TELLURIDE – Today is the day the words “Valley Floor” will echo in the highest court in Colorado, with the oral arguments for the San Miguel Valley Corporation’s challenge to the Town of Telluride’s condemnation of the 570-acre parcel for open space uses starting at 9 a.m.

One might also notice an echo effect occurring throughout town hall, due to the absence of a host of elected officials from Telluride who are instead in attendance at the Supreme Court in Denver.

On hand will be former Telluride Mayor John Pryor, who served as the lead voice for the town as it raised $50 million, plus $876,281.16 in post-judgment interest, to purchase the property, as well as current Mayor Stu Fraser, council members Lulu Hunt, Bob Saunders and Thom Carnevale, Town Attorney Kevin Geiger, as well as members of Sheep Mountain Alliance, including Phil and Linda Miller, and key players for the group formerly known as the Valley Floor Preservation Partners, which raised approximately $25 million in private donations to complete the condemnation purchase.

Also in Denver will be Telluride Town Manager Frank Bell, who will not be attending the oral arguments but will be in town briefly on a related matter. Bell said whenever he goes out of town, he appoints a senior member of town staff to take the reins of the town’s administrative duties in his absence.

As of press time, he wasn’t sure who that appointee might be.

“It’s not a job you would volunteer for, I assure you,” Bell said.

Also in attendance will be some of Telluride’s best and brightest students, members of an advanced placement class from Telluride High School: Jackie Distefano, Alexis Cruzzavala, Jordan O’Hara, Alexa Child, Brittany Biggs, Jake Sullivan, Jesse Lamb, Chloe Warner and McKenzie Fernald.

You would be hard-pressed to get anyone in an official capacity from the town to comment on what to expect at such a high-stakes event as a state Supreme Court case, but Distefano has some excellent insights.

“We read the briefs from both sides,” she said. “The Supreme Court is very liberal, and Chief Justice Mary Mullarkey has been very supportive of the environment.”

The State Supreme Court room will be adding 50 more chairs for those attending – for a courtroom already at the capacity of 52 – which means perhaps 102 onlookers will be able witness the event today.

With oral arguments now adding flesh to an abstract paperwork scene of battle, the fate of Telluride for the 21st century is now at hand.

Especially if the SMVC can argue successfully to erase the 20th century – the portion of it, that is, that included a home-rule community’s ability to acquire land by eminent domain (a duration, by the way, as long and as old as the State of Colorado itself).

In the broadest sense, the legal battle lines stake out the principle of a property owner’s right to maximize the return on his investment versus the principle of a community’s right to plan its development.

State vs. Local Interest?

The answer brief to the SMVC’s opening salvo, signed by Telluride’s condemnation attorney Leslie Fields, argues for a status quo in constitutional law, and criticizes the state legislature’s use of the “Telluride Amendment” to thwart this particular condemnation.

The amendment was lobbied for and paid for by landowner Neal Blue, owner and CEO of General Atomics, a vast international collection of entities in the nuclear industry, who is appealing the condemnation of his 570-acre parcel knowing that, even if he loses, he stands to make $50 million-plus, the amount the town raised to pay for the Valley Floor through bonding and donations. Nevertheless, basing his arguments as a battle for the rights of the individual property rights, the San Diego-based conservative is willing to gamble one-fifth of such proceeds in legal fees to make his case for property rights.

On Aug. 15, SMVC filed its opening brief with the Supreme Court, claiming the town lacked the authority for condemnation to start with, and thus extended the state’s conflicting laws on eminent domain beyond what was originally intended.

“Despite the years-long uncertainty about whether the Town could actually afford to pay for the taking, Respondents were prevented from developing or selling their property, and prevented from making absolute their recently adjudicated water rights,” the brief states.

Categorizing the summary of its own arguments, Telluride’s response states the following: “Article XX is a broad constitutional grant to home rule municipalities the power of eminent domain, which authorizes condemnation outside municipal boundaries for any lawful, public, local, and municipal purpose, including open space, parks and recreation uses at issue.”

Pointing at the so-called Telluride amendment, “because Subsection 4 purports to prohibit Telluride’s lawful exercise of its Article XX eminent domain powers and to rewrite portions of Article XX,” the trial court, San Miguel County District Court Judge Charles Greenacre, “correctly rules the statute unconstitutional.”

“The extraterritorial power to condemn for local and municipal purposes,” the brief argues, “having been granted by the Constitution a century ago, cannot be taken away by the legislature.”

SMVC’s Case

Much of the SMVC’s appeal reviews the history of the long conflict between the Town of Telluride and SMVC, with one of the main targets of contention regarding Article XX of the Colorado State Constitution. From SMVC’s point of view, there’s a grey area, a situation where mileage, as in the extent to which a town may take land, may vary.

In the summary of the argument, the filing states: “When a home rule municipality exercises authority outside of its territorial boundaries, the action necessarily involves a matter of mixed state and local concern. In those circumstances, the authority of the home rule municipality to act is subject to preemption by a conflicting statute unless Article XX expressly grants such power.”

SMVC argues no such power or circumstance exists in the town’s effort to obtain the Valley Floor through eminent domain.

“Authority for home rule towns to condemn extra-territorially for open space is found nowhere within Article XX. Yet, the trial court inferred just such authority.”

SMVC thus challenges the ruling by Greenacre to allow the condemnation effort to proceed: “Absent an express grant of constitutional authority, in matters of statewide or mixed state and local concern, the ordinances of home rule municipalities cannot stand in the face of inconsistent state statutes,” the SMVC brief argues. “Here, there is no Article XX authority, either express or implied, for this taking. Even assuming, however, that authority could be found, it is certainly not an express grant. It was therefore essential that the trial court address whether the matter or extraterritorial condemnation for parks and open space was one of purely local and municipal, statewide or mixed state and local concern.

“Had it done so, the court would have determined it to be, at a minimum, a matter of mixed state and local concern. Consequently, because the Town’s condemnation ordinance conflicts with the Statute, the ordinance is preempted.”

While it will no doubt require the state’s Supreme Court judges some time to wade through the myriad – and sometimes quite murky – arguments listed in the growing collections of briefs, one thing is clear: According to the SMVC, “the trial court’s order should be reversed, and the condemnation dismissed.”

The Colorado Supreme Court will decide on the appeal of the condemnation of the 570-acre Valley Floor filed by the San Miguel Valley Corporation this winter and going into, perhaps, the spring or even summer.