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Collision Course: Colorado Initiative #108 Seeks to Blunt Private Property Owners’ Damages Occasioned by State and Local Government Through Initiative #97

A petition for ballot Initiative #108 was submitted to the Colorado Secretary of State in advance of the August 6, 2018 deadline for proposals to be considered for inclusion on Colorado’s general election ballot on November 6, 2018. Touted as a “property rights” measure, Initiative #108 proposes to amend the Colorado Constitution in order to provide an equal playing field for private property owners seeking just compensation when state or local government takes action diminishing the “fair market value” of their properties.

Ballot initiatives in the state require the support of at least 98,492 valid signatures in order to be placed on the November 2018 ballot. It is being reported that a record 209,000 signatures have been turned in to the Secretary of State’s office together with the petition for Initiative #108. The Colorado Secretary of State’s office has 30 days to review the information provided on the petition and determine whether the proposed measure has garnered sufficient valid signatures to be placed on the November 2018 ballot.

While presented as a property rights measure by its sponsor, the Colorado Farm Bureau, make no mistake – Initiative #108 represents a direct response by proponents of the oil and gas industry in Colorado that is under attack by ballot Initiative #97, also submitted to the Colorado Secretary of State prior to the August 6, 2018 deadline. Initiative #97 proposes to establish a 2,500-foot buffer zone that is free of new oil and gas development around defined “occupied structures” and “vulnerable areas” in the state, including homes, schools, playgrounds and many water-related features, including reservoirs, lakes, rivers and creeks. An impact assessment for Initiative #97 conducted by the Colorado Oil and Gas Conservation Commission during 2018 reveals that, if the 2,500-foot buffer requirement was made effective, an estimated 54% of Colorado’s total land surface, which total includes consideration of federal lands, would be unavailable for new oil and gas development. If the focus is shifted solely to non-federal land in Colorado, then 85% of the non-federal lands in the state would be unavailable for new oil and gas development. It is those privately owned lands that Initiative #108 would seek to address, by providing owners of private property with a direct pathway for taking state or local governments to court when their property is devalued.

Initiative #108 does not define what constitutes “fair market value” or the kind of private property interests that could be taken by state or local governments. Examples of such interests may include minerals, oil and gas or water rights. Clearly, it would appear that Initiative #108 takes aim at oil and gas interests on private property that cannot be extracted from the land because of setback distances made effective and enforced as a result of Initiative #97, should it be placed on the November 2018 ballot and approved.

Stay tuned, as the Colorado Secretary of State determines over the next 30 days whether Initiative #97 or #108, or both, will make it on the November 2018 ballot.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.