Under Colorado law, a property owner has an inverse condemnation claim when "a governmental or public entity with the power of eminent domain takes action that 'substantially depriv[es] the property owner of the use and enjoyment of the property, but the [entity] has not formally brought condemnation proceedings.'" Kobobel v. Colo. Dep’t of Nat. Res., 249 P.3d 1127, 1133 (Colo. 2011).
In Sos v. Roaring Fork Transportation Authority, No. 16CA1198 (Nov. 16, 2017), the Colorado Court of Appeals concluded the RFTA possesses the power of eminent domain (and thus could be liable for inverse condemnation), and, more interestingly, that the RFTA relying on Mr. Sos's property for lateral support for RFTA's retaining wall was a "damaging."
Sos has a tire business, and there is a dirt embankment on the portion of his lot adjacent to RFTA's property, where Sos stored tires and stuff. RFTA built a new bus station on its lot, and as part of that construction, built a retaining wall on the property line. The wall relied on Sos's embankment for support.
This thwarted Sos's plans for that part of his property, unless he undertook some extra engineering to shore up RFTA's wall. Slip op. at 16 ("the bus station wall imposes a new force on Sos’ embankment to such a degree that an engineered remedy is now required before the embankment can be excavated"). The opinion has a photo (above) of the embankment and the wall (we wish more opinions did this, because it really helps to visualize the scene).
Sos sued for inverse condemnation, and the trial court agreed all the elements were there. The court of appeals affirmed, concluding that forcing Sos to keep the embankment there qualified as a "damaging" under Colorado law:
RFTA’s construction placed a new and substantial limit on Sos’ ability to use and enjoy his property. In building the bus station wall as designed, RFTA exercised “dominion and control” over the embankment, thereby limiting Sos’ dominion over his property.
Slip op. at 17. The court admitted that yes, this sort of "torty" (that's our own paraphrase, not the court's words, obviously), but held that it didn't make much of a difference.
Although Fowler — addressing a temporary taking involving physical damage to property severe enough to remove it from the one-hundred-year floodplain and lift protections from development on the land — applied tort principles to an inverse condemnation case involving different facts, we are not precluded from applying relevant legal principles to this case, regardless of whether the principles arose from a taking, property damage, or a tort. See Fowler Irrevocable Tr. 1992-1 v. City of Boulder, 17 P.3d 797, 799 (Colo. 2001).
Id. at n.3.
Finally, the court affirmed the trial court's conclusion that restitution to Sos was a good measure of damages, and diminution of value was not, as RFTA argued, the sole way to figuring these out. Trial courts have a lot of flexibility to determine these things, and the court's determination that diminution of value would leave Sos shortchanged was not an abuse of its discretion.
Sos v. Roaring Fork Transportation Auth., No. 16CA1198 (Colo. App. Nov. 16, 2017)
