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August 30, 2018

Boulder County Commissioners OPPOSE Amendment 74 – “Just Compensation for Reduction in Fair Market Value by Government Law or Regulation”

The citizen-generated initiative - funded by the oil and gas industry - proposes to amend the Colorado constitution to drastically limit state and local government regulatory

(Boulder County, Colo. -- Aug. 30, 2018) -- The Board of County Commissioners has adopted a position (Resolution 2018-101) to OPPOSE Ballot Initiative #108 (Amendment 74) “Just Compensation for Reduction in Fair Market Value by Government Law or Regulation,” a citizen-generated initiative funded by the oil and gas industry that proposes to amend the Colorado constitution to drastically limit state and local government regulatory authority.

“Amendment 74 goes far beyond what is currently defined and protected in both the U.S. Constitution and the Colorado Constitution in regards to ‘takings’ rights for private property owners,” said Boulder County Commissioner Deb Gardner. “We recognize the value of private property and the rights it comes with, but this amendment goes too far in undermining other individuals’ rights, depriving them of the shared community values of public health and safety, as just two examples.”

“Amendment 74, should it pass in November’s election, would constrain, if not paralyze, the ability of state and local governments to regulate any activities on private property,” said Boulder County Commissioner Elise Jones. “It would make it extremely difficult for the state or any local government to address community concerns such as environmental health and safety, and any action taken could become the subject of expensive lawsuits and cost taxpayers millions of dollars.”

Article II Section 15 of the Colorado Constitution states that “Private property shall not be taken or damaged, for public or private use, without just compensation.” This “takings clause” is generally the same language as the takings clause in the U.S. constitution. Property owners already possess the right to seek compensation from the public when two conditions are met:

  • (1) the investment backed expectations for the property are substantially diminished by a government regulation; and
  • (2) the property owner suffers a “unique” (rather than generalized) burden or impact from the regulation.

In other words, the point of current “takings” law is to provide compensation only to those property owners who are uniquely forced to bear “public” burdens that, in all fairness, should be borne and paid for by the public as a whole.

Amendment 74 would completely change that concept, and greatly expand the right of individual owners of private property to be compensated by the public.

If Amendment 74 were to become the law, the ability of state and local governments to adopt – let alone attempt to enforce – reasonable regulations, limitations, and restrictions upon or affecting uses of and activities on private property would be drastically diminished. Laws, ordinances, and regulations designed to protect public health and safety, the environment, our natural resources, public infrastructure, and other public resources would all be placed in severe jeopardy.

Zoning, density limitations, and planned development would be directly impacted. Inherently dangerous or environmentally damaging activities would become prohibitively costly for our state and local governments to attempt to limit or regulate in the public interest.

Even indirect and unintended impacts upon fair market value could give rise to claims for compensation by private property owners. This could include virtually any law or regulation that could impact the value of a business operation upon the property and thus, indirectly, the short-term market value of the property itself (e.g., arguably minimum wage requirements, waste disposal requirements, drainage requirements, noise restrictions, safety codes, laws affecting or permitting activities upon neighboring property, etc.).

Virtually any arguable impact upon fair market value – however reasonable or justified or minimal or incidental or temporary – resulting from state or local government action could trigger a claim for public compensation from a private property owner.

Similar “takings initiative” efforts have been attempted and defeated in other states. Although cost estimates have not been completed for Colorado, the fiscal impact for similar language in the State of Washington was estimated at $2 billion dollars for state agencies and $1.5 billion for county governments over the first six years. There were $4 billion dollars in claims in Oregon before the residents repealed the takings initiative two years after its passage.

For these reasons the Board of Boulder County Commissioners OPPOSES Initiative 108.