— OPINION ere OCTOBER 22, 2018 | 17 The Constitution Already Protects Private Property Rights BY REBECCA LOVE KOURLIS FORMER COLORAQO SUPREME ‘COURT JUSTICE Amendment 74 sounds like a good idea. The ballot issue asks voters: “Shall there be an amendment to the Colorado constitution requiring the government to award just compensation to owners Of private property when a government law or regulation reduces the fair market value of the property?” Pretty sit reconsider. It is is unnecessary and quite Tam particularly interested in 74 be- ‘cause I wrote a concurrence in a Colorado Supreme Court case in 2001 that is be- port of the amendment. I ‘why my opinion does not ‘now being proposed. wolved a sand and gravel, any purchased 46537 acres of land in a time when no regulations nd and gravel operations existed. In 1995, La Plata County ad- opted a land use plan that regulated development and activities in certain areas — for flood control and aesthet- ie reasons. The company had a permit to mine gravel from approximately 10 acres, and the county designated those acres industrial. The remaining acreage ‘was placed in the river corridor district, which did not permit sand and gravel mining. The company sued for inverse condemnation, claiming that their property had been condemned by the operation of the land use plan and they were entitled to compensation. ‘The case reached the Colorado Su- preme Court, where I was then tory taking either by showing that t taking makes the land economically idle, or showing that, even though some court to allow the company evidence about the actual economic impact of the land use plan and the plan’s impact on the compa- investment-backed expectations. In other words, what had the company - be compe - but would done in reliance upon its ul ty to mine sand and gravel erty, and what amount of money were they really losing? I wrote a separate opinion. | agreed case needed to go back to the court for more evidence and a fact- based determination. But, I noted some how I saw the case. For fed out that a land use from zoning or sub- division regulation and should not be treated the same way. I also clarified that the property owner could indeed ited for something less than a complete taking of the property other words, the taking need not be of the whole property — it can result in the property values without Over time, the courts in Colorado have applied that standard on a mea- sured case-by-case basis to come to reasoned outcomes. Our courts have protected private property interests under the authority of the Constitu- tion as written. The cases have tumed using a bul i- on the extent of the taking, the reason- able expectations of the property owner and the remaining uses of the property. ered with. There is a rich history of the courts applying the Constit protect property owners approprit ‘Amendment 74 wipes out that careful development of case law and attempts to create an absolute right to compen- sation whenever the fair market value of property is reduced by government action — no facts necessary to prove investment, reasonable expectations or the other perty. That is tulip garden = rather than a Coloradoans ynable expecta- and my concurring 0} suggest otherwise. Co Amendment 74. + Rebeca Love Koutlisis a former Colorado Supreme Court justice