Condemnation Attorney Gives Straight Talk

Leslie Fields Commends Town Council

By Peter Kenworthy
The Telluride Watch
Published: 3/17/06

In her introductory comments at a Telluride Town Council work session on Tuesday, special attorney Leslie Fields said that the town’s condemnation case, with which she has been involved since 1999, is “one that I feel very strongly about.”

Fields, a partner in the Denver law firm Faegre & Benson, has a reputation as one of the leading eminent domain attorneys in Colorado. At Tuesday’s session, she updated council and the public on the status of the town’s condemnation case against the San Miguel Valley Corporation, owner of the Valley Floor, gave her opinion about the extent of access to executive sessions that should be afforded to an advisory commission, and answered questions to do with condemnation, generally, and the town’s suit, specifically.

And, although she said she wouldn’t, she commented on the council’s decision to stay its case against SMVC in order to put a mediated settlement proposal on the ballot for a special election.

Saying that she had worked “very, very closely” with the council, Fields commended its efforts and aims in no uncertain terms.

“At every single turn, they had the best interests of Telluride’s citizens at heart, without qualification,” she said. She said she had been “disheartened” by criticism council had received for its efforts.

Fields also said that her initial reaction to the idea of an advisory commission to help council prosecute the town’s condemnation lawsuit was negative. “I was chagrined,” she said. “I have the utmost confidence in this council,” adding that she had no doubt at all that the council “is committed to the task” of condemnation. Fields said that she softened in her attitude on learning that commission advocates were not demanding to supplant council but merely supplement it. And she stressed that whatever role and responsibilities the commission took on, they should not extend to executive sessions with her.

“I see the relationship I have in terms of counsel and client to be with the Town Council,” she said. “I don’t want that at all jeopardized by a third party.”

In terms of trying the town’s eminent domain case, Fields said that “there’s not much the committee can offer me,” and pointed out that most of the pre-trial work, such as discovery and expert reports, is in hand and, absent additional unexpected motions, the case was ready to be tried.

There are, however, pending motions that were filed before the suit was stayed that now, with the stay lifted, need to be considered by the court. Chief among these is a motion filed by Fields on behalf of the town that challenges the methodology of the SMVC appraisal that valued the south side of the Valley Floor at $51 million compared to a $26 million valuation ascribed by Telluride’s appraiser. Calling her appraisal motion “critical in the case,” Fields said that by basing the property’s market value on hypothetical lots, the SMVC appraiser unduly inflated its worth and violated the subdivision approach that is an industry standard. In her motion Fields calls for an adjustment in the appraisal to $43 million.

To the question of what value a jury might likely attribute to the Valley Floor parcel, Fields said that, as a general rule, “the award has to be within the range of the testimonies given in the case,” and that a jury must “confine its opinion to evidence given.” To try to pinpoint a number within the range, she said, even based on wide historical experience in other condemnation cases, would be a futile exercise in a case involving such large dollar amounts, and wide differences in value estimates.

“It’s very difficult to apply rules to a case of this magnitude,” said Fields. “I would not advise any of you to safely assume a number.”

Several questions to Fields related to money and the possible lack thereof. In particular, Fields was questioned about any possible effect on the town’s case of not presently having sufficient acquisition funds in hand.

As a matter of condemnation law, “the court is not to concern itself with issues of funding,” Fields said. She also confirmed that Judge Greenacre, the district court trial judge, had already ruled twice on the issue, first in denying SMVC’s motion to dismiss the condemnation case that was based on the town not having the money to pay for the property, and second when SMVC subsequently argued that funding issues, such as private donations, were relevant to jury selection and the judge, again, ruled against the landowner.

“The response was that you can’t get into funding issues on even that limited basis,” said Fields and went on to say she hoped, if the court was consistent, that the possibility of private donors being deposed or exposed to involvement in the town’s litigation “would be of minimal risk.” 

On the timing of payment to SMVC should Telluride succeed in its condemnation suit, Fields said there is “no definite law in Colorado on that issue.” She said there is an “older” statute that is sometimes relied on that allows payment to be made within 90 days, but since the town is condemning under the constitution, as opposed to statute, the timing issue was difficult to predict. Could the town have up to six months? “Perhaps,” Fields said. “It has to be a reasonable time within the discretion of the court.”

And if the value awarded is more than the town can afford, it has the right to abandon its condemnation action. Fields said that the town’s substantial reliance on private monies to fund acquisition, rather than budgeted public funds, made its case “unique and somewhat of a challenge.”

Regarding other money issues, Fields said that it was “pretty unlikely” that the town would not have to pay SMVC’s legal fees as well as reasonable expert fees and appraisal costs. She predicted that the town’s additional legal costs, including the three-week valuation trial scheduled for next February but excluding any appeals, should be between $100,000 and $150,000. She was unable to speculate on SMVC’s additional attorney costs. To date, the town has spent approximately $2.6 million in its condemnation efforts.

Regarding the validity of Telluride’s case, Fields said that there was clear case history of towns condemning property for open space purposes where “the court found that it was entirely legitimate.” As an eminent domain lawyer practicing exclusively in the area of condemnation, Fields said she didn’t think, “there’s anything that Telluride is doing that constitutes an abuse of its power of eminent domain.”

Whatever the outcome of the valuation trial, Fields stated that an appeal could be filed only on the basis of an error by the judge or an improper ruling.

“There’s got to be some impropriety,” she said. “Not just because you’re unhappy.” Either side could appeal the valuation result, Fields said, or the right to condemn itself. The district court’s ruling that the so-called Telluride Amendment is unconstitutional could still be challenged in appeals court, Fields said. The Telluride Amendment to House Bill 1203 retroactively made it illegal for a home rule municipality to condemn land outside its borders for open space. “SMVC may assert that the trial court was wrong, that the Telluride Amendment is not unconstitutional. There’s always a risk that that could be reversed in appeal,” Fields warned.

Asked whether the judge or jury would be privy to the results of the Feb. 14 election, or in any way influenced by the Telluride voters’ decision to reject a mediated settlement proposal, Fields replied that the issue “should be entirely irrelevant.”

“Mediation issues and settlement offers, none of that should come forward,” she said.

What may come forward, however, is new legislation from the Colorado General Assembly.

“The whole issue of condemnation has been the subject of legislative changes,” said Fields. “There are several bills that they have been discussing, and even a constitutional amendment.”

Pressed to say whether she thought any pending legislation could represent a threat to Telluride’s case, Fields said, “I can’t alleviate your concerns or tell you there’s no risk.”

About the opposing counsel in her case for Telluride, Fields said the two SMVC attorneys who would be trying the case were both highly qualified litigators.

“I am anticipating that they will be formidable opposition and I will be prepared accordingly,” she said.

She also said she expected the SMVC lawyers to file a new motion for a change of venue in the event that jury selection proves difficult. A previous motion to change the venue was denied. So, for now, the case is scheduled for trial in San Miguel County and the six-member jury will be made up of county landowners.