Amendment 74 seeks to protect property rights
October 17, 2018
Among a bevy of proposed amendments to the Colorado Constitution appearing on the November ballot — there are nine, in total — voters will decide the fate of Amendment 74, which deals with compensation for property owners whose property values have been negatively affected by laws or regulations.
The text of the proposed amendment is brief: “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?”
Specifically, the measure seeks to alter Article II, Section 15 of the state constitution, which reads, in part, “Private property shall not be taken or damaged, for public or private use, without just compensation.”
This section is typically applicable in cases of eminent domain and “regulatory taking,” the latter of which refers to situations in which government regulation — while not divesting the owner of title — effectively bars that owner from reasonable uses of their property to such a degree that it devalues the property.
The amendment seeks to address this second case.
If approved by Colorado voters, Amendment 74 would change Article II, Section 15 to read, “Private property shall not be taken or damaged, or reduced in fair market value by government law or regulation for public or private use, without just compensation.”
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Proponents of the measure — which include the Colorado Farm Bureau, the Colorado Petroleum Council and a number of oil and gas companies — say the amendment is necessary to protect the right of private property owners to use their property for any reasonable purpose they deem appropriate and economically feasible.
The measure has also been closely tied to Proposition 112, which would increase the required setback for new oil and gas development from structures intended for human habitation and areas designated for public use. Many of the same groups that oppose Proposition 112 support Amendment 74.
“These measures are about protecting Colorado’s farmers and ranchers from extremist attempts to enforce random setback requirements for oil and natural gas development,” said Chad Vorthmann, executive vice president of the Colorado Farm Bureau, in a January article published in the Fence Post.
“While these setbacks may on their face sound reasonable, they would essentially eliminate oil and natural gas development in Colorado and strip away Colorado landowners’ right to use their land the way they wish,” Vorthmann wrote.
The Committee for Colorado’s Shared Heritage, which is working to pass the amendment, argued, “When a government action takes or devalues property, it is only fair to make sure private property owners are compensated for their losses. The measure will improve government’s accountability to citizens and make elected officials more responsive to voters. Policy makers will be forced to think twice about the potential consequences of their actions and the negative impacts of government action will be harder to ignore. This will create stronger protections for communities across the state,” according to the group’s website.
Opponents include the Colorado Municipal League, Denver Metro Chamber of Commerce, Conservation Colorado, Glenwood Springs City Council, Alamosa City Council, the Colorado River District, Western Resource Advocates, Club 20 and Action 22.
These groups argue that passage of Amendment 74 would weaken state and local governments’ ability to apply zoning and planning ordinances and leave such governments open to lawsuits, ultimately costing taxpayers money and confounding municipal planning processes.
Save Our Colorado and Save Our Neighborhoods are the two groups leading the opposition campaign. The former, on its website, writes: “Amendment 74 could destroy the Colorado we all love. Strip clubs, liquor stores, and gun shops could be built near schools. Public health standards that keep restaurants, tattoo parlors, and hospitals safe — they could be gone. Colorado courts could be flooded with frivolous lawsuits all at the taxpayer’s expense. This measure is about giving corporate interests free rein to sue governments.”
And, while acknowledging Colorado’s regulatory taking protections are inadequate, The Denver Metro Chamber of Commerce argued the amendment is not the way to correct the problem.
“This proposal locks new policy in our constitution that is vague, broad and full of unintended consequences,” the group argued on its website. “Clarification and interpretation of this constitutional amendment would have to be settled through costly litigation in our courts rather than through the legislature and, as seen in other states, passage could result in hundreds of lawsuits filed against local and state government.”
According to Ballotpedia, proponents have raised just over $3 million, almost all those funds coming from Protect Colorado, one of Proposition 112’s leading opponents.
Opponents have raised nearly $1.2 million, of which $1 million was provided by the League of Conservation Voters.
Under Colorado law, Amendment 74 requires 55-percent voter approval for passage.