City of Lakewood v. DeRoos
| Decision Date | 13 February 1981 |
| Docket Number | No. 79CA0372,79CA0372 |
| Parties | The CITY OF LAKEWOOD, a Colorado municipal corporation, Petitioner-Appellee, v. George E. DeROOS, Respondent-Appellant, Midland Federal Savings and Loan Association, First National Bank of Denver, and Donald E. Couch, Treasurer, County of Jefferson, State of Colorado, Respondents. . II |
| Court | Colorado Court of Appeals |
Gorsuch, Kirgis, Campbell, Walker & Grover, Shayne M. Madsen, Joseph J. Montano, Denver, for petitioner-appellee.
George Alan Holley & Associates, Scott D. Albertson, George Alan Holley, Golden, for respondent-appellant.
In this condemnation action, George DeRoos (the owner) appeals from a judgment entered on a jury verdict awarding him $4,000 for the land and improvements actually taken by the City of Lakewood (the city), but finding no damage to the residue of his property resulting from the taking. We affirm.
In connection with the Kipling Street Improvement Project, this condemnation action was commenced by the city to acquire 3,087 square feet of the owner's 13,396 square foot lot for additional right of way. The lot abuts Kipling Street and has a duplex house on it, which was set back 60 feet from the then existing two-lane street. Upon completion of the project, the owner's lot will be separated from the four-lane Kipling Street parkway by a bike path and service road, with the duplex set back 32 feet from the service road, 2 feet more than the city's setback requirements.
At trial, the owner presented testimony as to the value of the property actually taken and the damage to the residue based on loss of parking area, proximity of the duplex to the roadway, and the fact that after the taking the lot will be too small to contain a duplex in compliance with the city's zoning ordinance, and, therefore, will be a nonconforming use in this R-2 residential two district. Although the owner sought to present additional evidence of damage to the residue, the trial court, by an in limine order, precluded the owner from introducing evidence of damage to the residue from the increased noise, dust, fumes, smoke, traffic volume, and other adverse impacts resulting from the construction and widening of Kipling Street, unless he could show that such damage to his property was different in kind, not in degree, from the damage suffered by the general public. The uniqueness of the damage was not proved and the evidence was not introduced.
An appraiser testifying for the city gave his opinion as to the value of the land taken and the residue, and concluded that the residue had not suffered any damage.
The owner first contends that the trial court erred in its ruling precluding the owner from introducing testimony pertaining to damage to the residue resulting from the forthcoming construction and widening of Kipling Street. Quoting from State Department of Highways v. Davis, 42 Colo.App. 250, 596 P.2d 400 (1979) (cert. granted 1979), he contends that where there is a partial taking, the owner is entitled " 'to recover for all damages to his remaining land whether special or shared by the public generally, provided they flow from the taking, since he is constitutionally entitled to be made whole for all injuries resulting from the taking of his land ....' " We find no error in the court's ruling.
Troiano v. Colorado Department of Highways, 170 Colo. 484, 463 P.2d 448 (1969). Even where there has been a partial taking, the damage must be special or peculiar to the property affected. Boxberger v. State Highway Commission, 126 Colo. 526, 251 P.2d 920 (1952).
Here, the owners of property abutting Kipling Street will all suffer the adverse effects of construction and increased noise, pollution, and traffic once the project is completed. The owner contends that expert testimony would establish that the noise levels his property will be subject to would violate the maximum permissible levels established in the noise abatement statutes, § 25-12-101, et seq., C.R.S.1973, while those levels would not be exceeded on property owned by the public in general. Because noise levels in excess of the maximum standard are prima facie evidence that the noise is a public nuisance, see § 25-12-103, C.R.S.1973, the owner claims that he would be subjected to a damage which is different in kind and degree from the damage to the general public caused by noise.
This argument is not persuasive. Construction and operation of a public highway are not activities which can be abated as a public nuisance. See § 25-12-104, C.R.S.1973. Therefore, although the owner may be exposed to greater amounts of noise, pollution, or traffic, these adverse effects are not different in kind from the effects suffered by the public in general. Accordingly, the trial court did not err in excluding the offered evidence.
To the extent that State Department of Highways v. Davis, supra, is inconsistent, we choose not to follow it.
The owner next contends that the trial court erred in excluding the testimony of a witness, in relation to damage to the residue. According to the offer of proof, the witness would have testified concerning the expected volume of traffic after completion of the improvement project, that the property taken could be used by the city if the planned four-lane highway were expanded to a six-lane freeway in the future, and that the main street and service roads could be changed to one-way streets in the future. In light of our previous determination, these future uses to which the right of way might be put, and the future traffic volume would...
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