point, so it could result in litigation.
If the city's right to condemn survives challenge there would still be a question whether the city could condemn land already devoted to a public use.  Again, such a condemnation is permissible if there is an express statutory grant and it is necessary to preserve life or health.  The city would need to rely on its home rule powers and show that the taking is necessary to preserve life or health.  This might be difficult considering the alternatives that have been considered.  In such a case, the city would only be allowed to take as much land as is necessary for the public purpose.
Finally, as you may recall Lafayette and Erie are engaged in litigation over whether Lafayette can condemn land in Erie.  In June, the Colorado Court of Appeals upheld the trial court's dismissal of Lafayette's condemnation petition.  The court reasoned that Lafayette acted in bad faith by claiming that the purpose of the condemnation was for open space when it was actually to prevent development on the property.  I mention this case simply to demonstrate the fact that there is not a great deal of legal guidance on intergovernmental condemnation.
I hope that this is helpful.
Tom Carr


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