HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 01/21/2020 - SECOND READING OF ORDINANCE NO. 013, 2020, AUTHORIAgenda Item 10
Item # 10 Page 1
AGENDA ITEM SUMMARY January 21, 2020
City Council
STAFF
Tawnya Ernst, Real Estate Specialist III
Ryan Malarky, Legal
SUBJECT
Second Reading of Ordinance No. 013, 2020, Authorizing the Acquisition by Eminent Domain Proceedings of
Certain Property Rights Necessary for Access in Connection with Phase 1 (Permitting and Design) of the
Halligan Water Supply Project.
EXECUTIVE SUMMARY
This Ordinance, unanimously adopted on First Reading on January 7, 2020, authorizes the use of eminent
domain, if necessary and as a last resort, to acquire access rights for the permitting and design phase (Phase
1) of the Halligan Water Supply Project (Halligan Project), including access to Halligan Reservoir, the North
Poudre Canal Diversion Structure, and the Calloway Diversion Structure. The acquisitions will include
purchase of temporary access easements from three of the property owners directly impacted by the Halligan
Project. To meet near-term project timelines, prompt acquisition of the access rights is necessary. Staff fully
intends to continue negotiating in good faith with the affected property owners and is requesting authorization
to use eminent domain only if project staff, in consultation with the City Attorney’s Office, believes such action
is necessary after reasonable efforts to negotiate an acquisition.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on Second Reading.
ATTACHMENTS
1. First Reading Agenda Item Summary, January 7, 2020 (w/o attachments) (PDF)
2. Ordinance No. 013, 2020 (PDF)
Agenda Item 15
Item # 15 Page 1
AGENDA ITEM SUMMARY January 7, 2020
City Council
STAFF
Tawnya Ernst, Real Estate Specialist III
Ryan Malarky, Legal
SUBJECT
First Reading of Ordinance No. 013, 2020, Authorizing the Acquisition by Eminent Domain Proceedings of
Certain Property Rights Necessary for Access in Connection with Phase 1 (Permitting and Design) of the
Halligan Water Supply Project.
EXECUTIVE SUMMARY
The purpose of this item is to seek authorization from City Council to use eminent domain, if necessary and as
a last resort, to acquire access rights for the permitting and design phase (Phase 1) of the Halligan Water Supply
Project (Halligan Project), including access to Halligan Reservoir, the North Poudre Canal Diversion Structure,
and the Calloway Diversion Structure. The acquisitions will include purchase of temporary access easements
from three of the property owners directly impacted by the Halligan Project.
To meet near-term project timelines, prompt acquisition of the access rights is necessary. Staff fully intends to
continue negotiating in good faith with the affected property owners and is requesting authorization to use
eminent domain only if project staff, in consultation with the City Attorney’s Office, believes such action is
necessary after reasonable efforts to negotiate an acquisition.
This action would ensure the City can secure all access rights required to complete the first of three phases of
the Halligan Project:
Phase 1 - permitting and design (site visits and data collection related to permitting processes and
preliminary design work for the reservoir enlargement and for the diversion structure replacement)
Phase 2 - construction (construction work related to replacement of dam and diversion structure)
Phase 3 - long-term maintenance and operations of the dam and reservoir (including permanent
maintenance of measuring devices on the reservoir and diversion structure and environmental monitoring
requirements under governmental permits)
For Phases 2 and 3, there will still be a need for acquisition of temporary construction easements, permanent
access rights, and fee purchase of acreage that will be inundated when the Halligan Reservoir dam rebuild is
complete. Staff has excluded Phases 2 and 3 from this request due to lack of specific details about the extent of
the property rights needed. Staff anticipates returning to City Council to request authorization to use eminent
domain for Phases 2 and 3 later, after construction and long-term access needs are better understood.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on First Reading.
ATTACHMENT 1
Agenda Item 15
Item # 15 Page 2
BACKGROUND / DISCUSSION
In the Halligan Water Supply Project, the City seeks to enlarge the Halligan Reservoir to meet treated water
demands of future Utilities customers and provide added reliability for all Utilities customers, in case of prolonged
drought and uncertainties such as wildfires or infrastructure failures. Halligan Reservoir is located on the North
Fork of the Cache la Poudre River, about 25 miles northwest of Fort Collins. In order to enlarge the Reservoir,
the dam will be reconstructed. Additional infrastructure will also be improved and/or replaced. The North Poudre
Canal Diversion Structure and the Calloway Diversion Structure will both be modified as part of this project, and
are located about 6 and 7.5 miles, respectively, downstream of Halligan dam. The overall purpose and need for
the project, as well as the benefits of enlarging Halligan Reservoir, are described in more detail in the briefing
book provided to City Council on June 6, 2019.
The City does not currently own all property rights necessary to complete the design and construction of the
Halligan Project. The primary property rights the City needs to acquire for the life of the project are access rights
and inundation rights. However, this authorization request is specific to Phase 1 of the project and includes
temporary access easements across those properties which bound the reservoir and diversion structures.
Access is needed from three landowners to ensure Phase 1 activities, including data collection and surveying,
can be conducted in a timely manner.
Staff from Real Estate Services and Utilities, with support from the City Attorney’s Office, has been working with
local landowners in varying capacities since the early 2000s. Most of these preliminary conversations involved
obtaining informal access agreements for staff and permitting agencies to cross the landowners’ property to
collect data needed for the permitting process and/or access City lands or project features.
The land acquisition phase of the Halligan Project began in earnest in late 2018. Since that time, staff has been
involved in detailed communications with six landowners to negotiate access to the reservoir and diversion
structures. Discussions have included access needs for all phases of the project (permitting and design,
construction, and operations and maintenance), but the most time sensitive access need is that for Phase 1 -
permitting and design. Staff is close to having a final executed access easement for the west access to the dam
and reservoir with an entity that represents 16 landowners. However, staff has had varied success with
negotiations on the remaining access needed for Phase 1 activities.
The draft environmental impact statement for the Halligan Project was released by the U.S. Army Corps of
Engineers on November 22, 2019. Given the remaining number of easements needed and the time sensitivity
to begin design activities in 2020, Staff is requesting eminent domain authorization to provide a tool to meet the
project deadlines.
Recommendation
Staff recommends that City Council authorize the use of eminent domain for this project to provide a process
that will allow the City to meet project deadlines while ensuring fair and equitable treatment of landowners. The
eminent domain process provides a tool for staff to meet project deadlines while ensuring all property owners
are fairly compensated for the property rights acquired by the City. Condemnation will only be used if necessary
and if the City is unable to reach an agreement with a property owner in a timely manner, through good-faith
negotiations.
In summary, obtaining eminent domain authority for Phase 1 activities for the Halligan Project will:
Allow staff to develop the schedule for design activities with more certainty.
Ensure adherence to the planned property acquisition schedule, reducing the risk and cost of possible future
delays related to access.
Ensure consistent treatment to affected property owners.
Agenda Item 15
Item # 15 Page 3
CITY FINANCIAL IMPACTS
Both staff and the landowners have invested a considerable amount of time discussing access needs and
compensation for the Halligan Project. Real estate acquisition costs are anticipated to comprise less than one
percent of the total cost of the Halligan Water Supply Project, which is $120M. This Council action will not
authorize any new funding for the Halligan Project.
The use of eminent domain provides a process for staff to control real estate acquisition costs and minimize risks
to the project associated with access needs.
BOARD / COMMISSION RECOMMENDATION
Authorization of eminent domain was presented to Water Board on October 3 and October 17. Based on Water
Board feedback, staff continued to work on good faith negotiations with several landowners during the months
of October, November and December 2019. On December 19, 2019 Water Board recommended that City
Council authorize the use of eminent domain for the Halligan Project, as needed to obtain temporary access
easements for Phase 1-permitting and design. (Attachment 2)
PUBLIC OUTREACH
Staff has been actively engaged with landowners surrounding Halligan in various capacities since the 2000s. In
the past year staff sent out a survey to local landowners to understand how they would like to stay informed
about the project progress. actively addressing community questions and working with nearby residents and
landowners.
The following specific actions have been taken with landowners included in this eminent domain authorization
request:
July 2019: Letter to all Halligan Reservoir neighboring property owners
August 2019: Letter to all affected landowners regarding potential easement requests
October 2019: Board and Council notification letter to all affected landowners
December 2019: Board and Council notification letter to all affected landowners
Approximately 15 in person meetings with individual landowners to discuss specific access needs and
compensation.
Numerous telephone calls and email communications between meetings.
Staff will continue public outreach and engagement efforts with stakeholders throughout the duration of the
project.
In addition, staff maintains an active project website available at: <https://www.fcgov.com/halligan/>
ATTACHMENTS
1. Halligan Reservoir Landownership Map (PDF)
2. Water Board minutes, December 19, 2019 (draft) (PDF)
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ORDINANCE NO. 013, 2020
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE ACQUISITION BY EMINENT DOMAIN PROCEEDINGS OF
CERTAIN PROPERTY RIGHTS NECESSARY FOR ACCESS IN CONNECTION WITH
PHASE I (PERMITTING AND DESIGN) OF THE HALLIGAN WATER SUPPLY PROJECT
WHEREAS, by the adoption of Resolution 2003-121, City Council authorized the City
Manager to proceed with investigation, planning, regulatory review processes, site acquisition,
design, and construction of the Halligan Reservoir Enlargement Project, now referred to as the
Halligan Water Supply Project (the “Project”); and
WHEREAS, the City is proceeding with Phase 1 of the Project, which will include site
visits and data collection related to the permitting and design work for the reservoir enlargement
and replacement or modification of the dam and diversion structures; and
WHEREAS, to accomplish the work of Phase 1, the City needs access to Halligan
Reservoir, the North Poudre Canal Diversion Structure, and the Calloway Diversion Structure; and
WHEREAS, to meet near-term project timelines, the City will need to acquire certain
property rights as described on Exhibits “A” through “C”, attached hereto and incorporated herein
by this reference (the “Property Rights”); and
WHEREAS, the City will negotiate in good faith for the acquisition of the Property Rights
from the owners thereof; and
WHEREAS, the acquisition of the Property Rights is desirable and necessary for the
permitting and design phase of the Project, is in the City’s best interest, and enhances public health,
safety, and welfare because it is in furtherance of the Project, which will meet the demands of
future Fort Collins Utilities customers and provide added reliability for all Utilities customers; and
WHEREAS, the acquisition of the Property Rights may, by law, be accomplished through
eminent domain.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determination and
findings contained in the recitals set forth above.
Section 2. That the City Council hereby finds and determines that it is necessary in the
public interest to acquire the Property Rights described herein for the purpose of the permitting
and design of the Project.
Section 3. That the City Council hereby authorizes the City Attorney and other
appropriate officials of the City to acquire the Property Rights for the City by eminent domain
proceedings.
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Section 4. That the City Council further finds that, in the event acquisition of eminent
domain of the Property Rights or any of them is commenced, immediate possession is necessary
for the public health, safety, and welfare.
Introduced, considered favorably on first reading, and ordered published this 7th day of
January, A.D. 2020, and to be presented for final passage on the 21st day of January, A.D. 2020.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
Passed and adopted on final reading on the 21st day of January, A.D. 2020.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
EXHIBIT B
EXHIBIT C