August 29, 2018 02:32 PM UTC

"Nuclear Option" Amendment 74 Makes Ballot

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• by: Colorado Pols

The Denver Post’s Ben Botkin reports on the other ballot measure to qualify yesterday for a vote in November in addition to a payday loan interest rate cap–formerly known as Initiative 108, now Amendment 74, which would dramatically alter the relationship between just about any kind of land use interest and local government:

Initiative 108 would amend the state constitution and require property owners to receive “just compensation” when government laws or regulations cause their property’s fair market value to drop.

Organizers submitted 209,111 signatures, and the Secretary of State’s office projects that 137,029 are valid.

Colorado Public Radio’s Grace Hood goes into more detail:

The initiative, which is expected to appear as Amendment 74 at the ballot box, would allow Coloradans to make a financial claim on property that’s devalued because of government action. The proposal would protect water and mineral rights in addition to physical property.

At its heart, Amendment 74 would adjust how “takings claims” work under Colorado law. Right now someone can only get compensation from a direct government action when it deprives them of nearly all of their property. The change to the state constitution would broaden that range so that property owners could get compensated if property is “reduced in fair market value” by the government.

With this measure moving from the theoretical to set for a vote, word of its potentially sweeping effects is spreading–and the Colorado Municipal League is sounding the alarm:

This suggested change to the Colorado Constitution would expose both the state and all local governments to untold legal exposure with unclear language referring to government regulations or actions which would “reduce” the “fair market value” of private property and subject taxpayers to “just compensation” to a private property owner. All types of ordinances and policies at the municipal level would be affected, like code enforcement, land use and zoning, licensing, and redevelopment. Fort Collins Mayor Wade Troxell shares, “This measure places words in our state constitution that are not clear. Both the state and taxpayers in cities like my own will be subject to frivolous lawsuits. As both a Mayor and CML President, I am strongly opposed and will be voting no.”

The net effect of this measure will be an unprecedented restriction on the ability of local governments to regulate land uses within their boundaries. As we’ve said before the biggest beneficiaries of this change would be oil and gas extractive industries, but it wouldn’t stop there–and could be invoked to make the formerly routine regulation of all kinds of things you don’t want in your neighborhood prohibitively expensive. The measure’s vague language makes costly intra-governmental litigation a certainty, just to figure out what it will actually do.

We understand that with all of the controversy over split estate rights and other competing land use questions, there are vested interests like the Farm Bureau and the energy industry who are agitated and spoiling for a showdown. Wherever you land as a voter on any of the measures on the ballot this year, the message on Amendment 74–from the fractivists in Boulder to Gov. John “Frackenlooper” Hickenlooper himself–is that it wildly overshoots its mark.