Colorado's Supreme Court Made It Easier to Fight a Taking BEFORE You Lose the Land

If a government, utility, or special district wants your Colorado property, three concepts decide how it goes:

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Eminent domain is the power to take. That power is real, but limited. The condemnor carries the burden of proving public use, and under C.R.S. § 38-1-101, "public use" does not include taking your land to transfer to a private entity for economic development or tax revenue.

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Takings. Colorado protects owners more than the Federal Fifth Amendment does. Article II, § 15 says property shall not be "taken or damaged" without just compensation. Damage alone can be compensable, even when no one takes title.

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Inverse condemnation is your claim when the taking already happened and nobody filed a case or wrote a check: drainage that floods you, access cut off, a de facto easement. No claim or negotiation starts unless you start it.

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Two things owners routinely get wrong. The first offer is an opening number, not a valuation. And attorney fees may not be your burden alone. Under C.R.S. § 38-1-122, attorney fees are mandatory if the condemnor was not authorized to take at all, and recoverable when the award beats 130% of the last written offer.

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The news: On June 23, 2026, the Colorado Supreme Court decided In re Arrowhead Colorado Metropolitan District v. Roxborough Park Foundation, 2026 CO 54. A metro district moved to condemn HOA common area for a spa project. The owner sought the district's design documents to test whether the taking was authorized. The trial court held that no discovery was allowed before the immediate-possession hearing. The Supreme Court disagreed: trial courts do have discretion to permit it.

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That can make a huge difference. Allowing immediate possession is where owners lose leverage: equipment arrives, and whether the taking was ever lawful gets pushed to the back of the case. Now you can build the record first, and start the contest early.

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If you have a written offer or a notice of intent, the clock is already running.