CONCERNING THE SUFFICIENCY OF THE ASSERTION OF A CLAIM FOR TITLE TO REAL PROPERTY BY ADVERSE POSSESSION UNDER COLORADO LAW.
CONCERNING THE EXERCISE OF THE POWER OF EMINENT DOMAIN BY THE REGIONAL TRANSPORTATION DISTRICT.
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By GENE DAVIS - January 31, 2008
Denver Daily News
Three metro Denver property owners held a press conference yesterday in Lakewood announcing the start of a class action lawsuit against RTD to stop the agency from condemning their homes and businesses for private development.
The property owners spoke briefly outside of Pro-Tint Windows — a long-standing business at 1390 Wadsworth Blvd. Pro-Tint is one of the pieces of land RTD is attempting to acquire. The property owners feel their property is being unfairly acquired through eminent domain for RTD’s FasTracks program.
“This is a landmark Colorado case in eminent domain law,” said Robert T. Hoban, the plaintiffs’ attorney.
The 122-mile FasTracks light rail expansion project is scheduled for completion in 2017. It is expected to add 57 new transit stops, thousands of additional park-n-Ride spaces and 18 miles of additional express bus service.
Private development
The property owners allege RTD is using eminent domain to acquire land for private development — a practice attorneys say is against the law.
Husband and wife team Galen Foster and Kim Snyder, owners of Pro-Tint Windows, said RTD plans on using their property in Lakewood to build an eight-story building that they believe will be used as a “pad” site.
“No one’s stealing our crown jewel,” said Foster. “They won’t find enough Preparation H to get rid of us, period.”
The group of property owners is upset because they say RTD plans to acquire their land through eminent domain and develop it not just for light rail use but also for retail and commercial use as well.
While RTD will be paying fair market value for the land now, the group believes RTD will in fact be getting the land at a bargain compared to what it will be worth after it is developed. Some say they should be reaping the rewards of developing that land, not RTD.
Not so fast, RTD says
RTD spokesman Scott Reed, however, denies the claim that the district is taking extra land that would be of any financial benefit.
“RTD is only purchasing the specific property we need for the voter-approved
West Corridor transit project,” said Reed in a written statement. “We follow all applicable federal regulations and state laws, and we are not acquiring any additional property to accommodate private development.
Lawsuit
A lawyer representing the group of property owners sent a letter of intent to RTD last week notifying the district of the pending lawsuit. It will take as long as five weeks before the case heads to court. The group is hoping that a resolution can be reached before the case heads to trial.
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By Kevin Flynn
Rocky Mountain News
Several property owners along the route of the FasTracks West Corridor light-rail line have filed notice with RTD that they intend to sue over what they claim are violations of their civil rights.
They say RTD is infringing on their property rights by seeking to condemn their properties for economic development purposes rather than transit, or by damaging their business interests.
The notice is a legal requirement prior to filing a lawsuit against a government agency.
The owners announced the start of their legal battle at the business of Galen Foster and Kim Snyder. The two own Pro Tint, an auto window-tinting business, and they also live on the property at the southeast corner of Wadsworth Boulevard and 14th Avenue.
“If anybody redevelops this corner, it should be my wife and me, not RTD,” Foster said.
RTD has long targeted their block for a 1,000-car parking garage to serve the Wadsworth Station. But in recent months, conceptual plans have been developed by Lakewood that show the block hosting private redevelopment, including a five- story office building, retail shops and residential units.
Also, RTD has announced that it plans to seek private developers to build the transit garage there in exchange for the right to develop the unused zoning density on the block.
Bob Hoban, the attorney representing the owners, said he believes that would be illegal.
State law limits what RTD can build at transit stations to commercial or retail uses that serve bus or light-rail riders. Hoban said a large-scale office, retail and residential complex on RTD’s Wadsworth Station flies in the face of that limitation.
“RTD is only purchasing the specific property we need for the voter-approved West Corridor transit project,” RTD spokesman Scott Reed said. “We follow all applicable federal regulations and state laws, and we are not acquiring any property for private development purposes.”
Steve Fesch, who owns a parcel with a small warehouse near Invesco Field and the proposed Federal-Decatur light-rail station, believes that RTD and Denver want his land to package in an eventual redevelopment. RTD says it needs his land for drainage work on the project.
A third property owner in the legal action, Brenda Perkovich, owns a Jeep parts business near the future Sheridan Station in Lakewood. RTD isn’t taking any of her land yet, but her only access is across RTD’s track right of way.
RTD will revoke the permit to get onto her property, effectively putting her out of business.
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By Ann Schrader
The Denver Post
LAKEWOOD — Three metro-area landowners have notified the Regional Transportation District that they intend to file a lawsuit to keep the transit agency from taking their property.
RTD wants to “take our homes and business” along the west corridor light- rail line so they can sell the land to commercial developers, Kim Snyder said Thursday.
Joining Snyder and her husband, Galen Foster, in the notice are Steve Fesch and Brenda Perkovich.
“RTD is attempting through a concerted effort to obtain property for development and not for transportation,” said their attorney, Bob Hoban.
Plans for each of the three properties don’t involve a light-rail station or tracks, Hoban said.
A violation of civil rights is the legal basis for the suit, which could be filed in three to five months, he said.
RTD has sent out 16 letters notifying landowners their property is needed for the 12.1-mile light-rail project. More than 100 properties — mostly partial takings — will be needed, RTD officials said.
Snyder said RTD initially said the agency needed their home and auto-tinting business at West 14th Avenue and Wads worth Boulevard for staging equipment for light-rail construction.
Then the property was needed for a parking garage, Snyder said, and now the air rights above the parking structure may be sold to a developer. “It should be us developing it,” Foster said.
RTD spokesman Scott Reed said Thursday night that RTD is only purchasing the specific property it needs for the west corridor transit project. He said RTD does not acquire any additional property for private development purposes.
Fesch said RTD wants his 15,000- square-foot piece of property with a small warehouse south of Invesco Field. He planned to develop a bar there, and RTD wants it for drainage and road realignment.
“I’m surrounded by city and RTD land, but they want my land,” Fesch said.
For 19 years, Perkovich and her husband have operated BJ’s Used Jeep Parts at West 12th Avenue and Benton Street.
RTD told the couple they no longer will have access to their property because their driveway crosses the track bed.
The couple said they sold off inventory at a loss to beat the initial Jan. 25 date that RTD set for revoking access. On Thursday, they signed an easement extension revocable with a 30-day notice.
Ann Schrader: 303-278-3217 or aschrader@denverpost.com
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By PETER MARCUS - January 22, 2008
Denver Daily News
Even in the face of losing property to the Regional Transportation District, property owners along the future FasTracks west corridor said yesterday they are not opposed to eminent domain. They would just like to see RTD use the property it takes for actual transportation needs, not for private development.
Rep. Al White, R-Winter Park, agrees. He plans on introducing legislation that would prevent RTD from using eminent domain if the district cannot prove that the land would be used to further its mission of providing transit options. Colorado law already requires a government agency that takes property through eminent domain to demonstrate public use of the property. White’s legislation would take that a step further by preventing RTD from then contracting out the land to a private developer for commercial, retail or other private development.
“Why should we be extending eminent domain beyond RTD’s needs of providing its mission of transporting people?” said White following a press conference with co-sponsors Rep. Ken Summers, R-Lakewood, and Sen. Lois Tochtrop, D-Thornton. White was flanked by about 16 landowners who have received letters from RTD explaining that their property will be acquired by the district to develop the light rail’s west corridor. The district is expected to make as many as 130 acquisitions in total.
More than just parking
Lakewood couple Galen Lee Foster and Kim A. Snyder received a letter from RTD informing the couple of its intent to acquire their home and auto glass treatment business at 14th Avenue and Wadsworth Boulevard. The husband-and-wife team are concerned that RTD is discussing the possibility of turning the property into a 12-story parking garage, retail and office building by using private developers.
Foster and Snyder believe that since it was their land in the first place, and because RTD has discussed also developing retail and office space there, it should be their option to stay at the property and use a private developer of their own to develop it for both public and private use.
“Bob Murphy, the new Lakewood mayor, said last week three different times that our corner is going to be the crown jewel of Lakewood,” said Foster. “You don’t steal the crown jewels from the king or queen.”
“I’m willing to die for my land, are you?” added Foster. “Once you’ve taken away all of our rights, the American Dream, what the hell else is there?”
RTD says it uses all of the land it acquires for transit use. Spokesman Scott Reed explained that because RTD would be building on top of the space it needs for transit use and not acquiring additional property — as is the case for Foster’s and Snyder’s property — it is OK for the district to hire a private developer to potentially build retail and office space.
“If there’s an opportunity for a private developer to build something on top of that transit improvement, that is something we would look at allowing because, again, we’re not acquiring additional property to potentially make that happen,” said Reed.
“If a private developer is interested in building something on top of that structure, that is something that could potentially reduce the cost to taxpayers because a private developer could help pay for the parking structure,” added Reed.
Money grab?
Steve Fesch, who received a letter from RTD informing him of its intent to acquire his property at Howard Place and Decatur Street near Invesco Field at Mile High, said he is concerned about taxpayers, but added that he shouldn’t be removed from the development process simply because the transit district needs money.
“If they weren’t $2 billion in debt, I don’t think they’d be reaching so far,” said Fesch, referring to the FasTracks estimated $1.5 billion debt because of rising construction costs and inflation. “They say the cost of materials has gone up, but that’s not what the voters approved. We approved FasTracks at a budget — that budget is blown.”
Fesch uses the space near Invesco to house his old New Jersey transit bus converted into Orange Force One — Bronco Nation’s greatest tailgating hub. But Fesch is not concerned with the fact that he’s losing a garage for his recreational vehicle because of eminent domain. It’s that RTD could use the property for commercial development that gets to Fesch, who once dreamed of opening a Broncos bar and restaurant there.
“We’re not trying to stop RTD or FasTracks. Our concern is them taking people’s land and doing commercial and retail development, which they readily admitted to doing,” he said. “I think most Americans can agree that we, the landowners, should do the developing if we so choose. Why even get a third party involved?”
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By Kevin Flynn, Rocky Mountain News
A group of legislators is trying to stop RTD from turning any land it condemns for FasTracks into private development.
At a press conference this morning, Rep. Al White, R-Hayden, said a bill he is sponsoring would draw a clear line between RTD’s right to condemn property for transit and its desire to turn some of it over for commercial development.
RTD says all of the land it plans to acquire is needed for its transit projects. But to save taxpayers’ money, RTD also says it may seek proposals from developers to build some of those transit facilities in exchange for the right to build retail, office and even residential projects as part of the deal.
“Economic development is not a good enough reason for government to take private property from citizens,” White said. If RTD takes land by condemnation, it shouldn’t be allowed to let developers profit from it.
The issue has become controversial since September, when RTD sent out notices to 16 property owners along the West Corridor light rail project, the first FasTracks project to get far enough along for construction.
Four property owners affected by the project — two of whom got those notices — spoke in the chill air on the west steps of the Capitol. As it stands, the bill wouldn’t prevent RTD from taking any of their land, but it would prevent RTD from letting developers build other projects on it.
“Basically what they’re doing is an old-fashioned claim jump on us,” said Galen Foster, who lives and operates a business with his wife on the corner of Wadsworth Boulevard and 14th Avenue in Lakewood.
The West Corridor went from $511.8 million four years ago to a new budget estimate of $634.3 million. To cut back those costs, RTD plans to seek deals with private developers to construct some of the station areas including parking structures while conveying to the developers unused zoning and air rights that go along with the land.
White and co-sponsors Sen. Lois Tochtrop, D-Thornton, and Rep. Ken Summers, R-Lakewood, say that’s abuse of RTD’s right of eminent domain.
RTD says it’s not. If local zoning allows for higher density development at transit stations to take advantage of the location, RTD says it makes sense to let the private sector come in and build it — saving taxpayers money at the same time.
“Here’s the downside,” said RTD General Manager Cal Marsella. White’s bill “takes away an opportunity for us to reduce taxpayers costs. It reduces ridership potential. And it doesn’t allow for the zoning that local municipalities see fit to pass to get higher density near transit stations.
“You’d basically be eliminating the potential for infill development by saying it could only be parking facility.”
RTD has long identified that block that includes Foster’s land for a 1,000-car parking structure. But recently, conceptual plans by Lakewood for redevelopment of the larger neighborhood and RTD’s desire to cut costs through joint ventures with developers have muddied the waters.
One idea drawn up by the city would split the parking to opposite sides of the street and use some of the land RTD acquires for commercial redevelopment. One drawing showed a five-story office building where Foster’s home and business sits.
Steve Fesch, who owns property near Invesco Field, said RTD is taking it as part of a huge drainage redesign. If RTD wants to save taxpayers money, he said, it should find a way to accommodate the drainage work on land right across the street, which Denver already owns.
The other property owners, Leslie Fishbein of Kacey Fine Furniture and Brenda Perkovich Crespin of BJ’s Used Jeep Parts said RTD’s project isn’t taking their land but is cutting off their businesses to the point they will have to close.
flynnk@RockyMountainNews.com or 303-954-5247
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Some displeased with handling of eminent domain
Kevin Flynn, Rocky Mountain News
The RTD board showed division in its ranks Tuesday night over how the transit agency is using property condemnation for FasTracks projects.
The disagreement came hours after several legislators announced a bill that would limit RTD’s ability to commission private development on land it acquires through condemnation.
And it came on the heels of the third monthly meeting in a row in which property owners along the West Corridor light rail project and their supporters spoke about how they are being treated.
“There’s got to be a more creative way to be fair to the people who own property,” board member Barbara Yamrick said.
“I am not against eminent domain,” O’Neill Quinlan said. “My objection is how we’re doing it.”
The two voted against a resolution authorizing RTD to proceed with property acquisitions for the West Corridor, which passes 12 miles through Denver, Lakewood and Golden. But some of the other 13 who voted yes also expressed qualms.
Earlier, Lakewood business owner Galen Foster complained to the board about RTD’s intention to acquire his home and shop at Wadsworth Boulevard and 14th Avenue. A 1,000-car transit garage has long been planned on that block.
But Foster said RTD’s plan to solicit developers to build the garage in exchange for development rights for a high-density project on his land is unfair.
“It’s caused us a lot of stress,” he said.
A bill at the Capitol, to be sponsored by Rep. Al White, R-Hayden, Sen. Lois Tochtrop, D-Thornton, and Rep. Ken Summers, R-Lakewood, would prevent that. Earlier Tuesday they said their measure would prohibit RTD from developing anything but transit- related improvements on land it gets through condemnation.
“Economic development is not a good enough reason for government to take private property from citizens,” White said.
Cal Marsella, RTD general manager, pledged to the property owners and board members that the agency would treat them fairly.
“My obligation to you,” he said, “is to be as fair and equitable to you as I can,” he said.
But RTD says it ought to be able to allow commercial redevelopment on station sites if local zoning permits it.
Marsella said such private partnerships can save taxpayers money as FasTracks, which is over budget, is built out. Developers can build the transit garages for less than RTD if they are permitted to include other development in the deal.
Board member Barbara Brohl said how much RTD can build or allow is at issue. Current law limits RTD to commercial and retail shops that serve transit riders and doesn’t encourage customers who come by auto.
“I got the sense that the biggest issue for (Foster) isn’t just that we’re taking his property, but somehow that we’re going to benefit from it,” Brohl said. “If we’re going to put condos and all these other things on it too, that’s what ticks him off.”
flynnk@RockyMountainNews.com or 303-954-5247
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