December 3, 2007

Colorado Supreme Court: Courts Can't Order Government to Abuse Eminent Domain

By Colorado Supreme Court: Courts Can't Order Government to Abuse Eminent Domain

by Timothy Sandefur

The Colorado Supreme Court today issued this ruling in a case called Wheat Ridge v. Cornerstone Group, in which the Pacific Legal Foundation filed this brief. This was a particularly interesting case because the city had decided not to go through with condemning certain land and giving it to a developer. The developer then sued, and the court issued "specific performance" to the developer—that means, it ordered the government to go ahead with the condemnation! The Colorado Supreme Court has now held that that is not allowed.

Unfortunately, the court did not base its ruling on any consideration of property rights. Instead, the judges decided that city officials must be given maximum authority to make decisions regarding other people's land. In fact, the court emphasized that government "remains empowered to take…property…and redistribute it in any manner that future circumstances and the public welfare demand." So while the ultimate outcome is good for property rights, the rationale behind it is potentially very troubling.

Thanks, by the way, to Colorado attorney Meredith Kapushion for her help on Pacific Legal Foundation’s brief.

Update: Prof. Ilya Somin has more at the Volokh Conspiracy.

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