The Colorado Springs Gazette: We were wrong on Colorado Amendment 74
Author: The Gazette Editorial Board - October 10, 2018 - Updated: October 10, 2018
The Gazette’s editorial board erred on the side of property rights but erred nonetheless with our initial support for Amendment 74. Voters could easily make a similar mistake, so we urge readers to consider the full ramifications of this ballot measure.
The proposal sounds more American than standing for the flag. The ballot asks voters: “Shall there be an amendment to the Colorado constitution requiring the government to award just compensation to owners of private property when a government law or regulation reduces the fair market value of the property?”
It sounds like the perfect offset to Proposition 112, the jobs-killing proposal to shut down Colorado’s oil and gas industry with 2,500-foot setbacks that violate property rights.
Unfortunately, Amendment 74 is so broad-based it threatens to jeopardize property rights and bilk local governments and taxpayers out of billions of dollars with frivolous lawsuits.
Oregon voters overwhelmingly passed a measure similar to Amendment 74 in November of 2004. Within a year, property owners filed more than 2,000 claims, most challenging rules restricting subdividing and developing land.
A circuit court judge ruled the law in violation of the Constitution’s equal protection clause in 2005, but the Oregon Supreme Court reversed the ruling.
The law caused more than $20 billion in claims within three years and led to the development of housing subdivisions and big-box stores in locations broadly considered inappropriate. Unintended consequences of the law generated opposition from a coalition of conservationists and farm organizations. Voters negated much of Measure 37 by passing Measure 49 in 2007.
Colorado’s proposed law is considerably worse than Oregon’s flawed Measure 37. Oregon’s law pertained only to regulations enacted any time after an individual or corporation acquired property.
The carelessly worded Colorado proposal could bolster claims by property owners challenging long-held planning and zoning regulations in place before they acquired property.
By opening the floodgates to anything-goes litigation, Amendment 74 could jeopardize the property rights it claims to defend. Imagine Bob buys a lot, gets it zoned residential, and builds a house. The new home impedes the mountain view from neighbor Charlie’s house. Under this law, Charlie has grounds to sue the local government for allowing Bob to diminish his view and lower the value of his home.
Don’t like the new big-box store down the street? Sue government for allowing it, arguing it devalues your home. Want to build a new big-box store where one is not allowed? Sue local government for a regulation that lowers the potential value of your land.
This law has so few boundaries it could facilitate complaints against entire new subdivisions, as they increase the housing stock and arguably lower values of nearby existing homes.
Property rights serve as the foundation of our economy. Without them, nothing has value. That’s why we have the Fifth Amendment to the Constitution, which says no individual shall be deprived of property “without due process of law; nor shall private property be taken for public use, without just compensation.”
Courts have balanced the public’s interests and private property rights within limitations of the Fifth Amendment for nearly 250 years. They will continue doing so, and we don’t need voters trying to trump the Fifth Amendment and existing property protections in the Colorado Constitution.
Amendment 74 sounds like a good idea and originally had us fooled. Don’t fall for it. This proposal inadvertently threatens property rights, while paving the way for expensive, frivolous and opportunistic litigation that will waste hard-earned taxpayer dollars.