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5 Brigham-Kanner Prop. Rts. Conf. J. 125 (2016)
The Strange Career of Private Takings of Private Property for Private Use

handle is hein.journals/brikanproco5 and id is 131 raw text is: 


                        JAN  G. LAITOS*

  Throughout  the Intermountain West, an interesting and disconcert-
ing trend is occurring in resort communities that are also world-class
skiing meccas, such as Breckenridge, Aspen, Telluride in Colorado
or Summit  County  in Utah. Wealthy second-home  buyers, dubbed
amenity migrants, have  driven up prices so much in these com-
munities that virtually no one else can afford to either buy or rent
homes  there. Those who actually work in these resort communities-
the police, firefighters, cooks, ski-lift operators, waitstaff and house-
keepers-cannot  afford to live there and instead must commute from
more  affordable locations, often hours away.'
   In order to provide close-in housing for those who actually work
in these communities, many  of the resort areas have contemplated
ways of providing affordable workforce housing. Some local govern-
ments have adopted inclusionary housing ordinances, which require
developers to make affordable a certain portion of new development.
Other local governments have town or city housing authorities build
their own affordable housing.! But would it be possible for state leg-
islatures in states experiencing the amenity migrant phenomenon
to instead delegate to a private housing developer the power to ex-
ercise eminent domain? Would  a private developer constitutionally
be able to condemn private land for the purpose of building private
workforce housing? Would  not such a delegation to a private party
be contrary to the essential law of eminent domain, which seems
to require that (1) only the sovereign-only a government-exercise
that power,' and (2) private property may not be taken from one

    * University of Denver Sturm College of Law, Professor of Law and John A. Carver, Jr.
Chair in Natural Resources and Environmental Law.
    1. Jan G. Laitos & Heidi Ruckriegle, The Problem ofAmenity Migrants in North America
and Europe, 45 URB. LAW. 849 (2013).
    2. Jonathan Thompson, When Living Where You Work Is out of Reach, THE DENVER POST
(May 23, 2015, 5:00 PM), http://www.denverpost.com/perspective/ci_28170119.
    3. The Fifth Amendment to the U.S. Constitution states in relevant part, nor shall
private property be taken for public use, without just compensation. U.S. CONST. amend. V.


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