June 24, 2019

Colorado Supreme Court: To Condemn Private Way of Necessity for Access to Property for Future Development, Scope and Purpose of Condemnation Must Be Presented

The Colorado Supreme Court issued its opinion in The Glenelk Association, Inc. v. Lewis on September 12, 2011.

Colo. Const. art. II, § 14—CRS § 38-1-1-2—Private Way of Necessity—Private Condemnation—Purpose—Indispensability—Trial Court Findings of Fact—Scope of and Necessity for Way of Necessity—Burden on Condemnee’s Property.

The District Court for Jefferson County dismissed a condemnation petition for a private way of necessity because the developer of the allegedly landlocked parcel did not sufficiently define the scope of and the necessity for the proposed condemnation. Evidence showed that the development might vary from one to thirty residential dwellings. Applicable roadway and easement requirements in Jefferson County mountain areas are based on how many lots will be served by the development.

The district court found that the developer’s failure to sufficiently define the purpose of the way of necessity prevented the court from entering a condemnation order that would minimize the burden to be placed on the condemnee’s property. The court of appeals ruled that the condemnation could proceed based only on the zoning of the condemnor’s property.

The Supreme Court disagreed with the court of appeals and reinstated the district court’s judgment. The Court held 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 the need for the proposed condemnation, so that the burden to be imposed on the condemnee’s property may be ascertained and circumscribed through the trial court’s condemnation order. The record in this case supported the trial court’s dismissal of the condemnation petition.

Summary and full case available here.

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