Department of Transportation, State of Colorado v. Amerco Real Estate Co , 380 P.3d 117 ( 2016 )

1 Opinions of the Colorado Supreme Court are available to the
2 public and can be accessed through the Judicial Branch’s homepage at
3 http://www.courts.state.co.us. Opinions are also posted on the
4 Colorado Bar Association’s homepage at http://www.cobar.org.
5
6 ADVANCE SHEET HEADNOTE
7 September 26, 2016
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9 2016 CO 620
1 No. 16SA75, Department of Transportation, State of Colorado v. Amerco Real Estate
2 Company—Administrative Law and Procedure—Delegation of Authority—
3 Condemnation Proceedings.
4
5 Amerco and U-Haul petitioned for relief pursuant to C.A.R. 21 from an order of
6 the district court, denying their request to dismiss the transportation department’s
7 Petition in Condemnation and instead granting the department’s motion for immediate
8 possession of the subject property, which is owned by Amerco and occupied by
9 U-Haul. The district court rejected U-Haul’s assertion that the transportation
0 commission’s authorization for the department to condemn property for highway
1 purposes, in the absence of any resolution by the commission approving the acquisition
2 of the particular property to be taken, at a public meeting, amounted to an unlawful
3 delegation of quasi-legislative power.
4 The supreme court issued its rule to show cause and now makes the rule
5 absolute, remanding to the district court with orders to dismiss the department’s
6 Petition in Condemnation. The supreme court holds that because the commission’s
7 enabling legislation contemplates that it alone must decide whether the public interest
8 or convenience will be served by a proposed alteration of a state highway, and that
1 decision must be made in consideration of, among other things, the portions of land of
2 each landowner to be taken for that purpose and an estimate of the damages and
3 benefits accruing to each landowner whose land may be affected thereby, commission’s
4 general authorization, to the extent it purports to delegate to the department the choice
5 of particular properties to be taken for such a highway project and the manner of their
6 taking, constituted an unlawful delegation of the commission’s statutorily imposed
7 obligation.
1
2
3 The Supreme Court of the State of Colorado
4 2 East 14th Avenue • Denver, Colorado 80203
5 2016 CO 626 Supreme Court Case No. 16SA75
7 Original Proceeding Pursuant to C.A.R. 21
8 Jefferson County District Court Case No. 15CV31797
9 Honorable Christopher J. Munch, Judge
0 In Re
1 Petitioner:
2 Department of Transportation, State of Colorado,
3 v.
4 Respondents:
5 Amerco Real Estate Company, a Nevada corporation; Wells Fargo Foothill, Inc., a California
6 corporation; Wells Fargo Bank, National Association, a United States bank; U-Haul Co. of
7 Colorado; Merrill Lynch Commercial Finance Corporation, a Delaware corporation; Public
8 Service Company of Colorado, a Colorado corporation; Margaret Chapman, Public Trustee
9 of Jefferson County; and Tim Kaufman, Treasurer of Jefferson County.
0 Rule Made Absolute
1 en banc
2 September 26, 2016
3
4 Attorneys for Petitioner:
5 Cynthia H. Coffman, Attorney General
6 Gregg E. Carson, Senior Assistant Attorney General
7 Lauren M. Curran, Assistant Attorney General
8 Denver, Colorado
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0 Attorneys for Respondents Amerco Real Estate Company and U-Haul Co. of
1 Colorado:
2 Bryan Cave LLP
3 Stephen D. Gurr
4 Cynthia Lowery-Graber
5 Denver, Colorado
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1 No appearance on behalf of: Wells Fargo Foothill, Inc., a California Corporation; Wells
2 Fargo Bank, National Association, a United States Bank; Merrill Lynch Commercial
3 Finance Corporation, a Delaware Corporation; Public Service Company of Colorado, a
4 Colorado Corporation; Margaret Chapman, Public Trustee of Jefferson County; and Tim
5 Kaufman, Treasurer of Jefferson County.
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1 JUSTICE COATS delivered the Opinion of the Court.
2 JUSTICE GABRIEL concurs in the judgment, and CHIEF JUSTICE RICE and JUSTICE
3 HOOD join in the concurrence in the judgment.
2
¶1 Amerco and U-Haul petitioned for relief pursuant to C.A.R. 21 from an order of
the district court denying their request to dismiss the transportation department’s
Petition in Condemnation and instead granting the department’s motion for immediate
possession of the subject property, which is owned by Amerco and occupied by
U-Haul. The district court rejected U-Haul’s assertion that the transportation
commission’s authorization for the department to condemn property for highway
purposes, in the absence of any resolution by the commission approving the acquisition
of the particular property to be taken, at a public meeting, amounted to an unlawful
delegation of quasi-legislative power.
¶2 We issued our rule to show cause. Because the commission’s enabling legislation
contemplates that it alone must decide whether the public interest or convenience will
be served by a proposed alteration of a state highway, and that decision must be made
in consideration of, among other things, the portions of land of each landowner to be
taken for that purpose and an estimate of the damages and benefits accruing to each
landowner whose land may be affected thereby, the commission’s general
authorization, to the extent it purports to delegate to the department the choice of
particular properties to be taken for such a highway project and the manner of their
taking, constitutes an unlawful delegation of the commission’s statutorily imposed
obligation. The rule is therefore made absolute and the matter is remanded to the
district court with orders to dismiss the department’s Petition in Condemnation.
3
I.
¶3 In October 2015, the Colorado Department of Transportation filed a Petition in
Condemnation to acquire land owned by Amerco Real Estate Co. and occupied by
U-Haul Co., asserting that acquisition of the property in question was necessary for a
highway expansion project at the US6 and Wadsworth Boulevard Interchange. The
petition specified, “This is an eminent domain proceeding brought pursuant to the
procedures set forth in Colorado Revised Statutes (‘C.R.S.’) §§ 38-1-101 et seq.” The
petition further alleged that “[p]ursuant to §§ 43-1-208, 43-1-209, and 43-1-210, C.R.S.,
CDOT is vested with the power of eminent domain,” and that “[t]his statutory
authority permits CDOT to acquire and condemn property, including the property
subject to this action.” Shortly after filing its petition, the department moved for
immediate possession, and a hearing was set for February 2016.
¶4 U-Haul filed a brief in opposition to the motion for immediate possession, asking
that the district court, in addition to denying the motion, also dismiss the department’s
entire petition for want of authority to condemn its land. U-Haul asserted that the
department lacked the legal authority to condemn its particular property, on the
grounds that the transportation commission, the entity statutorily authorized to acquire
land by condemnation for such highway purposes, had failed to comply with the
applicable statutory prerequisites, including resolving in the minutes of a public
meeting, on the basis of a statutorily required report by the chief engineer, not only that
the project in general, but also the acquisition of any properties required for its
completion, would serve the public interest or convenience. U-Haul attached, and
4
directly disputed the adequacy of, various documents upon which the department
based its claim of authority, most notably a 1994 resolution of the transportation
commission directing the executive director of the department to handle, on behalf of
the commission, the approval of land acquisitions, and a specific document entitled
“Land Acquisition Approval,” signed by the chief engineer of the department, which
included for acquisition by the department the properties of U-Haul and some twenty
other landowners, having a total estimated value of over $3 million. The “Land
Acquisition Approval” itself specified that the transportation commission had, by
resolution, previously directed “the Executive Director of the Department of
Transportation, or his delegatee” to handle approval for land acquisitions relating to
previously approved state highway projects, and that the executive director had, in
turn, delegated such authority to the chief engineer. This “Land Acquisition Approval”
by the chief engineer also included a reference to a 2009 resolution of the commission,
approving the US6/Wadsworth project at issue.
¶5 After hearing the department’s motion, the district court declined to dismiss the
petition and instead granted the motion for immediate possession. Noting that neither
side presented witnesses, but also that neither side disputed the admission of exhibits at
the hearing or challenged the attached excerpts from commission minutes as failing to
represent as accurate the record of the commission’s actions, the court made written
findings of fact and conclusions of law. The court largely reasoned that the
commission’s enabling statutes permitted it to conduct an eminent domain proceeding
itself but also permitted it to acquire property by the procedure dictated by the eminent
5
domain provisions of title 38; that its 1994 resolution did not purport to delegate the
commission’s power to condemn property, but merely directed the chief engineer to
exercise that power to acquire certain specific properties according to the procedures
dictated by the eminent domain statutes; and that U-Haul’s right to due process was not
adversely affected by this choice of the commission.
¶6 Amerco and U-Haul petitioned for relief pursuant to C.A.R. 21 from the district
court’s order, and this court issued its rule to show cause.
II.
¶7 Exercise of this court’s original jurisdiction is entirely within its discretion. We
have often deemed relief pursuant to C.A.R. 21 appropriate to correct an abuse of
discretion or an excess of jurisdiction where no other adequate remedy exists. Because
the order at issue is one for immediate possession by the transportation department for
a highway expansion project, although U-Haul would nevertheless be entitled to
compensation, in the absence of intervention by this court, its property would be taken
and destroyed. In addition, and of particular importance to our decision in this
instance, the dispute involves the lawfulness of a broad delegation of authority to
condemn that has been relied on by the department for its regular practice for more
than twenty years and will undoubtedly create uncertainty with regard to the
department’s future practice until ultimately resolved. Finally, the absence of any
factual dispute and the purely legal nature of the statutory interpretation at issue
renders the development of any additional record unnecessary.
6
III.
¶8 A department of transportation is created at title 43, article 1, part 1, of the
revised statutes, to be headed by an executive director, appointed by the governor with
the consent of the senate, to serve at the pleasure of the governor. § 43-1-103, C.R.S.
(2016). In the same part is created the office of the chief engineer. § 43-1-109, C.R.S.
(2016). The chief engineer is to be appointed by the executive director, id., and is to
function as the director of the engineering, design, and construction division of the
department, § 43-1-110, C.R.S. (2016). On behalf of the department of transportation,
the chief engineer has the authority to take and hold and to contract to take and hold
title to real property, or any interest therein, in the name of the department of
transportation, whether such real property or interest is used, or intended to be used,
for right-of-way or maintenance purposes or for any other purpose authorized by law.
§ 43-1-111, C.R.S. (2016).
¶9 A separate corporate body, to be known as “the transportation commission of
Colorado,” is also created at title 43, article 1, part 1, to consist of eleven members, one
each from eleven statutorily designated districts throughout the state. § 43-1-106, C.R.S.
(2016). Although these members are similarly appointed by the governor with the
consent of the senate, they do not serve at the pleasure of the governor, but rather serve
statutorily prescribed, four-year terms. Id. The powers and duties of the commission,
which are distinct from those of the department, are delineated in some detail by
statute, see id., which includes a provision that “[t]he commission shall act only by
resolution adopted at a duly called meeting of the commission, and no individual
7
member of the commission shall exercise individually any administrative authority
with respect to the department,” § 43-1-106(11) (emphasis added).
¶10 As we have often noted in the past, the right to condemn private property is a
creature of statute and exists to the extent, and only to the extent, permitted by the
General Assembly. See, e.g., Dep’t of Transp. v. Gypsum Ranch Co., 244 P.3d 127, 129
(Colo. 2010). The power of eminent domain, including the procedures by which that
power may be exercised and authorization to exercise it under various specific
circumstances, is governed by title 38, articles 1 to 7, of the revised statutes. Title 38
expressly recognizes the authority of both the department and the commission to
exercise the power of eminent domain, but only as specifically granted, under distinctly
different circumstances, by other expressly enumerated statutory provisions, including
those of title 43. See § 38-2-101, C.R.S. (2016).
¶11 Central to the issue before this court today, section 43-1-208, C.R.S. (2016),1
provides for the commission’s approval of any proposed changes to state highways.
1 In its entirety, this section says:
(1) The chief engineer, when he deems it desirable to establish, open,
relocate, widen, add mass transit to, or otherwise alter a portion of a state
highway or when so required by the commission, shall make a written
report to the commission describing the portion of the highway to be
established, opened, added to, or changed and the portions of land of each
landowner to be taken for the purpose and shall accompany his report
with a map showing the present and proposed boundaries of the portion
of the highway to be established, opened, added to, or changed, together
with an estimate of the damages and benefits accruing to each landowner
whose land may be affected thereby.
(2) If, upon receipt of such report, the commission decides that public
interest or convenience will be served by the proposed change, it shall
8
Section 208(1) specifies that when the chief engineer “deems it desirable to establish,
open, relocate, widen, add mass transit to, or otherwise alter a portion of a state
highway,” or when the commission requires him to do so, he is to “make a written
report to the commission” containing specifically delineated information. Id. That
report is to describe the portion of the highway to be established, opened, added to, or
changed, as well as the portions of land of each landowner to be taken for that purpose;
and it is to be accompanied by a map showing the present and proposed boundaries of
the portion of the highway to be established, opened, added to, or changed, together
enter a resolution upon its minutes approving the same and authorizing
the chief engineer to tender each landowner the amount of damages, as
estimated by him and approved by the commission. In estimating the
amount of damages to be tendered a landowner, due account shall be
taken of any benefits which will accrue to such landowner by the
proposed action. The amount of benefit shall not in any case exceed the
amount of damages awarded.
(3) Any person owning land or having an interest in any land over which
any proposed state highway extends who is of the opinion that the tender
made to him by the transportation commission is inadequate, personally
or by agent or attorney on or before ten days from the date of such tender,
may file a written request addressed to the transportation commission for
a jury to ascertain the compensation which he may be entitled to by reason
of damages sustained by altering, widening, changing, or laying out such
state highway. Thereupon the transportation commission shall proceed in
the acquisition of such premises, under articles 1 to 7 of title 38, C.R.S. The
transportation commission also has the power and is authorized to
proceed in the acquisition of the lands of private persons for state
highway purposes, according to said articles 1 to 7 of title 38, C.R.S.,
without tender or other proceedings under this part 2.
(4) Notwithstanding any other provision of this section, the commission
may not acquire through condemnation any interest in oil, natural gas, or
other mineral resources beneath land acquired as authorized by this
section except to the extent required for subsurface support.
§ 43-1-208, C.R.S. (2016).
9
with an estimate of the damages and benefits accruing to each landowner whose land
may be affected thereby. Id. If, upon receipt of this report, the commission decides that
the public interest or convenience will be served by the proposed change, it is directed
to enter a resolution in its minutes approving the project. § 43-1-208(2). Similarly, to
acquire the portions of land to be taken for this purpose, the statute prescribes a
procedure whereby the commission is to enter a resolution in its minutes authorizing
the chief engineer to tender each landowner the amount of damages approved by the
commission; and in the event the landowner declines that tender, in the manner and
within the time permitted by statute, the commission is directed to acquire the property
in question according to the condemnation provisions of title 38. § 43-1-208(2), (3).
Alternatively, the transportation commission is authorized to proceed “in the
acquisition of lands of private persons for state highway purposes” directly, according
to the provisions of title 38, “without tender or other proceedings under this part 2.”
§ 43-1-208(3).
¶12 Statutes have meaning according to the legislative intent expressed in the
language of those statutes themselves. People v. Jones, 2015 CO 20, ¶ 10, 346 P.3d 44,
48; Pham v. State Farm, 2013 CO 17, ¶ 13, 296 P.3d 1038, 1043; Gypsum Ranch Co., 244
P.3d at 131; Frank M. Hall & Co. v. Newsom, 125 P.3d 444, 448 (Colo. 2005). Although
interpretive aids are available to assist in determining which one of various reasonable
interpretations of ambiguous statutory language actually embodies the legislative
intent, People v. Owens, 228 P.3d 969, 972 (Colo. 2010), if the language of a statute is
clear and unambiguous, and is not in conflict with other statutes, it must be applied as
10
written. Holcomb v. Jan-Pro Cleaning Sys., 172 P.3d 888, 890 (Colo. 2007). While there
will often be room for debate about the breadth of surrounding text to be considered in
assessing whether particular language can have more than one reasonable
understanding, and is therefore considered ambiguous, there can be little question that
the meaning of words or phrases cannot be separated from the broader context in which
they are used and the function they serve, according to accepted rules of grammar and
syntax, in the very sentence in which they appear. See Robinson v. Shell Oil Co., 519
U.S. 337, 341 (1997).
¶13 Although much has been made by the parties of the phrase, “without . . . other
proceedings under this part 2,” this arguably broad exemption is greatly circumscribed
by the sentence in which it appears. Read as a whole, that sentence merely provides an
alternative method for the commission “to proceed in the acquisition of the lands of
private persons for state highway purposes.” It in no way purports, and cannot be
reasonably understood, to relieve the commission of its statutory obligation to assess,
prior to acquiring property for that purpose, whether and under what circumstances
the costs and benefits of a proposed highway change would be in the public interest or
convenience. The statute places squarely in the hands of this geographically
representative and comparatively independent corporate body the responsibility for
determining not only which of the enumerated kinds of highway projects should be
approved, but also which properties need be taken for that purpose and the amount, or
the method for calculating the amount, that may be paid for each of them. With regard,
in particular, to the acquisition of lands for the kinds of highway projects specified in
11
section 208, the commission is therefore assigned the choice whether to cause to be
tendered specific amounts to the landowners in question or to submit to the evaluation
of their properties by the statutory eminent domain mechanism; and if the commission
decides on any particular tender that turns out to be insufficient, it is given the choice
whether to subject the state fisc to the uncertainty of condemnation proceedings or
(unless it is equitably estopped by its prior conduct from doing so, see Piz v. Hous.
Auth. of the City & Cty. of Denver, 289 P.2d 905, 913 (Colo. 1955); see also Wheat Ridge
Urban Renewal Auth. v. Cornerstone Grp. XXII, L.L.C., 176 P.3d 737, 742 (Colo. 2007))
to abandon its pursuit of that particular property altogether.
¶14 Unlike those circumstances in which the department is statutorily vested with
the authority to determine whether to acquire property by condemnation, such as
whether to acquire the remainder of a parcel, some part of which has already been
determined to be taken, see § 43-1-210(1), C.R.S. (2016), or whether to acquire “excess
right-of-way,” see § 43-1-210(2), the decision to approve the acquisition of property for
the kinds of highway alterations enumerated in section 208 in the first instance, and
whether to limit the amount for which that property may be acquired, is a decision
vested solely in the commission, see § 43-1-208(3). Although the department is
therefore clearly an entity authorized to exercise the power of eminent domain under
the statutorily specified circumstances, and the chief engineer may clearly act on behalf
of the department in this regard, the question posed by U-Haul’s challenge to the
district court’s order at issue here is whether the commission may delegate the choice of
which properties are to be taken, how much the state is willing to tender for a particular
12
parcel of property, and/or whether to acquire that property at whatever cost may be
determined by the statutory condemnation process.
¶15 In this jurisdiction, we have long recognized the general rule that a municipal
corporation, or quasi-municipal corporation, like the corporate body that is the
transportation commission, may delegate to subordinate officers and boards powers
and functions that are ministerial or administrative in nature, leaving little or nothing to
the judgment or discretion of the subordinate; however, legislative or judicial powers
involving judgment and discretion on the part of the municipal or quasi-municipal
corporation may not be delegated unless such delegation has been expressly authorized
by the legislature. Big Sandy Sch. Dist. No. 100-J, Elbert Cty. v. Carroll, 433 P.2d 325,
328 (Colo. 1967), overruled on other grounds by Normandy Estates Metro. Recreation
Dist. v. Normandy Estates, Ltd., 553 P.2d 386 (Colo. 1976). There would appear to be
little question that the initiation and conduct of condemnation proceedings could and
almost certainly would have to be delegated to the legal staff or representatives of the
commission or department, but the decision whether, and if so precisely how and for
how much, to take particular property, for a particular proposed highway alteration
project, clearly involves the kind of judgment and discretion that is non-delegable in the
absence of express statutory authorization. Not only is the statute lacking in any
express authorization to do so, but virtually the entire statutory scheme, creating and
assigning specific powers and duties separately to the transportation commission,
militates against a legislative intent to sanction such a delegation.
13
¶16 The 1994 resolution upon which the department relies directs it or its delegatee
to handle, on the commission’s behalf, “both the approval for land acquisition actions
and the tendering of payment to landowners for damages in connection with
previously approved highway projects.” Whether this language is better understood to
delegate to the department the choice to acquire land for an approved project either by
first tendering an amount to the landowner or by proceeding directly by condemnation,
or to simply delegate the choice of which properties to take by condemnation and
thereafter tender payment to each such landowner in the amount determined by that
process, it nevertheless amounts to an abdication of the commission’s statutory duty to
decide which parcels it will serve the public interest or convenience to take and whether
the public interest or convenience will be served only if those parcels, or any of them,
can be acquired for a specific, preapproved amount. Although the 1994 resolution
recounts that the commission considers the land acquisition costs on a project-by-
project basis in approving its fiscal year budget, and that the commission simply seeks
to avoid duplication of effort, neither the 2009 resolution approving this highway
project nor a record of any budgetary proceedings presented to the district court or this
court suggests a parcel-by-parcel determination by the commission. Quite the contrary,
the department expressly asserts, and the district court clearly found, that by
proceeding directly by condemnation, as permitted by section 43-1-208(3), the
commission is relieved of any obligation to make judgments concerning the public
interest or convenience required at subsections 208(1) and (2).
14
¶17 Because we understand section 43-1-208 to plainly require the transportation
commission to assess the public interest or convenience with regard to the particular
properties to be taken for a proposed highway change and any limitations on the
damages to be paid for those properties; and because we understand the last sentence of
subsection 208(3), by its own terms, as merely providing an option for the commission
to acquire the particular properties to be taken for any such project directly by
condemnation, in lieu of tendering a preapproved amount of damages for them and
submitting to the proceedings potentially attendant upon such a tender; we find the
commission’s 1994 resolution ineffective to delegate to the department the choice of the
particular properties to be taken, whether by specific tender or petition in
condemnation.
IV.
¶18 Because the commission could not delegate its statutory obligation to determine
the specific properties it would serve the public interest or convenience to take for the
US6 and Wadsworth Boulevard Interchange expansion project and did not itself
approve the taking of U-Haul’s particular property by written resolution, in the manner
required by statute, the rule is made absolute, and the matter is remanded to the district
court with orders to dismiss the department’s Petition in Condemnation.
JUSTICE GABRIEL concurs in the judgment, and CHIEF JUSTICE RICE and
JUSTICE HOOD join in the concurrence in the judgment.
15
JUSTICE GABRIEL, concurring in the judgment.
¶19 I agree with the majority’s ultimate conclusion that on the facts presented here,
the Colorado Department of Transportation (the “Department”) did not have the
authority to pursue the condemnation at issue. I do not, however, agree with the
majority’s construction of section 43-1-208, C.R.S. (2016), and therefore, my analysis
differs from that of the majority. Accordingly, I respectfully concur in the judgment
only.
I. Analysis
¶20 Because the petition at issue was brought by the Department, I begin by
addressing the Department’s condemnation authority and conclude that the
Department did not have either statutory or properly delegated authority to condemn
the property at issue. I then discuss why I disagree with the majority’s construction of
section 43-1-208.
A. The Department’s Condemnation Authority
¶21 As the majority observes, the right to condemn private property in Colorado is a
creature of statute and exists only to the extent permitted by our legislature. Maj. op.
¶ 10. Accordingly, “[w]e have often held that narrow construction is the rule in
determining the scope of the condemnation power delegated pursuant to legislative
enactment.” Coquina Oil Corp. v. Harry Kourlis Ranch, 643 P.2d 519, 522 (Colo. 1982);
see also Platte River Power Auth. v. Nelson, 775 P.2d 82, 83 (Colo. App. 1989) (“The
constitutional protection against the taking of private property by government without
1
due process imposes on the condemning governmental entity a requirement of strict
compliance with and interpretation of the pertinent condemnation statutes.”).
¶22 Although the majority begins the pertinent part of its analysis with a discussion
of section 43-1-208, that section concerns the eminent domain authority of the
Transportation Commission (the “Commission”), an entity created in section 43-1-106,
C.R.S. (2016). The petition at issue, however, was brought by the Department, a
separate and distinct entity created in section 43-1-103, C.R.S. (2016). See also
§ 43-1-102(1)–(2), C.R.S. (2016) (separately defining the Commission and the
Department). Accordingly, in my view, and notwithstanding the fact that the parties all
seemed to presume that section 43-1-208 defines the Department’s condemnation
authority, the analysis must begin with a discussion of the Department’s statutory
authority to condemn private property.1
¶23 Pursuant to section 38-1-202(1)(b)(IV)(G), C.R.S. (2016), the Department may
exercise the power of eminent domain in accordance with a number of enumerated
statutes, including, as pertinent here, section 43-1-210(1)–(3), C.R.S. (2016), which
provides for the Department’s acquisition of certain rights of way, as well as of property
to be taken for state highway purposes under certain enumerated conditions. Notably,
section 38-1-202(1)(b)(IV)(G) does not authorize the Department to exercise the power
1 In fairness to the parties, I acknowledge that throughout our opinion in Department of
Transportation v. Stapleton, 97 P.3d 938 (Colo. 2004), we spoke of the Department’s
authority under section 43-1-208(3). That case, however, turned on a construction of the
phrase “state highway purposes,” and the distinction between the Department’s
condemnation authority and that of the Commission does not appear to have been at
issue. In these circumstances, I am unwilling to read into Stapleton a statutory
construction that would effectively expand the Department’s condemnation authority.
2
of eminent domain pursuant to section 43-1-208(3), the section about which the parties
are arguing. To the contrary, section 38-1-202(1)(b)(IV)(I) makes clear that the
condemnation authority under section 43-1-208(3) belongs to the Commission.
¶24 Accordingly, the first question to be answered is whether the General Assembly
has given the Department the same authority that it gave the Commission under section
43-1-208(3). The parties have not cited any such statutory authority (to the contrary, as
noted above, they appear to have assumed that section 43-1-208(3) applies), nor have I
seen such authority.2
¶25 Because the Department does not appear to have the authority granted by
section 43-1-208(3), which is the authority at issue, the question becomes whether the
Commission, which unquestionably has such authority, could properly delegate that
authority to the Department. For two reasons, I do not believe that it could.
¶26 First, any such delegation would effectively allow the Commission to expand the
Department’s statutory condemnation authority, thereby undermining the long-settled
principles that (1) we construe strictly statutory authorizations of condemnation powers
and (2) governmental entities exercising their condemnation powers must strictly
2 As noted above, section 43-1-210(1) authorizes the Department to condemn certain
property for state highway purposes under enumerated circumstances. It is not clear to
me that section 43-1-210(1) applies here, and I am unwilling to presume that it does,
given that the Department itself did not so argue before this court. Nor am I persuaded
by the Department’s arguments as to the inferences to be drawn from various statutes
defining the Department’s condemnation authority, given that we construe strictly
statutory authorizations to condemn private property. Coquina Oil Corp., 643 P.2d at
522; Platte River Power Auth., 775 P.2d at 83.
3
comply with the statutes granting such powers. See Coquina Oil Corp., 643 P.2d at 522;
Platte River Power Auth., 775 P.2d at 83.
¶27 Second, any such delegation would arguably violate the nondelegation doctrine.
The nondelegation doctrine is rooted in the constitutional separation of powers and
prohibits the General Assembly from delegating legislative power to another
department of government or person. See People v. Holmes, 959 P.2d 406, 409 (Colo.
1998). The doctrine is limited, however, by the fact that regulation through
administrative agencies is an accepted part of our legal system. Id. Thus, the General
Assembly may properly delegate its legislative power “when it describes what job must
be done, who must do it, and the scope of his authority.” Swisher v. Brown, 402 P.2d
621, 626 (Colo. 1965).
¶28 Here, to the extent that the General Assembly can be said to have delegated to
the Commission legislative authority to condemn private property pursuant to section
43-1-208(3), I perceive no basis for allowing the Commission to take it upon itself to
delegate that authority to another entity.
¶29 I am not persuaded otherwise by the Department’s citations to sections
43-1-106(8)(a), (d), and (f), C.R.S. (2016). The cited provisions authorize the Commission
(1) to formulate policies with respect to the management, construction, and
maintenance of public highways; (2) to prescribe administrative practices to be followed
by the Commission’s executive director and the Department’s chief engineer; and (3) to
require the executive director and the chief engineer to furnish whatever assistance the
Commission may request with respect to the operation of the Department. Id. I
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perceive nothing in those sections that authorizes the Commission to delegate its
condemnation authority (as opposed to administrative and ministerial functions) to the
Department, and for the reasons set forth above, I believe that any such delegation
would violate the principle of strict construction of statutory condemnation authority.
¶30 Because the Department does not appear to have either statutory or properly
delegated authority to pursue the condemnation at issue, I agree with the majority’s
determination to make our rule to show cause absolute, and thus, I concur in the
judgment.
B. Section 43-1-208
¶31 Although the foregoing analysis would not require me to address the proper
construction of section 43-1-208, I proceed to do so because both my disagreement with
my colleagues and the issues raised in this case suggest a need for legislative action to
clarify the General Assembly’s intent regarding the respective condemnation authorities
of the Commission and the Department.
¶32 We review de novo questions of law concerning the application and construction
of statutes. Hickerson v. Vessels, 2014 CO 2, ¶ 10, 316 P.3d 620, 623. In interpreting
statutes, we must give effect to the General Assembly’s intent. Aetna Cas. & Sur. Co. v.
McMichael, 906 P.2d 92, 97 (Colo. 1995). To do so, we interpret statutory terms in
accordance with their plain and ordinary meanings. Id. In addition, “we examine the
statutory language in the context of the statute as a whole and strive to give ‘consistent,
harmonious, and sensible effect to all parts.’” Reno v. Marks, 2015 CO 33, ¶ 20, 349 P.3d
248, 253 (quoting Denver Post Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo. 2011)). We will
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not add words to a statute, nor will we subtract words from it. Turbyne v. People,
151 P.3d 563, 567 (Colo. 2007). In the absence of ambiguity, we apply the statute’s
language as written. Id. If, however, a statute is ambiguous, then we may consider the
statute’s purpose or policy, as well as its legislative history, to discern the General
Assembly’s intent. McMichael, 906 P.2d at 97.
¶33 The majority quotes the entirety of section 43-1-208, see maj. op. ¶ 11 n.1, and I
need not re-quote it here. The majority concludes that under section 43-1-208, the
Commission must, in all circumstances, do two things. First, the Commission must
receive from the Department’s chief engineer a written report describing the portion of
the highway to be established or altered, the portions of the land to be taken for such
purposes, and an estimate of the damages and benefits accruing to each landowner
whose land may be affected. See maj. op. ¶ 13. Second, the Commission must decide
whether the public interest or convenience will be served by the proposed change and if
so, enter a resolution on its minutes approving the change and authorizing the chief
engineer to tender the estimated amount of damages. See id. The majority further
appears to conclude that only after both of these things have been accomplished may
the Commission choose whether to tender to the landowners the determined amount
or, alternatively, to proceed under title 38. See id. For several reasons, I disagree with
this construction.
¶34 First, I believe that the majority’s construction is inconsistent with the plain and
unambiguous language of section 43-1-208(3). That section provides, in pertinent part,
“The transportation commission also has the power and is authorized to proceed in the
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acquisition of the lands of private persons for state highway purposes, according to said
articles 1 to 7 of title 38, C.R.S., without tender or other proceedings under this part 2.”
¶35 In my view, this subsection means precisely what it says, namely, that in matters
involving the acquisition of lands of private persons for state highway purposes, the
Commission can proceed directly under title 38 (i.e., by filing a condemnation petition)
without conducting any other proceedings under part 2 of title 38, which proceedings I
take to include the processes set forth in subsections 43-1-208(1)–(2).
¶36 Unlike the majority, I think that such a construction makes perfect sense. In
cases involving the property of private persons, the Commission has two choices. It can
potentially avoid litigation by making findings that the public interest or convenience
will be served by the acquisition and by then determining and tendering an amount of
damages, which the landowner might accept. See § 43-1-208(1)–(3). Alternatively, the
Commission can proceed directly to court, where (1) the Commission will be required
to plead and prove, among other things, a public use and (2) the compensation to be
paid to the owner will be assessed. See §§ 38-1-101(2), 38-1-102(1), 38-1-105 to -107,
38-1-115 C.R.S. (2016). Either way, authorized decision-making bodies—the
Commission or a court—will determine the public interest and the proper
compensation to be paid to the landowner.
¶37 The majority’s interpretation of section 43-1-208, in contrast, would effectively
construe section 43-1-208(3) to read, in pertinent part, “without tender or other
proceedings under this part 2, except for the proceedings set forth in subsections (1) and
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(2) of this section.” As noted above, however, we may not add words to a statute. See
Turbyne, 151 P.3d at 567.
¶38 Second, although the majority and the parties appear to be moved by the
structure of section 43-1-208, the history of that statute persuades me that the structure
sheds no light on the legislature’s intent.
¶39 The statute traces back to the 1921 session laws. See ch. 136, sec. 20, 1921 Colo.
Sess. Laws 370–71. Notably, in its initial iteration and until 1963, the language of what
became section 43-1-208 was all contained in one section with no subsections. See
ch. 33, sec. 1404, 1921 Compiled Laws 533; ch. 143, sec. 111, 1935 Colo. Stat. Ann.;
§ 120-3-8, C.R.S. (1953). In 1963, however, that provision was split into subsections, see
§ 120-3-8, C.R.S. (1963), and it appears that this was done by the revisor of statutes, as
part of the 1963 decennial recodification. Because we have made clear that we will not
attach any substantive significance to a statutory revisor’s bifurcation of a statute into
separate subsections, see People v. N. Ave. Furniture & Appliance, Inc., 645 P.2d 1291,
1298 (Colo. 1982), I assign no significance to the current structure of section 43-1-208,
and particularly to the location of the language in section 43-1-208(3), which allows the
Commission to proceed directly under title 38.
¶40 Accordingly, unlike the majority, I read section 43-1-208(3) to allow the
Commission to choose to proceed directly under title 38 before undertaking the
processes described in sections 43-1-208(1) and (2).
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II. Conclusion
¶41 For these reasons, I would make the rule to show cause absolute based on the
Department’s lack of statutory or properly delegated authority. In doing so, however, I
cannot agree with the majority’s construction of section 43-1-208. Accordingly, I
respectfully concur in the judgment only.
I am authorized to state that CHIEF JUSTICE RICE and JUSTICE HOOD join in
this concurrence in the judgment.
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