A bit of legal-ease 

New 'tool' sidesteps the courts in pushing city transportation projects through

click to enlarge Possession and use agreements will be allowed to help - the city acquire some of the 288 parcels of land needed - for these 12 road projects.
  • Possession and use agreements will be allowed to help the city acquire some of the 288 parcels of land needed for these 12 road projects.

In an effort to avoid litigation with testy property owners, the city of Colorado Springs has approved the use of a negotiating tool that will allow a dozen upcoming roadway projects to barrel full steam ahead.

The so-called possession and use agreements (PUAs) will be used to help buy hundreds of parcels of land for taxpayer-supported Pikes Peak Rural Transportation Authority projects, most of which are located in the northeastern part of Colorado Springs.

City officials say PUAs will help them avoid forcing landowners off their property. But some eminent domain lawyers see problems with the tool, which they say does little to protect property rights.

PUAs have been touted as the answer to the eminent domain woes that have slowed transportation projects all around the state. They are meant to speed roadway projects that often are stalled when a city spends weeks in court with a property owner who does not agree with the project at hand or the price offered for his or her land.

PUAs, in essence, sidestep the courtroom. The city goes ahead with a project after receiving a property owner's agreement to sell but the worth of the property is not determined until a later date.

"There are going to be situations where these negotiations don't go perfectly smoothly. We want to have the ability to use [PUAs] so we can keep the projects on track," says city engineer Cam McNair.

The city has identified 12 PPRTA projects that require acquisition of private property to go forward. For example, the Woodmen Road Phase 1 project, a road widening project between Interstate 25 and Academy Boulevard, will run over 80 parcels of land, on which a dozen houses stand in the way.

Bob Hoban, a Denver-based eminent domain lawyer, says that while PUAs might help property owners and city officials avoid courtroom headaches, the use of a PUA does not guarantee a fair shake for the property owner. Since the threat of eminent domain is always present, property owners might enter into a PUA because they have no other recourse.

"If I walk up to you with a gun in my pocket you can see it, but I have never taken it out you are still going to give me your wallet," says Hoban. "That is an extreme example, but that is how you analogize the power of eminent domain."

Since the PPRTA projects are publicly funded, property owners have little leverage to argue in court against the construction that will raze their homes and plow through their yards. Property owners often have a better chance of avoiding condemnation if the project is privately funded. Colorado House Bill 1411, which took effect in June, made it more difficult for private groups to condemn property. But it did nothing for the individuals in the way of the PPRTA projects.

"In a situation where the threat of condemnation is still used, it is not respecting 100 percent the fundamental right to own property," says Hoban.

The Colorado Department of Transportation uses PUAs in close to 10 percent of its acquisitions. Colorado Springs has used PUAs in three different transportation projects in recent years.



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