Colorado § 38-6-101 - Power of towns and cities.

§ 38-6-101. Power of towns and cities.

Whenever, in a town, city, or city and county, the council thereof or other municipal board having authority by charter or statute passes a resolution or ordinance to establish, construct, extend, open, widen, or alter any street, lane, avenue, boulevard, park, playground, parkway, pleasure way, public square, market, viaduct, bridge, sewer, tunnel, or subway or to build, acquire, construct, or establish any public building or any other public work or public improvement, said town, city, or city and county shall have the right to take, damage, condemn, or appropriate by right of eminent domain such private property as may be required in the manner provided for in this part 1; but, except as specifically authorized by law, no incorporated town shall exercise the power of eminent domain over property outside the town boundaries. In any case where such special benefits are not to be assessed by commissioners as provided in section 38-6-107 against the real estate specially benefited, the said town, city, or city and county may follow the procedure set forth in this part 1 or the procedure set forth in article 1 of this title.

Source: L. 11: p. 373, § 1. C.L. § 9076. CSA: C. 163, § 119. CRS 53: § 50-6-1. L. 57: p. 365, § 1. L. 59: p. 423, § 1. C.R.S. 1963: § 50-6-1. L. 69: p. 356, § 1. L. 76: Entire section amended, p. 312, § 60, effective May 20.

Cross references: For the proceedings and procedure for taking private property for public use, see part 1 of article 1 of this title.

ANNOTATION

Law reviews. For comment, "Water: Statewide or Local Concern? City of Thornton v. Farmers Reservoir & Irrigation Co., 194 Colo. 526, 575 P.2d 382 (1978)", see 56 Den. L. J. 625 (1979). For article, "Condemnation of Property for Economic Development by Home Rule Municipalities", see 25 Colo. Law. 53 (Jan. 1996).

Acquisition of right-of-way makes condemnation unnecessary. When an owner of land permitted the city to construct and operate a pipe line through his land, the city acquired a vested right-of-way and condemnation was unnecessary. Enke v. City of Greeley, 31 Colo. App. 337, 504 P.2d 1112 (1972).

Where condemnation action to be commenced. Art. XX, Colo. Const., and this article provide that a condemnation action must be commenced in the district court in which the city and county is situated. Toll v. City & County of Denver, 139 Colo. 462, 340 P.2d 862 (1959).

City has option of proceeding under either section 38-1-101 or this section in condemning private property for a public use. City of Englewood v. Weist, 184 Colo. 325, 520 P.2d 120 (1974).

Once election made city cannot be bound by other procedure. Once a city elects to proceed under article 1 of this title, it cannot be forced to follow, comply with, or be bound by the provisions contained in this part. City of Englewood v. Weist, 184 Colo. 325, 520 P.2d 120 (1974).

Determination of special assessments presumed valid. The invalidity of a municipal ordinance generally must be established beyond a reasonable doubt; however, a different rule as to special assessments has been established. A presumption of validity inheres in a city council's determination that the benefits specially accruing to properties equal or exceed the assessments thereon. Cline v. City of Boulder, 35 Colo. App. 349, 532 P.2d 770 (1975).

Property owners must show invalidity of ordinance as to special assessments. The burden is on the property owners to affirmatively show to the council, by substantial competent evidence, that a municipal ordinance is invalid as to special assessments. Cline v. City of Boulder, 35 Colo. App. 349, 532 P.2d 770 (1975).

Applied in Alexander v. City & County of Denver, 51 Colo. 140, 116 P. 342 (1911); Wassenich v. City & County of Denver, 67 Colo. 456, 186 P. 533 (1919); Snider v. Town of Platteville, 75 Colo. 589, 227 P. 548 (1924); People ex rel. Bear Creek Dev. Corp. v. District Court, 78 Colo. 526, 242 P. 997 (1925).