Michael J. Sos, Plaintiff-Appellee,
Roaring Fork Transportation Authority, a statutory regional transportation authority, Defendant-Appellant.
County District Court No. 13CV30159 Honorable John F. Neiley,
Worrell Durrett Gavrell, Stephen J. Worrell, Robert C.
Gavrell, Lucas F. Van Arsdale, Benjamin M. Johnston, Glenwood
Springs, Colorado, for Plaintiff-Appellee
Dahl Kuechenmeister & Renaud LLP, Malcom Murray, Joseph
Rivera, Jesse D. McLain, Lakewood, Colorado; Paul J. Taddune,
P.C., Paul J. Taddune, Aspen, Colorado, for
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.
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.
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.
storage on Sos' property
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.
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
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 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,  the district court entered
judgment in favor of Sos - awarding him $75, 000 in damages.
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.
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