Troiano v. Colorado Dept. of Highways

• Citation: 463 P.2d 448,170 Colo. 484
• Decision Date: 22 December 1969
• Docket Number: No. 23596,23596
• Parties: Susan D. TROIANO, individually and d/b/a Colonial Manor Motel, Plaintiff in Error, v. The COLORADO DEPARTMENT OF HIGHWAYS, the Colorado State Highway Commission, a body corporate; Charles Shumate, Colorado State Highway Engineer; and City and County of Denver, State of Colorado, a municipal corporation, Defendants in Error.
• Court: Supreme Court of Colorado

Page 448

463 P.2d 448

170 Colo. 484

Susan D. TROIANO, individually and d/b/a Colonial Manor Motel, Plaintiff in Error, v. The COLORADO DEPARTMENT OF HIGHWAYS, the Colorado State Highway Commission, a body corporate; Charles Shumate Colorado State Highway Engineer; and City and County of Denver, State of Colorado, a municipal corporation Defendants in Error.

No. 23596.

Supreme Court of Colorado, En Banc.

Dec. 22, 1969.

Rehearing Denied and Dissenting Opinion Jan. 26, 1970.

Feder, Morris & Kortz, Harold A. Feder, Denver, Bradley, Campbell, Carney & Johnson, Golden, for plaintiff in error.

Max P. Zall, Earl T. Thrasher, Robert M. Kelly, for defendant in error City and County of Denver.

Duke W. Dunbar, Atty. Gen., Joseph M. Montano, Chief Highway Counsel, and George D. Dikeou, Asst. Attys. Gen., for defendants in error Colorado Department of Highways, Colorado State Highway DAY, Justice.

Commission, Charles Shumate, Colorado State Highway Engineer.

The plaintiff in error is the owner of the Colonial Manor Motel in Denver, Colorado. She was plaintiff in the trial court in an inverse condemnation proceeding commenced in August, 1966. Defendants were Colorado Department of Highways; Colorado State Highway Commission, a body corporate; Charles Shumate, Colorado State Engineer, and the City and County of Denver. The parties will be referred to by their positions in the trial court or by name.

Mrs. Troiano sought damages in the sum of $110,000, plus interest, arising from the diminution in market value of her motel because of the construction of a viaduct over the street abutting her property. (The new structure is an elevated portion of Interstate 70.)

The action to which error has been assigned was an In limine proceeding to determine whether the damage to Mrs. Troiano's property was compensable as a matter of law. C.R.S.1963, 50--1--1, provides that all questions and issues except the amount of compensation shall first be determined by the court.

The trial court held that the damages claimed by plaintiff were non-compensable. The court ruled the highway construction was a valid exercise of the police power and that the claimed damage was not different in kind from that suffered by the general public. In our view the judgment of the trial court should be affirmed.

Mrs. Troiano purchased the Colonial Manor Motel in April of 1959. It is located on the north side of East 46th Avenue between Elizabeth St. and Thompson Court in Denver. Some additions were made by her in 1960. There were no other motels at the time located within one mile either east or west on 46th Avenue.

Guests of the motel consisted of commercial travelers, stockmen and transients. In March, 1963, construction was begun on a steel and concrete viaduct which was built directly over East 46th Avenue to support a portion of the interstate highway 70 (I--70) which is part of the National Defense Highway System. The structure is supported by concrete columns three feet in diameter which are imbedded into the roadway of East 46th Avenue. The columns in front of Mrs. Troiano's property are placed 83 to 85 feet apart. They are located along the outer edges and along the center of the structure. The structure is 12 feet inside the right of way line of East 46th Avenue. The clearance from the road level of what is now called lower East 46th Avenue to the bottom portion of the elevated structure exceeds 18 feet. The lower roadway still carries four lanes of traffic, two lanes east and two lanes west. The upper level--I--70--carries three lanes in each direction.

The crux of plaintiff's argument is that under Art. II, Section 15 of the constitution of this state she is guaranteed payment for the diminished market value of her property upon a showing that her property abutted the roadway in question and a substantial access impairment resulted; and that the construction of the 46th Avenue viaduct caused her special and peculiar damages, different in kind from that suffered by the general public; and that the trial court erred in finding the damage to her property arose from a non-compensable exercise of police power. She cites Art. II, Section 15 of the constitution of Colorado, which provides in pertinent part:

'Private property shall not be taken or damaged, for public or private use, without just compensation. * * *'

It is undisputed that there has been no taking of Mrs. Troiano's property. She claims damage to her property by virtue of her status as an abutting landowner on East 46th Avenue and I--70. She relies on the rule long established in Colorado and stated succinctly in City of Pueblo v '* * * (W)hen damages are occasioned an abutting owner by an improvement in the street in front of his property, whereby ingress and egress to the premises is injuriously affected, this is a kind of injury not common to the general public.'

Strait, 20 Colo. 13, 36 P. 789, 24 L.R.A. 392:

This rule has been considered in a number of controversies which have found their way to this court and by a large body of case law interpreting and defining the rule. Roth v. Wilkie, 143 Colo. 519, 354 P.2d 510; Minnequa Lumber Co. v. City and County of Denver, 67 Colo. 472, 186 P. 539; Denver Union Terminal Ry. v. Glodt, 67 Colo. 115, 186 P. 904; Russo v. City of Pueblo, 63 Colo. 519, 168 P. 649; City of Colorado Springs v. Stark, 57 Colo. 384, 140 P. 794; Denver & S.F. Ry. v. Hannegan, 43 Colo. 122, 95 P. 343, 16 L.R.A.,N.S., 874; City of Pueblo v. Strait, supra; Town of Longmont v. Parker, 14 Colo. 386, 23 P. 443; Denver Circle R. Co. v. Nestor, 10 Colo. 403, 15 P. 714; City of Denver v. Bayer, 7 Colo. 113, 2 P. 6. See also 40 Denver L.C.J. 26.

Additionally, Mrs. Troiano claims damage to her property of a special nature, different in kind, not just degree, from that suffered by the general public--damage resulting in the diminished market value of her property caused by: I. The disturbance, interference with and impairment of access to her property from, together with loss of identity and affinity of her property with, the abutting 46th Avenue roadway; II. Change in grade of the street by construction of the overhead viaduct; III. A combination of factors such as (a) circuity of route to her property from I--70, (b) diversion of traffic away from the motel; (c) extraordinary, unreasonable or unanticipated use of the existing roadway; (d) view loss or impairment; (e) loss of light, air and ventilation; (f) loss of affinity or eye appeal.

Although the claims are inextricably intertwined, in attempting to clarify a discussion of the issues they will be divided as far as possible into separate categories.

I.

IMPAIRMENT OF ACCESS

Mrs. Troiano first argues that she is constitutionally guaranteed payment for diminished market value of her real property upon showing that (1) her property abutted the roadway in question and (2) a substantial access impairment resulted. The difficulty in considering this argument stems from the fact that there are two roadways to be considered--East 46th Avenue and I--70. They cannot be viewed in the same way so it is necessary to discuss them and their legal effect on the property separately. The motel from the date of its construction abuts East 46th Avenue. In the case at bar Mrs. Troiano failed to establish a loss of access to her property from East 46th Avenue. Factors listed were the existence of the viaduct columns; limitation of sight distance; an overhang effect of the viaduct; reduction in the number of lanes of East 46th Avenue from six to four; addition of six lanes at the viaduct level; no direct access on East 46th Avenue for south bound Colorado Boulevard traffic (15 blocks to the east); extensive circuity of travel to reach the property from the viaduct; termination of East 46th Avenue at Garfield on the east and Washington on the west; traffic control islands; reduced curb to curb dimension from 60 feet to 54 feet.

Most of these factors do not pertain to plaintiff's access to East 46th Avenue from the motel property; those that do were found by the trial court not to create a substantial impairment of access. The record shows, and the trial judge found, that travelers now have full and complete access to the major street systems of the City and County of Denver, much in the same fashion as was had prior to the construction of the new elevated I--70. The trial court found, with substantial support in the record, that access from 46th Avenue to the motel has not been changed, altered, or impaired from its condition before the viaduct was constructed. The supporting columns for the viaduct do not interfere with those wishing to enter the motel property from Thompson Court or from 46th Avenue.

Right of access is subject to reasonable control and limitation. So long as the landowner retains a reasonable means of access to and from his property partial loss of access is not compensable. Radinsky v. City and County of Denver, 159 Colo. 134, 410 P.2d 644; Gayton v. Dept. of Highways (Colorado), 149 Colo. 72, 367 P.2d 899. Thus, in order for Mrs. Troiano to be compensated for loss of access, as she claims is her right, it was incumbent upon her to establish to the satisfaction of the trial court that she no longer retains a reasonable means of access to and from her property and the general system of public streets. The property owner has the burden of proof with regard to establishing the existence of damages and the amount of compensation therefor. Board of County Commissioners of Jefferson County v. Noble, 117 Colo. 77, 184 P.2d 142.

II.

CHANGE IN GRADE OF STREET AND RIGHT OF ACCESS

The evidence on this point showed that the grade on 46th Avenue was reduced on some parts of it but a few inches. The court correctly found this to be an insignificant change in grade, and it was undisputed that this change had no effect whatever on access to the property from East 46th Avenue. However plaintiff argues that the viaduct...