Department of Transportation v. Stapleton

Justice KOURLIS,

dissenting:

This case is about the breadth of a Colorado statute that authorizes the Colorado *947Department of Transportation (CDOT) to exercise the power of eminent domain. The majority concludes that CDOT has the authority to condemn Stapleton’s property for a parking lot because a parking lot constitutes a “state highway purpose” within the meaning of section 43-1-208(3), 11 C.R.S. (2003). Maj. op. at 942. To reach that outcome, the majority liberally construes the organic legislation granting CDOT condemnation power and holds that the parking lot at issue in this case has a “ ‘sufficiently direct functional relationship’” to the overall highway project. Maj. op. at 944. I disagree. Decades of precedent require us to construe statutes granting condemnation power narrowly and against the entity seeking to condemn private property. Following that precedent leads, in my view, to the conclusion that CDOT lacks authority to condemn private property for a parking lot.

Furthermore, even if CDOT has the authority under some circumstances to condemn private property for parking facilities, the record before us does not support that result in this case. The majority concludes that this particular parking facility is an “integral part of a broader state highway improvement project.” Maj. op. at 941. However, the record indicates that this parking facility is intended to serve a variety of purposes. Some of those purposes are public and some are private. Some of those purposes are abstractly related to the highway project and some have nothing to do with it whatsoever. Hence, the particular uses reflected in the evidence here are all too removed from the purposes authorized by section 43-1-208(3) to support the majority’s holding. For these reasons, I respectfully dissent. I would affirm the court of appeals both in reasoning and in judgment.

I. FACTS AND PROCEDURAL HISTORY

The Respondent, Craig R. Stapleton, owned an undeveloped 23.4 acre parcel of land located on the west side of Highway 82, immediately north of the Buttermilk Ski Area, just outside of Aspen, Colorado.

In 2000, CDOT began a project designed to widen State Highway 82 at the entrance to Aspen. In addition to the actual widening of Highway 82, the project also involved the construction of parking and transit facilities. These facilities were part of a plan to reduce air pollution and traffic congestion around Aspen by providing a transfer point for skier trips and commuter bus trips into the Aspen area. In turn, the reduction of air pollution and traffic congestion would bring Aspen into compliance with federal standards, including the Clean Air Act. Compliance with these standards was a prerequisite to the receipt of federal highway funds to complete the project.

CDOT initiated a condemnation action against Stapleton. CDOT sought to acquire and use Stapleton’s property for actual highway improvements and for the construction of transit and parking facilities. Pursuant to an intergovernmental agreement, the co-petitioner, Pitkin County (County), joined in the condemnation action. The County asserted an interest in Stapleton’s property for a variety of purposes including open space, ensuring clear zones near the airport runway, and providing parking for a number of trails converging on or near Stapleton’s land. CDOT and County identified the same areas for use as parking.

After the petition to condemn was filed, Stapleton stipulated to the taking of approximately two-thirds of an acre of his land for actual improvements to Highway 82. In addition, Stapleton stipulated to the taking of parcels of his land for open space and for clear zones for the airport. However, Sta-pleton challenged the authority of CDOT or County to condemn the remaining portions of his property for parking lots or transit facilities. Thus, only those portions of Stapleton’s land designated by CDOT and County for parking and/or transit facilities are at issue in this appeal.

The trial court held an immediate possession hearing. At this hearing, representatives of both CDOT and County testified. At that hearing, several important facts emerged, including the following: (1) at the present time, there is no plan or funding available to build the parking spaces needed to comply with the Clean Air Act; (2) it is *948unrealistic and unlikely that visitors would drive all the way to Aspen only to park on the outskirts of town; (3) existing facilities used for mass transit are already underutilized; (4) .recreational users would be the primary users of this parking facility, and, at least during the winter months, customers of Buttermilk Ski Area would be the primary users; and (5) there is a very real possibility that after Stapleton’s property is condemned for “highway purposes,” it will be leased back to the Buttermilk Ski Area, a private corporation, to accommodate and supplement its own inadequate parking facilities.

After the immediate possession hearing, the trial court issued an order containing findings of fact and conclusions of law. The trial court concluded that although the Buttermilk Ski Area would certainly benefit from the acquisition of Stapleton’s property, the primary purpose for this condemnation was to bring the highway expansion project into compliance with the Clean Air Act. Specifically, the court stated:

While it is true that none of the statutes relied upon by petitioners expressly grant a right to condemn for parking purposes, the evidence establishes that transit parking is required to comply with the Clean Air Act. Without compliance with the Clean Air Act, the project cannot be done. The Department of Transportation has the power to condemn for highway purposes. Where the parking is a required element of highway construction, the right to condemn for parking must therefore be necessarily implied. As to the authority of the petitioners to condemn for wetland mitigation, airport protection and open space, the Court finds that there is sufficient statutory authority to support the petition.

Thus, the trial court’s conclusion that CDOT had the authority to condemn Stapleton’s land was based exclusively on the fact that parking was necessary in order to comply with the Clean Air Act.

Following the trial court’s order granting immediate possession of Stapleton’s land to CDOT and County, Stapleton filed a Petition for Extraordinary Relief with this court. That petition was denied.1 Next, the trial court conducted a valuation trial to fix the compensation for the taking. Following that trial, Stapleton appealed to the court of appeals challenging the trial court’s ruling that CDOT and County had the legal authority to condemn his land for the purpose of constructing parking and transit facilities.

The court of appeals reversed the district court’s judgment in Dep’t of Transp. v. Stapleton, 81 P.3d 1105 (Colo.App.2004).

First, the court of appeals held that CDOT was not expressly authorized, or authorized by “necessary implication,” to condemn Sta-pleton’s property for parking or transit facilities. Id. at 1108. Specifically, the court of appeals held that section 43-1-208(3), 11 C.R.S. (2003), which authorizes the transportation commission to acquire land for “state highway purposes,” does not by implication grant the power to acquire property for parking or transit facilities. Id.

Second, the court of appeals rejected County’s argument that it had the authority to, condemn Stapleton’s land for “recreational parking purposes” pursuant to section 29-7-104, 9 C.R.S. (2003). Id. at 1109. Specifically, the court of appeals held that “parking lots and transit facilities are not recreational uses of land as defined by [section] 29-7-107.” Id.

Finally, the court of appeals rejected CDOT’s argument that it had the authority to condemn Stapleton’s property for parking and transit facilities pursuant to section 43-1-210(1), 11 C.R.S. (2003). Id. at 1108. That provision states that CDOT may condemn an entire parcel of land if a partial taking renders the remainder “in such shape or condition as to be of little value to its owner or to give rise to claims or litigation concerning severance or other damage.” The court of appeals held that this statutory provision only applies to situations involving partial acquisitions of property. Because Staple-ton’s entire property was being acquired by CDOT and County, the court of appeals concluded that section 43-1-210(1) was inapplicable. Id.

*949II. ANALYSIS

To determine whether CDOT has the authority to condemn Stapleton’s property, I look first to the organic legislation granting CDOT the authority to exercise the power of eminent domain. Section 43-1-208(3) states that “[t]he transportation commission also has the power and is authorized to proceed in the acquisition of the lands of private persons for state highway purposes ...” (emphasis added). The term “state highway” is defined by statute as “a right-of-way or location, whether actually used as a highway or not, designated for the construction of a state highway upon it.” § 43-1-204.. A “highway” includes “bridges on the roadway and culverts, sluices, drains, ditches, waterways, embankments, retaining walls, trees, shrubs, and fences along or upon the same and within the right-of-way.” § 43-1-203. The power to condemn property for parking or transit facilities is not included.

The majority concedes, as it must, that CDOT lacks express authority to condemn private property for a parking lot. However, the majority examines the language of section 43-1-208(3) and concludes that the power to condemn Stapleton’s property must be “necessarily implied.” Specifically, the majority “presumes that in using the phrase ‘state highway purposes,’ the General Assembly intended that CDOT have a condemnation authority which is broader than that needed simply for constructing ‘state highways.’ ” Maj. op. at 943. (Emphasis added). The majority also concludes that “the phrase ‘state highway purposes’ must be read as conferring upon CDOT the authority to condemn lands for purposes which are integral to the construction, maintenance, and improvement of state highways.” Maj. op. at 943. (emphasis added). I do not agree with this construction.

The power of eminent domain is vested in the State of Colorado and that power lies dormant until the legislature speaks. Bd. of County Comm’rs v. Intermountain Rural Elec. Assoc., 655 P.2d 831, 833 (Colo.1983); Potashnik v. Public Service Co. of Colorado, 126 Colo. 98, 100, 247 P.2d 137, 138 (Colo.1952). In determining the scope of condemnation power pursuant to legislative enactment, we construe the grant strictly. Dep’t of Highways v. Denver and Rio Grande R.R. Co., 789 P.2d 1088, 1092 (Colo.1990) (citing Coquina Oil Corp. v. Harry Kourlis Ranch, 643 P.2d 519, 522 (Colo.1982)). Necessarily, we resolve uncertainty in the ambit of the condemnation power against the person or entity asserting the right to condemn. Coquina Oil, 643 P.2d at 522. This rule of strict construction is premised on the fact that “the power of eminent domain is one of the most harsh proceedings known to, the law.” 26 Am.Jur.2d Eminent Domain § 20 (2004); see also 3 Sutherland Statutory Construction § 64:6 (6th ed. 2004) (construing statutes narrowly and in favor of the owners of property sought to be condemned “is premised on the view that the power of condemnation is in derogation of common right because it is an interference with traditional and long established common-law or statutory property rights”). Thus, the right to condemn property “must clearly appear either by express grant or by necessary implication.” Potashnik, 126 Colo. at 100, 247 P.2d at 138. Authority by necessary implication excludes vague or doubtful language and, in the face of doubt, courts must conclude that there has béen no grant of such power by the state. Beth Medrosh Hagodol v. City of Aurora, 126 Colo. 267, 272, 248 P.2d 732, 735 (Colo.1952) (“The power [of eminent domain] is specifically and unequivocally granted, or it is withheld.”).

Stapleton argues that the statutory definitions of “state highway” and of “highway” preclude a finding that a parking and transit facility may be deemed a “state highway purpose” in the context of this condemnation action because nowhere do these definitions include parking. The majority rejects that argument by concluding that it would render the word “purposes” in section 43-1-208(3) superfluous. Maj. op. at 943.

I read the word “purposes” to mean something entirely different. In the context of section 43-1-208(3), the word “purposes” appears as a word of limitation — allowing CDOT to condemn property only for those “purposes” that fall within the definition of a “highway” or “state highway.” Viewing this statutory language through the lens of strict *950construction, and honoring the requirement that statutes granting condemnation power be construed against the entity seeking to exercise that power, the obligation of this court is to view the term “purposes” as narrowly as possible. Thus, this court should not presume that the General Assembly intended to broaden CDOT’s condemnation power when a narrower construction is available.

Furthermore, shortly after condemnation proceedings began in this case, the legislature introduced Senate Bill 01-008 (SB-01-008). The Bill Summary provided:

Transportation, Legislation, Review, Committee. Expands the authority of the department of transportation in connection with its powers of eminent domain, which authority is currently limited to the acquisition and disposition of property for state highway purposes, to include the acquisition and disposition of property for state transportation purposes.

This bill would have expanded CDOT’s powers of eminent domain to include “state transportation purposes” rather than the more limited condemnation power for state highway purposes. The term state transportation purposes was defined as “the transport of persons or property by motor vehicle, bus, truck, railroad, light rail, mass transit, or airplane.” (emphasis added). Clearly, SB-01-008 would have expanded CDOT’s condemnation powers to include exactly the type of project at issue in this case. However, this bill never made its way out of committee. Therefore, a logical assumption is that the General Assembly did not intend to expand CDOT’s condemnation power to include the construction of transit or parking facilities.

The majority cites to Buck v. Dist. Court, 199 Colo. 344, 608 P.2d 350 (1980), to support its conclusion that condemnation authority must be necessarily implied in this case. In Buck, this court addressed whether a railroad had statutory authority to condemn lands for dust levees outside of the 200-foot-wide road expressly authorized by statute. In holding that the authority to construct dust levees must be necessarily implied, this court concluded that the General Assembly “did not intend the 200-foot width limitation to apply to the condemnation of private property for the construction of a railroad’s physical facilities ... which have a sufficiently direct functional relationship to the operation of the railroad....” Id. at 352 (emphasis added).

In this case, the parking facility that CDOT seeks to build has no “functional” relationship to the highway project. Rather, the trial court determined that the purpose of the parking facility was compliance with contractual and environmental obligations that have no bearing on the functional aspects of the highway project. See State Dep’t of Highways v. Denver and Rio Grande Western R.R. Co., 757 P.2d 181, 183 (Colo.App.1988), aff'd 789 P.2d 1088 (holding that section 43-1-208 does not expressly or implicitly authorize condemnation of a private way of necessity for property having no connection with highway alteration other than to fulfill a contractual obligation).2 Thus, even the majority’s reliance on Buck to conclude that “the phrase ‘state highway purposes’ must be read as conferring upon CDOT the authority to condemn lands for purposes which are integral to the construction, maintenance, and improvement of state highways” has no application here, (emphasis added). Maj. op. at 943. Nothing about the parking lot in this case serves a functional purpose related to the construction, maintenance, or improvement of Highway 82.

III. CONCLUSION

Interpreting section 48-1-208(3) as narrowly as possible, and resolving all ambigui*951ties against CDOT, I conclude that CDOT does not have the authority to condemn Sta-pleton’s property for a parking lot. Furthermore, the record does not support a conclusion that the parking lot at issue here has a sufficiently direct functional relationship to the Highway 82 project to subsume it within Btick’s necessary implication holding. Clean Air Act compliance is important, even critical. It is not, however, a state highway purpose which can bootstrap CDOT into authority to condemn private property for a parking lot. Therefore, I respectfully dissent.

. This court issued an order denying Stapleton’s Petition for Extraordinary relief on July 6, 2001. I would have granted Stapleton’s Petition. Justice Bender did not participate.

. Additionally, it appears that even the stated primary purpose of the parking and transportation facility — bringing the highway expansion project into compliance with the Clean Air Act— is not supported by the evidence in the record. To the contrary, the record demonstrates there is no plan or funding needed to build the parking spaces to comply with the Clean Air Act; the future parking facility is unlikely to attract visitors, and would most likely benefit the Buttermilk Ski Area, a private corporation. In any event, even assuming the presence of record support for the claim that the parking project will serve CDOT’s purpose in meeting its contractual obligations, I remain convinced that compliance with Clean Air requirements has insufficient nexus to "state highway purposes.”