My co-blogger, Amanda Bradley, has a short post on the Supreme Court's decision in The Glenelk Ass'n v. Lewis, Case No. 10SC275. I wanted to pick up on Amanda's discussion regarding footnote 3 and the Court's signal that it may reconsider existing caselaw as to the trial court's authority to assess the feasibility of the proposed project necessitating the condemnation.
One of the frustrating aspects of defending landowners in private condemnation proceedings is that Colorado courts have largely imported the procedural and substantive law governing public condemnations to assess the vaidity of proposed private condemnations. This places the responding landowner at a significant disadvantage because the courts' review of public takings is limited in many important respects.
For example, within public condmenation law it is axiomatic that a court may not assess the feasibility of a proposed project. E.g., Silver Dollar Metropolitan Dist. v. Goltra, 66 P.3d 170, 172 (Colo. App. 2002) ("Whether an enterprise is feasible or practicable, and whether it will be a financial success, cannot be questioned in determining necessity, and such questions are not for the court's determination." (citing Mortensen v. Mortensen, 309 P.2d 197 (Colo. 1957); Gibson v. Cann, 66 P. 879 (Colo. 1901))). Courts are unwilling to review the feasibility of a project because they view this as exclusively a legislative determination. Id.
In the context of public condemantions, this rule makes some amount of sense. Before a public condemnation can be initiated, a public agency must authorize the condemnation. Thus, there is some degree of political accountability for the decision which operates as a check on the power of the public agency. (Of course, in the wake of the controversial Kelo decision, there is a growing body of legal scholarship which argues that this political check is modest at best, and that public agency decisions on eminent domain unduly impact low-income and minority communities.)
However, in the context of a private condemnation, this rule makes no sense. In a private condemnation, there is no legislative determination. Instead, the condemnation is initiated at the exclusive discretion of a private party. By refusing to address the feasibility of the project prompting the private condemnation, the courts are effectively placing unlimited discretion in the hands of the private condemnor. This is an inexcusable abdication of the judiciary's obligation to safeguard the private property rights of the responding landowner. See Akin v. Four Corners Encampment, 179 P.3d 139, 144 (Colo. App. 2007) (“Because the power to condemn private property is in derogation of the right to own and keep property, the exceptions in art. II, § 14 must be interpreted narrowly, with any uncertainty in the ambit of the power to condemn resolved against the person asserting that power.”).
In footnote 3 of the Glenelk opinion, the Court strongly indicated that it would permit a trial court to apply the "can and will" standard, imported from water law, to assess the feasibility of the development underlying a proposed private condemnation. Such a rule would be a dramatic departure from the status quo; it has the potential to rectify the existing power imbalance in private condemnation proceedings.