Amendment 74 is getting bashed.
Whether it’s Gov. John Hickenlooper, a Democrat, calling it “one of the worst initiatives that I have seen” or Republican Colorado Springs Mayor John Suthers labeling it “stupid” and “a disaster for taxpayers of our state and local governments,” Amendment 74 has elicited high-profile opposition far and wide.
The measure, which would amend the Colorado constitution to require that property owners be compensated for devaluation of their property due to government action, has been condemned by dozens of city councils across the state. It has also taken on heavy fire from the Colorado Municipal League as an unwise policy replete with unintended consequences.
The main argument against Amendment 74 is that it will open up the floodgates to litigation, with claims of property value loss being filed against governments that are just exercising their normal land use or zoning authority.
“From a purely municipal perspective, if we start seeing numerous frivolous lawsuits, taxpayers can expect costs for their city to go up and services will be cut back,” said the league’s deputy director, Kevin Bommer. “It will lead to paralysis of government to enact reasonable and appropriate regulations, even for health and safety.”
But Shawn Martini, vice president of advocacy for the Colorado Farm Bureau, the group officially behind the measure, said Amendment 74 is a necessary safeguard of private property rights.
“It’s water, it’s surface property — and for many of our producers, it’s much of what they have,” Martini said. “A government shouldn’t be able to take 90 to 95 percent of property without compensation.”
Many Amendment 74 detractors say one of the most distasteful elements of the campaign for the initiative lies in its base of financial support. According to filings with the Colorado Secretary of State’s Office, around $8 million in monetary and non-monetary contributions have been made to the issue committee behind 74 — Colorado’s Shared Heritage.
The bulk of that money comes from Protect Colorado, an oil- and gas-backed committee that is also pouring millions of dollars into defeating Proposition 112, which would increase the setback distance for new wells.
Yet the first public polling on the issue, released Monday, suggests voters agree with the Colorado Farm Bureau’s argument: 63 percent said they support it in an online poll conducted by YouGov for the University of Colorado’s American Politics Research Lab. The poll of 800 registered voters was conducted between Oct. 12 and 17. It has a margin of error of 3.5 percentage points.
Amendment 74 advocates point to the 2001 Colorado Supreme Court case, Animas Valley Sand and Gravel Inc. v. Lata Plata County, in which the high court concluded that as long as government regulations don’t completely destroy the value of a property — even if they erode nearly all of it — a “takings” claim will not prevail.
“We don’t think that’s fair — that’s what we’re trying to change,” Martini said.
But Justin Pidot, a law professor at the University of Denver Sturm College of Law, said Amendment 74 will introduce chaos to Colorado’s constitution. Governments enact zoning and other rules for the common good, he said, like not allowing a gas station or fast food restaurant to be built in the middle of a residential neighborhood.
For the property owner who might profit from having a McDonald’s on their land, the zoning is a burden, Pidot said. But for the next-door neighbor, it’s protection against a high-volume business locating within feet of their fence line. In essence, he said, land-use regulations are widely recognized as a compromise mechanism to maintaining order, aesthetics and safety in a community.
“Government shouldn’t have to pay you when it’s imposing burdens with one hand and conferring benefits with the other,” Pidot said. “An initiative like this allows you to pick out the regulations you don’t like. It’s a very simplistic, blunt approach.”
Regulatory takings like these are different from the per se property takings that occur under eminent domain, he said, when a government takes ownership of private ground for the purpose of building roads or schools and then compensates the owner of that land for the taking.
Amendment 74 opponents point to Oregon’s Measure 37, passed by voters in 2004, which allowed property owners whose property value was reduced by environmental or other land-use regulations to ask the state or local government for compensation. According to a state analysis done on the measure in 2011, more than $17 billion in property loss claims were filed under the law.
The cost of executing Measure 37 became so high that Oregon voters largely defanged it by passing Measure 49 three years later.
Lakewood Mayor Adam Paul said the trouble with Colorado’s Amendment 74 is compounded by the fact that it is a constitutional amendment, which is much harder to change after the fact than a statutory measure.
“Zoning is in place for the health, safety and welfare of our communities,” Paul said.
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The Colorado Oil and Gas Association is not taking an official position on Amendment 74, but in a statement to The Denver Post, Executive Director Dan Haley said that “if a state or local government conducts actions that negatively impact an individual’s property value, then those individuals should be compensated, plain and simple.”
“Amendment 74 is a good-government measure that strengthens rules to prevent both property takings and property damages,” Haley said.
Marc Armusch, a farmer outside Keenesburg who grows corn, wheat and alfalfa — along with barley for Colorado’s burgeoning craft brew industry — said Amendment 74 is designed to do far more than protect underground mineral rights.
And he disputed the idea that lawyers will come out of the woodwork to file endless claims against local governments. He said there are still plenty of safeguards in Colorado law that put the burden on the property owners to prove that their losses are real and the result of government action.
“This is the first chance to protect fair market value of our farm and ranches from government overreach,” he said.