2016 COA 17
Colo. Ct. App.2016Background
- The Town of Silverthorne (a home-rule municipality) sought easement rights to build Segment 5 of the Blue River Trail across riparian property owned by Matthew and Edward Lutz.
- The Town had previously received Great Outdoors Colorado (GOCO) funds for the Trail and used GOCO-funded work on other Trail segments.
- The Town made written offers ($6,000 for an adjacent strip; later $75,000 for both an adjacent strip and an overlay easement); the Lutzes declined and the Town filed a condemnation petition and later amended it to add the overlay easement.
- The district court granted the Town immediate possession at an immediate-possession hearing; a jury later valued the taken interests and the Lutzes received compensation.
- The Lutzes argued the Town was barred from condemning because GOCO's constitutional amendment forbids use of GOCO funds to "acquire real property by condemnation," and they sought admission of GOCO-funding evidence and attorney fees.
- The trial court excluded evidence of the source of funds at the immediate-possession hearing and denied attorney fees; the Lutzes appealed.
Issues
| Issue | Plaintiff's Argument (Lutz) | Defendant's Argument (Town) | Held |
|---|---|---|---|
| Admissibility of GOCO-funding evidence at immediate-possession hearing | GOCO §9 bars use of GOCO funds to acquire property by condemnation, so funding-source evidence is relevant to Town's authority and should be admitted | Funding-source evidence is irrelevant to authority to condemn; condemnation is a special statutory proceeding excluding finance questions | Excluded: funding-source evidence not admissible at condemnation/immediate-possession hearing; City of Loveland controls |
| Scope of GOCO §9 (whether it strips condemnation authority once funds used) | §9 should be read broadly to bar use of GOCO funds for planning, surveying, legal and other takings-related costs, effectively precluding condemnation for the project | §9 forbids use of GOCO funds to "acquire" property by condemnation (i.e., to pay just compensation), not to fund planning or unrelated construction | Interpreting §9 plainly, "acquire" by condemnation means paying just compensation; §9 does not bar condemnation because Town used GOCO on other segments |
| Alleged bad faith (negotiation and necessity) as jurisdictional bar | GOCO misuse shows Town acted in bad faith — made low/global offers to exhaust GOCO before condemning and chose location to force condemnation | Offers made later ($6,000 and $75,000) exceeded appraised values; alleged GOCO-related misrepresentations to GOCO do not negate necessity or show primary improper purpose | No bad-faith shown: negotiation offers were in good faith; alleged GOCO misrepresentations or project phasing did not establish bad faith or negate necessity |
| Attorney fees under §38-1-122(1.5) (measure of last written offer) | Last written offer prior to filing petition was $6,000, so compare jury award to that to trigger fee-shifting | Where petition was amended to add new property, the controlling last written offer is the last offer before the amended petition ($75,000) | Adopted Security Life rule: look to last offer before amended petition ($75,000); jury award did not exceed that offer by 130%, so attorney fees denied |
Key Cases Cited
- City of Loveland v. Public Service Co., 79 Colo. 216, 245 P. 493 (Colo. 1926) (funding-source evidence and corporate finance questions are not cognizable in special condemnation proceedings)
- Glenelk Ass'n, Inc. v. Lewis, 260 P.3d 1117 (Colo. 2011) (district court may grant immediate possession if condemnor established right to condemn)
- Security Life of Denver Ins. Co. v. School Dist. No. 12, 185 P.3d 781 (Colo. 2008) (when petition is amended to add property, the last written offer for fee-shifting is the offer immediately prior to the amended petition)
- Palizzi v. City of Brighton, 228 P.3d 957 (Colo. 2010) (abuse-of-discretion standard for excluding evidence in condemnation context)
- Town of Thornton v. Farmers Reservoir & Irrigation Co., 575 P.2d 382 (Colo. 1978) (home-rule municipalities possess condemnation authority under Colo. Const. art. XX)
- Town of Telluride v. San Miguel Valley Corp., 185 P.3d 161 (Colo. 2008) (home-rule authority to condemn for parks/open space)