20 March 2006

Church Eminent Domain Award Reconsidered

Marilyn Hickey Ministries, a megachurch complex at Orchard and I-25 in the Denver Tech Center, received an eminent domain award in connection with the T-Rex highway and light rail construction project. It claimed that it suffered a taking of property in connection with that project.

In and of itself, this isn't exceptional. Eminent domain awards in connection with construction projects are common place. And, the trial court and court of appeals affirmed the award. But, there is something unusual about this case. The contested damages don't involve a seizure of land that belonged to the church. The church claimed that it was damaged by the loss of view that passing drivers previously had of it (and the associated sign) from the highway (the land that held the sign itself does not appear to have been taken, just blocked visually by the project).

This is very far afield in eminent domain law. Usually, the standard that must be met is that a taking happens when the land has been denied any economically meaningful use whatsoever. Indeed, in connection with the Northwest Parkway Project, the road building attorneys routinely make it their practice to ask for a mere easement, rather than an actual taking of land, for as much territory as they can ask for with a straight face, even when the land covered by the easement in places like the hill alongside an exit ramp can't even be used for a camp ground or a soccer field. They then argue that, at least, this allows owners to comply with setback and open space requirements.

Here, the church claims it is harmed by the loss of view, but, it doesn't even claim to have a recorded view easement. The issue the Colorado Supreme Court will review is:

Whether the court of appeals erred in ruling that the landowner in this case, whose property is being taken by eminent domain for a State transportation project, has a cognizable right to damages for the impairment of passing motorists’ view of the landowner’s property.

Settlement is unlikely, because the State of Colorado and the RTD Board who are appealing, have a long term interest in having the precedent overturned, as it would greatly increase the burden of building roads, rail lines and other public projects going forward. Given the wording of the issue that the Colorado Supreme Court chose to take up, the future doesn't look good for Marilyn Hickey Ministries.

The litigation will likely hinge on the issue of whether you can sue for damages that wouldn't be taking in isolation, if there is some taking of land to provide a hook, so to speak, that gives the trial court a right to look at the bigger picture.

It will be particularly interesting to see what kind of ruling newly appointed Justice Eid provides in this case. Eminent domain law is an area in which there is a great deal of precedent to which the Colorado Supreme Court could turn to overturn the award to the church, but this is also a conservative hot button issue with conservatives arguing for an expansive definition of a governmental taking which can then be used to oppose a wide variety of governmental regulations that impact property values, even when they don't actually represent a seizure by the government of physical property. For example, under the interpretation favored by conservatives, a dive bar owner whose business was destroyed by a smoking ban would have a right to sue the government for compensation for the loss of the value of his business, even though he continued to own all of the physical property associated with it.

The issue is also complicated by the fact that Colorado, as a relatively new and not terribly urban state, doesn't have a well developed law of private rights to views.

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