Town of Silverthorne, a Colorado home rule municipality, Summit County, Colorado, Plaintiff-Appellee,
Matthew F. Lutz and Edward R. Lutz, Defendants-Appellants
County District Court No. 12CV18. Honorable Thomas W. Ossola,
Parker Wilson & Carberry, P.C., M. Patrick Wilson,
Denver, Colorado, for Plaintiff-Appellee.
Shimber& g Flanagan, P.C., Timothy J. Flanagan, Steven W.
Fox, Denver, Colorado, for Defendants-Appellants.
& Hart, LLP, Marcy G. Glenn, Michael J. Carrigan, Denver,
Colorado, for Amicus Curiae State Board of the Great Outdoors
Colorado Trust Fund.
and Sternberg[*], JJ., concur.
In this eminent domain action, respondents, Matthew F. Lutz
and Edward R. Lutz (landowners), appeal the judgment in favor
of petitioner Town of Silverthorne, a home rule municipality.
The landowners contend that the trial court erred by
excluding evidence of the Town's Great Outdoors Colorado
Program (GOCO) funds from the immediate possession hearing.
They argue that this evidence was relevant to the Town's
authority to condemn the land because the GOCO amendment,
article XXVII, section 9 of the Colorado Constitution, bars a
GOCO fund recipient from using its funds to acquire property
by condemnation. The landowners also argue that the trial
court erroneously denied their motion for attorney fees. We
conclude that the trial court did not err in deciding these
issues and, therefore, we affirm.
Some years prior to the commencement of this action, the Town
undertook to construct the Blue River Trail (Trail), a
network of trails for nonmotorized transportation along the
Blue River corridor within the Town's borders. The Town
sought to acquire land and easement rights for the Trail
along the Blue River, including land located on private
property. In addition, the Town applied for and received
funds from GOCO.
The GOCO amendment provides that " the net proceeds of
every state-supervised lottery game . . . shall be guaranteed
and permanently dedicated to the preservation, protection,
enhancement, and management of the state's wildlife,
park, river, trail and open space heritage." Colo.
Const. art. XXVII, § 1(1). The State Board of the Great
Outdoor Colorado Trust Fund (GOCO Board), a political
subdivision of the state of Colorado, dispenses GOCO funds
from a trust fund. See id. at § § 2, 6.
However, section 9 of the GOCO amendment provides that "
[n]o moneys received by any state agency pursuant to this
article shall be used to acquire real property by
condemnation through the power of eminent domain."
Id. at § 9.
The Town commenced the project by building portions of the
Trail to the north and south of an area that includes the
landowners' property. The Town determined that it wanted
to connect the Trail through this area by building a path
over a previously existing easement that provided a
pedestrian walkway along the river. It called this part of
the Trail " Segment 5." The landowners and some of
their neighbors who would be affected by this plan sued the
Town in a quiet title action seeking declaratory and
injunctive relief. They sought to enjoin the Town from
constructing the Trail over the existing walkway. The Town
counterclaimed for declaratory relief and quiet title,
seeking a decree that it had the legal right to construct
Segment 5 of the Trail over the walkway. The Town
unsuccessfully attempted to settle the quiet title action.
The district court granted the injunction in part, first
preliminarily and then permanently enjoining the Town from
undertaking any demolition, preconstruction, or construction
activities on Segment 5.
Before the district court issued the permanent injunction,
the Town made a written offer of $6,000 to the landowners to
acquire easement rights on a strip of land adjacent to the
walkway (adjacent strip) to construct the Trail. The
landowners did not accept or make a counteroffer, and the
Town then filed a petition in condemnation to acquire the
easement rights over the adjacent strip under its eminent
Thereafter, the Town sought to acquire an additional Public
Trail Overlay Easement located within the existing walkway.
The Town made a written offer to the landowners of $75,000
for both easements ($69,000 for the overlay easement rights
plus the original $6,000 for the adjacent strip easement
rights). When the landowners did not accept the offer or make
a counteroffer, the Town amended its condemnation petition to
include both easements, which the court granted.
The matter proceeded to an immediate possession hearing and a
subsequent valuation trial. The district court granted the
Town's motion for immediate possession, and the
landowners were compensated according to the jury's
Waiver of Defenses
The Town initially argues that the landowners waived any
challenge to the condemnation proceedings, other than
challenges to the amount of compensation, by failing to file
an answer within the twenty-one days provided in C.R.C.P. 12.
The Town filed its petition in condemnation on January 13,
2012, and served it on the landowners on January 23. Counsel
for the landowners filed an entry of appearance and jury
demand on January 31, 2012. The landowners then filed a
motion to dismiss the petition on March 1, 2012. The Town
filed a response to the motion to dismiss, in which it
argued, among other things, that the landowners had waived
their defenses to condemnation by failing to file a timely
answer. The landowners filed a reply, in which they briefed
the issue. In its order dated April 6, 2012, the district
court converted the landowners' motion to dismiss into a
motion for summary judgment and ordered the Town to file a
surresponse within fourteen days and the landowners to submit
a surreply seven days thereafter. The court also ordered the
landowners to file an answer to the petition within fourteen
We assume without deciding that the landowners' motion to
dismiss and answer were filed out of time. But see
M. Patrick Wilson, Eminent Domain Law in Colorado,
35 Colo. Law. 65, 72 (2006) (" Technically, there is no
need to file an answer in a condemnation case, but it is good
practice to do so." ) (footnote omitted). C.R.C.P.
6(b)(2) gives the court discretion to accept a motion filed
past the time period set forth in other rules of civil
procedure " where the failure to act was the result of
We perceive the court's April 6, 2012 order as an
exercise of its discretion under C.R.C.P. 6(b)(2). By
ordering the landowners to file their answer within fourteen
days of the issuance of the conversion order, the court
exercised its discretion and indicated that it had considered
and denied the Town's waiver argument.
We conclude that the court did not abuse its discretion when
it ordered the filing of an answer. The Town neither asserts
that the court abused its discretion in ordering the
landowners to file an answer nor explains how the relatively
short delay caused it any prejudice. The landowners' jury
demand, filed within the twenty-one day period, as well as
the parties' long history of conflict concerning the
Trail, placed the Town on notice that the landowners intended
to contest the condemnation. Their motion to dismiss advised
the Town of their defenses, and the trial court did not rule
on the defenses until more than a year after the motion and
answer were served, following extensive briefing.
Accordingly, the landowners did not waive their right to
contest the proceedings in the district court.
Source of Funds