At first blush, the decision of the Colorado Supreme Court in Town of Telluride v. San Miguel Valley Corp.1 seems like an extraordinary endorsement of home rule and a significant milestone in the evolution of local power. The Colorado Supreme Court adopted a very broad construction of the power of a home rule municipality under the state constitution2 and invalidated a state statute that expressly sought to limit that power.3 The power in question---extraterritorial eminent domain-seems to go well beyond even the most generous assumptions about local government authority. As the uproar following the United States Supreme Court's decision in Kelo v. City of New London4 reminds us, a growing concern about local governments trenching on property rights has made eminent domain increasingly controversial. More importantly, extraterritorial eminent domain would appear to be precisely the subject that is beyond the ordinary scope of local autonomy. As by definition it has extra-local effects, extraterritorial eminent domain seems to be a matter that ought to be subject to state control. Putting to one side the question of whether the Colorado Supreme Court correctly interpreted its state constitution, Telluride looks like one of the greatest judicial vindications that home rule-and the goal of strong local self-government that underlies home rule-has ever received.
In this Article, I challenge the assumption that Telluride is a striking advance for either home rule in particular or local autonomy more generally. Extraterritorial authority in general, and extraterritorial eminent domain in particular, is neither novel nor particularly linked to home rule. Although extraterritorial eminent domain surely strengthens the municipality authorized to use it, such a municipal action potentially challenges the autonomy of other local governments. Indeed, it can undermine the model of local self-determination usually associated with strong home rule. Extraterritorial eminent domain ultimately relies on the older (and continuing) notion of local government as an agent or arm of the state for its legitimacy.5 As I shall indicate, early and midtwentieth century commentators looked to state delegation as the source of local power to act extraterritorially, and the more the value of local self-government becomes the foundation for home rule, the more problematic municipal extraterritorial action becomes.6
More generally, extraterritoriality reveals the problematic nature of local autonomy in the contemporary United States. With most urban areas composed of dozens, if not hundreds, of local governments-and few, if any, local governments fully encompassing their economic and social regions-local governments inevitably have needs which cannot be satisfied entirely within their borders and inevitably undertake actions which affect people outside their boundaries.7 External effects cannot be avoided, yet the fact that nonresidents who do not participate in local elections and are not part of the local community are directly affected by local government actions challenges the local self-government ideal that drives the quest for local autonomy. The autonomy of one locality can be fully legitimate only when it takes into account the interests of its neighbors or is coordinated with the other local governments that represent those neighbors' interests. Yet, the mechanisms for interlocal coordination-and for increasing local accountability to the extralocal residents affected by local actions-also necessarily constrain local autonomy. 8
Town of Telluride v. San Miguel Valley Corp.: Extraterritoriality and Local Autonomy,
Denv. U. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1033