Gifford v. City of Colorado Springs, 90CA0944

• Citation: 815 P.2d 1008
• Decision Date: 05 July 1991
• Docket Number: No. 90CA0944,90CA0944
• Parties: Leslie GIFFORD, Plaintiff-Appellant, v. The CITY OF COLORADO SPRINGS, Defendant-Appellee. . III
• Court: Court of Appeals of Colorado

Page 1008

815 P.2d 1008 Leslie GIFFORD, Plaintiff-Appellant,
v.
The CITY OF COLORADO SPRINGS, Defendant-Appellee. No. 90CA0944. Colorado Court of Appeals,
Div. III. July 5, 1991.

Page 1010

Robert J. Mason, Colorado Springs, for plaintiff-appellant.

Hall & Evans, Alan Epstein, Catherine A.G. Sparkman and Walter S. Rouse, Denver, for defendant-appellee.

Opinion by Judge TURSI.

In this inverse condemnation and trespass action, plaintiff, Leslie Gifford, appeals the summary judgment entered in favor of defendant, the City of Colorado Springs (City). We affirm.

The following undisputed facts are distilled from the record. Dominion Executive Club, Ltd., owned a parcel of improved real property in Colorado Springs located on the southeast corner of an intersection bounded by Garden of the Gods Road to the north and Northpark Drive to the west. The building improvements that occupy a portion of the lot includes an attached ground floor restaurant.

The intersection on which Dominion's property is located was targeted for a City public works grading, road-widening, and railroad overpass project to begin in late 1984 and end in mid-1986. Consequently, on August 15, 1984, the City's appraiser valued Dominion's property for purposes of Phase I of the project.

The appraisal estimates the value of a strip of Dominion's land which the City wished to acquire for the project and estimates the damages resulting to the remainder of the property as a result of the desired taking. It also includes a description of the restaurant as an improvement and notes that the improvements will not be altered by the taking. Also, the appraiser's affidavit states that the leasehold interest was considered during his valuation of the property, and independent evidence in the record corroborates that the City knew of plaintiff's intention to lease the property at the time the appraisal was conducted.

One week following the appraisal, Dominion leased the restaurant portion of the interior of its building to plaintiff. The lease agreement grants concessions to plaintiff expressly owing to the public works project, including rent-free occupancy for six months, subsequent rent abatements during the remainder of the construction project, and extensive renovation of the premises.

In October 1984, Dominion agreed to sell the City a strip of its unimproved property on the west boundary of the lot which parallels Northpark Drive. The land was acquired by the City as right-of-way for its project, and, in accordance with the appraised value, Dominion received the sum of $92,106 for the taking as compensation for the land actually taken and damages for diminution in value to the remainder. The interior of the building was not involved in the taking.

In Phase II of the road project, less than a year later, the City purchased another strip of Dominion's unimproved property which bounds the north edge of the property along Garden of the Gods Road. This right-of-way was acquired for the sum of $21,841, and the building interior was not involved in this taking. However, in response to plaintiff's subsequent complaint that this taking eliminated certain parking spaces, the City issued a change order authorizing its contractor, at the City's expense, to build additional parking spaces on the northeast corner of Dominion's property.

During construction of the road improvements, vehicular traffic at the intersection was detoured and access to businesses at or near the intersection was obstructed. Two former points of access to plaintiff's restaurant were permanently closed as a result of the project. However, access to the restaurant was provided at all times either by a third access point on Northpark Drive or by a frontage road.

Page 1011

Plaintiff abandoned his leasehold interest in January of 1986. That following October, plaintiff filed inverse condemnation and trespass claims against the City, alleging damages resulting to his business and leasehold interest as a result of its takings....