Colorado High Court Holds Highway Condemnations Unauthorized Since 1994, Dismisses Taking Suit Against U-Haul Under Nondelegation Doctrine
“On September 26, 2016, the Colorado Supreme Court, in a 7-0 opinion on an original proceeding, held the Colorado Department of Transportation (CDOT) has no condemnation authority under a 1994 resolution that unlawfully delegated to CDOT the Colorado Transportation Commission’s eminent domain power and abdicated the Transportation Commission’s statutory duty to resolve at open meetings which particular lands are to be taken.
Because the Transportation Commission “did not itself approve the taking of U-Haul’s particular property by written resolution, in the manner required by statute,” the Court dismissed as unauthorized CDOT’s petition to take 1.3 acres of U-Haul’s land in Lakewood, Colorado. Earlier this year, the Court stayed the condemnation and accepted U-Haul’s emergency appeal from an order of the trial court denying U-Haul’s request to dismiss and instead granting CDOT’s motion for immediate possession of U-Haul’s property.
The Court applied the nondelegation doctrine in analyzing whether CDOT possessed condemnation authority under a 1994 Transportation Commission resolution directing CDOT’s executive director to “handle” the approval of land acquisitions, which the executive director, in turn, delegated to CDOT’s chief engineer. Since 1994, CDOT’s engineers have both proposed and approved their own land acquisition proposals without Transportation Commission involvement or public hearing.”
Gurr, Stephen and Cynthia Lowery-Graber. JD Supra Business Advisor 5 October 2016.