Opinion by JUDGE FOX
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion. SUMMARY Regional Transportation Authority — Eminent Domain — Inverse Condemnation — Damages
In this inverse condemnation proceeding, a division of the court of appeals considers whether the district court erred in determining that the Roaring Fork Transportation Authority (RFTA) possesses the power of eminent domain. The division concludes 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.
The division also concludes that the district court properly determined that RFTA caused compensable damage — within the meaning of Article II, Section 15 of the Colorado Constitution — to the plaintiff's property by constructing a bus station wall adjacent to and imposing lateral force on the plaintiff's property.
Further, the division rejects RFTA's assertions concerning the trial court's decision to award restoration damages, rather than damages equivalent to any diminution in value.
Accordingly, the division affirms the judgment. ¶ 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 materials not available for display.
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 materials not available for display.
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 materials not available for display.
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. ¶ 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.
One RFTA expert submitted a conclusory affidavit stating, without reasoning or evidence, that the bus station wall does not depend on the embankment for support. The district court rejected the affidavit in its July 2015 order, and relied instead on other experts. In 2014, while this case was pending, the General Assembly enacted sections 30-20-1401 to -1417, C.R.S. 2017 (concerning tire recycling), and Sos' need to use the embankment area again increased.
The commissioners' certificate of ascertainment and assessment is akin to a jury verdict. See Aldrich v. Dist. Court, 714 P.2d 1321, 1324 (Colo. 1986). Inverse condemnation cases are tried as eminent domain proceedings. City of Northglenn v. Grynberg, 846 P.2d 175, 178 (Colo. 1993). In an eminent domain proceeding, unless the property owner requests a jury, the court-appointed commissioners determine just compensation. § 38-1-105(1)-(2), C.R.S. 2017.
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 Dep't of Transp. v. Gypsum Ranch Co., 244 P.3d 127, 129 (Colo. 2010).
B. Analysis
¶ 17 RFTA is a regional transportation authority created under and governed by sections 43-4-601 to -621, C.R.S. 2017. Section 43-4-604(1)(a)(IV) states, "All powers, privileges, and duties vested in or imposed upon the authority shall be exercised and performed by and through the board [of directors]. . . . [T]he board shall not delegate . . . [i]nstituting an eminent domain action, which may be at a public hearing or in executive session[.]" The next section of the statute lists the powers regional transportation authorities have "[i]n addition to any other powers granted . . . pursuant to this part 6," but it does not explicitly include the power of eminent domain. § 43-4-605(1), C.R.S. 2017. ¶ 18 Pursuant to the statute's plain language, RFTA has the power of eminent domain. That power resides with RFTA's board and may not be delegated; the board may institute an eminent domain action at a public hearing or in executive session. See Coquina Oil Corp., 643 P.2d at 522. RFTA's proffered interpretation of the statute, by contrast, would render the statute's language meaningless. Indeed, it would be absurd for RFTA to be expressly prohibited from authority on RFTA by clear implication in section 43-4-604. See Stapleton, 97 P.3d at 943.
III. Damage Occurred
¶ 20 RFTA next asserts that the district court erred in concluding that RFTA's bus station wall caused compensable damage because the wall's construction did not substantially diminish the value of Sos' property or substantially change Sos' use of his property. We are not persuaded.
A. Preservation, Standard of Review, and Applicable Law
¶ 21 The parties agree that this issue was properly preserved. ¶ 22 Whether a taking or damaging pursuant to the Colorado Constitution has occurred is a question of law that we review de novo. Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377, 386 (Colo. 2001). To the extent such a determination turns on a district court's factual findings, we will not disturb such findings unless they are clearly erroneous; factual findings are clearly erroneous only if there is nothing in the record to support them. Farm Credit of S. Colo., ACA v. Mason, 2017 COA 42, ¶ 40 (cert. granted Oct. 2, 2017). ¶ 25 To recover on an inverse condemnation claim alleging that property has been "damaged," a plaintiff must establish: (1) that there has been damage to a property interest; (2) for a public purpose without just compensation; (3) by a governmental or public entity possessing the power of eminent domain that has refused to exercise it. Kobobel, 249 P.3d at 1133; Van Wyk, 27 P.3d at 386-87. To establish the damage to a property interest element, the plaintiff must prove that he has suffered a unique or special injury different in kind from any injury suffered by the general public as a result of the damage. Grynberg, 846 P.2d at 179 ("The damage must be to the property or its appurtenances, or it must affect some right or interest . . . enjoy[ed] in connection with the property and which is not shared with or enjoyed by the public generally."). But see La Plata Elec. Ass'n, Inc. v. Cummins, 728 P.2d 696, 701-03 (Colo. 1986) (noting, in a partial takings case, that damages to the residue need not be unique to be compensable).
B. Analysis
¶ 26 The district court's determinations regarding the second element of Sos' inverse condemnation claim are unchallenged. And, for the reasons stated above, we agree with the district court's or its appurtenances, or [an injury] affect[ing] some right or interest which the owner enjoys in connection with the property and which is not shared with or enjoyed by the public generally"; the injury must be to some right or interest relating to the property, not a specifically non-personal or non-business use. Grynberg, 846 P.2d at 179 (emphasis added). The Grynberg court elaborated that "[i]n no case has mere depreciation in value been grounds to award just compensation for a damaging of property." Id. For the reasons stated below, the district court did not err in concluding that the cost of restoration, not diminution in value, was the proper measure of damages. Thus, any showing of diminution in value is not dispositive of whether a plaintiff has suffered a special injury. We therefore agree with the district court that Sos sufficiently demonstrated a special injury. ¶ 32 Accordingly, we conclude that the district court properly determined that RFTA "damaged" Sos' property within the meaning of article II, section 15 of the Colorado Constitution. See Kobobel, 249 P.3d at 1133.
Although Fowler — addressing a temporary taking involving physical damage to property severe enough to remove it from the one-hundred-year floodplain and lift protections from development on the land — applied tort principles to an inverse condemnation case involving different facts, we are not precluded from applying relevant legal principles to this case, regardless of whether the principles arose from a taking, property damage, or a tort. See Fowler Irrevocable Tr. 1992-1 v. City of Boulder, 17 P.3d 797, 799 (Colo. 2001).
IV. Measure of Damages
¶ 33 RFTA next contends that the district court's ruling that restoration costs, rather than diminution of value, was the proper measure of damages was not supported by law or evidence and, thus, was erroneous. We discern no error.
A. Preservation, Standard of Review, and Applicable Law
¶ 34 The parties agree that this issue was properly preserved. ¶ 35 The district court "has the sole prerogative to assess the amount of damages, and its award will not be set aside unless it is manifestly and clearly erroneous." Lawry v. Palm, 192 P.3d 550, 565 (Colo. App. 2008). ¶ 36 It is within the district court's discretion to determine the appropriate measure of damages, taking "the goal of reimbursement of the plaintiff for losses actually suffered" as its principal guidance. Heritage Vill. Owners Ass'n, Inc. v. Golden Heritage Inv'rs, Ltd., 89 P.3d 513, 516 (Colo. App. 2004); see also Scott, 178 P.3d at 1248 ("[T]he court has broad discretion" when determining the standard of compensation.). ¶ 37 Whether the district court misapplied the law when determining the measure of damages presents a question of law that we review de novo. See Freedom Colo. Info., Inc. v. El Paso Cty. Sheriff's Dep't, 196 P.3d 892, 894 (Colo. 2008); see also Antero Res. Corp. v. Strudley, 2015 CO 26, ¶ 14. ¶ 38 "Generally, the proper measure of compensation for injury to real property is the diminution of market value." Scott, 178 P.3d at 1248. However, the district court "has discretion to apply the cost of restoration as the measure of compensation in an appropriate case." Id.; see also Fowler, 17 P.3d at 805. ¶ 39 There is no fixed set of factors to consider when deciding whether to depart from the diminution of value measure and award restoration costs. Fowler, 17 P.3d at 805 (having a fixed set of factors "would forfeit the flexibility trial courts need to achieve fair results"). Courts may consider the factors detailed in comment b to section 929 of the Restatement (Second) of Torts (Am. Law Inst. 1979), which states,
Even in the absence of value arising from personal use, the reasonable cost of replacing the land in its original position is ordinarily allowable as the measure of recovery. . . . If, however, the cost of replacing the land in its original condition is disproportionate to the diminution in the value of the land caused by the trespass,
unless there is a reason personal to the owner for restoring the original condition,
damages are measured only by the difference between the value of the land before and after the harm. . . . [For example], if a building such as a homestead is used for a purpose personal to the owner, the damages ordinarily include an amount for repairs, even though this might be greater than the entire value of the building.
(Emphasis added.);
see also Fowler, 17 P.3d at 805 (upholding an award of restoration costs in an inverse condemnation case). ¶ 40 In sum, a court considers "the nature of the owner's use and of the injury," having the ultimate goal of reimbursing the plaintiff for "losses actually suffered."
Scott, 178 P.3d at 1248 (citation omitted). The goal is compensation, not punishment.
Id. (A district court must "be vigilant not to award damages that exceed the goal of compensation and inflict punishment on the defendant or encourage economically wasteful remedial expenditures by the plaintiff.") (citation omitted).
B. Analysis
¶ 41 The district court's July 2015 order properly stated that a plaintiff who establishes an inverse condemnation claim is entitled to just compensation — meaning a plaintiff is entitled to compensation for losses actually suffered so that the plaintiff is ¶ 45 Accordingly, the district court properly exercised its discretion to determine Sos' damages under the measure of restoration costs. See Bd. of Cty. Comm'rs v. DPG Farms, LLC, 2017 COA 83, ¶ 34 ("An abuse of discretion occurs where the trial court's ruling was manifestly arbitrary, unreasonable, or unfair, or was based on a misunderstanding or misapplication of the law."); Scott, 178 P.3d at 1248.
V. Evidence of Damages
¶ 46 The district court erred, according to RFTA, in allowing evidence of Sos' personal and business uses for his property because such interests are non-compensable in condemnation cases. RFTA also asserts that the district court erred in allowing evidence of Pattillo's designs and Pattillo's testimony regarding the costs of excavating the embankment and building a retaining wall because Pattillo assumed that Sos would be able to obtain the construction easements necessary to build his designs. Therefore, RFTA argues, Sos presented no admissible evidence regarding restoration costs or supporting the damages award. We disagree.
A. Preservation, Standard of Review, and Applicable Law
¶ 47 The parties agree that this issue was properly preserved. ¶ 48 We review a district court's evidentiary rulings for an abuse of discretion. Genova v. Longs Peak Emergency Physicians, P.C., 72 P.3d 454, 458 (Colo. App. 2003). A district court abuses its discretion where its decision is manifestly arbitrary, unreasonable, or unfair, or contrary to law. DPG Farms, LLC, ¶ 34. Whether the district court misapplied the law in making an evidentiary ruling is reviewed de novo. Id. ¶ 49 We will not disturb the district court's damages award unless it is clearly erroneous — that is, unless there is nothing in the record to support it. Farm Credit, ¶ 40; Lawry, 192 P.3d at 565.
B. Analysis
¶ 50 First, for the reasons discussed above, the district court rightly decided that the proper measure of damages was restoration costs. Sos' alleged injury concerned his dominion over, and ability to use and enjoy, his land for property access, equipment storage, and snow maintenance; it did not concern lost profits or any other injury not independently compensable. See DPG Farms, LLC, ¶ 40 (reasoning that lost earnings alone are not a proper measure of damages, but are generally admissible as a factor to "inform" the ultimate damages determination). The fact that Sos has not yet adjustment for one year after the date of the initial determination to provide for additional damages or benefits not reasonably foreseeable at the time of the initial determination.") (emphasis added); see also Akin v. Four Corners Encampment, 179 P.3d 139, 144 (Colo. App. 2007) (discussing easements in private condemnation actions). ¶ 53 An expert opinion based on "factual premises that are contrary to the undisputed evidence" or "an unreliable, unsupported assumption" is not competent evidence. Farrar v. Total Petroleum, Inc., 799 P.2d 463, 467 (Colo. App. 1990). Pattillo's designs and testimony, by contrast, were not inconsistent with the undisputed evidence, nor was the assumption that Sos could obtain the required easements unsupported by evidence or law. Accordingly, the district court did not err in allowing the challenged evidence. See DPG Farms, LLC, ¶ 34. ¶ 54 Consequently, we conclude that the district court's damages award is supported by competent record evidence, and we will not disturb it. See Farm Credit, ¶ 40.
The decision in Airborne, Inc. v. Denver Air Center, Inc., 832 P.2d 1086, 1092 (Colo. App. 1992), was later criticized by another division on other grounds in PurCo Fleet Services, Inc. v. Koenig, 240 P.3d 435, 444 (Colo. App. 2010), aff'd, 2012 CO 56. --------
VI. Proposed Instructions
¶ 55 RFTA argues that the district court erred in rejecting his proposed instructions regarding diminution of value being the proper measure of damages. We are not persuaded. ¶ 56 The parties agree that this issue was properly preserved. ¶ 57 "Trial courts have a duty to correctly instruct . . . on matters of law." Bedor v. Johnson, 2013 CO 4, ¶ 8. When assessing a claim that the district court erroneously instructed on a matter of law, we review whether the instruction at issue correctly states the law. Id. If it does, we then review the district court's decision on whether to give a particular instruction for an abuse of discretion. Vititoe v. Rocky Mountain Pavement Maint., Inc., 2015 COA 82, ¶ 67. A district court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair; contrary to law; or "the instruction is unsupported by competent evidence in the record." Id.; see also DPG Farms, LLC, ¶ 34. ¶ 58 For the reasons stated above, the district court properly (1) concluded that restoration damages was the appropriate measure of damages in the underlying case and (2) allowed evidence of Pattillo's designs and Pattillo's testimony showing the cost difference in excavating the embankment before and after RFTA's construction. The district court's decision to reject RFTA's instructions regarding the inapplicable diminution of value measure of damages, therefore, did not cause the commissioners to be inaccurately instructed on the law and was supported by competent evidence. So we conclude that the district court did not err in rejecting the instructions at issue. See DPG Farms, LLC, ¶ 34; Vititoe, ¶ 67.
VII. Appellate Fees and Costs
¶ 59 Sos makes the following request for appellate fees and costs:
Sos requests judgment against RFTA for his appellate fees and costs as the prevailing party in this action pursuant to C.R.C.P. 54(d) & 121 § 1-22;
C.R.S. §§ 5-12-102(4)(b), 13-16-104, 13-16-122, 24-56-116 & 38-1-116; and C.A.R. 39(a)(2) & 39.1.
We decline to grant this undeveloped request.
See C.A.R. 39.1 ("If attorney fees are recoverable for the appeal, the principal brief of the party claiming attorney fees
must include a specific request,
and explain the legal and factual basis, for an award of attorney fees.") (emphasis added);
cf.
Cikraji v.
Snowberger, 2015 COA 66, ¶ 21 n.3 ("We do not consider bald factual or legal assertions presented without argument or development.").
VIII. Conclusion
¶ 60 The judgment is affirmed. JUDGE J. JONES and JUDGE FREYRE concur.