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Sos v. Roaring Fork Transportation Authority

Court of Appeals of Colorado, Seventh Division

November 16, 2017

Michael J. Sos, Plaintiff-Appellee,
Roaring Fork Transportation Authority, a statutory regional transportation authority, Defendant-Appellant.

         Garfield County District Court No. 13CV30159 Honorable John F. Neiley, Judge

          Worrell Durrett Gavrell, Stephen J. Worrell, Robert C. Gavrell, Lucas F. Van Arsdale, Benjamin M. Johnston, Glenwood Springs, Colorado, for Plaintiff-Appellee

          Murray Dahl Kuechenmeister & Renaud LLP, Malcom Murray, Joseph Rivera, Jesse D. McLain, Lakewood, Colorado; Paul J. Taddune, P.C., Paul J. Taddune, Aspen, Colorado, for Defendant-Appellant


          FOX J. JUDGE

          ¶ 1 Plaintiff, Michael J. Sos, brought an inverse condemnation claim against the Roaring Fork Transportation Authority (RFTA) after RFTA built a bus station on the property north of and adjacent to his property. RFTA appeals the district court's order granting partial summary judgment in favor of Sos, the final judgment in favor of Sos, and the damages award. Because we conclude that section 43-4-604, C.R.S. 2017 grants regional transportation authorities created under section 43-4-603, C.R.S. 2017 - including RFTA - the power of eminent domain by clear implication, we affirm.

         I. Background

         ¶ 2 Sos owns property in Glenwood Springs, Colorado, on which he owns and operates a tire business. In 2011, as part of its efforts to build and operate a rapid-transit project (VelociRFTA), RFTA's board of directors authorized eminent domain proceedings to acquire property and easements for the project. RFTA later sent Sos a notice explaining that RFTA required a temporary easement on Sos' property to construct the VelociRFTA facilities and general information about property acquisition and eminent domain proceedings.

         ¶ 3 In March 2012, RFTA purchased the property north of and adjacent to Sos' property, intending to build a bus station as part of VelociRFTA. Both properties slope downward to the west. The following image shows Sos' property to the south (bottom) and the property to the north (top) before RFTA constructed the bus station.

         (Image Omitted)

         Sos and RFTA properties

         ¶4 Before RFTA began construction, an earthen embankment, sloping downward to the south, rested on the property line between Sos' and RFTA's properties. Sos regularly stored tires and other items on this embankment (shown below) and, with the previous owner's permission, on the northern property before RFTA's purchase.

         (Image Omitted)

          Tire storage on Sos' property

         ¶5 As part of its construction, RFTA built a wall - which sits completely on RFTA's property - along the property line shared with Sos' property. Part of Sos' embankment was removed during the wall's construction, but the embankment was restored - allegedly to its "original contours" - using a land survey, as shown below.

         (Image Omitted)

         Sos' embankment after RFTA's construction

         ¶ 6 After RFTA finished building the bus station in September 2013, Sos continued to store tires and other items on the embankment. As Sos' usage requirements for the embankment area increased, Sos wished to remove the embankment to facilitate the following uses: accessing the bays on the northeast corner of his property, storing tires and equipment, and plowing snow. In examining his options for removing the embankment, Sos learned that removing the embankment without constructing an engineered stability measure would cause the bus station wall to "fail" because the wall relies on Sos' property for lateral support.

         ¶ 7 Sos brought an inverse condemnation claim against RFTA because the bus station wall relies on Sos' property for its structural stability. Sos and RFTA retained engineering experts, who generally agreed[1] that the bus station wall depended on the embankment's support and that a retaining wall built on Sos' property - as part of removing the embankment - would require an engineered solution.

         ¶ 8 RFTA moved for summary judgment, and Sos moved for partial summary judgment, regarding whether a compensable taking or damaging had occurred. In July 2015, the district court denied RFTA's motion and granted Sos' motion. The district court determined that it was undisputed that (1) the bus station wall "imposes some lateral force onto the Sos [p]roperty that exceeds the lateral forces that existed" before its construction and (2) if Sos excavated the embankment, additional measures to maintain the bus station wall's stability would be needed. Thus, according to the district court, the only factual disputes concerned the degree of force imposed on Sos' property and the additional cost of Sos' desired improvements. The district court determined that the force the bus station wall permanently imposed on the embankment constituted compensable damage under article II, section 15 of the Colorado Constitution. Colo. Const. art. II, § 15 ("Private property shall not be taken or damaged, for public or private use, without just compensation."). Moreover, the district court determined that RFTA was "expressly given the power of eminent domain" in section 38-1-202(1)(f)(XXXIX), C.R.S. 2017, and section 43-4-604(1)(a)(IV), and that the proper measure of damages was restoration damages, rather than diminution in value.

         ¶ 9 The damages portion of the case proceeded to a trial before three commissioners. One of RFTA's witnesses, a real estate appraiser, testified that there had been no change in the value of Sos' property before and after RFTA built the bus station. Based on designs produced by Sos' engineering expert, Robert Pattillo, Sos alleged that the difference in cost between excavating the embankment before and after RFTA's construction was about $75, 000. Pattillo's first design was a hypothetical retaining wall on Sos' property before RFTA's construction (pre-construction wall). The second design was a soil-nail wall, which would stabilize the bus station wall and reclaim approximately as much flat land as the pre-construction wall. Both designs assumed that Sos could obtain a construction easement from RFTA. The third design was a step-back retaining wall, which would stabilize the bus station wall without relying on any easements or agreements with RFTA, but would reclaim less of Sos' land and would cost more than the soil-nail wall. Pattillo compared the costs of the first and second designs to generate the $75, 000 figure.

         ¶ 10 RFTA objected to evidence of the first and second designs because they were "premised on [the] legal impossibility" that Sos could obtain the required construction easements. In overruling the objection, the district court concluded that the issue "goes to the weight, not to the admissibility" of the evidence.

         ¶ 11 RFTA later proposed four instructions on diminution in value as the proper measure of damages, which the district court excluded because it had previously ruled that restoration damages were appropriate.

          ¶ 12 After the commissioners submitted a certificate of ascertainment and assessment, [2] the district court entered judgment in favor of Sos - awarding him $75, 000 in damages.

         II. RFTA Holds the Power of Eminent Domain

         ¶ 13 RFTA argues that the district court erred in determining that RFTA possesses the power of eminent domain because the General Assembly has not granted RFTA this power expressly or by clear implication. According to RFTA, because it does not possess the power of eminent domain, Sos cannot establish an inverse condemnation claim against it. We disagree.

         A. Preservation, Standard of Review, and Applicable Law

         ¶ 14 The parties agree that this issue was properly preserved.

         ¶ 15 We review a district court's interpretation of a statute de novo. Anderson v. Vail Corp., 251 P.3d 1125, 1127-28 (Colo.App. 2010). In construing legislation, we look first to the plain language of the statute, reading it as a whole. Young v. Brighton Sch. Dist. 27J, 2014 CO 32, ¶ 11. Then, if the language is ambiguous, we "construe the statute in light of the General Assembly's objective, " presuming "that the legislature intended a consistent, harmonious, and sensible effect." Anderson, 251 P.3d at 1127-28. "[W]e presume that the General Assembly understands the legal import of the words it uses and does not use language idly, but rather intends that meaning should be given to each word." Dep't of Transp. v. Stapleton, 97 P.3d 938, 943 (Colo. 2004). "[I]n determining the meaning of any one statutory section, we may look to the legislative scheme as a whole in order to give effect to the General Assembly's intent." Id.

         ¶ 16 Eminent domain proceedings are a creature of statute, and the General Assembly must confer such power expressly or by clear implication; "it can never be implied from doubtful language." Coquina Oil Corp. v. Harry Kourlis Ranch, 643 P.2d 519, 522 (Colo. 1982); see also ...

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