1                 Opinions of the Colorado Supreme Court are available to the
2             public and can be accessed through the Judicial Branch’s homepage at
3               http://www.courts.state.co.us. Opinions are also posted on the
4               Colorado Bar Association’s homepage at http://www.cobar.org.
5
6                                                         ADVANCE SHEET HEADNOTE
7                                                                  September 26, 2016
8
9                                            2016 CO 62
0
1   No. 16SA75, Department of Transportation, State of Colorado v. Amerco Real Estate
2   Company—Administrative Law and Procedure—Delegation of Authority—
3   Condemnation Proceedings.
4
5         Amerco and U-Haul petitioned for relief pursuant to C.A.R. 21 from an order of

6   the district court, denying their request to dismiss the transportation department’s

7   Petition in Condemnation and instead granting the department’s motion for immediate

8   possession of the subject property, which is owned by Amerco and occupied by

9   U-Haul.     The district court rejected U-Haul’s assertion that the transportation

0   commission’s authorization for the department to condemn property for highway

1   purposes, in the absence of any resolution by the commission approving the acquisition

2   of the particular property to be taken, at a public meeting, amounted to an unlawful

3   delegation of quasi-legislative power.

4         The supreme court issued its rule to show cause and now makes the rule

5   absolute, remanding to the district court with orders to dismiss the department’s

6   Petition in Condemnation. The supreme court holds that because the commission’s

7   enabling legislation contemplates that it alone must decide whether the public interest

8   or convenience will be served by a proposed alteration of a state highway, and that
1   decision must be made in consideration of, among other things, the portions of land of

2   each landowner to be taken for that purpose and an estimate of the damages and

3   benefits accruing to each landowner whose land may be affected thereby, commission’s

4   general authorization, to the extent it purports to delegate to the department the choice

5   of particular properties to be taken for such a highway project and the manner of their

6   taking, constituted an unlawful delegation of the commission’s statutorily imposed

7   obligation.
1

2

3                        The Supreme Court of the State of Colorado
4                          2 East 14th Avenue • Denver, Colorado 80203


5                                          2016 CO 62

6                               Supreme Court Case No. 16SA75
7                            Original Proceeding Pursuant to C.A.R. 21
8                      Jefferson County District Court Case No. 15CV31797
9                             Honorable Christopher J. Munch, Judge

0                                             In Re
1                                          Petitioner:
2                       Department of Transportation, State of Colorado,
3                                               v.
4                                         Respondents:
5   Amerco Real Estate Company, a Nevada corporation; Wells Fargo Foothill, Inc., a California
6    corporation; Wells Fargo Bank, National Association, a United States bank; U-Haul Co. of
7   Colorado; Merrill Lynch Commercial Finance Corporation, a Delaware corporation; Public
8   Service Company of Colorado, a Colorado corporation; Margaret Chapman, Public Trustee
9             of Jefferson County; and Tim Kaufman, Treasurer of Jefferson County.
0                                     Rule Made Absolute
1                                            en banc
2                                       September 26, 2016
3
4   Attorneys for Petitioner:
5   Cynthia H. Coffman, Attorney General
6   Gregg E. Carson, Senior Assistant Attorney General
7   Lauren M. Curran, Assistant Attorney General
8    Denver, Colorado
9
0   Attorneys for Respondents Amerco Real Estate Company and U-Haul Co. of
1   Colorado:
2   Bryan Cave LLP
3   Stephen D. Gurr
4   Cynthia Lowery-Graber
5    Denver, Colorado
6
1   No appearance on behalf of: Wells Fargo Foothill, Inc., a California Corporation; Wells
2   Fargo Bank, National Association, a United States Bank; Merrill Lynch Commercial
3   Finance Corporation, a Delaware Corporation; Public Service Company of Colorado, a
4   Colorado Corporation; Margaret Chapman, Public Trustee of Jefferson County; and Tim
5   Kaufman, Treasurer of Jefferson County.
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1   JUSTICE COATS delivered the Opinion of the Court.
2   JUSTICE GABRIEL concurs in the judgment, and CHIEF JUSTICE RICE and JUSTICE
3   HOOD join in the concurrence in the judgment.

                                              2
¶1    Amerco and U-Haul petitioned for relief pursuant to C.A.R. 21 from an order of

the district court denying their request to dismiss the transportation department’s

Petition in Condemnation and instead granting the department’s motion for immediate

possession of the subject property, which is owned by Amerco and occupied by

U-Haul.    The district court rejected U-Haul’s assertion that the transportation

commission’s authorization for the department to condemn property for highway

purposes, in the absence of any resolution by the commission approving the acquisition

of the particular property to be taken, at a public meeting, amounted to an unlawful

delegation of quasi-legislative power.

¶2    We issued our rule to show cause. Because the commission’s enabling legislation

contemplates that it alone must decide whether the public interest or convenience will

be served by a proposed alteration of a state highway, and that decision must be made

in consideration of, among other things, the portions of land of each landowner to be

taken for that purpose and an estimate of the damages and benefits accruing to each

landowner whose land may be affected thereby, the commission’s general

authorization, to the extent it purports to delegate to the department the choice of

particular properties to be taken for such a highway project and the manner of their

taking, constitutes an unlawful delegation of the commission’s statutorily imposed

obligation. The rule is therefore made absolute and the matter is remanded to the

district court with orders to dismiss the department’s Petition in Condemnation.




                                           3
                                            I.

¶3     In October 2015, the Colorado Department of Transportation filed a Petition in

Condemnation to acquire land owned by Amerco Real Estate Co. and occupied by

U-Haul Co., asserting that acquisition of the property in question was necessary for a

highway expansion project at the US6 and Wadsworth Boulevard Interchange. The

petition specified, “This is an eminent domain proceeding brought pursuant to the

procedures set forth in Colorado Revised Statutes (‘C.R.S.’) §§ 38-1-101 et seq.” The

petition further alleged that “[p]ursuant to §§ 43-1-208, 43-1-209, and 43-1-210, C.R.S.,

CDOT is vested with the power of eminent domain,” and that “[t]his statutory

authority permits CDOT to acquire and condemn property, including the property

subject to this action.”   Shortly after filing its petition, the department moved for

immediate possession, and a hearing was set for February 2016.

¶4     U-Haul filed a brief in opposition to the motion for immediate possession, asking

that the district court, in addition to denying the motion, also dismiss the department’s

entire petition for want of authority to condemn its land. U-Haul asserted that the

department lacked the legal authority to condemn its particular property, on the

grounds that the transportation commission, the entity statutorily authorized to acquire

land by condemnation for such highway purposes, had failed to comply with the

applicable statutory prerequisites, including resolving in the minutes of a public

meeting, on the basis of a statutorily required report by the chief engineer, not only that

the project in general, but also the acquisition of any properties required for its

completion, would serve the public interest or convenience. U-Haul attached, and


                                            4
directly disputed the adequacy of, various documents upon which the department

based its claim of authority, most notably a 1994 resolution of the transportation

commission directing the executive director of the department to handle, on behalf of

the commission, the approval of land acquisitions, and a specific document entitled

“Land Acquisition Approval,” signed by the chief engineer of the department, which

included for acquisition by the department the properties of U-Haul and some twenty

other landowners, having a total estimated value of over $3 million.          The “Land

Acquisition Approval” itself specified that the transportation commission had, by

resolution, previously directed “the Executive Director of the Department of

Transportation, or his delegatee” to handle approval for land acquisitions relating to

previously approved state highway projects, and that the executive director had, in

turn, delegated such authority to the chief engineer. This “Land Acquisition Approval”

by the chief engineer also included a reference to a 2009 resolution of the commission,

approving the US6/Wadsworth project at issue.

¶5    After hearing the department’s motion, the district court declined to dismiss the

petition and instead granted the motion for immediate possession. Noting that neither

side presented witnesses, but also that neither side disputed the admission of exhibits at

the hearing or challenged the attached excerpts from commission minutes as failing to

represent as accurate the record of the commission’s actions, the court made written

findings of fact and conclusions of law.         The court largely reasoned that the

commission’s enabling statutes permitted it to conduct an eminent domain proceeding

itself but also permitted it to acquire property by the procedure dictated by the eminent


                                            5
domain provisions of title 38; that its 1994 resolution did not purport to delegate the

commission’s power to condemn property, but merely directed the chief engineer to

exercise that power to acquire certain specific properties according to the procedures

dictated by the eminent domain statutes; and that U-Haul’s right to due process was not

adversely affected by this choice of the commission.

¶6     Amerco and U-Haul petitioned for relief pursuant to C.A.R. 21 from the district

court’s order, and this court issued its rule to show cause.

                                            II.

¶7     Exercise of this court’s original jurisdiction is entirely within its discretion. We

have often deemed relief pursuant to C.A.R. 21 appropriate to correct an abuse of

discretion or an excess of jurisdiction where no other adequate remedy exists. Because

the order at issue is one for immediate possession by the transportation department for

a highway expansion project, although U-Haul would nevertheless be entitled to

compensation, in the absence of intervention by this court, its property would be taken

and destroyed.    In addition, and of particular importance to our decision in this

instance, the dispute involves the lawfulness of a broad delegation of authority to

condemn that has been relied on by the department for its regular practice for more

than twenty years and will undoubtedly create uncertainty with regard to the

department’s future practice until ultimately resolved. Finally, the absence of any

factual dispute and the purely legal nature of the statutory interpretation at issue

renders the development of any additional record unnecessary.




                                             6
                                            III.

¶8     A department of transportation is created at title 43, article 1, part 1, of the

revised statutes, to be headed by an executive director, appointed by the governor with

the consent of the senate, to serve at the pleasure of the governor. § 43-1-103, C.R.S.

(2016). In the same part is created the office of the chief engineer. § 43-1-109, C.R.S.

(2016). The chief engineer is to be appointed by the executive director, id., and is to

function as the director of the engineering, design, and construction division of the

department, § 43-1-110, C.R.S. (2016). On behalf of the department of transportation,

the chief engineer has the authority to take and hold and to contract to take and hold

title to real property, or any interest therein, in the name of the department of

transportation, whether such real property or interest is used, or intended to be used,

for right-of-way or maintenance purposes or for any other purpose authorized by law.

§ 43-1-111, C.R.S. (2016).

¶9     A separate corporate body, to be known as “the transportation commission of

Colorado,” is also created at title 43, article 1, part 1, to consist of eleven members, one

each from eleven statutorily designated districts throughout the state. § 43-1-106, C.R.S.

(2016). Although these members are similarly appointed by the governor with the

consent of the senate, they do not serve at the pleasure of the governor, but rather serve

statutorily prescribed, four-year terms. Id. The powers and duties of the commission,

which are distinct from those of the department, are delineated in some detail by

statute, see id., which includes a provision that “[t]he commission shall act only by

resolution adopted at a duly called meeting of the commission, and no individual


                                             7
member of the commission shall exercise individually any administrative authority

with respect to the department,” § 43-1-106(11) (emphasis added).

¶10       As we have often noted in the past, the right to condemn private property is a

creature of statute and exists to the extent, and only to the extent, permitted by the

General Assembly. See, e.g., Dep’t of Transp. v. Gypsum Ranch Co., 244 P.3d 127, 129

(Colo. 2010). The power of eminent domain, including the procedures by which that

power may be exercised and authorization to exercise it under various specific

circumstances, is governed by title 38, articles 1 to 7, of the revised statutes. Title 38

expressly recognizes the authority of both the department and the commission to

exercise the power of eminent domain, but only as specifically granted, under distinctly

different circumstances, by other expressly enumerated statutory provisions, including

those of title 43. See § 38-2-101, C.R.S. (2016).

¶11       Central to the issue before this court today, section 43-1-208, C.R.S. (2016),1

provides for the commission’s approval of any proposed changes to state highways.



1   In its entirety, this section says:
          (1) The chief engineer, when he deems it desirable to establish, open,
          relocate, widen, add mass transit to, or otherwise alter a portion of a state
          highway or when so required by the commission, shall make a written
          report to the commission describing the portion of the highway to be
          established, opened, added to, or changed and the portions of land of each
          landowner to be taken for the purpose and shall accompany his report
          with a map showing the present and proposed boundaries of the portion
          of the highway to be established, opened, added to, or changed, together
          with an estimate of the damages and benefits accruing to each landowner
          whose land may be affected thereby.
          (2) If, upon receipt of such report, the commission decides that public
          interest or convenience will be served by the proposed change, it shall


                                               8
Section 208(1) specifies that when the chief engineer “deems it desirable to establish,

open, relocate, widen, add mass transit to, or otherwise alter a portion of a state

highway,” or when the commission requires him to do so, he is to “make a written

report to the commission” containing specifically delineated information. Id. That

report is to describe the portion of the highway to be established, opened, added to, or

changed, as well as the portions of land of each landowner to be taken for that purpose;

and it is to be accompanied by a map showing the present and proposed boundaries of

the portion of the highway to be established, opened, added to, or changed, together


       enter a resolution upon its minutes approving the same and authorizing
       the chief engineer to tender each landowner the amount of damages, as
       estimated by him and approved by the commission. In estimating the
       amount of damages to be tendered a landowner, due account shall be
       taken of any benefits which will accrue to such landowner by the
       proposed action. The amount of benefit shall not in any case exceed the
       amount of damages awarded.
       (3) Any person owning land or having an interest in any land over which
       any proposed state highway extends who is of the opinion that the tender
       made to him by the transportation commission is inadequate, personally
       or by agent or attorney on or before ten days from the date of such tender,
       may file a written request addressed to the transportation commission for
       a jury to ascertain the compensation which he may be entitled to by reason
       of damages sustained by altering, widening, changing, or laying out such
       state highway. Thereupon the transportation commission shall proceed in
       the acquisition of such premises, under articles 1 to 7 of title 38, C.R.S. The
       transportation commission also has the power and is authorized to
       proceed in the acquisition of the lands of private persons for state
       highway purposes, according to said articles 1 to 7 of title 38, C.R.S.,
       without tender or other proceedings under this part 2.
       (4) Notwithstanding any other provision of this section, the commission
       may not acquire through condemnation any interest in oil, natural gas, or
       other mineral resources beneath land acquired as authorized by this
       section except to the extent required for subsurface support.

§ 43-1-208, C.R.S. (2016).


                                             9
with an estimate of the damages and benefits accruing to each landowner whose land

may be affected thereby. Id. If, upon receipt of this report, the commission decides that

the public interest or convenience will be served by the proposed change, it is directed

to enter a resolution in its minutes approving the project. § 43-1-208(2). Similarly, to

acquire the portions of land to be taken for this purpose, the statute prescribes a

procedure whereby the commission is to enter a resolution in its minutes authorizing

the chief engineer to tender each landowner the amount of damages approved by the

commission; and in the event the landowner declines that tender, in the manner and

within the time permitted by statute, the commission is directed to acquire the property

in question according to the condemnation provisions of title 38. § 43-1-208(2), (3).

Alternatively, the transportation commission is authorized to proceed “in the

acquisition of lands of private persons for state highway purposes” directly, according

to the provisions of title 38, “without tender or other proceedings under this part 2.”

§ 43-1-208(3).

¶12    Statutes have meaning according to the legislative intent expressed in the

language of those statutes themselves. People v. Jones, 2015 CO 20, ¶ 10, 346 P.3d 44,

48; Pham v. State Farm, 2013 CO 17, ¶ 13, 296 P.3d 1038, 1043; Gypsum Ranch Co., 244

P.3d at 131; Frank M. Hall & Co. v. Newsom, 125 P.3d 444, 448 (Colo. 2005). Although

interpretive aids are available to assist in determining which one of various reasonable

interpretations of ambiguous statutory language actually embodies the legislative

intent, People v. Owens, 228 P.3d 969, 972 (Colo. 2010), if the language of a statute is

clear and unambiguous, and is not in conflict with other statutes, it must be applied as


                                           10
written. Holcomb v. Jan-Pro Cleaning Sys., 172 P.3d 888, 890 (Colo. 2007). While there

will often be room for debate about the breadth of surrounding text to be considered in

assessing whether particular language can have more than one reasonable

understanding, and is therefore considered ambiguous, there can be little question that

the meaning of words or phrases cannot be separated from the broader context in which

they are used and the function they serve, according to accepted rules of grammar and

syntax, in the very sentence in which they appear. See Robinson v. Shell Oil Co., 519

U.S. 337, 341 (1997).

¶13    Although much has been made by the parties of the phrase, “without . . . other

proceedings under this part 2,” this arguably broad exemption is greatly circumscribed

by the sentence in which it appears. Read as a whole, that sentence merely provides an

alternative method for the commission “to proceed in the acquisition of the lands of

private persons for state highway purposes.” It in no way purports, and cannot be

reasonably understood, to relieve the commission of its statutory obligation to assess,

prior to acquiring property for that purpose, whether and under what circumstances

the costs and benefits of a proposed highway change would be in the public interest or

convenience.     The statute places squarely in the hands of this geographically

representative and comparatively independent corporate body the responsibility for

determining not only which of the enumerated kinds of highway projects should be

approved, but also which properties need be taken for that purpose and the amount, or

the method for calculating the amount, that may be paid for each of them. With regard,

in particular, to the acquisition of lands for the kinds of highway projects specified in


                                           11
section 208, the commission is therefore assigned the choice whether to cause to be

tendered specific amounts to the landowners in question or to submit to the evaluation

of their properties by the statutory eminent domain mechanism; and if the commission

decides on any particular tender that turns out to be insufficient, it is given the choice

whether to subject the state fisc to the uncertainty of condemnation proceedings or

(unless it is equitably estopped by its prior conduct from doing so, see Piz v. Hous.

Auth. of the City & Cty. of Denver, 289 P.2d 905, 913 (Colo. 1955); see also Wheat Ridge

Urban Renewal Auth. v. Cornerstone Grp. XXII, L.L.C., 176 P.3d 737, 742 (Colo. 2007))

to abandon its pursuit of that particular property altogether.

¶14   Unlike those circumstances in which the department is statutorily vested with

the authority to determine whether to acquire property by condemnation, such as

whether to acquire the remainder of a parcel, some part of which has already been

determined to be taken, see § 43-1-210(1), C.R.S. (2016), or whether to acquire “excess

right-of-way,” see § 43-1-210(2), the decision to approve the acquisition of property for

the kinds of highway alterations enumerated in section 208 in the first instance, and

whether to limit the amount for which that property may be acquired, is a decision

vested solely in the commission, see § 43-1-208(3).        Although the department is

therefore clearly an entity authorized to exercise the power of eminent domain under

the statutorily specified circumstances, and the chief engineer may clearly act on behalf

of the department in this regard, the question posed by U-Haul’s challenge to the

district court’s order at issue here is whether the commission may delegate the choice of

which properties are to be taken, how much the state is willing to tender for a particular


                                            12
parcel of property, and/or whether to acquire that property at whatever cost may be

determined by the statutory condemnation process.

¶15    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. Big Sandy Sch. Dist. No. 100-J, Elbert Cty. v. Carroll, 433 P.2d 325,

328 (Colo. 1967), overruled on other grounds by Normandy Estates Metro. Recreation

Dist. v. Normandy Estates, Ltd., 553 P.2d 386 (Colo. 1976). There would appear to be

little question that the initiation and conduct of condemnation proceedings could and

almost certainly would have to be delegated to the legal staff or representatives of the

commission or department, but 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.




                                             13
¶16   The 1994 resolution upon which the department relies directs it or its delegatee

to handle, on the commission’s behalf, “both the approval for land acquisition actions

and the tendering of payment to landowners for damages in connection with

previously approved highway projects.” Whether this language is better understood to

delegate to the department the choice to acquire land for an approved project either by

first tendering an amount to the landowner or by proceeding directly by condemnation,

or to simply delegate the choice of which properties to take by condemnation and

thereafter tender payment to each such landowner in the amount determined by that

process, it nevertheless amounts to an abdication of the commission’s statutory duty to

decide which parcels it will serve the public interest or convenience to take and whether

the public interest or convenience will be served only if those parcels, or any of them,

can be acquired for a specific, preapproved amount. Although the 1994 resolution

recounts that the commission considers the land acquisition costs on a project-by-

project basis in approving its fiscal year budget, and that the commission simply seeks

to avoid duplication of effort, neither the 2009 resolution approving this highway

project nor a record of any budgetary proceedings presented to the district court or this

court suggests a parcel-by-parcel determination by the commission. Quite the contrary,

the department expressly asserts, and the district court clearly found, that by

proceeding directly by condemnation, as permitted by section 43-1-208(3), the

commission is relieved of any obligation to make judgments concerning the public

interest or convenience required at subsections 208(1) and (2).




                                           14
¶17   Because we understand section 43-1-208 to plainly require the transportation

commission to assess the public interest or convenience with regard to the particular

properties to be taken for a proposed highway change and any limitations on the

damages to be paid for those properties; and because we understand the last sentence of

subsection 208(3), by its own terms, as merely providing an option for the commission

to acquire the particular properties to be taken for any such project directly by

condemnation, in lieu of tendering a preapproved amount of damages for them and

submitting to the proceedings potentially attendant upon such a tender; we find the

commission’s 1994 resolution ineffective to delegate to the department the choice of the

particular properties to be taken, whether by specific tender or petition in

condemnation.

                                           IV.

¶18   Because the commission could not delegate its statutory obligation to determine

the specific properties it would serve the public interest or convenience to take for the

US6 and Wadsworth Boulevard Interchange expansion project and did not itself

approve the taking of U-Haul’s particular property by written resolution, in the manner

required by statute, the rule is made absolute, and the matter is remanded to the district

court with orders to dismiss the department’s Petition in Condemnation.


JUSTICE GABRIEL concurs in the judgment, and CHIEF JUSTICE RICE and
JUSTICE HOOD join in the concurrence in the judgment.




                                           15
JUSTICE GABRIEL, concurring in the judgment.

¶19     I agree with the majority’s ultimate conclusion that on the facts presented here,

the Colorado Department of Transportation (the “Department”) did not have the

authority to pursue the condemnation at issue. I do not, however, agree with the

majority’s construction of section 43-1-208, C.R.S. (2016), and therefore, my analysis

differs from that of the majority. Accordingly, I respectfully concur in the judgment

only.

                                      I. Analysis

¶20     Because the petition at issue was brought by the Department, I begin by

addressing the Department’s condemnation authority and conclude that the

Department did not have either statutory or properly delegated authority to condemn

the property at issue. I then discuss why I disagree with the majority’s construction of

section 43-1-208.

                    A. The Department’s Condemnation Authority

¶21     As the majority observes, the right to condemn private property in Colorado is a

creature of statute and exists only to the extent permitted by our legislature. Maj. op.

¶ 10.   Accordingly, “[w]e have often held that narrow construction is the rule in

determining the scope of the condemnation power delegated pursuant to legislative

enactment.” Coquina Oil Corp. v. Harry Kourlis Ranch, 643 P.2d 519, 522 (Colo. 1982);

see also Platte River Power Auth. v. Nelson, 775 P.2d 82, 83 (Colo. App. 1989) (“The

constitutional protection against the taking of private property by government without




                                            1
due process imposes on the condemning governmental entity a requirement of strict

compliance with and interpretation of the pertinent condemnation statutes.”).

¶22   Although the majority begins the pertinent part of its analysis with a discussion

of section 43-1-208, that section concerns the eminent domain authority of the

Transportation Commission (the “Commission”), an entity created in section 43-1-106,

C.R.S. (2016).   The petition at issue, however, was brought by the Department, a

separate and distinct entity created in section 43-1-103, C.R.S. (2016).         See also

§ 43-1-102(1)–(2), C.R.S. (2016) (separately defining the Commission and the

Department). Accordingly, in my view, and notwithstanding the fact that the parties all

seemed to presume that section 43-1-208 defines the Department’s condemnation

authority, the analysis must begin with a discussion of the Department’s statutory

authority to condemn private property.1

¶23   Pursuant to section 38-1-202(1)(b)(IV)(G), C.R.S. (2016), the Department may

exercise the power of eminent domain in accordance with a number of enumerated

statutes, including, as pertinent here, section 43-1-210(1)–(3), C.R.S. (2016), which

provides for the Department’s acquisition of certain rights of way, as well as of property

to be taken for state highway purposes under certain enumerated conditions. Notably,

section 38-1-202(1)(b)(IV)(G) does not authorize the Department to exercise the power

1 In fairness to the parties, I acknowledge that throughout our opinion in Department of
Transportation v. Stapleton, 97 P.3d 938 (Colo. 2004), we spoke of the Department’s
authority under section 43-1-208(3). That case, however, turned on a construction of the
phrase “state highway purposes,” and the distinction between the Department’s
condemnation authority and that of the Commission does not appear to have been at
issue. In these circumstances, I am unwilling to read into Stapleton a statutory
construction that would effectively expand the Department’s condemnation authority.


                                            2
of eminent domain pursuant to section 43-1-208(3), the section about which the parties

are arguing.    To the contrary, section 38-1-202(1)(b)(IV)(I) makes clear that the

condemnation authority under section 43-1-208(3) belongs to the Commission.

¶24   Accordingly, the first question to be answered is whether the General Assembly

has given the Department the same authority that it gave the Commission under section

43-1-208(3). The parties have not cited any such statutory authority (to the contrary, as

noted above, they appear to have assumed that section 43-1-208(3) applies), nor have I

seen such authority.2

¶25   Because the Department does not appear to have the authority granted by

section 43-1-208(3), which is the authority at issue, the question becomes whether the

Commission, which unquestionably has such authority, could properly delegate that

authority to the Department. For two reasons, I do not believe that it could.

¶26   First, any such delegation would effectively allow the Commission to expand the

Department’s statutory condemnation authority, thereby undermining the long-settled

principles that (1) we construe strictly statutory authorizations of condemnation powers

and (2) governmental entities exercising their condemnation powers must strictly




2 As noted above, section 43-1-210(1) authorizes the Department to condemn certain
property for state highway purposes under enumerated circumstances. It is not clear to
me that section 43-1-210(1) applies here, and I am unwilling to presume that it does,
given that the Department itself did not so argue before this court. Nor am I persuaded
by the Department’s arguments as to the inferences to be drawn from various statutes
defining the Department’s condemnation authority, given that we construe strictly
statutory authorizations to condemn private property. Coquina Oil Corp., 643 P.2d at
522; Platte River Power Auth., 775 P.2d at 83.


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comply with the statutes granting such powers. See Coquina Oil Corp., 643 P.2d at 522;

Platte River Power Auth., 775 P.2d at 83.

¶27      Second, any such delegation would arguably violate the nondelegation doctrine.

The nondelegation doctrine is rooted in the constitutional separation of powers and

prohibits the General Assembly from delegating legislative power to another

department of government or person. See People v. Holmes, 959 P.2d 406, 409 (Colo.

1998).     The doctrine is limited, however, by the fact that regulation through

administrative agencies is an accepted part of our legal system. Id. Thus, the General

Assembly may properly delegate its legislative power “when it describes what job must

be done, who must do it, and the scope of his authority.” Swisher v. Brown, 402 P.2d

621, 626 (Colo. 1965).

¶28      Here, to the extent that the General Assembly can be said to have delegated to

the Commission legislative authority to condemn private property pursuant to section

43-1-208(3), I perceive no basis for allowing the Commission to take it upon itself to

delegate that authority to another entity.

¶29      I am not persuaded otherwise by the Department’s citations to sections

43-1-106(8)(a), (d), and (f), C.R.S. (2016). The cited provisions authorize the Commission

(1) to formulate policies with respect to the management, construction, and

maintenance of public highways; (2) to prescribe administrative practices to be followed

by the Commission’s executive director and the Department’s chief engineer; and (3) to

require the executive director and the chief engineer to furnish whatever assistance the

Commission may request with respect to the operation of the Department.             Id.   I


                                             4
perceive nothing in those sections that authorizes the Commission to delegate its

condemnation authority (as opposed to administrative and ministerial functions) to the

Department, and for the reasons set forth above, I believe that any such delegation

would violate the principle of strict construction of statutory condemnation authority.

¶30    Because the Department does not appear to have either statutory or properly

delegated authority to pursue the condemnation at issue, I agree with the majority’s

determination to make our rule to show cause absolute, and thus, I concur in the

judgment.

                                  B. Section 43-1-208

¶31    Although the foregoing analysis would not require me to address the proper

construction of section 43-1-208, I proceed to do so because both my disagreement with

my colleagues and the issues raised in this case suggest a need for legislative action to

clarify the General Assembly’s intent regarding the respective condemnation authorities

of the Commission and the Department.

¶32    We review de novo questions of law concerning the application and construction

of statutes. Hickerson v. Vessels, 2014 CO 2, ¶ 10, 316 P.3d 620, 623. In interpreting

statutes, we must give effect to the General Assembly’s intent. Aetna Cas. & Sur. Co. v.

McMichael, 906 P.2d 92, 97 (Colo. 1995). To do so, we interpret statutory terms in

accordance with their plain and ordinary meanings. Id. In addition, “we examine the

statutory language in the context of the statute as a whole and strive to give ‘consistent,

harmonious, and sensible effect to all parts.’” Reno v. Marks, 2015 CO 33, ¶ 20, 349 P.3d

248, 253 (quoting Denver Post Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo. 2011)). We will


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not add words to a statute, nor will we subtract words from it. Turbyne v. People,

151 P.3d 563, 567 (Colo. 2007). In the absence of ambiguity, we apply the statute’s

language as written. Id. If, however, a statute is ambiguous, then we may consider the

statute’s purpose or policy, as well as its legislative history, to discern the General

Assembly’s intent. McMichael, 906 P.2d at 97.

¶33    The majority quotes the entirety of section 43-1-208, see maj. op. ¶ 11 n.1, and I

need not re-quote it here. The majority concludes that under section 43-1-208, the

Commission must, in all circumstances, do two things. First, the Commission must

receive from the Department’s chief engineer a written report describing the portion of

the highway to be established or altered, the portions of the land to be taken for such

purposes, and an estimate of the damages and benefits accruing to each landowner

whose land may be affected. See maj. op. ¶ 13. Second, the Commission must decide

whether the public interest or convenience will be served by the proposed change and if

so, enter a resolution on its minutes approving the change and authorizing the chief

engineer to tender the estimated amount of damages. See id. The majority further

appears to conclude that only after both of these things have been accomplished may

the Commission choose whether to tender to the landowners the determined amount

or, alternatively, to proceed under title 38. See id. For several reasons, I disagree with

this construction.

¶34    First, I believe that the majority’s construction is inconsistent with the plain and

unambiguous language of section 43-1-208(3). That section provides, in pertinent part,

“The transportation commission also has the power and is authorized to proceed in the


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acquisition of the lands of private persons for state highway purposes, according to said

articles 1 to 7 of title 38, C.R.S., without tender or other proceedings under this part 2.”

¶35    In my view, this subsection means precisely what it says, namely, that in matters

involving the acquisition of lands of private persons for state highway purposes, the

Commission can proceed directly under title 38 (i.e., by filing a condemnation petition)

without conducting any other proceedings under part 2 of title 38, which proceedings I

take to include the processes set forth in subsections 43-1-208(1)–(2).

¶36    Unlike the majority, I think that such a construction makes perfect sense. In

cases involving the property of private persons, the Commission has two choices. It can

potentially avoid litigation by making findings that the public interest or convenience

will be served by the acquisition and by then determining and tendering an amount of

damages, which the landowner might accept. See § 43-1-208(1)–(3). Alternatively, the

Commission can proceed directly to court, where (1) the Commission will be required

to plead and prove, among other things, a public use and (2) the compensation to be

paid to the owner will be assessed. See §§ 38-1-101(2), 38-1-102(1), 38-1-105 to -107,

38-1-115 C.R.S. (2016).        Either way, authorized decision-making bodies—the

Commission or a court—will determine the public interest and the proper

compensation to be paid to the landowner.

¶37    The majority’s interpretation of section 43-1-208, in contrast, would effectively

construe section 43-1-208(3) to read, in pertinent part, “without tender or other

proceedings under this part 2, except for the proceedings set forth in subsections (1) and




                                              7
(2) of this section.” As noted above, however, we may not add words to a statute. See

Turbyne, 151 P.3d at 567.

¶38    Second, although the majority and the parties appear to be moved by the

structure of section 43-1-208, the history of that statute persuades me that the structure

sheds no light on the legislature’s intent.

¶39    The statute traces back to the 1921 session laws. See ch. 136, sec. 20, 1921 Colo.

Sess. Laws 370–71. Notably, in its initial iteration and until 1963, the language of what

became section 43-1-208 was all contained in one section with no subsections. See

ch. 33, sec. 1404, 1921 Compiled Laws 533; ch. 143, sec. 111, 1935 Colo. Stat. Ann.;

§ 120-3-8, C.R.S. (1953). In 1963, however, that provision was split into subsections, see

§ 120-3-8, C.R.S. (1963), and it appears that this was done by the revisor of statutes, as

part of the 1963 decennial recodification. Because we have made clear that we will not

attach any substantive significance to a statutory revisor’s bifurcation of a statute into

separate subsections, see People v. N. Ave. Furniture & Appliance, Inc., 645 P.2d 1291,

1298 (Colo. 1982), I assign no significance to the current structure of section 43-1-208,

and particularly to the location of the language in section 43-1-208(3), which allows the

Commission to proceed directly under title 38.

¶40    Accordingly, unlike the majority, I read section 43-1-208(3) to allow the

Commission to choose to proceed directly under title 38 before undertaking the

processes described in sections 43-1-208(1) and (2).




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                                    II. Conclusion

¶41   For these reasons, I would make the rule to show cause absolute based on the

Department’s lack of statutory or properly delegated authority. In doing so, however, I

cannot agree with the majority’s construction of section 43-1-208.      Accordingly, I

respectfully concur in the judgment only.

      I am authorized to state that CHIEF JUSTICE RICE and JUSTICE HOOD join in

this concurrence in the judgment.




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