Thanks to the Rocky Mountain Appellate Blog for pointing out the Colorado Supreme Court's recent opinion in The Glenelk Ass'n, Inc. v. Lewis, No. 10SC275 (Sep. 12, 2011), an important decision about the standard of proof in private-way-of-necessity condemnations. The court concluded that a property owner who claimed to be "landlocked" could not condemn a private access corridor over a neighbor's land without proof of a "concrete development proposal" showing that the access corridor is necessary.
Lewis owned a 334 acre ag-zoned parcel, and had the right to build one dwelling per 10 acres. Other access options were apparently not feasible, so Lewis and his neighbor Glenelk negotiated for purchase of an easement but failed to reach an agreement. Under Colorado law (like the law of many other jurisdictions) one private landowner may institute a condemnation action against a neighbor if necessary to gain access to a landlocked parcel, and Lewis brought suit to condemn the easement and sought immediate possession of a portion of Glenelk's land for an access road.
Lewis and other witnesses testified that he had a desire to develop his property, but did not have any present or contemplated plans for doing so:
At the hearing, Lewis testified that he "would like to develop" the Lewis property, but he did not specify the scope of development envisioned. He answered questions from his attorney concerning the type of access necessary to develop the property in thirty-five acre residential parcels. His son, Norman Lewis, testified that he had researched the possibility of subdividing the Lewis property into ten acre sites and that the easement sought was designed to provide a twenty foot wide travel surface, including shoulders. Civil engineer Chris Purrington, who Lewis hired to design the easement, testified that the travel surface of the roadway he designed is "just about," or "more or less" twenty-five feet wide. Lewis sought to condemn a seventy foot wide easement to accommodate "ingress, egress, utilities, drainage, maintenance, snow storage, and emergency access for the benefit of the Lewis property, over, under, and across the Glenelk property."
Slip op. at 5. The trial court denied the request for immediate possession, and in his motion for reconsideration Lewis argued that '[w]hile it may be unclear whether or not the Lewis property will ultimately be developed for one single-family residence or as many as thirty single-family residences[.]" Based on this and the earlier testimony, the court concluded that Lewis' development plans were "speculative" and were not sufficiently realized to make it "necessary" to condemn an access, and dismissed the case.
The court of appeals reversed, concluding that it was enough that the proposed easement to be condemned was consistent with the relevant zoning regulations.
The Colorado Supreme Court rejected that rationale, holding that in a private condemnation, the condemning landowner must show "necessity," which means:
when a petitioner seeks to condemn a private way of necessity for access to property the condemnor wishes to develop in the future, the condemnor must demonstrate a purpose for the condemnation that enables the trial court to examine both the scope of and necessity for the proposed condemnation, so that the burden to be imposed upon the condemnee’s property may be ascertained and circumscribed through the trial court’s condemnation order.Slip op. at 7. Proof of necessity "turns on the unique facts and circumstances of each particular case," slip op. at 13, and the scope of the condemned easement must be limited to the property that is "indispensable" to the condemnor's intended use of his own property. Because Lews could not articulae a concrete development proposal and did not begin any process for land use approvals, the Supreme Court found it impossible to say that he met his burden of showing necessity. Because his proposal was "variable" (somewhere between 1 and 30 dwellings on the property), the trial court could not evaluate whether the easement to be taken was limited to what was necessary. Slip op. at 16-17.
Because "neither the road travel surface width, nor the intended magnitude of development envisioned by Lewis is clear," slip op. at 17-18, the trial court correctly dismissed the condemnation action due to the "evidentiary shortcomings" in the record. The Supreme Court rejected the court of appeals' rationale that compliance with zoning regulations is the test; zoning regulations limit the scope of the condemned easement, but are defined by the intended use. Slip op. at 19.
This case is important because it clarifies that a private landowner cannot condemn the land of her neighbor when all she has are vague, undefined plans to develop her own land. A claim that access is necessary should be reviewed by a court with an eye towards actual development proposals, and not pie-in-the-sky asserted plans.
