Chapter 19 - § 19.7 • THE DAMAGES CLAUSE OF THE COLORADO CONSTITUTION

• Jurisdiction: Colorado

§ 19.7 • THE DAMAGES CLAUSE OF THE COLORADO CONSTITUTION

Unlike the Fifth Amendment of the U.S. Constitution, Article II, § 15 of the Colorado Constitution assumes a constitutional violation if property has been "damaged": "Private property shall not be taken or damaged, for public or private use, without just compensation."²⁴² A plaintiff may bring a claim under this clause only if the property has been "substantially damaged by public uses abutting their lands but whose lands have not been physically taken."²⁴³ In addition, the harm suffered by the landowner must be "different from and not merely greater in degree than that suffered by the general public."²⁴⁴ For example, in Claasen v. City & County of Denver,²⁴⁵ the plaintiffs sued the City & County of Denver under the damages clause for noise, pollution, and vibration damages that they suffered when planes flew overhead in order to land at the nearby airport. The Colorado Court of Appeals held that amounts of noise and pollution suffered by the plaintiffs were different in degree but not kind from that suffered by the public at large, and therefore found that there had been no "damage" within the meaning of Article II of the Colorado Constitution.²⁴⁶ However, in Sos v. Roaring Fork Transportation Authority, the Colorado Court of Appeals found that although the plaintiff's land had not been physically taken by the government, the plaintiff lost full use and enjoyment of his property because the government's "intentional construction" of a bus station wall relied on the plaintiff's land remaining unaltered. This loss of use established the special injury required under Colorado's Damages Clause.²⁴⁷

A somewhat unresolved issue involves the standard of care required by the government defendant in order to find that damage has occurred. In Trinity Broadcasting of Denver, Inc. v. City of Westminster,²⁴⁸ water leakage from a city-owned water tank spread onto neighboring land and damaged the plaintiff's building. The Colorado Supreme Court posed the question, "whether a governmental instrumentality can effect a taking through negligence."²⁴⁹ The court answered in the negative, holding that simple negligence was not enough; in order for a taking to be found, a government's actions must be so "grossly negligent as to raise its conduct to being deliberate."²⁵⁰ However, the court noted that these issues had not been "thoroughly briefed," implying that issue would have to wait for another case.²⁵¹

In addition, a...