The admissibility of a particular piece of evidence can make an enormous difference in the amount of just compensation awarded at an eminent domain trial, sometimes on the order of millions of dollars. In Colorado, eminent domain cases that are tried before a commission involve a hybrid model, in which the court has some responsibilities and others belong to the commissioners. The Colorado Court of Appeals recently issued an opinion in RTD v. 750 West 48th Ave that affects the allocation of responsibilities between the court and commission and may significantly impact case strategy in Colorado condemnation actions.

The court first held that a trial court has authority, after a commissioner trial has concluded, to overrule the commission's decision on the admissibility of evidence and instruct the commission on how to use the evidence in determining just compensation. The court also concluded that the commission may modify the trial court's pre-trial ruling on the admissibility of evidence, based on a developed trial record. Taken together, these holdings mean that the parties may obtain rulings on evidentiary issues at least three times during the course of an eminent domain case—once in pre-trial motions, again during the commissioner trial, and finally through post-trial objections to the judge.

RTD filed a petition for certiorari on both evidentiary rulings (whether the trial court can overrule the commission and whether the commission can overrule the trial court). The Colorado Supreme Court has not taken action on the petition at the time of writing this alert. If left intact, the 750 West decision may dramatically alter trial strategy and approach to settlement discussions in eminent domain cases. It may also allow for second (and third) chances to challenge unfavorable evidentiary rulings.