Dep't of Transp. v. Amerco Real Estate Co.

• Decision Date: 26 September 2016
• Docket Number: Supreme Court Case No. 16SA75
• Citation: 380 P.3d 117,2016 CO 62
• Parties: In re DEPARTMENT OF TRANSPORTATION, State of Colorado, Petitioner, v. AMERCO REAL ESTATE COMPANY, a Nevada corporation; Wells Fargo Foothill, Inc., a California corporation; Wells Fargo Bank, National Association, a United States bank; U–Haul Co. of Colorado; Merrill Lynch Commercial Finance Corporation, a Delaware corporation; Public Service Company of Colorado, a Colorado corporation; Margaret Chapman, Public Trustee of Jefferson County; and Tim Kaufman, Treasurer of Jefferson County, Respondents.
• Court: Colorado Supreme Court

380 P.3d 117

2016 CO 62

In re DEPARTMENT OF TRANSPORTATION, State of Colorado, Petitioner,

v.AMERCO REAL ESTATE COMPANY, a Nevada corporation; Wells Fargo Foothill, Inc., a California corporation; Wells Fargo Bank, National Association, a United States bank; U–Haul Co. of Colorado; Merrill Lynch Commercial Finance Corporation, a Delaware corporation; Public Service Company of Colorado, a Colorado corporation; Margaret Chapman, Public Trustee of Jefferson County; and Tim Kaufman, Treasurer of Jefferson County, Respondents.

Supreme Court Case No. 16SA75

Supreme Court of Colorado.

September 26, 2016

Attorneys for Petitioner: Cynthia H. Coffman, Attorney General, Gregg E. Carson, Senior Assistant Attorney General, Lauren M. Curran, Assistant Attorney General, Denver, Colorado

Attorneys for Respondents Amerco Real Estate Company and U–Haul Co. of Colorado: Bryan Cave LLP, Stephen D. Gurr, Cynthia Lowery–Graber, Denver, Colorado

No appearance on behalf of: Wells Fargo Foothill, Inc., a California Corporation; Wells Fargo Bank, National Association, a United States Bank; Merrill Lynch Commercial Finance Corporation, a Delaware Corporation; Public Service Company of Colorado, a Colorado Corporation; Margaret Chapman, Public Trustee of Jefferson County; and Tim Kaufman, Treasurer of Jefferson County.

En banc

JUSTICE COATS

delivered the Opinion of the Court.

¶1 Amerco and U–Haul petitioned for relief pursuant to C.A.R. 21

from an order of the district court denying their request to dismiss the transportation department's Petition in Condemnation and instead granting the department's motion for immediate possession of the subject property, which is owned by Amerco and occupied by U–Haul. The district court rejected U–Haul's assertion that the transportation commission's authorization for the department to condemn property for highway purposes, in the absence of any resolution by the commission approving the acquisition of the particular property to be taken, at a public meeting, amounted to an unlawful delegation of quasi-legislative power.

¶2 We issued our rule to show cause. Because the commission's enabling legislation contemplates that it alone must decide whether the public interest or convenience will be served by a proposed alteration of a state highway, and that decision must be made in consideration of, among other things, the portions of land of each landowner to be taken for that purpose and an estimate of the damages and benefits accruing to each landowner whose land may be affected thereby, the commission's general authorization, to the extent it purports to delegate to the department the choice of particular properties to be taken for such a highway project and the manner of their taking, constitutes an unlawful delegation of the commission's statutorily imposed obligation. The rule is therefore made absolute and the matter is remanded to the district court with orders to dismiss the department's Petition in Condemnation.

I.

¶3 In October 2015, the Colorado Department of Transportation filed a Petition in Condemnation to acquire land owned by Amerco Real Estate Co. and occupied by U–Haul Co., asserting that acquisition of the property in question was necessary for a highway expansion project at the US6 and Wadsworth Boulevard Interchange. The petition specified, “This is an eminent domain proceeding brought pursuant to the procedures set forth in Colorado Revised Statutes (‘C.R.S.’) §§ 38–1–101 et seq.

” The petition further alleged that “[p]ursuant to §§ 43–1–208, 43–1–209, and 43–1–210, C.R.S., CDOT is vested with the power of eminent domain,” and that “[t]his statutory authority permits CDOT to acquire and condemn property, including the property subject to this action.” Shortly after filing its petition, the department moved for immediate possession, and a hearing was set for February 2016.

¶4 U–Haul filed a brief in opposition to the motion for immediate possession, asking that the district court, in addition to denying the motion, also dismiss the department's entire petition for want of authority to condemn its land. U–Haul asserted that the department lacked the legal authority to condemn its particular property, on the grounds that the transportation commission, the entity statutorily authorized to acquire land by condemnation for such highway purposes, had failed to comply with the applicable statutory prerequisites, including resolving in the minutes of a public meeting, on the basis of a statutorily required report by the chief engineer, not only that the project in general, but also the acquisition of any properties required for its completion, would serve the public interest or convenience. U–Haul attached, and directly disputed the adequacy of, various documents upon which the department based its claim of authority, most notably a 1994 resolution of the transportation commission directing the executive director of the department to handle, on behalf of the commission, the approval of land acquisitions, and a specific document entitled “Land Acquisition Approval,” signed by the chief engineer of the department, which included for acquisition by the department the properties of U–Haul and some twenty other landowners, having a total estimated value of over $3 million. The “Land Acquisition Approval” itself specified that the transportation commission had, by resolution, previously directed “the Executive Director of the Department of Transportation, or his delegatee” to handle approval for land acquisitions relating to previously approved state highway projects, and that the executive director had, in turn, delegated such authority to the chief engineer. This “Land Acquisition Approval” by the chief engineer also included a reference to a 2009 resolution of the commission, approving the US6/Wadsworth project at issue.

¶5 After hearing the department's motion, the district court declined to dismiss the petition and instead granted the motion for immediate possession. Noting that neither side presented witnesses, but also that neither side disputed the admission of exhibits at the hearing or challenged the attached excerpts from commission minutes as failing to represent as accurate the record of the commission's actions, the court made written findings of fact and conclusions of law. The court largely reasoned that the commission's enabling statutes permitted it to conduct an eminent domain proceeding itself but also permitted it to acquire property by the procedure dictated by the eminent domain provisions of title 38; that its 1994 resolution did not purport to delegate the commission's power to condemn property, but merely directed the chief engineer to exercise that power to acquire certain specific properties according to the procedures dictated by the eminent domain statutes; and that U–Haul's right to due process was not adversely affected by this choice of the commission.

¶6 Amerco and U–Haul petitioned for relief pursuant to C.A.R. 21

from the district court's order, and this court issued its rule to show cause.

II.

¶7 Exercise of this court's original jurisdiction is entirely within its discretion. We have often deemed relief pursuant to C.A.R. 21

appropriate to correct an abuse of discretion or an excess of jurisdiction where no other adequate remedy exists. Because the order at issue is one for immediate possession by the transportation department for a highway expansion project, although U–Haul would nevertheless be entitled to compensation, in the absence of intervention by this court, its property would be taken and destroyed. In addition, and of particular importance to our decision in this instance, the dispute involves the lawfulness of a broad delegation of authority to condemn that has been relied on by the department for its regular practice for more than twenty years and will undoubtedly create uncertainty with regard to the department's future practice until ultimately resolved. Finally, the absence of any factual dispute and the purely legal nature of the statutory interpretation at issue renders the development of any additional record unnecessary.

III.

¶8 A department of transportation is created at title 43, article 1, part 1, of the revised statutes, to be headed by an executive director, appointed by the governor with the consent of the senate, to serve at the pleasure of the governor. § 43–1–103, C.R.S. (2016)

. In the same part is created the office of the chief engineer. § 43–1–109, C.R.S. (2016). The chief engineer is to be appointed by the executive director, id., and is to function as the director of the engineering, design, and construction division of the department, § 43–1–110, C.R.S. (2016)

. On behalf of the department of transportation, the chief engineer has the authority to take and hold and to contract to take and hold title to real property, or any interest therein, in the name of the department of transportation, whether such real property or interest is used, or intended to be used, for right-of-way or maintenance purposes or for any other purpose authorized by law. § 43–1–111, C.R.S. (2016).

¶9 A separate corporate body, to be known as “the transportation commission of Colorado,” is also created at title 43, article 1, part 1, to consist of eleven members, one each from eleven statutorily designated districts throughout the state. § 43–1–106, C.R.S. (2016)

. Although these members are similarly appointed by the governor with the consent of the senate, they do not serve at the pleasure of the governor, but rather serve statutorily prescribed, four-year terms. Id. The powers and duties of the commission, which are distinct from those of the department, are delineated in some detail by statute, see id., which includes a provision that “[t]he commission shall act only by resolution adopted at a duly called meeting of the commission, and no individual member of the commission shall exercise individually any administrative authority with respect to the department,”...