July 20, 2017

Colorado Court of Appeals: District Court Correctly Characterized Water Storage Plan as Frustrated Plan in Condemnation Action

The Colorado Court of Appeals issued its opinion in Board of County Commissioners of County of Weld v. DPG Farms on Thursday, June 15, 2017.

Condemnation—Highest and Best Use—Lost Income—Costs.

The Board of County Commissioners of Weld County (the County) filed a petition in condemnation to extend a public road over 19 acres of DPG Farms, LLC’s 760-acre property (the property). When condemnation proceedings were initiated, the property was used primarily for agricultural and recreational purposes. The parties stipulated to the County’s immediate possession of the 19 acres and proceeded to a valuation trial. The dispute centered on the highest and best use of 280 acres that contained gravel deposits. DPG’s experts testified about the highest and best use of the property. The district court determined, as a matter of law, that the evidence was too speculative to support a finding that water storage was the highest and best use of the relevant area (Cell C); instead, it determined that the highest and best use of those acres was gravel mining, but not water storage as well. The jury awarded DPG $183,795 in damages for the condemned property and nothing for the residue. DPG then requested costs. The district court rejected a substantial portion of the costs on grounds that they were disproportionate to DPG’s success and that certain expert evidence had been excluded.

On appeal, DPG contended that the district court erred in rejecting water storage as the highest and best use of certain portions of the property. The Court of Appeals reviewed the evidence that the district court’s determination was based on and concluded that the district court did not err in determining, as a matter of law, that the evidence was too speculative to support a jury finding that water storage was the highest and best use of Cell C.

DPG also argued that the trial court erred in excluding evidence of lost income, arguing that it was admissible pursuant to an income capitalization approach to valuing the property. DPG’s evidence of a potential income stream was admissible not as the measure of its damages but rather as a factor that could inform the fair market value of the property. And both the appraiser and the mining expert testified that the potential income stream from mining informed their fair market valuations. Because the lost income evidence, on its own, did not reflect the proper measure of damages, the district court correctly excluded it.

Finally, because the income valuation evidence presented by DPG’s experts was properly excluded, the district court did not abuse its discretion in limiting DPG’s award of costs on this basis.

The judgment and cost order were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Condemnation Decision Must Consider Each Landowner’s Taken Land and Damages

The Colorado Supreme Court issued its opinion in Department of Transportation v. Amerco Real Estate Co. on Monday, September 26, 2016.

Administrative Law and Procedure—Delegation of Authority—Condemnation Proceedings.

Amerco Real Estate Co. (Amerco) and U-Haul petitioned for relief pursuant to CAR 21 from an order of the district court denying their request to dismiss the Colorado 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. The Supreme Court issued its rule to show cause and here made the rule absolute, remanding to the district court with orders to dismiss the department’s Petition in Condemnation. The Court held that 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, constituted an unlawful delegation of its statutorily imposed obligation.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Evidence of Project Funds Inadmissible in Condemnation Proceeding

The Colorado Court of Appeals issued its opinion in Town of Silverthorne v. Lutz on Thursday, February 11, 2016.

Matthew Lutz and Edward Lutz (landowners) own a stretch of land over which the Town of Silverthorne wanted to build a trail. The town applied for and received funds from the Great Outdoors Colorado Program (GOCO) to use in construction of the trail. Landowners objected to having a portion of the trail built on their land. The town offered landowners $6,000 to purchase an easement, but landowners did not respond. The town next offered $75,000 for two easements, but landowners again did not respond. The town then filed a condemnation action under its eminent domain powers, and the matter proceeded to an immediate possession hearing and subsequent valuation trial. The district court granted the town’s motion for immediate possession and the landowners were compensated according to the jury’s valuation.

On appeal, the town initially argued the landowners waived any defense by failing to challenge the condemnation proceedings or make a counteroffer. The court of appeals found no error in the district court’s allowance for the landowners to reply to the condemnation proceedings out of time. The court noted, “Technically, there is no need to file an answer in a condemnation case, but it is good practice to do so.” Next, the court addressed the landowners’ assertion that the town was barred from exercising eminent domain power because of its receipt of GOCO funds, and the district court erred in granting the town’s motion in limine to exclude evidence of the source of funds. The court found it was bound by the Colorado Supreme Court’s decision in Pub. Serv. Co. v. City of Loveland, 79 Colo. 216, 233, 245 P. 493, 500-01 (1926), to exclude evidence of the source of funding for the eminent domain action, finding that the source of funds requires analysis of corporate finance which is wholly separate from a home rule city’s eminent domain authority. The court found no error in the district court’s grant of the town’s motion in limine to exclude evidence of the source of funds.

Landowners also argued the town acted in bad faith by planning the development of its trail in such a way as to receive all GOCO funds before commencing the eminent domain action. The landowners argue this is a jurisdictional challenge to the town’s condemnation suit. The court found several flaws with the landowners’ arguments that the town failed to act in good faith, and again affirmed the district court’s decision to exclude evidence of the GOCO funds. The court also rejected landowners’ contention that the district court erred in denying their motion for attorney fees.

The court of appeals affirmed the district court.

Colorado Court of Appeals: Subrogated Insurers Held Right to Pursue Claims On Behalf of Insureds

The Colorado Court of Appeals issued its opinion in American Family Mutual Insurance Co. v. American National Property & Casualty Co. on Thursday, September 24, 2015.

Inverse Condemnation—Motion for Limited Discovery.

Plaintiffs are 25 insurance companies (collectively, carriers). On March 22, 2012, the Colorado State Forest Service initiated a prescribed burn on land owned by Denver Water. On March 26, high winds carried embers from the burn onto land located outside the prescribed burn’s perimeter. What became known as the Lower North Fork Fire ignited and spread rapidly, resulting in loss of life and significant property damage.

This subrogation lawsuit followed and, with 25 insurance companies, the pleadings are “voluminous.” The carriers relied on inverse condemnation claims against the Colorado Department of Public Safety (Department) and the Denver Water Board (Denver Water).

The Department moved to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. To respond, the carriers moved to conduct limited discovery. The district court denied the motions to conduct discovery, granted the motions to dismiss, and certified the order for purposes of appeal. As to the motions to dismiss, the court found that the carriers had failed to allege a public purpose for the taking of their insureds’ properties.

The Court of Appeals first rejected the Department’s argument that the carriers had not established standing. The insureds had a right to pursue inverse condemnation claims and the carriers stood in their shoes by virtue of the alleged subrogation relationships.

The Court next addressed the carriers’ argument that the district court erred in dismissing the claims because they did plead a public purpose. To prove an inverse condemnation claim under the Colorado Constitution, a property owner must show (1) that there has been a taking or damaging of a property interest; (2) for a public purpose; (3) without just compensation; (4) by a governmental or public entity that has the power of eminent domain, but which has refuse to exercise that power. The finding of a public purpose requires inquiring into whether the condemnation’s essential purpose is to obtain a public benefit. None of the carriers’ allegations explained how the alleged taking of their insureds’ private property furthered the purposes for which the prescribed burn was initiated, and there were no allegations that the taking itself was accomplished for a public purpose. Therefore, the carriers failed to allege, and could not allege, a public purpose for the taking of their insureds’ properties.

The Court also held that the district court did not err in denying the carriers’ motion to conduct discovery to respond to the motions to dismiss. In denying the motion, the district court cited CRCP 16(b)(1), which states that, except as provided in CRCP 26(d), discovery may commence 42 days after the case is at issue, and this case was “not close to being at issue . . .” Moreover, the purpose of a CRCP 12(b)(5) is to test the legal sufficiency of a claim that, by definition, does not involve factual matters outside the pleadings. The Court agreed with the district court’s reasoning and found no abuse of discretion. The order and judgment were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Frederick Skillern: Real Estate Case Law — Easements and Public Roads (2)

Editor’s note: This is Part 11 of a series of posts in which Denver-area real estate attorney Frederick Skillern provides summaries of case law pertinent to real estate practitioners (click here for previous posts). These updates originally appeared as materials for the 32nd Annual Real Estate Symposium in July 2014.

By Frederick B. Skillernfrederick-b-skillern

Maralex Resources, Inc. v. Chamberlain, Public Trustee of Garfield County Colo. App January 2, 2014 2014 COA 5 Oil and gas lease; prescriptive easement for access to wells; adverse or permissive use of roads; standing. Since 1996, Maralex has been a lessee under a series of federal oil and gas leases in Rio Grande County. Maralex operates and maintains various oil and gas wells located on federal land. To access the wells, Maralex and its predecessors in interest have historically used two roads crossing private property now owned by Nona Jean Powell. The Powell property is adjacent to the federal land. After issues arose between Maralex and Powell regarding use of the roads, Maralex filed a quiet title action seeking a decree that it has prescriptive easements over the roads for ingress and egress to the oil leaseholds. The trial court first found that Maralex lacked standing, as a real property lessee, to assert a prescriptive easement claim. Notwithstanding that finding, the court went on to consider the merits of the easement claims as a matter of judicial economy. It found that Maralex’s use of the roads was permissive and not adverse, and that Maralex did not establish the existence of the asserted prescriptive easements. On appeal, the court reverses the holding on standing. Citing a long string of cases, an oil and gas lessee has standing to bring a quiet title action and to enforce easement rights. One can even draw an analogy to surface cases in which use by a tenant may be tacked on to prior use by the fee owner in proving possession for the prescriptive period. The court finds sufficient evidence in the record to affirm the finding that the use by Maralex and its predecessors was permissive, not adverse. It was conceded that oil operators on the government land openly and continuously used the roads on Powell’s property for the statutory period. However, because Powell previously permitted the use, the use was not adverse. What made the use permissive? Like so many cases of this sort, we have gates on the roads, and cattle on a ranch. At one point a former owner of the Powell property gave keys to the oil company, telling a grazing tenant that he wanted to oil operation to be successful, but that he did not want his tenant’s herd to be impacted. Over the course of decades, there was all manner of evidence of a problematic nature, sufficient that the court could go either way on the “adversity” issue. The trial court resolved it like this – “By giving someone a key, it seems to the Court that the only reasonable interpretation is that ‘I want to keep people out, but not you. You have permission to use my road. Here is a key.’” The appeals court also notes that this could also be a recognition of a right of the user to access, with acquiescence by the easement claimant to blockage of use by others. The court goes along with the trial judge.   Sinclair Transportation Company d/b/a Sinclair Pipeline Company v. Sandberg Colorado Court of Appeals, June 5, 2014 2014 COA 76 Pipeline easement; assignability of easement in gross; proof of assignment of easement rights by parol evidence; abandonment. This is one in a series – one might say a family – of cases involving Sinclair’s pipeline between oil fields in Wyoming and Denver. At one point, the pipeline crosses land in Weld County, creating friction with residential development, and with owners of land such as the Sandbergs. Sinclair seeks to upgrade its pipeline from 6” to 10” according to terms of the written pipeline easement, which dates back to 1963. The easement was in favor of the original servient owner and its “successors and assigns.” In an extensive opinion, the court affirms a partial summary judgment ruling in favor of Sinclair on defenses raised by the landowners, who sought to block any expansion or to require movement of the easement in order to minimize its impact on their residential development. The first issue deals with the use of parol evidence to prove a part of Sinclair’s interest (ownership of a series of assignments from partial owners of the pipeline). The court upholds a ruling that Sinclair could prove a part of its chain of title by proving assignment of one 50 percent interest in the line through testimony of an attorney representing one of the parties to the assignment. The court holds that no statute of frauds bars oral testimony to prove of an assignment of an easement. More importantly, the court holds that an easement in gross, especially one created for commercial uses, is assignable. The court relies on the modern trend in case law and comments in the Restatement of Property (Servitudes) § 4.6(1)(c) (“a benefit in gross is freely transferable”), as well as C.R.S. § 38-30-101 (“any person . . . entitled to hold . . . any interest in real estate whatever, shall be authorized to convey the same to another”). The court cites a Utah case, Crane v. Crane, 683 P.2d 1062 (Utah 1984) which surveys the easement in gross case law as it applies to pipelines and other commercial uses. For those interested in the industry, the court goes on to discuss interpretation of the easement document in regard to how a pipeline company can expand and improve its pipeline – whether a pipeline company must “remove, then replace” or “replace, then remove.” Finally, the court holds that Sinclair’s attempt in a parallel case to condemn a way across the land in question did not effect an abandonment of its deeded easement rights. The attempt to condemn was derailed in a 2012 decision of the Colorado Supreme Court discussed in this space. Another court of appeals decision (not discussed in this outline) deals with the pipeline condemnation issues.

Frederick B. Skillern, Esq., is a director and shareholder with Montgomery Little & Soran, P.C., practicing in real estate and related litigation and appeals. He serves as an expert witness in cases dealing with real estate, professional responsibility and attorney fees, and acts as a mediator and arbitrator in real estate cases. Before joining Montgomery Little in 2003, Fred was in private practice in Denver for 6 years with Carpenter & Klatskin and for 10 years with Isaacson Rosenbaum. He served as a district judge for Colorado’s Eighteenth Judicial District from 2000 through 2002. Fred is a graduate of Dartmouth College, and received his law degree at the University of Colorado in 1976, in another day and time in which the legal job market was simply awful.

Colorado Court of Appeals: Condemnors Have Absolute Right to Abandon Proceedings at Any Time Before Title Vests

The Colorado Court of Appeals issued its opinion in Sinclair Transformation Co. v. Sandberg on Thursday, June 5, 2014.

Condemnation—Interest on Attorney Fees—Surface Damage Bond—Dismissal by Petitioner.

Sinclair Pipeline Company (Sinclair) owns a pipeline system that transports petroleum products from Wyoming to Denver. Sinclair uses an easement that passes through respondents’ (landowners) property. Sinclair initiated this condemnation proceeding to secure the rights to lay a second pipeline on landowners’ property and use some of their property that, though underlying the original pipeline, was not within the easement. The district court found that Sinclair had condemnation authority to build the new pipeline and entered an order allowing it to take immediate possession of the properties to install it while continuing to use the original pipeline. In 2007, while the case was on appeal, Sinclair installed the new pipeline but did not put it to use.

Five years later, the Supreme Court concluded that Sinclair did not have statutory condemnation authority under CRS § 38-5-105. On remand, landowners sought $192,573.95 in attorney fees and costs, plus interest. Before the court ruled, Sinclair paid all the fees and costs without interest, which the district court determined landowners were not entitled to.

Sinclair filed a notice of abandonment of condemnation proceedings and a declaratory judgment action seeking to enjoin the landowners from removing the new pipeline and seeking recognition of its rights under the easement to operate the new pipeline. Landowners objected and filed counterclaims. The district court dismissed the condemnation action.

On appeal, landowners argued it was error to deny them interest on their attorney fees and costs. The Court disagreed. The fees were awarded under CRS § 38-1-122. There is no provision in any sections pointed to by landowners for a right to interest. Therefore, the district court correctly denied the request.

Landowners also argued it was error to dismiss the condemnation action instead of consolidating it with the declaratory judgment action. The Court disagreed. Condemnors have an absolute right to abandon condemnation proceedings at any point before title has vested.

Landowners further argued it was error for the district court not to determine their surface damages and apply Sinclair’s surface damage bond to reimburse them before dismissing the condemnation action. The district court based its decision on agreement by the parties that there were issues of material fact concerning the surface damages that could be resolved in the declaratory judgment action. Moreover, the surface damage bond and additional money deposited by Sinclair as security for its taking immediate possession of the property was transferred to the court registry for the declaratory judgment action. The Court perceived no error in proceeding in this manner. The judgment of dismissal and the orders were affirmed.

Summary and full case available here.

Colorado Court of Appeals: Meaningful Remedy May Be Available to Landowners so Summary Judgment Inappropriate

The Colorado Court of Appeals issued its opinion in Sinclair Transportation Co. v. Sandberg on Thursday, June 5, 2014.

Easement — Partial Summary Judgment.

Sinclair Pipeline Company (Sinclair) operates a pipeline system that transports petroleum products from Wyoming to Denver and uses an easement that passes through defendants’ (landowners) properties. The easement was created by agreement in 1963 and provided its owner and “its successors and assigns” the right to “construct, maintain, inspect, operate, protect, repair, replace, change the size of, and remove” a six-inch pipeline across landowners’ property (original pipeline).

In 2006, Sinclair approached landowners to propose amending the easement to allow it to build a ten-inch pipeline on the property (new pipeline). Landowners declined, and Sinclair sought the right through a condemnation proceeding. The district court determined Sinclair had condemnation authority. In 2007, while the case was on appeal, Sinclair installed the new pipeline but did not put it to use. Ultimately, the Supreme Court determined Sinclair did not have statutory condemnation authority.

Sinclair then abandoned the condemnation proceeding and instituted this declaratory judgment action under CRCP 57 and CRS § 13-51-106 to determine its rights under the easement and prevent landowners from removing the new pipeline. The district court dismissed the condemnation action and addressed all other claims in this case.

Sinclair moved for partial summary judgment and the district court ruled, as a matter of law, that Sinclair had the right to treat the new pipeline as a replacement of the original one, as long as it removed the original one. The partial summary judgment was certified as a final judgment under CRCP 54(b) for purposes of appeal.

Sinclair removed the original pipeline and began using the new one. Four months after the summary judgment order was issued and Sinclair had begun using the new pipeline, landowners moved to stay the order, which the district court denied because Sinclair had “already fully executed” it and there “was nothing left . . . to stay.”

On appeal, landowners argued Sinclair lacked standing because factual disputes existed as to whether Sinclair was a successor in interest to the original owner of the easement, and an easement of the type involved in this case could not be assigned. The Court of Appeals disagreed, finding that the evidence presented by Sinclair was sufficient to prove its successorship interest in the easement.

The Court rejected landowners’ argument that Sinclair lacked standing, because ownership interests in this type of easement cannot be assigned. The language of the easement itself was a conveyance to Old Sinclair and its “successors and assigns.”

Landowners argued that partial summary judgment was inappropriate because any right to replace the pipeline was subject to numerous conditions as to which factual disputes exist and was defeated by Sinclair’s non-compliance with other parts of the agreement. The Court disagreed, finding that the reasonable expectation of the parties to such an agreement would be that the new pipeline could be put in before the old one being removed so as not to disrupt service.

Landowners further contended that Sinclair abandoned the contract right to the easement because it acted as though that right had expired when it sought to use condemnation authority to install the new pipeline. The Court disagreed. Sinclair’s condemnation action was an attempt to install the new pipeline and not remove the old pipeline after landowners had denied them the permission to do so. The order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Property Valuation Commissioner Need Not Be Held to Judge’s Standard of Appearance of Impropriety

The Colorado Court of Appeals issued its opinion in Regional Transportation District v. 750 West 48th Ave LLC on Thursday, December 5, 2013.

Eminent Domain—Just Compensation—Evidentiary and Instructional Rulings—Commissioner Standards.

In April 2011, Regional Transportation District (RTD) filed a petition in condemnation and acquired from Landowner approximately 1.6 acres for RTD’s FasTracks Gold Line light rail project. It was agreed that RTD would take possession in exchange for a deposit of $1.8 million. The only issue at trial was determining the amount owed to Landowner for the condemned property. Landowner elected to have a commission trial, and the trial court appointed a commission of three freeholders to determine the property’s reasonable market value. RTD appealed pretrial and instructional rulings by the trial court and certain evidentiary rulings of the commission.

RTD contended the trial court erred in not disqualifying Kittie Hook, a real estate broker with Cassidy Turley, as a commissioner because it did not employ the “appearance of impropriety” disqualification standard applicable to judges. The court denied the request. CRS § 13-1-105(1) requires disqualification if the court determines that any of the proposed commissioners is not impartial. The trial court held that the applicable standard was not an “appearance of partiality,” but whether the commissioner was in fact interested and partial. The Court of Appeals agreed, concluding that the plain language of the statute required RTD to demonstrate that Hook was interested and partial. Because no such showing was made, it was not an abuse of discretion to not disqualify Hook.

RTD also argued that trial court erred by instructing the commission not to consider evidence concerning amenities at the property leased by Landowner’s lessee after condemnation. The Court found no abuse of discretion. The trial court’s instruction on the relevancy of evidence constituted a legal issue. Because CRS § 38-1-105(1) requires the trial court to instruct the commission on the applicable law, the court properly instructed the commission how to determine the reasonable value of the property.

RTD argued that the commission erred in reversing the trial court’s motion in limine ruling to admit an expert witness’s testimony as to the average value of industrial properties under the income approach. The Court disagreed. The Court held that the commissioners can modify the court’s determination of a motion in limine after hearing further evidence, and that the commission’s ruling was not an abuse of discretion.

Landowner requested attorney fees in defending the appeal. A landowner is entitled to recover its attorney fees where the award by the commission equals or exceeds 130% of the last written offer given to the property owner before the filing of the condemnation action. That was the case here, so the trial court awarded Landowner attorney fees. CAR 39.5 provides for an award of appellate attorney fees when there is a legal basis for such an award. Landowner therefore was entitled to appellate attorney fees and remanded for a determination of the amount. The judgment otherwise was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Actions of County Requiring Posting of Bond Discriminatory Against Same-Sex Couple

The Colorado Court of Appeals issued its opinion in Rodgers v. Board of County Commissioners of Summit County on Thursday, April 25, 2013.

Building Regulations—Same-Sex Couple Discrimination—Colorado Civil Rights Act—Exhaustion of Administrative Remedies—Inverse Condemnation—Directed Verdict—Section 1983.

Plaintiffs Jason L. Rodgers and James R. Hazel, a same-sex couple, appealed the trial court’s judgment dismissing two of their claims and its entry of a directed verdict in favor of Summit County on their inverse condemnation claim. The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Plaintiffs built a home in Summit County that included a septic system. County employees found it did not comply with the County’s regulations or the approved building plan obtained by the previous owner. The County found that the septic tank was too small and required a subsurface drain that had not been installed. It also found that during the installation, the subcontractor had damaged wetlands on the property.

Winter was approaching and the issues couldn’t be fixed until spring, so the County offered a temporary certificate of occupancy requiring plaintiffs to fix the septic system, mitigate the wetlands damages, and post a bond for the estimated costs. Plaintiffs did not post the bond, the certificate of occupancy was not issued, and plaintiffs lost their home in foreclosure.

The trial court dismissed three of plaintiffs’ five claims under CRCP 8 and 12(b)(5). The parties agreed to bifurcate the inverse condemnation claim from the 42 USC § 1983 equal protection claim. The court entered a directed verdict on the inverse condemnation claim in the County’s favor during a bench trial. After plaintiffs rested in the jury trial on the § 1983 claim, the court directed a verdict in favor of the County on three of the four actions on the basis of which the plaintiffs asked that the jury be instructed that “taken as a whole collectively establish[] that the County treated them in a discriminatory manner.” The jury returned a verdict for the County on what remained of the § 1983 claim.

Plaintiffs argued it was error to dismiss their first and third claims for relief. The Court of Appeals disagreed. The first claim asserted that County officials discriminated against them by requiring certain actions not required of heterosexual couples before it would issue a certificate of occupancy. This claim seemed to arise under the Colorado Civil Rights Act. Under that Act, any person alleging discrimination must file a complaint with the Colorado Civil Rights Commission (CCRC). Plaintiffs never did so, and therefore it was not error to dismiss this claim for failure to plead exhaustion of administrative remedies.

Plaintiffs’ third claim asserted that the County deprived them of their constitutional rights of due process, equal protection, and freedom of association under the U.S. and Colorado Constitutions. These claims were appropriately dismissed because plaintiffs were not entitled to recover damages through such a direct claim. Section 1983 is the remedy for a person who has been deprived of a constitutional right by state action; under the Colorado Constitution a direct claim for damages will lie only where no other adequate remedy exists.

Plaintiffs then argued it was error to direct a verdict for the County on their inverse condemnation claim and on three of the four actions that formed the basis for the § 1983 claim. The Court affirmed on the inverse condemnation claim but reversed on the § 1983 claim.

Inverse condemnation is a claim for relief against a regulatory taking. The trial court found that the County’s regulations and response regarding the septic issues were reasonably applied to plaintiffs and the County did not deny them an economically viable use of their property. Moreover, the County’s septic regulations were reasonable and contributed to the legitimate public purpose of protecting groundwater and adjoining properties from contamination. The record clearly supported the trial court’s determination that no regulatory or per se taking had occurred.

On the § 1983 claim, plaintiffs alleged the County’s requirements were unreasonable and differed from requirements imposed on similarly situated heterosexual homeowners in four ways. The trial court analyzed each of the alleged discriminatory actions separately and entered a directed verdict in the County’s favor on three of them, allowing only an allegation that it was discriminatory to require plaintiffs to post a bond. It found plaintiffs had not presented sufficient evidence of similar situations, even when taken in the light most favorable to them, that could have established an equal protection claim.

Plaintiffs argued it was error to analyze the County’s conduct as discrete actions, rather than as a pattern of discriminatory conduct. The Court agreed, finding that at the directed verdict stage, the trial court’s role is not to separately weigh individual aspects of the evidence offered to support a single claim; its function is to decide whether the totality of the evidence would permit a reasonable jury to return a verdict against a defendant. The trial court may not “parse evidence presented” and grant a “partial directed verdict” on a claim. The partial directed verdict on the single § 1983 claim was error, and this claim was remanded to be retried.

Summary and full case available here.