dissenting.
The Colorado Constitution requires just compensation for all property taken by the government according to its eminent domain power. See Colo. Const. art. II, § 15. Since the E-470 Highway Authority has the statutory right to collect a fee from the landowners based in part on the benefits that the Highway confers upon the property, the Authority may not also seek to have the value of the property reduced by those same benefits. *27In my view, the majority's holding results in the landowners being subject to double payment for the same benefit. Thus, I respectfully dissent.
I.
In granting the motion in limine in this case, the trial court concluded that the HEF was based "on the percentage of traffic and the likelihood of future development based on access and proximity to E-470 interchanges" and "on future benefits to the property." Therefore, it construed the HEF as a special assessment under Bloom v. City of Fort Collins, 784 P.2d 304 (Colo.1989). Based on this finding, the trial court prevented the Authority from presenting evidence of future benefits for purposes of reducing just compensation. n
The court of appeals affirmed the decision of the trial court. See E-470 Public Highway Auth. v. 455 Co., 983 P.2d 149, 156 (Colo.App.1999). The court explained that special benefits cannot reduce a compensation award where the remaining property can be assessed a fee for the same benefits. See id. at 152. In reaching this conclusion, the court of appeals indicated that the characterization of the fee does not control. See id. at 153. Rather, the focus should be on the benefits paid for by means of the assessment. See id.
I would affirm both the trial court and the court of appeals for two reasons. First, the trial court made a finding of fact that is amply supported by the record. , Second, the trial court's legal analysis conforms to that required by the applicable statutes and case law. .
A.
In cases such as this, the supreme court defers to the trial court's findings of fact unless they are clearly erroneous and not supported by the record. See Arapahoe County Bd. of Equalization v. Podoll, 985 P.2d 14, 18 (Colo.1997). Furthermore, the trial court has considerable discretion ' in making decisions regarding the admissibility of evidence, and its determination will not be disturbed on appeal unless the court abused that discretion. See Hock v. New York Life Ins. Co. 876 P.2d 1242, 1251 (Colo.1994). "A reviewing court can conclude that the trial court abused its discretion only if the trial court's ruling is manifestly arbitrary, unreasonable, or unfair." Id. After reviewing the record, I agree with the court of appeals that the trial court based its findings on competent evidence, and therefore, must be upheld.
B.
Further, I independently agree with the trial court's legal conclusions concerning the proper understanding of the HEF. Fundamentally, the question must be whether the landowners are being asked to pay twice for the same benefits: once through a deduction from just compensation awarded for the taking, and again through the statutorily authorized HEF. -At its core, this determination requires a thorough examination of the HEF to decide if it is designed to siphon off some of the appreciation of the landowners' property caused by the construction of E-470 near the property9 The trial court asked the right question, applied the right legal standard, and reached a result that was consistent with the evidence.
IL
A.
Section 48-4-506(1)(j), 11 CRS. (1999) permits the Authority "[tlo establish, and from time to time increase or decrease, a highway expansion fee and collect such fee from persons who own property located within the boundaries of the authority." Pursu*28ant to this provision, the Authority has, in fact, established a fee that it collects upon issuance of a building permit. See E-470 Highway Expansion Fee Collection Manual § I (0ct.1990). To calculate the HEF, the Authority divided the E-470 corridor into four segments. See id. The HEF for Segment 1 "was based upon the assumption that individual properties benefit from E-470 proportional to proximity to interchanges, type of land use, and the amount of traffic to and from the land uses which utilize E-470." Id. § III. The formulas used for the other three segments consist of two factors. See id. The first factor considers the percent of traffic on E-470 in that area, and the other considers the access and proximity to E-470 interchanges and the likelihood of development of the property. See id.
Governments impose special assessments for particular improvements that benefit the assessed property, and the assessment cannot exceed the land's increase in value. See Bloom, 784 P.2d at 308. In contrast, "special fees" are levies designed to pay for the government service supplied. See id. at 810.
I conclude that the HEF more closely resembles a special assessment than a special fee. The HEF assessment is based in part on the land's proximity to E-470 and the nature of the development on the site. The collected fees will be used solely for purposes of constructing, financing, operating, or maintaining E-470. A portion of the fees go toward paying for E-470 itself, and other portions toward its operation and maintenance. Hence, the HEF is assessed based on enhancement to a particular property and the proceeds go toward the very structure creating the increase in value, and not toward "the cost of a particular governmental service." Id. at 308.
Regardless, I do not find the characterization of the HEF as either a fee or assessment to be dispositive. Certainly, these terms may have different meanings in a condemnation setting, than in Bloom, a tax case. The Authority calculates the fee based in part on the benefits attributed to a particular parcel, and collects it to capture some of the appreciation to the landowner's property. The Authority apparently presumes that those sites closest to E-470 will benefit most. Appraisers use proximity to interchanges and other similar information to determine special benefits,. As a result, if the compensation paid the landowners were reduced by the special benefits to the property at issue, the landowners would be subject to double payment for the same benefit.
B.
Although the landowners may escape the HEF if they choose not to develop their land until the Authority lifts the HEF, I do not attach any significance to this issue. The General Assembly has authorized the imposition of the HEF by statute. Undoubtedly, the Authority will collect the fee if it remains in force when the land is developed.
Furthermore, both the Authority's appraiser and the landowners' appraisers valued the property according to its highest and best use. Both parties are assuming the property will be developed. In fact, the HEF is likely to reduce the market value of the land. The theoretical ability to sit on the land until the fee is eliminated, if it ever is, offers little consolation to a landowner being penalized at the time of condemnation for the benefits associated with those development rights.
C.
The special assessment issue in City of Englewood v. Weist, 184 Colo. 825, 520 P.2d 120 (1974) arose in a res judicata framework. The City of Englewood condemned a portion of a parcel of land owned by Weist to widen a street and make other improvements. See id. at 827, 520 P.2d at 121. Instead of proving special benefits at trial in order to reduce the compensation award, the City elected to address the benefits conferred on the property at issue and other adjoining properties in a later hearing on a special assessment ordinance. Nee id. at 829, 520 P.2d at 122. Thus, the trial court concluded that the condemnation did not confer any benefits on the remaining property. See id.
At the subsequent hearing on the special assessment, Weist protested the propriety of any assessment on his property because the trial court had determined in the condemna*29tion proceeding that no benefits accrued to his remaining property. See id. Under those facts, the supreme court refused to allow Weist to receive a windfall, and held that the benefits justifying a special assessment are not the same benefits to be deducted from recovery at the time of condemnation for purposes of res judicata. See id. at 333, 520 P.2d at 124.
In Weist, as in the case on which it largely relied, City of Baldwin Park v. Stoskus, 8 Cal.3d 568, 105 Cal.Rptr. 325, 508 P.2d 18383 (1972), the governmental entity did not offset the condemnation award by the amount of benefit the improvement conferred because as the Supreme Court of California stated:
Of course ... since the benefits which flow from the improvement are paid for in the - form of a special assessment, the municipality may not seek to tax those benefits a second time by deducting their value from the award of severance damages in the form of "special benefits."
City of Baldwin Park, 105 Cal.Rptr. 825, 508 P.2d at 1837. Ultimately, in this case, under the majority's holding, the condemnation award to the landowners will be reduced by an amount that approximates benefit to the land because of the E-470 development. Then, when those landowners choose to develop their land, they will be assessed a fee for the privilege of developing and for the privilege of being adjacent to E-470. In short, they will be assessed a fee for the very same benefits that they paid for out of their condemnation award. This result conflicts with the majority of other jurisdictions, and the guidance of legal scholars. See City of St. Louis Park v. Engell, 288 Minn. 309, 168 N.W.2d 3, 7 (1969) (finding that special benefits shall not be offset against a compensation award where a special assessment will be imposed for the cost of improvements); 3 Julius L. Sackman, Nichols on Eminent Domain, § 8A.O2[T] (rev.8d ed. 1999) ("Allow ing both a setoff of benefits and payment of a special assessment would require the con-demnee to pay twice for the same special benefits.").
IIL.
Under the majority's holding, properties neighboring those at issue pay considerably less for the construction of the thoroughfare than do the condemnees. All development within the E-470 corridor must pay the HEF, albeit at varying levels, but only the condemnees pay not only the fee, but also suffer the deduction from their condemnation award. They thus pay an additional charge for the special benefits to their remaining land. As the Supreme Court of Minnesota eloquently opined:
if a special assessment were to be levied for those same special benefits, the landowner who had property taken might well be required to pay an amount in excess of that required of landowners who did not lose land in the condemnation proceedings. Under the cireumstances the cost of the improvements would be disproportionately assessed because a person whose land was actually taken and who had suffered damages as a result of that taking would be required to pay more for the improvements to the area than his neighbor whose land was not taken. Such a rule would penalize the individual owner whose property has been taken.
City of St Louis Park, 168 NW 2d at 10. I would adopt this rationale to prevent an inequitable result.
Because I would defer to the trial court's findings and conclusions, and would find that under these circumstances an offset to the compensation award for special benefits creates a situation where the landowners could be required to pay twice for the same benefit, I respectfully dissent.
I am authorized to state that Justice BENDER joins in this dissent.. The Authority published a marketing document on the E-470 project which stated that "as property values in the E-470 corridor jump substantially due to construction of the highway, a portion of that increase will be 'captured' through taxes and fees paid by developers and landowners." The same publication explained. that the growth spurred by E-470 will mean a 10-fold increase in property values and a significant jump in retail sales. Since E-470 will create much of these increases, it's fair that a portion be "captured" to help pay for the highway. This can happen through impact fees ... paid by developers and builders....