(1) In any case initiated for the acquisition of water rights pursuant to this part 2, it is the duty of the commissioners to:
(a) Examine and assess the growth development plan and statement provided by the municipality, from the proposed condemnation, required in section 38-6-203, and obtain necessary information pursuant to powers granted in section 38-6-208, and make a determination as to the necessity of exercising the power of eminent domain for the proposed purposes;
(b) Provide one of the following recommendations to the court, based upon their findings:
(I) There exists no need and necessity for condemnation as proposed.
(II) There exists a need and necessity for condemnation as proposed.
(III) There exists a need and necessity for condemnation, but it is premature.
(2) In making a recommendation, as provided in subsection (1)(b)(II) of this section, the commissioners may recommend an alternate source of water supply.
(3) The commissioners shall hear the proofs and allegations of the parties and, after viewing the premises, certify the proper compensation to be made to said owner or parties interested for the water or other property to be taken or affected, as well as all damages accruing to the owner or parties interested in consequences of the condemnation of the same.
(4) If the commissioners find there exists no need and necessity for the condemnation proposed, they shall make no finding as to the value of the condemned property.
Source: L. 75: Entire part added, p. 1410, § 1, effective July 1.
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).
Provisions held unconstitutional. The provisions of this part, §§ 38-6-202(1), 38-6-203, and 38-6-210, and subsections (1), (3), and (4) of this section, relating to the appointment, action, and effect of a commission to determine the issue of necessity of exercising eminent domain are in conflict with the express grant of eminent domain powers to home rule cities by § 1 of art. XX, Colo. Const. City of Thornton v. Farmers Reservoir & Irrigation Co., 194 Colo. 526, 575 P.2d 382 (1978).
Review of determination of necessity. The determination of necessity is an essential part of the power of eminent domain and is not reviewable by the judiciary absent a showing of fraud or bad faith. City of Thornton v. Farmers Reservoir & Irrigation Co., 194 Colo. 526, 575 P.2d 382 (1978).