Question

When can the government or a private company take private property by eminent domain in Colorado?

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Answer

Pursuant to Article II, Section 15, of the Colorado Constitution, the state has the power to take private property without the consent of the property owner for a public use upon payment of just compensation. The state can delegate this power, called the power of eminent domain, by statute to departments of the state, like the Department of Transportation, and to other governmental entities, such as cities, counties, towns, the Regional Transportation District (RTD) and other special districts, and to private entities such as power companies and pipeline companies. The state and other governmental and private entities who are delegated the power to condemn are sometimes referred to as the condemnor or the condemning authority.

Whether or not a governmental entity, other than the state of Colorado itself, or a private company has the authority to take private property for a particular public purpose will depend upon what the authorizing statute says. For example, a school district may only condemn private property for school purposes, not for a highway project.

If the condemnor has the statutory or constitutional authority to take private property by eminent domain for the purposes for which it is acquiring the property, there are still other preconditions that must be met before the condemnor may file a petition in court to acquire the property.

The condemning authority is required to provide the landowner and others who have recorded interests in the property, such as easement holders and lenders, a notice of its intent to acquire the property. If the property to be acquired has an estimated value of more than $5,000, then the owner and such other persons who have recorded interests have the right to obtain their own appraisal of the property, and, if the appraisal meets the statutory standards and is submitted to the condemnor within 90 days of the notice, the condemnor must reimburse the person submitting the appraisal for the reasonable cost of the appraisal. The caveat is that the condemnor is only required to reimburse the cost of one appraisal and, if more than one is submitted, the condemnor does not have to reimburse for the cost of any of them. It is advisable to hire an attorney before the appraisal is turned over to make sure the appraisal is conforming and the reimbursement statute outlined in this paragraph is followed.

In order to file its petition with the court to acquire the property, the condemnor must be able to show that the amount of just compensation cannot be agreed upon by the parties. This means the condemning authority must make an offer to purchase the property, before filing with the court to take it. In Colorado, there is an implied duty on the condemnor to negotiate in good faith. However, this requirement, generally, is fulfilled by making a reasonable offer to the property owner that is not accepted.

The property being taken must be necessary for the public project, and the project must be for a public purpose.

The entity taking the private property must have the authority to do so and must prove that good faith negotiations have occurred, the property is necessary for the project and the project serves a public purpose. There are additional requirements put on certain condemnors such as urban renewal authorities and pipeline companies. Sometimes, there are defenses available to property owners to prevent a condemnation from going forward. Therefore, in any case, it is recommended that property owners and other interested parties have an attorney involved early on in the process in order to help navigate the eminent domain statutes. 

Answered 04/08/2014

Disclaimer: This answer was provided by an attorney selected to Super Lawyers, and is intended to be an educated opinion only. This answer should not be relied upon as legal advice, nor construed as a form of attorney-client relationship.

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