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HomeMy WebLinkAboutGERRARD ROADWAY DEDICATION - 29-02 - CORRESPONDENCE - LEGAL COMMUNICATIONAPR-09-2001 10:57 P.04 Douglas D. Konkel, Esquire ATTORNEY AT LAW April 5, 2001 Page 3 general street system, the loss or limitation of access is a non-compensable exercise of the state's police power. Troiano v. Colorado Department of Hi iwAys,170 Colo. 484, 463 P:2d 448 (1969); Radinsky v_ City and County of Denver. 159 Colo. 134, 410 P.2d 644 (1966). Examples of the proper exercise of the police power include: change of access from direct access to state highway to indirect access through a frontage road, Davis, su ra., construction of a solid median, Thorton v. City of Colorado Springs, 173 Colo. 357, 478 P.2d 665 (1970); loss of all access to a particular street, Department of Highways v. Interstate -Denver West, 791 P.2d 1119,1120- I 121 (Colo. 1990). When accesses are closed via the police power, the question is whether the closure has triggered a right of compensation The Colorado Supreme Court has ruled that a landowner is. entitled to compensation only if the limitation or loss of access rises to the level. of "substantial impairment of access." Davis, supra. at 664; Interstate -Denver West, supra. at 1121; Shaklee v. Board of County Commissioners, 176 Colo. 559, 491 P.2d 1366, 1368 (1972). It is highly unlikely that, given the facts of this situation, the limitation of access results in "substantial impairment of access." If there are cases that you are aware of that present plausible arguments to the contrary, I am inviting you to tell me about them. Sincere . Paul Eckman Deputy City Attorney W PE:med PC: Cam McNair, City Engineer Kathleen Reavis, Senior Transportation Planner TOTAL P.04 APR-09-2001 10:57 P.03 Douglas D. Konkel, Esquire ATTORNEY AT LAW April 5, 2001 Page 2 improvements so as to not only make the street as safe as possible for the public but also so as to keep the street from simply failing as one of the City's major transportation corridors. You are correct that the Harmony Road Access Plan needs to be amended. You are correct that the timing of this project, vis-a-vis the amendment to the Harmony Road Access Plan is:awkward. The City is vigorously pursing an amendment for these changes to the Harmony Road Access Plan, along with others over the full course of Harmony Road. This amendment is necessary for the protection of the public health, safety and welfare in order to meet the needs of the City's Transportation Master Plan and in order to bring traffic flows into balance and to provide for safe and appropriate capacities. I can appreciate that the traffic volumes generated by the Gerrards' business are very low. . However, if full access is allowed in front of the business, others will likely use that full access to make left turns from the south, u-turns from either direction and all manner of other peculiar traffic moves which will seriously compromise safety at that location. This problem must be solved by the City. It would not violate the present Harmony Road Access Control Plan for the City to construct a solid median all the way from Timberline Road to the railroad tracks. If need be, that can be done. The plan that the City has in mind is to continue to pursue the amendment to the Harmony Road Access Control Plan, while at the same time construct the Timberline RoadfHannony Road intersection improvements and median improvements with the three-quarter access provided into the property across Harmony Road from the Getrards as a temporary detour for traffic desiring to travel on Timberline Road. Neither the City Council nor CDOT is, at this point, legally committed to making permanent, this detour. If it is not approved, then the access to the south would have to be closed and/or, moved to the west a few feet to match the existing driveway, and the three-quarter access would also have to be closed and the solid median constructed, as I suggested earlier. The acceptance of the proposed Harmony Road Access Plan Amendment remains undetermined until both the City and CDOT approve it. ITaving said that, I also believe that both the City and CDOT staff firmly support the proposed amendments to the Harmony Road Access Plan. So, it may not be unreasonable to believe that the amendments will ultimately be approved in light of significant public transportation needs. L, TurZng to the question of the threatened inverse condemnation action, I must disagree with you that there is a taking resulting from construction of this median. Numerous cases support the principle that the construction of a median blocking left turn traffic movements does not constitute a taking. A landowner's right of access to and from their property may be regulated to protect the public health, safety and welfare, to maintain smooth traffic flow, to maintain highway right-of-way drainage, and to protect the functional level of public highways. State Department.of Highways v. Davis, 626. P.2d 661, 665 (Colo. 1981). The common law police power to regulate access has been codified at §43-2-147(1)(a), C.R.S. (2000). If property retains reasonable access to and from the APR-09-2001 10:56 P.02 City Attorney City of Fort Collins Douglas D. Konkel, Esquire ATTORNEY AT LAW 1405 South College Avenue, Suite I Fort Collins, CO 80524 Dear Doug: April 5, 2001.- ' d PR r C. i11 --------------- I have received from Kathleen Reavis a copy of your March 14, 2001 letter to Tess Jones, Regional Access Manager for CDOT, regarding the concerns of the Gerrard Family Limited Partnership as they relate to the proposed construction project for the intersection of Timberline Road and Harmony Road in Fort Collins. I understand from your letter that the Gerrards intend to seek an injunction against the intersection construction project on the basis that the:project violates the Harmony Road Access Plan, the State Highway Access Code, state law, and an intergovernmental agreement between the City and the State. 1 also understand that the Gerrards intend to commence an inverse condemnation action alleging a taking because the construction Project includes the installation of a raised median in Harmony Road in front of the Gerrard's property. First, with regard to the threatened injunction action, the Gerrards can, and likely will, do precisely as they please with regard to the commencement of such an action. However, I strongly believe that such action would not prevail given current Colorado law. In discussing this matter with the City staff, I was made aware of some facts that struck me as a reasonable solution. It is my understanding that the Gerrard's recently acquired property to the:north and east of their building so that they would have circulation access out to Timberline Road at a point north of the intersection of Timberline Road and Harmony Road. I understand that the City is willing for the Gerrards to have access on'rimberline Road at that location, which seems to me to provide a workable solution to this problem. So, I would suggest that the Gerrards might also consider spending: the money that they would save by not having to purchase an injunction bond and litigate a case that doesn't appear to me to have a great likelihood of success, by instead improving their properties: and paving an internal road to improve 9verall property access via Timberline Road. I certainly understan and sympathize with the sen5ltivity that the Gerrards must have over the limitation of their access to Harmony Road in front of their building, but, at the same time, the City must be sensitive to what seem to be to be very important safety issues pertaining to traffic on Harmony Road. Harmony Road is, as you know, rapidly becoming a major thoroughfare in the City. As traffic volumes increase on Harmony Road the City must be able to make the necessary 300 LaPorte Avenue • PO. Box 580 • Fort Collins, CO 80522-0580 • (970) 221-6520 • FAX (970) 221-6327