Op Ed for the Rocky Mountain News by SENATOR TOM WIENS
Back in the Wild West days of Colorado’s history, the state legislature established a way for private toll roads to be built. In 1877 a law was passed allowing a private citizen to simply go down to the Secretary of State’s office, pay a fee, file a map of the intended route, and become a Toll Road Corporation. There were no highways; no Department of Transportation; heck, there were no automobiles! Although the law allowed for the use of eminent domain by these private companies, toll roads for wagons and foot travel were built in Colorado but the power to condemn private property was never used.

Fast forward to the 21st century. The law remains in our statutes with all the power of eminent domain intact. But, now we have millions of people and millions of automobiles and the front-range is populated with thousands of family farms, ranches, businesses and homes. Still all a private company has to do is pay 50 bucks to the Secretary of State, file map and BINGO--you’re a toll road company and you have the right to condemn the private property of other Colorado citizens to build a road for your own profit. In fact the law doesn’t even require the toll road company to build a road after the property is condemned. It is hard to take anyone seriously who truly believes the legislature intended to provide condemnation rights to private toll roads for a 21st century super slab when the law was put on the book before the automobile was even invented.

The protection of private property rights is a fundamental protection that Coloradans should expect from their government. It cannot be the case that in our state a private company is able to condemn the property of another Colorado citizen.

The Governor and the Department of Transportation were reluctant to endorse SB 78, which eliminates the power of eminent domain from the old toll road statute, fearing that the bill is premature and safeguards are needed to assure private financing options for transportation projects in Colorado.

The fact is, we already have a system in place that works perfectly well for the private financing of toll roads. Take for example E470 and the Northwest Parkway toll roads. When the bonds were issued, they were purchased 100% by the private sector. Not one dime of public money went to purchase the bonds for the construction and operation of these recent toll roads.

Clearly we are facing major issues related to financing transportation. But it is simply not right to try to balance today’s transportation budget on the backs of families, farmers, ranchers and business people who find themselves threatened by the possibility that the property they have worked so hard to obtain could be condemned and taken away by another private citizen or private corporation.

It just doesn’t make sense to try to solve 21st century transportation problems with a 19th century law. This law has hundreds of Colorado citizens living in fear of losing their homes and businesses without the due process that is required of any government. The cloud that hangs over the eastern plains, and all of Colorado, and threatens the titles to the property of good people is absolutely unacceptable. The legislature has the ability to remove this frightening cloud; and the legislature will act to remove this outrageous threat by passing SB 78.

Late this week, after intense negotiations, all parties came together to do the right thing. We found language that allayed the fears of the administration without diminishing the protection of private property rights in any way. The amendment that we crafted simply references the statute that allows for public-private initiative for the financing of highway projects and cleared up any ambiguity in the definition of toll roads that was troubling to CDOT. The Governor has pledged to support the amended bill if it proceeds through the system with no further amendments.

We are often cynical about how our government works, but when it works to the benefit of the citizens of Colorado, we should all applaud. SB 78 is truly a win-win for all Coloradans and for the protection of private property rights in our great state.

There seems to be total agreement that the bar for use of eminent domain powers by any government must be very, very high. It must be used prudently, judiciously, and rarely. And as for me, and the overwhelming majority of Colorado’s legislators, it must never be used by private entities that cannot be held accountable by the citizens of Colorado.