On September 26, 2016, the Colorado Supreme Court, in a 7-0 opinion on an original proceeding, held the Colorado Department of Transportation (CDOT) has no condemnation authority under a 1994 resolution that unlawfully delegated to CDOT the Colorado Transportation Commission’s eminent domain power and abdicated the Transportation Commission’s statutory duty to resolve at open meetings which particular lands are to be taken.

Because the Transportation Commission “did not itself approve the taking of U-Haul’s particular property by written resolution, in the manner required by statute,” the Court dismissed as unauthorized CDOT’s petition to take 1.3 acres of U-Haul’s land in Lakewood, Colorado. Earlier this year, the Court stayed the condemnation and accepted U-Haul’s emergency appeal from an order of the trial court denying U-Haul’s request to dismiss and instead granting CDOT’s motion for immediate possession of U-Haul’s property.

The Court applied the nondelegation doctrine in analyzing whether CDOT possessed condemnation authority under a 1994 Transportation Commission resolution directing CDOT’s executive director to “handle” the approval of land acquisitions, which the executive director, in turn, delegated to CDOT’s chief engineer. Since 1994, CDOT’s engineers have both proposed and approved their own land acquisition proposals without Transportation Commission involvement or public hearing.

In holding that the 1994 resolution “amounts to an abdication of the commission’s statutory duty to decide which parcels it will serve the public interest or convenience to take,” the Court distilled the principles of the nondelegation doctrine:

In this jurisdiction, we have long recognized the general rule that a municipal corporation, or quasi-municipal corporation, like the corporate body that is the transportation commission, may delegate to subordinate officers and boards powers and functions that are ministerial or administrative in nature, leaving little or nothing to the judgment or discretion of the subordinate; however, legislative or judicial powers involving judgment and discretion on the part of the municipal or quasi-municipal corporation may not be delegated unless such delegation has been expressly authorized by the legislature

Applying these delegation principles to its evaluation of the 1994 resolution under the Transportation Commission’s enabling legislation, the Court held that

the decision whether, and if so precisely how and for how much, to take particular property, for a particular proposed highway alteration project, clearly involves the kind of judgment and discretion that is non-delegable in the absence of express statutory authorization. Not only is the statute lacking in any express authorization to do so, but virtually the entire statutory scheme, creating and assigning specific powers and duties separately to the transportation commission, militates against a legislative intent to sanction such a delegation.

Accordingly, the Court held the delegation unlawful and concluded that CDOT did not have authority to pursue the U-Haul condemnation because the Transportation Commission “did not itself approve the taking of U-Haul’s particular property by written resolution, in the manner required by statute.”

The holding will significantly impact pending and future condemnation cases in Colorado. Pending CDOT taking cases are now subject to dismissal for want of authority.

Going forward, the Transportation Commission must now approve the taking of particular properties by resolution at open meetings, which will afford landowner’s the opportunity to be heard to object for the first time in 22 years. The Court underscored the General Assembly’s mandate that the Transportation Commission make its nondelegable condemnation decisions at open meetings, quoting the statutory dictate that “[t]he commission shall act only by resolution adopted at a duly called meeting of the commission.” (Emphasis in opinion). The Transportation Commission may now act to minimize the scope and impact of highway takings after hearing landowner objections at open meetings.