First Regular Session Sixty-eighth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 11-0284.01 Troy Bratton HOUSE BILL 11-1066 HOUSE SPONSORSHIP McKinley, Vigil SENATE SPONSORSHIP (None), House Committees Senate Committees Judiciary A BILL FOR AN ACT Concerning the reinforcement of the prohibition on governmental takings of certain types of property without providing procedural due process to the property owner. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill reinforces a property owner's right to procedural due process in eminent domain proceedings. Specifically, the bill prohibits governmental takings of livestock, airspace, or seepage water rights without due process of law. The bill also reinforces the requirement that a person authorized to take such property must follow the applicable court procedures required by statute in such instances. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. Legislative findings and intent. (1) The general assembly hereby finds and declares that: (a) Owners of both personal and real property have a right to due process before a governmental or any other entity takes private property for public or private use; (b) The receipt of notice and the opportunity to be heard are minimal requirements of the due process afforded to the owner of personal or real property prior to a governmental taking; (c) Despite the statutory mandate that such procedural due process be afforded, it is worth emphasizing that takings without notice and without the opportunity to be heard violate the rights of property owners; and (d) Various levels and departments of federal, state, and local governments have not acted in good faith and have executed takings of certain types of property without providing just compensation including, but not limited to, takings of: (I) Livestock for various reasons without compensation; (II) Airspace above a piece of real property effectuated by the operation of publicly owned aircraft at low levels; and (III) Rights to use seepage water for irrigation purposes that have been exercised in an ongoing and continuous manner for a significant period of time. (2) Therefore, it is the intent of the general assembly to reinforce the provisions of part 1 of article 1 of title 38, Colorado Revised Statutes, that are intended to provide procedural due process to property owners. SECTION 2. 38-1-101 (1) (a), Colorado Revised Statutes, is amended to read: 38-1-101. Compensation - public use - commission - jury - court - prohibition on elimination of nonconforming uses or nonconforming property design by amortization - limitation on extraterritorial condemnation by municipalities - definitions. (1) (a) Notwithstanding any other provision of law, in order to protect property rights, without the consent of the owner of the property, private property shall not be taken or damaged by the state or any political subdivision for a public or private use without: (I) Just compensation; and (II) Procedural due process of law, including, but not limited to, notice and the opportunity to be heard. SECTION 3. Part 1 of article 1 of title 38, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read: 38-1-101.8. Limitations on taking of certain property. (1) In addition to any other protections afforded to property owners by law, it shall be unlawful for a governmental entity to exercise power of condemnation or eminent domain over the following types of real or personal property without affording the property owner reasonable notice and the opportunity to be heard: (a) Livestock, as defined in section 35-50-103 (7), C.R.S.; (b) Airspace between the surface of real property and a height of five hundred feet above the surface; except that such airspace may be occupied by aircraft that is ordinarily used for emergency purposes such as search and rescue, routine exploration and maintenance of infrastructure such as oil and gas pipeline, and routine agricultural purposes such as crop dusting; and (c) Seepage water that has been used for irrigation purposes continuously by a landowner for a period of not less than twenty-five years. SECTION 4. 38-1-102 (1), Colorado Revised Statutes, is amended to read: 38-1-102. Petition - contents - parties. (1) In all cases where the right to take private property for public or private use without the owner's consent or the right to construct or maintain any railroad, spur or side track, public road, toll road, ditch, bridge, ferry, telegraph, flume, or other public or private work or improvement which that may damage property not actually taken is conferred by general laws or special charter upon any corporate or municipal authority, public body, officer or agent, person, commissioner, or corporation and the compensation to be paid for, in respect of property sought to be appropriated or damaged for the purposes mentioned, cannot be agreed upon by the parties interested; or, in case the owner of the property is incapable of consenting, or his name or residence is unknown, or he is a nonresident of the state, it is lawful for the party authorized to take or damage the property so required to shall apply to the judge of the district court where the property or any part thereof is situate by filing with the clerk a petition, setting forth, by reference, his or her authority in the premises, the purpose for which said property is sought to be taken or damaged, a description of the property, the names of all persons interested as owners or otherwise, as appearing of record, if known, or, if not known, stating that fact, and praying such judge to cause the compensation to be paid to the owner to be assessed. If the proceedings seek to affect the property of persons under guardianship, the guardians or conservators of persons having conservators shall be made parties defendant. Persons interested whose names are unknown may be made parties defendant by the description of the unknown owners. In all such cases an affidavit shall be filed by or on behalf of the petitioner, setting forth that the names of such persons are unknown. SECTION 5. Act subject to petition - effective date. This act shall take effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly (August 10, 2011, if adjournment sine die is on May 11, 2011); except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within such period, then the act, item, section, or part shall not take effect unless approved by the people at the general election to be held in November 2012 and shall take effect on the date of the official declaration of the vote thereon by the governor.