Members of the Colorado Supreme Court appeared to agree on Tuesday that a Douglas County judge incorrectly believed he lacked the authority to allow a property owner to pursue evidence challenging a government entity’s legal right to take the property through eminent domain.

But during oral arguments, multiple justices bristled when an attorney for the Arrowhead Colorado Metropolitan District claimed that the judge had, in fact, denied the property owner’s request after considering the relevant information.

“That’s not true. That is not what happened here. I feel like I’ve stepped into a different world here, like we’re looking at two different things,” responded Justice Carlos A. Samour Jr. “That’s not what the court said. Just because you write it in your brief doesn’t make it accurate. The court said, ‘I have no authority to grant this.'”

The principle of eminent domain empowers governments to take possession of private property for public use, so long as they provide proper compensation. There are two phases to such proceedings in Colorado: a ruling on the government entity’s ability to possess the property, and a trial to determine the amount of compensation.

Last year, the Arrowhead Colorado Metropolitan District filed a petition to condemn property owned by the Roxborough Park Foundation, which controls and maintains common areas within Roxborough Park. A private company that owns a 35-acre parcel formed the metropolitan district to create infrastructure for a proposed “Nordic spa.”

The foundation quickly sought to obtain evidence before the decision on the land’s possession. The request encompassed design documents, studies, and communications between the metropolitan district and the private company. The foundation sought to determine if the condemnation was for a legally authorized purpose.

In December, District Court Judge Ben Leutwyler blocked the request for evidence. He concluded the law and the rules governing civil cases “make no provision for discovery in a condemnation action prior to the immediate possession hearing or otherwise.”

The Roxborough Park Foundation turned to the Supreme Court. Without the justices’ intervention, the foundation argued, the metropolitan district could take possession of the property and alter it immediately, and the foundation could only appeal that decision after the eventual trial for compensation. Moreover, no prior court case addressed whether a landowner has the right to the discovery of evidence before a possession decision.

During oral arguments, multiple justices pointed out that Leutwyler’s belief that he could not allow discovery was incorrect. Justice Richard L. Gabriel quoted from the order and said that, while Leutwyler was a “very, very fine trial judge,” the rules do permit the discovery of evidence in certain circumstances.

“I don’t think the court intended exactly what you just summarized,” said attorney Joshua T. Mangiagli for the metropolitan district.

“I just read it,” countered Gabriel.

“There is a mechanism as a matter of law. No question,” added Justice Maria E. Berkenkotter. “This is just, for whatever reason, the court misunderstood the law.”

At the same time, the justices puzzled over the position taken by the Roxborough Park Foundation that the Supreme Court should recognize a general right to discovery in eminent domain cases. Gabriel noted that Leutwyler’s misunderstanding of the law could be addressed straightforwardly with instructions to revisit his decision.

“Why are you arguing more than that?” Gabriel wondered. “I would have a lot of trouble adopting a rule that says the landowner gets discovery in any case. Period, hard stop.”

“You’re asking us not just to correct the trial court by reiterating that they have that discretion,” added Justice Susan Blanco, “but you’re asking us to do one more step and essentially find that in these circumstances, discovery should be commenced. Is that accurate?”

“That’s precisely accurate,” responded attorney Steven Nagy.

Justices Brian D. Boatright and William W. Hood III were not present for the arguments. The court’s clerk did not respond to a question about their whereabouts.

The case is Arrowhead Colorado Metropolitan District v. Roxborough Park Foundation et al.