The Glenelk Ass'n Inc. v. Lewis

• Decision Date: 11 October 2011
• Docket Number: No. 10SC275.,10SC275.
• Citation: 260 P.3d 1117
• Parties: The GLENELK ASSOCIATION, INC., Petitionerv.Ronald P. LEWIS, Respondent.
• Court: Colorado Supreme Court

260 P.3d 1117

The GLENELK ASSOCIATION, INC., Petitioner

v.Ronald P. LEWIS, Respondent.

No. 10SC275.

Supreme Court of Colorado, En Banc.

Sept. 12, 2011.Rehearing Denied En Banc Oct. 11, 2011.

Hale Westfall, LLP, Allan L. Hale, Richard A. Westfall, Amanda A. Bradley, Denver, Colorado, Attorneys for Petitioner.Boog & Cruser, P.C., Victor F. Boog, Lakewood, Colorado, Attorneys for Respondent.Justice HOBBS delivered the Opinion of the Court.

We granted certiorari to review the court of appeals' unpublished decision in Ronald Lewis v. The Glenelk Ass'n, Inc., No. 09CA1209, 2010 WL 971691.¹ In this private condemnation proceeding, respondent Ronald P. Lewis seeks to condemn a private way of necessity across land owned by The Glenelk Association, Inc. (“Glenelk”) to access an allegedly landlocked parcel of land for residential development.² The trial court dismissed Lewis's petition in condemnation, concluding that Lewis failed to articulate a concrete proposal for development that would permit the court to determine the necessity for and appropriate scope of the allowable easement to be imposed through condemnation.

On appeal, the court of appeals ruled that the condemnation must be allowed to proceed if the proposed easement is for uses consistent with applicable zoning regulations. We determine that the trial court applied the correct legal standard and its findings of fact are supported by evidence in the record. Accordingly, we reverse the judgment of the court of appeals.

We hold that, when a petitioner seeks to condemn a private way of necessity for access to property it wishes to develop in the future, it must demonstrate a purpose for the condemnation that enables the trial court to examine both the scope of and necessity for the proposed condemnation, so that the burden to be imposed upon the condemnee's property may be ascertained and circumscribed through the trial court's condemnation order. The record in this case supports the trial court's dismissal of the condemnation petition.

I.

Lewis owns an allegedly landlocked parcel of land in unincorporated Jefferson County (“the Lewis property”), consisting of approximately 334 acres. The parcel is zoned A–2 agricultural and may be developed at a density of up to one dwelling per ten acres. The Lewis property consists of a large southern portion and a narrow rectangular barbell that extends northward to the border of a parcel owned by Buffalo Park Development Company (“Buffalo Park”). The Buffalo Park parcel abuts both South Elk Creek Road and Highway 285. The barbell is approximately 200 feet wide and contains very steep terrain. It is bordered on the east by Glenelk's land. To the south of the barbell and the Glenelk property, and to the east of the Lewis property, is a parcel owned by Colorado Mountain Properties, Inc. (“CMP”).

Lewis is a minority shareholder in both Buffalo Park and CMP. Both companies agreed to grant Lewis access across their parcels to reach the Lewis property. Lewis hired a professional civil engineer to design a road traveling from the Buffalo Park parcel, through the barbell and the CMP property, and into the southern portion of the Lewis property. The engineer designed three options. After Lewis submitted a preliminary grading permit proposal to Jefferson County, county authorities informed Lewis that none of the options complied with the county road specifications. Due to the steepness of terrain in the narrow barbell, the three options required vertical cuts drastically exceeding county specifications.

The engineer designed a fourth option for Lewis, requiring an easement over the Glenelk property to bypass steep terrain located in the barbell. A memo from a Jefferson County civil engineer indicated that the Jefferson County planning engineering staff would support this option. Lewis approached Glenelk to negotiate the easement necessary to complete the road. The trial court found that the parties negotiated in good faith regarding appropriate compensation for a permanent easement across the Glenelk property, but negotiations failed. Lewis then commenced this action by filing a petition in condemnation and requesting immediate possession.

The trial court held a hearing and took testimony from several witnesses. At the hearing, Lewis testified that he “would like to develop” the Lewis property, but he did not specify the scope of development envisioned. He answered questions from his attorney concerning the type of access necessary to develop the property in thirty-five acre residential parcels. His son, Norman Lewis, testified that he had researched the possibility of subdividing the Lewis property into ten acre sites and that the easement sought was designed to provide a twenty foot wide travel surface, including shoulders. Civil engineer Chris Purrington, who Lewis hired to design the easement, testified that the travel surface of the roadway he designed is “just about,” or “more or less” twenty-five feet wide. Lewis sought to condemn a seventy foot wide easement to accommodate “ingress, egress, utilities, drainage, maintenance, snow storage, and emergency access for the benefit of the Lewis property, over, under, and across the Glenelk property.”

The trial court denied Lewis's request for immediate possession, concluding that the record did not establish whether residential development was a practical use of the Lewis property, and whether the requested easement was “indispensable” to that use. Lewis filed a motion for reconsideration, where he argued:

While it may be unclear whether or not the Lewis property will ultimately be developed for one single-family residence or as many as thirty single-family residences, together with barns, stables, and private garages, such uses of the Lewis property are clearly “practical uses.” Furthermore, it is overwhelmingly clear that the permanent easement sought by [Lewis] across the Glenelk property is “indispensable” to such uses.

(emphasis added.)

The trial court denied the motion for reconsideration, concluding that ambiguity concerning Lewis's intended use for the property prevented it from determining whether the requested way of necessity would be adequate for that purpose. Confronted with the argument that the proposed development could vary between one and thirty residential lots, the trial court found the condemnation's purpose to be speculative and not concrete enough to allow it to determine the scope of and necessity for the proposed private way of necessity condemnation:

In his reply, [Lewis] argues that it makes no difference how many lots are to be developed as without access to a legal road the Lewis property is not fit for any use. Such statement may be true but if testimony fails to reveal that the size of the proposed easement meets county regulations for purposes specified in testimony and pleadings [then] the petitioner has failed to meet his burden. The court must at the least be assured that the proposed easement will be adequate for the development purpose. In this matter, the proposed purposes are too speculative for the court to assess the necessity and scope of the proposed easement.

Lewis appealed, and the court of appeals concluded that the trial court erred as a matter of law in dismissing Lewis's petition. We disagree.

II.

We hold that, when a petitioner seeks to condemn a private way of necessity for access to property the condemnor wishes to develop in the future, the condemnor must demonstrate a purpose for the condemnation that enables the trial court to examine both the scope of and necessity for the proposed condemnation, so that the burden to be imposed upon the condemnee's property may be ascertained and circumscribed through the trial court's condemnation order. The record in this case supports the trial court's dismissal of the condemnation petition.

A.Standard of Review

The power of private condemnation derogates the common law, and we interpret statutes implementing this power narrowly. Bly v. Story, 241 P.3d 529, 533 (Colo.2010); Coquina Oil Corp. v. Harry Kourlis Ranch, 643 P.2d 519, 522 (Colo.1982). We resolve ambiguities in the law in favor of the condemnee landowner. Bly, 241 P.3d at 533; Coquina Oil Corp., 643 P.2d at 522.

In condemnation proceedings, we defer to the trial court's findings of fact unless they are so clearly erroneous as to find no support in the record. Fowler Irrevocable Trust 1992–1 v. City of Boulder, 17 P.3d 797, 802 (Colo.2001); see also In re A.J.L., 243 P.3d 244, 250 (Colo.2010). We review legal conclusions de novo. Fowler Irrevocable Trust 1992–1, 17 P.3d at 802. In private condemnation proceedings, necessity is a question of fact. See Crystal Park Co. v. Morton, 27 Colo.App. 74, 146 P. 566, 572 (1915) ( “Whether the necessity for a way of any character across respondents' land does in fact exist, or for the particular way asked for, and other matters that may be made issues of fact in condemnation proceedings, will, of course, depend on evidence to be adduced.”).

B.Private Condemnation

Article II, section 14 of the Colorado Constitution provides, in relevant part, that “[p]rivate property shall not be taken for private use unless by consent of the owner, except for private ways of necessity.” Private ways of necessity are generally roads or passageways, and they may run along an existing roadway. E.g., Bly, 241 P.3d at 534; see also Akin v. Four Corners Encampment, 179 P.3d 139, 144–45 (Colo.App.2007) (private way of necessity may not be condemned for gas pipeline because way of necessity is road or passageway used to connect landlocked property to public roads); West v. Hinksmon, 857 P.2d 483, 486 (Colo.App.1992). Condemnation of a private way of necessity is a “remedy of last resort.” State Dep't of Highways v. Denver & Rio Grande W. R.R., 789 P.2d 1088, 1091 (Colo.1990).

A private way of necessity is similar in character to an easement and carries with it similar legal effects. See Crystal...