Colorado § 31-25-406 - Claims for damages or compensation.

§ 31-25-406. Claims for damages or compensation.

(1) Any person owning, or having any legal or equitable interest in, any real property which might suffer legal damage by reason of the establishment of the proposed pedestrian mall shall file, prior to the first reading of the ordinance establishing the pedestrian mall, a written claim for damages with the clerk. Such written claim shall describe the real property as to which the claim is made, shall state the exact nature of the claimant's interest therein, shall state the exact nature of and grounds for the claimed damage thereto, and shall state the amount of damages claimed. The failure to file such written claim within the time provided in this subsection (1) is a waiver of any claim for damages or compensation and shall operate as a complete bar to any subsequent action seeking to prevent the establishment of said pedestrian mall or to recover damages on account of such establishment, and, in the event a claim is filed, such filing shall operate as a complete bar in any subsequent action for the recovery of any damages or compensation in excess of the amount stated in such claim. Any such claim may be withdrawn by the claimant at any time by written withdrawal with the same effect as if it had never been filed. The governing body shall receipt for the claims that have been filed in accordance with this section for damages or compensation from the establishment of the proposed mall.

(2) The governing body may allow any claim for damages made pursuant to this section. Any claim so allowed shall be for the full amount of damages claimed in the written claim; except that the governing body, with the written consent of the claimant, may allow a claim for a lesser amount. In the event the claim is not allowed in full, or a suitable lesser amount is not agreed upon between the claimant and the governing body, or the governing body refuses to recognize the claim, the claimant or the governing body, through its legal counsel, may institute proceedings in court to ascertain the amount, if any, due the claimant; however, in no event shall an action be instituted later than two years after the date the claim has been denied. Any amount determined to be due to the claimant shall accrue interest at six percent per annum from the date that vehicular traffic is prohibited, in whole or in part, on the pedestrian mall, which closing in fact is the act from which the claimed damages arise.

(3) Before vehicular traffic is prohibited, in whole or in part, on the pedestrian mall, the governing body or another agency to which it is intended the mall will be conveyed shall pay the amounts allowed or enter into agreements with good and sufficient surety to pay the principal amounts allowed or, in the event the claim is to be litigated, an amount which the court determines is sufficient to pay the compensation in that behalf when ascertained. The required surety bond may be waived in writing by the claimant.

(4) Those lawsuits instituted to determine the amount of damages, if any, to be allowed shall be in the nature of a proceeding in eminent domain for the condemnation of the right in real property, the taking of which by the establishment of the pedestrian mall results in the damages claimed. The complaint shall in no way be construed as an admission that the rights in fact exist or that damages or compensation are due therefor. The court shall first determine the nature of the right in real property, if any, being taken. Such proceedings shall then be governed under the applicable statutes and proceedings of articles 1 to 7 of title 38, C.R.S., except as otherwise provided by this part 4.

(5) Nothing in this part 4 shall be construed or interpreted as creating any new right in any person to damages or compensation by reason of the establishment of a pedestrian mall, it being the intention of the general assembly in enacting this part 4 to provide an orderly method for the determination and payment only of such damages and compensation as are required under the constitutions of the state of Colorado and the United States. In this connection, the general assembly expressly declares that, to the extent to which the establishment of a pedestrian mall is justifiable as an exercise of the police power for which no compensation is constitutionally required, no damages or compensation shall be allowed in any action.

(6) The general assembly expressly declares that the establishment of a pedestrian mall and the prohibition of vehicular traffic, in whole or in part, is a legislative act and within the discretion of the governing body except to the extent which may otherwise be provided in this part 4.

(7) Once the pedestrian mall has been established in accordance with the provisions of this part 4, the nature of the title held by the governing body shall be deemed a fee simple.

(8) In the event the governing body vacates the pedestrian mall or any part thereof by official act and such pedestrian mall or part thereof is not designated by the governing body to revert to a public street, the real property thereby vacated shall vest in abutting landowners in the same manner as if a public street were being vacated.

Source: L. 75: Entire title R&RE, p. 1186, § 1, effective July 1.

Editor's note: This section is similar to former § 31-25-406 as it existed prior to 1975.

Cross references: For vacation of public streets, see part 3 of article 2 of title 43.

ANNOTATION

Different but not unconstitutional compensation procedure. The compensation procedure under this section is different in its commencement than the usual condemnation suit. Difference in this procedure, however, does not reach a constitutional height. Nothing in the United States or Colorado constitutions proscribes the procedure prescribed by this section. City of Boulder v. Kahn's, Inc., 190 Colo. 90, 543 P.2d 711 (1975).

Nature of taking not warranting compensation. The fact that a municipality may under its police power interfere to a certain extent with access to and from premises does not mean necessarily that such interference constitutes a "taking" for which under fifth and fourteenth amendments to the United States constitution and under §§ 15 and 25 of art. II, Colo. Const., there must be compensation. Rather, to constitute such a taking there must be an unreasonable or substantial deprivation of access. City of Boulder v. Kahn's, Inc., 190 Colo. 90, 543 P.2d 711 (1975).

There is not a "taking" where pedestrians are deprived of the right to approach establishments after alighting from a vehicle on street in front of or near the establishments. City of Boulder v. Kahn's, Inc., 190 Colo. 90, 543 P.2d 711 (1975).