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Home My WebLink About2023CV30659 - East Larimer County Water Dist. v. K & M Co., et al. - 012 - K&M Answer1 DISTRICT COURT, LARIMER COUNTY, COLORADO 201 LaPorte Avenue, Suite 100 Fort Collins, CO 80521 970-494-3500 ▲COURT USE ONLY▲ Petitioners: EAST LARIMER COUNTY WATER DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado; and NORTH WELD COUNTY WATER DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado v. Respondents: K & M COMPANY, LLLP, a Colorado limited liability limited partnership; BOXELDER SANITATION DISTRICT; THE CITY OF FORT COLLINS, a municipal corporation; ANADARKO E&P ONSHORE LLC, a Delaware limited liability company; ANADARKO LAND CORP., a Nebraska corporation; POUDRE VALLEY RURAL ELECTRIC ASSOCIATION, INC., a Colorado cooperative association; and IRENE JOSEY in her official capacity as the COUNTY TREASURER OF LARIMER COUNTY, COLORADO Attorneys for K & M Company, LLLP Carrie S. Bernstein, Atty Reg. #34966 Joshua T. Mangiagli, Atty Reg. #52375 ALDERMAN BERNSTEIN LLC 101 University Blvd., Suite 350 Denver, Colorado 80206 Phone: 720-460-4200 e-mail:csb@ablawcolorado.com; jtm@ablawcolorado.com Case Number: 23CV30659 Division: 3B ANSWER TO PETITION IN CONDEMNATION Respondent K&M Company, LLLP (“Respondent-Landowner”), by and through its counsel, Alderman Bernstein LLC, hereby submits its Answer to the Petition in Condemnation (“Answer”) in the above-captioned matter. The numbered paragraphs in this Answer coincide with the numbered paragraphs in the Petition in Condemnation (“Petition”). Capitalized terms not otherwise defined herein shall have the same meaning as set forth in the Petition. DATE FILED: September 15, 2023 11:57 AM FILING ID: BA89D965F2823 CASE NUMBER: 2023CV30659 2 1. Paragraph 1 of the Petition contains legal conclusions to which no response is required. To the extent a response is required, Respondent-Landowner admits the applicability of C.R.S. § 38-1-101, et seq., to this proceeding. 2. Paragraph 2 of the Petition contains legal conclusions to which no response is required. To the extent a response is required, Respondent-Landowner admits the applicability of C.R.S. § 38-1-119 but denies that C.R.C.P. 16 and 26 are inapplicable. 3. Whether ELCO is a political subdivision of the State of Colorado; a special district as defined in C.R.S. § 32-1-103(20); and a water district, as defined in C.R.S. § 32-1-103(25) are legal conclusions to which no response is required. To the extent a response is required, Respondent-Landowner denies the same. Respondent-Landowner is without sufficient information to form a belief as to the truth of whether ELCO’s principal business address is 232 South Link Lane, Fort Collins, Colorado. 4. Whether NWCWD is a political subdivision of the State of Colorado; a special district, as defined in C.R.S. § 32-1-103(2); and a water district, as defined in C.R.S. § 32-1- 103(25) are legal conclusions to which no response is required. To the extent a response is required, Respondent-Landowner denies the same. Respondent-Landowner is without sufficient information to form a belief as to the truth of whether NWCWD’s principal business address is 32825 County Road 39, Lucerne, Colorado. 5. Paragraph 5 of the Petition contains legal conclusions to which no response is required. To the extent a response is required, Respondent-Landowner denies the same. 6. Paragraph 6 of the Petition contains legal conclusions to which no response is required. To the extent a response is required, Respondent-Landowner admits that this Court has jurisdiction over this proceeding. 7. Paragraph 7 of the Petition contains legal conclusions to which no response is required. To the extent a response is required, Respondent-Landowner admits the property interests sought to be taken are located entirely within the County of Larimer, State of Colorado. 8. Respondent-Landowner is without sufficient information to form a belief as to the truth of the matters asserted in Paragraph 8 of the Petition and, therefore, denies the same. 9. Respondent-Landowner is without sufficient information to form a belief as to the truth of the matters asserted in Paragraph 9 of the Petition and, therefore, denies the same. 10. Respondent-Landowner is without sufficient information to form a belief as to the truth of the matters asserted in Paragraph 10 of the Petition and, therefore, denies the same. 11. Respondent-Landowner is without sufficient information to form a belief as to the truth of the matters asserted in Paragraph 11 of the Petition and, therefore, denies the same. 12. Respondent-Landowner is without sufficient information to form a belief as to the truth of the matters asserted in Paragraph 12 of the Petition and, therefore, denies the same. 3 13. Respondent-Landowner is without sufficient information to form a belief as to the truth of the matters asserted in Paragraph 13 of the Petition and, therefore, denies the same. 14. Respondent-Landowner is without sufficient information to form a belief as to the truth of the matters asserted in Paragraph 14 of the Petition and, therefore, denies the same. 15. Respondent-Landowner is without sufficient information to form a belief as to the truth of the matters asserted in Paragraph 15 of the Petition and, therefore, denies the same. 16. Whether this proceeding is brought pursuant to C.R.S. § 38-1-105(4) and whether said provision applies to any vein, ledge, lode, or deposit are legal conclusions to which no response is required. To the extent a response is required, Respondent-Landowner admits the applicability of C.R.S. § 38-1-105(4). Respondent-Landowner is without sufficient information to form a belief as to the truth of whether the Districts disclaim any interest in Mineral Rights. Whether the Districts’ disclaimer of Mineral Rights shall not be construed as permission by Respondents or any others to locate or perpetuate surface or subsurface facilities incident to the Mineral Rights that would interfere with the Districts’ use of the Permanent Easement is a legal conclusion to which no response is required. To the extent a response is required, Respondent- Landowner denies the same. 17. Respondent-Landowner is without sufficient information to form a belief as to the truth of the matters asserted in Paragraph 17 of the Petition and, therefore, denies the same. 18. Paragraph 18 of the Petition contains legal conclusions to which no response is required. To the extent a response is required, Respondent-Landowner denies the same. 19. Respondent-Landowner is without sufficient information to form a belief as to the truth of the matters asserted in Paragraph 19 of the Petition and, therefore, denies the same. 20. Respondent-Landowner admits the allegations in Paragraph 20(A). Respondent- Landowner is without sufficient information to form a belief as to the truth of the matters asserted in Paragraphs 20(B)-(F) of the Petition and, therefore, denies the same. 21. Respondent-Landowner is without sufficient information to form a belief as to the truth of the matters asserted in Paragraph 21 of the Petition and, therefore, denies the same. 22. Respondent-Landowner is without sufficient information to form a belief as to the truth of the matters asserted in Paragraph 22 of the Petition and, therefore, denies the same. 23. Respondent-Landowner is without sufficient information to form a belief as to the truth of the matters asserted in Paragraph 23 of the Petition and, therefore, denies the same. 24. Paragraph 24 of the Petition contains legal conclusions to which no response is required. To the extent a response is required, Respondent-Landowner denies the same. Respondent-Landowner states affirmatively that the Districts did not make a good faith offer to purchase or otherwise negotiate with Respondent-Landowner. 4 GENERAL DENIAL Respondent-Landowner denies any allegation not specifically admitted herein. AFFIRMATIVE DEFENSES 1. The Petition fails to state a claim upon which relief can be granted. 2. Petitioners lack constitutional authority under Article XVI, Section 7, of the Colorado Constitution to condemn the Property for all of the purposes proposed in the Petition in Condemnation. 3. Petitioners lack statutory authority to condemn Respondent-Landowner’s interest in the Property. 4. There is no necessity to condemn Respondent-Landowner’s interest in the Property for the Project. 5. There is no immediate need to condemn Respondent-Landowner’s interest in the Property for the Project. 6. There have been no good faith negotiations with Respondent-Landowner. 7. Petitioners’ likely proposed deposit to take immediate possession of the Property is insufficient. 8. Petitioners have not complied with all conditions precedent to filing this condemnation action, including failure to comply with C.R.S. § 38-1-121(1). 9. Respondent-Landowner reserves the right to raise any additional defenses or other matters at an in limine hearing as provided for in C.R.S. § 38-1-109 and other relevant laws. WHEREFORE, Respondent-Landowner prays as follows: 1. The Court dismiss the Petition and award Respondent-Landowner its attorney fees and costs under C.R.S. § 38-1-122(1). 2. In the alternative, if the Court does not dismiss the Petition, Respondent- Landowner prays that the Court: (a) Require Petitioners to pay just compensation to Respondent-Landowner according to the provisions of Article II, Section 15 of the Colorado Constitution, and all other applicable laws; 5 (b) Require Petitioners to pay interest as provided by law pursuant to the provisions of Article 1, Title 38 of C.R.S, and any other applicable laws; (c) Require Petitioners to pay all costs and expenses incurred by Respondent- Landowner in defending this proceeding as required under the law; (d) Should a sufficient award be entered, require Petitioners to pay Respondent- Landowner’s attorney fees under C.R.S. § 38-1-122(1.5); and (e) Grant such other and further relief that the Court deems appropriate. Dated September 15, 2023 Respectfully submitted, ALDERMAN BERNSTEIN LLC This document is e-filed per C.R.C.P. 121, section 1- 26. A duly signed copy is on file at the offices of Alderman Bernstein LLC /S/ Carrie S. Bernstein____________________ CERTIFICATE OF SERVICE I hereby certify that on this 15th day of September 2023, a true and correct copy of the foregoing was filed and served via ICCES or placed in the United States Mail, first class, postage prepaid, addressed to the following: Timothy L. Goddard Goddard Law Office, PLLC 210 East 29th Street Loveland, CO 80538 Attorney for Petitioner Ryan Malarky Fort Collins City Attorney’s Office 300 Laporte Avenue PO Box 500 Fort Collins, Colorado 80522 Attorneys for City of Fort Collins 6 Frank N. Haug Larimer County Attorney’s Office 224 Canyon Ave., Suite 200 Post Office Box 1606 Fort Collins, Colorado 80522 Attorney for Irene Josey, Treasurer of Larimer County Michael A. Westbrook Starr & Westbrook, P.C. 210 East 29th Street Loveland, CO 80538 Attorney for Poudre Valley Rural Electric Association, Inc. _______/s/__________________________ Cindy Bolton