Jagow v. E-470 Public Highway Authority

• Decision Date: 01 July 2002
• Docket Number: No. 01SC169.,01SC169.
• Citation: 49 P.3d 1151
• Parties: Jeanne Y. JAGOW, Trustee; Stephen A. Hellerstein, Trustee; Stephen A. Hellerstein, Successor Trustee to L.A. Hellerstein, Trustee; and Howard L. Farkas, Petitioners, v. E-470 PUBLIC HIGHWAY AUTHORITY, Respondent.
• Court: Colorado Supreme Court

49 P.3d 1151

Jeanne Y. JAGOW, Trustee; Stephen A. Hellerstein, Trustee; Stephen A. Hellerstein, Successor Trustee to L.A. Hellerstein, Trustee; and Howard L. Farkas, Petitioners, v. E-470 PUBLIC HIGHWAY AUTHORITY, Respondent.

No. 01SC169.

Supreme Court of Colorado, En Banc.

July 1, 2002.

Duncan, Ostrander & Dingess, P.C., Robert R. Duncan, Donald M. Ostrander, Lynn B. Obernyer, James Birch (Special Counsel), Denver, Colorado, Attorneys for Respondent.

Opperman & Associates, P.C., Marlin D. Opperman, William M. Schell, Denver, Colorado, Attorneys for Petitioners.

Justice HOBBS delivered the Opinion of the Court.

This case arises out of an eminent domain proceeding brought by the respondent, 470 Public Highway Authority ("E-470"), to acquire a portion of the Hellerstein property ("property") from the petitioners, Jeanne Y. Jagow, Trustee; Stephen A. Hellerstein, Trustee; Stephen A. Hellerstein, Successor Trustee to L.A. Hellerstein, Trustee; and Howard L. Farkas (collectively "Hellerstein"). E-470 condemned a portion of the Hellerstein property for construction of the E-470 Highway. The valuation commission entered a condemnation award of $1,323,691.15 for the value of the property taken, $2,888,272.80 for alleged damages to the remainder property, and $297,000.00 for special benefits. The court of appeals overturned the remainder property damages award as unsupported by the evidence and excessive as a matter of law. E-470 Pub. Highway Auth. v. Jagow, 30 P.3d 798, 804 (Colo.App.2001). We granted certiorari to review the court of appeals' judgment.¹

We hold that the $2.88 million award for damages to the remainder property had no support in the evidence and was excessive as a matter of law. At the valuation hearing, Hellerstein had the burden of proof to establish: (1) the existence of damages to the remainder property; (2) the E-470 Highway project caused these damages; and (3) the amount of compensation owed. La Plata Elec. Ass'n, Inc. v. Cummins, 728 P.2d 696, 696-97 (Colo.1986); Troiano v. Colo. Dep't of Highways, 170 Colo. 484, 491, 463 P.2d 448, 451 (1969).

We conclude that the evidence does not support the remainder property damages award. Other than the $100,000 cost to redo the development plan, Hellerstein identified no compensable, quantifiable damages to the remainder property unrelated to loss of access, a damage factor that was held inadmissible by the trial court. We therefore affirm the court of appeals' judgment.

I.

E-470 filed a Petition in Condemnation to acquire a portion of the Hellerstein property for construction of the highway. The entire Hellerstein property comprised approximately 351 acres of undeveloped land. The City of Aurora had annexed and designated the property as commercial, office, and industrial use areas under its Master Plan. The property is located near the northwest corner of the interchange of Gun Club Road and Interstate 70. In the eminent domain proceeding, E-470 acquired approximately 60.9 acres claimed in fee, 11.3 acres in permanent easements, and 1.3 acres in temporary construction easements.

Prior to the valuation trial, the trial court held an in limine evidentiary hearing regarding alleged damages to the remainder property. Hellerstein's experts were prepared to testify at the valuation trial that the value of the remainder property would be significantly diminished by the loss of access that would result from the construction of the E-470 Highway. Hellerstein's first expert, Mr. Peterson, would have assigned the remainder property a pre-taking value of $8,230,000.00 and a post-taking value of $4,330,000.00, resulting in damages of $3,900,000.00. Hellerstein's second expert, Mr. Van Court, would have assigned the remainder property a pre-taking value of $6,981,450.00 and a post-taking value of $2,948,400.00, resulting in damages of $4,033,050.00. E-470's expert, Mr. Hegarty, would have determined that the remainder property had not been damaged by the E-470 Highway project, but rather had benefited from it. Thus, he valued the remainder property at $2,517,000.00 before the taking, and $2,798,000.00 after the taking, resulting in a special benefit of $281,000.00.

However, the trial court ruled that the E-470 project did not substantially impair access to the remainder of the property. See State Dep't of Highways v. Davis, 626 P.2d 661, 665-66 (Colo.1981)

; Troiano, 170 Colo. at 495,

463 P.2d at 453 ("Colorado cases have held that mere inconvenience and mere circuity of route necessary for access or egress occasioned by a public improvement are not compensable items of damage."). The trial court therefore ordered Hellerstein not to present evidence concerning impairment of access to the remainder property, and held that any evidence concerning that factor of damage would be inadmissible at the valuation trial before the commissioners.²

Following the trial court's ruling, E-470's counsel argued that Hellerstein's experts should not be allowed to testify before the commission at all, because they could not segregate out damages due to lack of access from their appraisals. The trial court denied E-470's request, stating that the experts would be allowed to testify, but that any testimony given by them "should not reflect any compensation as they have found it to be related to access." The court then asked Hellerstein's attorney to describe the testimony that the experts would give in light of this pre-trial ruling:

THE COURT:

When and what are they going to testify?

MR. OPPERMAN [Hellerstein's Counsel]:

I believe at this point, Your Honor, as it's related to damages, Mr. Bagley would testify to his cost to redo the Century 21 subdivision in the $80,000 or $80,000 plus, and that was disclosed in his deposition and his report. Mr. Peterson will testify to $100,000 as his opinion of the value to redo the subdivision plat. Mr. Van Court will testify that if there are any damages to the remainder, they would be what Mr. Bagley has stated to be for the redrawing or reprocessing the subdivision plat pursuant to the Court's order limiting damages in this case. So we would expect to put on our testimony with respect to the value of the whole in the before condition or value of the taking in the before condition and our limited damages based upon the Court's ruling allowing us to put in damages other than anything related to access. Now, with that statement, the one concern is obviously redoing the plat. Also redoing the access points.

THE COURT:

So far as it relates to redoing the plat, that doesn't relate to the ruling I just made.

(Emphasis added.) Thus, the offer of proof did not include the access issue.

At the valuation hearing before the commissioners, Hellerstein put its three identified experts on the stand in their case-in-chief. None of these experts testified to an after-taking value of the remainder property. Mr. Peterson and Mr. Van Court testified to their before-taking valuation of the property and certain factors that would affect the property's value after the taking. However, they did not identify any damages to the remainder property unrelated to loss of access, nor did they assign a monetary value to any alleged damages caused by the E-470 project. Mr. Bagley testified that it would cost $100,000 to redo the planning and zoning of the remainder property.

E-470's expert, Mr. Hegarty, testified that the remainder property had not been damaged by the E-470 Highway project, but rather had benefited from it.

At the conclusion of the valuation trial, the commission rendered a Certificate of Ascertainment and Assessment which assessed the following: $1,323,691.15 for the value of the property taken; $2,888,272.80 for damages to the remainder property; and $297,000.00 for specific benefits accruing to the remainder property. The trial court denied E-470's motion for judgment notwithstanding the verdict. It found that, based upon its review of the evidence and the available trial transcripts, there was a factual basis presented to the commission to support its damage assessment. Therefore, the trial court entered judgment in accordance with the commission's assessment.

On appeal, the court of appeals overturned the award of $2.88 million for damages to the remainder property as unsupported by the evidence and excessive as a matter of law. E-470 Pub. Highway Auth. v. Jagow, 30 P.3d 798, 804 (Colo.App.2001)("Even considering the testimony of [Hellerstein's] witnesses, there is no basis in the record for a damages award in this amount. Accordingly, the trial court should have granted [E-470's] motion for post-trial relief as to this issue."). It found that no evidence was presented to the commission to support a damages award in excess of $100,000. It then directed the trial court to offer Hellerstein the option of a remittitur, or, if Hellerstein did not accept the remittitur, to order a new trial on the amount of compensation due for damages to the remainder property.³ Id. at 805.

II.

We hold that the $2.88 million award for damages to the remainder property had no support in the evidence and was excessive as a matter of law. We therefore affirm the court of appeals' judgment.

A. Eminent Domain Proceedings

Private property shall not be taken or damaged for public or private use without just compensation. Colo. Const. art. II, § 15. Damages to the remainder property are cognizable under Colorado law. "When a portion of a landowner's property is taken, just compensation includes compensation for injury to the remainder of the property as well as payment for the portion actually taken." La Plata Elec. Ass'n, 728 P.2d at 698.

In an eminent domain proceeding, the court determines all questions and issues except the amount of compensation. § 38-1-101, 10 C.R.S. (2001). A board of commissioners of not less than three disinterested and impartial freeholders ascertains the amount of compensation. Id.⁴ The trial judge's function is to convene the...