CARROLL: Unleashing mischief

By Vincent Carroll, Rocky Mountain News (Contact)

Published June 6, 2008 at 12:05 a.m.

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Does the state Supreme Court have any idea of what it has unleashed by giving home-rule cities the right to condemn land outside their boundaries on any public pretext? Lots of high-handed bullying, is what.

Beginning this week, thanks to a 6-1 decision, city land-use planning no longer stops at municipal borders. Incredibly, officials all over Colorado have been authorized to gaze out beyond their jurisdictions, spy a private project they dislike, declare their sudden interest in acquiring the land for "open space," and move to condemn it.

In the case at hand, the court allowed Telluride to condemn 600 acres outside that town slated to become a golf course and resort. The loser's plight might not excite the interest of ordinary Coloradans, to be sure, since the case amounted to one group of rich people demanding that another rich fellow take his playground somewhere else. But stand by.

Wait until a resort town starts condemning farmland beyond its borders to create a protective greenbelt even though the farmers have other plans - plans on which they'd based their dreams of retirement.

Wait until a city uses the threat of condemnation to squash plans for an unincorporated shopping complex that would compete with the city's own merchants.

Tom Ragonetti, an attorney for the losing San Miguel Valley Corp., who mentioned these possibilities to me, foresees an even more blatant misuse of cities' enhanced condemnation powers: Officials could export unpopular facilities. "If you don't want a jail in your community, why not condemn a site [elsewhere] and export your jail?" he asks. "Or your landfill?"

Nowhere in its decision, he notes, does the court limit either the size of the extraterritorial condemnation or specify that it has to be near the land-grabbing city. In short, the possibilities are endless for municipal officials to ride roughshod over residents who can't even fight back by trying to vote them out of office.

Two years ago, Golden threatened to condemn private land outside that city to thwart construction of a digital broadcasting tower. Golden had absolutely no land-use jurisdiction in the matter, and only pulled back when Congress itself intervened. But many of us assumed that Golden's high-handed behavior, had it gone forward, would have been rejected anyway by the courts.

Little did we know that the state's highest court, to the contrary, would soon confer its blessings on just such sleazy power plays.

CC's drudge report

The kids are all right - but that, according to some people at Colorado College, is precisely the problem.

You read that correctly. Qualifying test scores at the college are at an all-time high. The retention rate has reached an astronomical 97 percent (meaning very few freshman drop out; they work hard, thrive and graduate. This used to be considered a virtue).

So why isn't everyone happy?

According to an article in Tuesday's Denver Post, " 'A lot of us miss what we used to call the quirky student,' said Claire Garcia, an English professor. 'We're seeing fewer and fewer of those.' "

Smart high-achievers don't have their share of quirks? Please.

President Dick Celeste is another one worried about the personalities of smart, successful students. He's so concerned he wants to revamp the admissions process. "I think we should be asking the question, 'What would make this a more interesting place?' " he said.

Smart high-achievers aren't interesting, either? What are they good for?

One more priceless quotation, this time from professor Tomi-Ann Roberts, "We want to teach smart kids, and we want to teach bright kids. Maybe the metrics we have available to us are not showing us that. The sparkle thing we're looking for is no longer there."

So, here's yet another attribute that smart high-achievers allegedly lack: the "sparkle thing."

If Colorado College wants to change its standards so that it can broaden the socioeconomic mix of its students, fine. It's a private school and there's nothing stopping it. But it shouldn't base its decision on the insulting, phony premise that the best students are boring grinds.

Vincent Carroll is editor of the editorial pages. Reach him at carrollv@RockyMountainNews.com.

• June 6, 2008

  2:25 p.m.

  Suggest removal

  HolierThanThou writes:

  "Wait until a city uses the threat of condemnation to squash plans for an unincorporated shopping complex that would compete with the city's own merchants."

  As a friend of small businesses and the owner of one, I feel better about it already.

• June 6, 2008

  7:47 p.m.

  Suggest removal

  SDaedalus writes:

  Any 'conservatives' out there willing to join in Carroll's shameless plug for -more- rather than less judicial activism?

  Carroll presents no argument that the legal reasoning of the Colorado Supreme Court's recent 6-1 decision was flawed...merely that the outcome may have adverse effects for some segments of society.

  Even if Carroll's dire scenarios (as fed to him by the losing side of the case...imagine that) come to pass, more consistent critics of 'judicial activism' would point out that these are policy (not legal) matters and the legislature (not the courts) is the most capable branch for addressing them.

  Chief Justice Roberts cautioned against judicial activism: "[C]ourts should not intrude into areas of policy making.... [J]udges must be constantly aware that their role, while important, is limited. They do not have a commission to solve society's problems, as they see them, but simply to decide cases before them according to the rule of law."

  By implying the Colorado Supreme Court has improperly ignored the policy impacts of its decision, Carroll makes a modestly convincing case that there is a time and a place for judicial activism: there may be social goals/interests of such importance that judges should skew their legal interpretation to reach (or avoid) specific social outcomes.

  Carroll suggests that in this case, the Colorado Supreme Court should have put a thumb-on-the-scale to better protect the interests of property owners/developers. The typical boogy-men of 'judicial activism' (those who think courts can and should take a more active role in making society more just, more tolerant, kumbuya, etc) share Carroll's view of the judiciary as a means...they just differ on the desired ends.

  Can any 'conservatives' who share Carroll's opinion explain precisely when judicial activism is a good thing and when it is a bad thing?

• June 7, 2008

  6:45 a.m.

  Suggest removal

  Mike_In_Hartsel writes:

  "more consistent critics of 'judicial activism' would point out that these are policy (not legal) matters and the legislature (not the courts) is the most capable branch for addressing them."

  I agree. Like it or not, the decision should have a legal basis. Many prople go into court seeking "justice" only to find out what the law says. If the people don't like the law then the people should be the ones to change it, not the judges.

• June 8, 2008

  4:24 a.m.

  Suggest removal

  Shadow writes:

  This land grabis nothing new. The city of Denver did this in order to build DIA, and expand its tax base. When the town of Telluride, deems a golf coarse will be a benifiet economically ( meaning more income on new raised taxes) they will build the golf coarse. The ones miossing out are the ones who owned the land first.

  This judicial activism just throws more fuel oin the fire to conspirocy theories of back room meetings between town officials and judges.

• June 10, 2008

  11:31 p.m.

  Suggest removal

  yaakovwatkins writes:

  The issue for Colorado College is not socioeconomic status or race. It's thinking inside the box. It's group-think.

  Now there are a whole bunch of different boxes to think in. If CC is finding that all of it's students fit the same intellectual mold, then it is failing those students by not exposing them to people who think in different intellectual styles.

  I commend Celeste for working on the issue.

• June 11, 2008

  9:54 a.m.

  Suggest removal

  Miseslover writes:

  Ok, I'm a bit confused.
  What the court did was a backward activist action.
  There is no basis in law for a city, political entity, whatever to "grab" land outside of its jurisdiction.
  The court ruling makes no sense. The fact that Devner did it (wrongly) does not extablish precident. I can't just decide to take a portion of my neighbor's yard and use it for my own purposes because I can put it to better use than he, but when government does that, it's okay. Hurrah for the double standard, Hurrah!!!

  Of course what more should we expect from a country with an imperial mindset?

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