Chapter 11 - § 11.9 • ACCESS DAMAGE CLAIMS

• Jurisdiction: Colorado

§ 11.9 • ACCESS DAMAGE CLAIMS

Numerous Colorado cases address the circumstances under which a landowner may be entitled to recover damages associated with access takings or access impairment to property within the context of a condemnation action. Historically, Colorado law recognizes that a landowner who abuts on a street or highway has a right to reasonable ingress and egress.³⁹ However, this right is not absolute because the right of access may be reasonably regulated under the government's police power.⁴⁰ The question then becomes: When does the regulation of access cross the line into an unlawful taking for which just compensation must be paid?⁴¹

A long line of Colorado cases has dealt with impairment of an abutting landowner's right of access and the effect of impairment on the damage issue in an eminent domain proceeding.⁴² These cases establish various general rules that have been applied over time. For example, compensation for a limitation or loss of access is required if the limitation or loss substantially interferes with an owner's means of ingress and egress to and from his or her property.⁴³ However, substantial interference cannot be shown by mere evidence that the access has been made more inconvenient or more circuitous, which is often referred to as the "circuity of access" rule.⁴⁴ The rationale behind this rule (commonly referred to as the general versus special damage distinction) was articulated in the leading access case of State Department of Highways v. Davis, where a highway department took land from an owner to construct a frontage road to service a limited access highway.⁴⁵ There, the supreme court held:

The rationale for denying compensation for limitation or loss of access manifested by circuity of route is that the inconvenience suffered by the landowner is identical in kind to that suffered by the community at large, and the landowner's inconvenience is only greater in degree.⁴⁶

The Davis court then concluded that in an access situation, "whether or not property is actually taken is immaterial to the issue of damages."⁴⁷ Rather, compensation is only due "when the remainder is damaged by a substantial limitation or loss of access."⁴⁸ Applying this law to the facts in Davis, the court ruled that there was no substantial impairment of access because the landowner retained the same two points of access to the property that had existed in the before situation. The court reasoned that the fact that the landowner had to travel a greater distance to gain access to the highway than in the before condition constituted a general damage or a "circuity of route" situation, for which compensation was not due.

Several years later, in La Plata Electric Ass'n v. Cummins, the supreme court was called on to explain the Davis holding in the context of a damage claim for loss of view...