State, Dept. of Health v. The Mill

Decision Date08 April 1991
Docket NumberNo. 89SC575,89SC575
Citation809 P.2d 434
PartiesSTATE of Colorado, DEPARTMENT OF HEALTH, Petitioner, v. THE MILL, a limited partnership, Respondent.
CourtColorado Supreme Court

Gale A. Norton, Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Jerry W. Goad, First Asst. Atty. Gen., Natural Resources Section, Denver, for petitioner.

Thomas Fenton Smith, Pitkin County Atty., Aspen, and Marion A. Brewer, General Counsel, Colorado Counties, Inc., Denver, for amicus curiae Colorado Counties, Inc.

George Alan Holley, Eric E. Torgersen, Holley, Albertson & Polk, P.C., Golden, for respondent.

Justice MULLARKEY delivered the Opinion of the Court.

We granted certiorari to review The Mill v. State, 787 P.2d 176 (Colo.Ct.App.1989). We conclude that the court of appeals erred in holding, first, that the owner of a uranium-contaminated mill site could bring an inverse condemnation action against a state agency which had no condemnation authority, and, second, that the owner's claims for regulatory taking and promissory estoppel were subsumed in the inverse condemnation claim. We reverse and remand to the court of appeals for further proceedings consistent with this opinion.

I.

This case primarily involves a twenty-five acre portion (the "mill yard") of a parcel of property owned by the respondent, The Mill. The property is adjacent to the Gunnison, Colorado airport and through the 1950s and until 1962, the entire property was used for uranium milling operations. In 1968, the State of Colorado obtained regulatory jurisdiction from the federal government for abandoned uranium mills and tailings piles and reposed that authority in the Colorado State Department of Health ("CSDH"). Colorado Ventures, which had purchased the property in 1964, performed a radiation decontamination process on the mill yard and, in 1971, CSDH authorized the mill yard for unrestricted use. The Mill purchased the property in 1973, relying on the State's certification that the mill yard was free from contamination and safe for unrestricted use. 1

In 1978, Congress passed the Uranium Mill Tailings Radiation Control Act (UMTRCA), 42 U.S.C. §§ 7901-7942 (1978). The purposes of UMTRCA included decontamination of specific uranium processing sites and protection of the public from the hazards of uranium contamination. 42 U.S.C. § 7901. Under UMTRCA the entire property owned by The Mill was designated as a "processing site" and was eligible for remedial action. The Colorado legislature empowered CSDH to participate in UMTRCA in 1979. Ch. 269, sec. 1, § 25-11-303(1), 1979 Colo.Sess.Laws 1069; § 25-11-303(1), 11 C.R.S (1982).

In January 1983, The Mill leased the entire property to O.C. Coal Company at a rate of $7,000 per month. After The Mill notified CSDH of the lease, CSDH responded by issuing a series of letters and communications restricting use of the property. The restrictions included: limiting coal storage in a building on the mill yard to those portions of the building floor covered by concrete; restricting use of the exterior part of the mill yard to a 50-foot strip along the boundary of the property; prohibiting the building of new structures. A radiation survey performed in October 1983 showed that the soil on the mill yard contained levels of radiation in excess of acceptable exposure levels as set by CSDH and the Environmental Protection Agency. The restrictions placed on the property by CSDH directly impacted The Mill's lease agreement and O.C. Coal terminated the lease in 1984. Since the termination of the lease, the total yearly rental income from the property has been less than the amount which The Mill has paid as property taxes (approximately $5,100 per year). The trial court stated that it did not believe the property had "any value at all."

The Mill filed this action in January 1986, seeking to recover on theories of inverse condemnation, regulatory taking, and promissory estoppel. The Mill alleged that as a result of the restrictions which CSDH placed upon the property, The Mill was precluded from putting the property to any viable economic use. CSDH was expressly granted authority to condemn under the Radiation Control Act, Ch. 195, sec. 1, § 25-11-303(1)(d)(III), 1986 Colo.Sess.Laws 980, 980-81; § 25-11-303(1)(d)(III), 11A C.R.S. (1989), in May 1986. The trial court dismissed The Mill's inverse condemnation claim on the ground that CSDH did not have authority to condemn at the time of the alleged taking.

The trial court concluded that the State's restrictions on The Mill's property constituted a taking and awarded The Mill $200,000 based on loss of use of the mill yard. It was expected at the time of trial that the property would be cleaned under UMTRCA and restored to full use. Thus, the trial court awarded loss of use damages from May 1984, when O.C. Coal terminated its lease, through 1993, when the trial court estimated clean-up operations would be completed and use of the property would be restored. 2 CSDH since has sought to condemn the entire property and that proceeding is pending. The stipulated value of the property in the condemnation proceeding was $0.

The State appealed the judgment on the grounds that the claim was not ripe, The Mill had not been deprived of all use of its property, and that even if The Mill had been deprived of all use of its property, the deprivation was a valid exercise of police power and therefore was not compensable. The Mill cross-appealed, arguing that the dismissal of the inverse condemnation claim was not proper because the State was taking its property on a reoccurring basis. The court of appeals reversed the trial court's dismissal of the inverse condemnation claim on the basis that CSDH's actions constituted a continuous taking. The Mill, 787 P.2d at 180. The court of appeals also held that all other claims and defenses were subsumed in the inverse condemnation claim. Id. at 181. Accordingly, the court of appeals did not address any other issues and remanded the case to the trial court for resolution of The Mill's inverse condemnation claim. Id.

We granted certiorari on the following two issues:

Did the court of appeals err when it ruled that there may be a "continuous" taking in an inverse condemnation action?

Did the court of appeals err in merging all claims and defenses into a single inverse condemnation claim, thus barring defenses otherwise available?

We hold that there can be no continuous taking in an inverse condemnation action and also hold that the court of appeals erred in merging all claims and defenses into The Mill's inverse condemnation claim.

II.

The Colorado and United States Constitutions forbid the taking of private property without just compensation. U.S. Const. amend. V; 3 Colo. Const. art. II, § 15. Inverse condemnation is "a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted." United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 1130, 63 L.Ed.2d 373 (1980).

The following proposition, however, is well-settled in Colorado:

Where there is no power on the part of a state agency to condemn private property for a claimed public use, a property owner whose property has been damaged by such agency cannot be held to have commenced an action for "inverse condemnation" when he seeks to recover the damages actually sustained by him. There can be no "inverse condemnation" in a situation where no right exists in the governmental agency to proceed under eminent domain.

Collopy v. Wildlife Comm'n, 625 P.2d 994, 1005 (Colo.1981) (quoting Game and Fish Comm'n v. Farmers Irrigation Co., 162 Colo. 301, 310, 426 P.2d 562, 566 (1967)). See also J. Sackman, Nichols on Eminent Domain, § 8.1 ("The remedy of inverse condemnation, by the very premise which gives rise to it, is available only as against defendants who possess the power of eminent domain."). But see Fountain v. Metropolitan Atlanta Rapid Transit Auth., 678 F.2d 1038, 1043-44 (11th Cir.1982) ("If official authorities act on behalf of the state so as to take private property for public use without just compensation, even if they are acting outside of the scope of their official powers, they have violated the fifth and fourteenth amendments [of the United States Constitution] and are subject to an inverse condemnation suit. As long as the state acts through one of its arms in such a way as to deprive an individual of his property for public use, it is irrelevant whether the state arm doing the actual taking has eminent domain power.") (citation omitted).

The Mill contends that CSDH was given the power of eminent domain by the 1979 statute empowering CSDH to participate in UMTRCA. We disagree. We have adopted the following analysis for determining whether an authority has been given the power of eminent domain:

The authority to condemn must be expressly given or necessarily implied. The exercise of the power being against common right, it cannot be implied or inferred from vague or doubtful language.... If the act is silent on the subject, and the powers given by it can be exercised without resort to condemnation, it is presumed that the legislature intended that the property should be acquired by contract.

Board of County Comm'rs v. Intermountain Rural Electric Ass'n, 655 P.2d 831, 834 (Colo.1982) (quoting Mack v. Town of Craig, 68 Colo. 337, 338-39, 191 P. 101 (1920)). In addition, we have held that the power to "acquire land ..., by purchase or otherwise," did not confer authority to condemn. Town of Eaton v. Bouslog, 133 Colo. 130, 132, 292 P.2d 343, 344 (1956).

The 1979 statute authorized CSDH to "acquire and dispose of any designated processing site, including any interest in such site, and any site to be used for the permanent disposition and stabilization of residual radioactive materials." Ch....

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13 cases
  • State, Dept. of Health v. The Mill
    • United States
    • Supreme Court of Colorado
    • December 19, 1994
    ...decision and remanded the case for consideration of The Mill's regulatory taking and estoppel claims. Department of Health v. The Mill, 809 P.2d 434 (Colo.1991) (The Mill II ). While those issues were on appeal, CDH filed an action to condemn The Mill's property under section 25-11-303(1)(d......
  • City of Tupelo v. Patterson, 2015–IA–01409–SCT
    • United States
    • United States State Supreme Court of Mississippi
    • January 19, 2017
    ...we also hold that physical takings under Article 3, Section 17, are not continuous in nature.14 State Dep't of Health v. The Mill , 809 P.2d 434, 441 (Colo. 1991). The O'Callaghans argue that the Mississippi Constitution not only compensates for original injuries incurred, but also those of......
  • Trinity Broadcasting of Denver, Inc. v. City of Westminster, 92SA113
    • United States
    • Supreme Court of Colorado
    • March 15, 1993
    ...Kratzenstein v. Board of County Comm'rs, 674 P.2d 1009, 1010 (Colo.App.1983) (citations omitted). See also State, Dept. of Health v. The Mill, 809 P.2d 434, 437 (Colo.1991). Trinity cites numerous cases which hold that a taking can be effected by flooding, or by the saturation of the ground......
  • City of Northglenn v. Grynberg, 91SC767
    • United States
    • Supreme Court of Colorado
    • February 16, 1993
    ...just compensation for a taking of his property when condemnation proceedings have not been instituted"); State Dept. of Health v. The Mill, 809 P.2d 434, 437 (Colo.1991) (same). An inverse condemnation action often arises because the public entity has refused to exercise its eminent domain ......
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1 books & journal articles
  • Regulatory Takings Since the Supreme Court Trilogy, Continued
    • United States
    • Colorado Bar Association Colorado Lawyer No. 21-1, January 1992
    • Invalid date
    ...F.2d 529 (9th Cir. 1989); Corn v. City of Lauderdale Lakes, 816 F.2d 1514 (11th Cir. 1987). 13. Compare, State of Colorado v. The Mill, 809 P.2d 434 (Colo. 1991), with, Jorgenson v. City of Aurora, 767 P.2d 756 (Colo.App. 1988). 14. Agins v. Tiburon, 447 U.S. 255 (1980). 15. See, e.g., Cher......

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