July 22, 2018

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.

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