HomeMy WebLinkAbout2023CV30659 - East Larimer County Water Dist. v. K & M Co., et al. - 023 - City Response Mot Imm PossLarimer County, Colorado, District Court
Larimer County Justice Center
201 LaPorte Avenue, Suite 100
Fort Collins, Colorado 80521-2761
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
Case No. 2023CV30659
Courtroom 3B
Attorneys for City of Fort Collins
Ryan Malarky, #41577
FORT COLLINS CITY ATTORNEY’S OFFICE
300 Laporte Avenue
PO Box 500
Fort Collins, Colorado 80522
970.221.4328
rmalarky@fcgov.com
CITY OF FORT COLLINS’S RESPONSE TO
MOTION FOR IMMEDIATE POSSESSION
Respondent The City of Fort Collins (the “City”), by and through undersigned counsel,
responds to the East Larimer County Water District’s and North Weld County Water District’s
(the “Districts”) Motion for Immediate Possession as follows:
DATE FILED: January 12, 2024 4:43 PM
FILING ID: 375FB98ACC750
CASE NUMBER: 2023CV30659
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PROCEDURAL HISTORY
1. The Districts filed a Petition in Condemnation (the “Petition”) on August 16, 2023,
to acquire permanent and temporary construction easements (the “Easements”)over a portion of
property on which the City has a property interest by way of an easement, pursuant to which the
City operates and maintains a water pipeline that is the sole water service line to the Anheuser-
Busch brewery. The Districts allege the Easements are necessary for the purpose of constructing a
waterline pipeline project at the Properties (the “Project”).
2. Respondents Poudre Valley Rural Electric Association, Inc., Irene Josey, Anadarko
E&P Onshore LLC, and Anadarko Land Corp disclaimed interest in the proceedings and the
easements petitioned for. Respondents City and K&M Company, LLLP answered the Petition.
Respondent Boxelder Sanitation District and the Districts stipulated to specific language to be
included in any easements granted as the result of this litigation.
3. On January 4, 2024, the Districts moved for immediate possession of the Properties
(the “Motion”) alleging immediate possession is necessary to complete the Project.
4. This Court ordered the parties to respond to the Motion on or before January 12,
2024.
5. A hearing on immediate possession has not yet been set. A status conference is set
for March 14, 2024.
RESPONSE
6. The City and the Districts have been working to come to a stipulated agreement
regarding the Districts’ possession and use of the property, in which the City has real property
interests and operates and maintains critical infrastructure.
7. As of the date of this pleading, the City and the Districts appear close to finalizing
such a stipulation, but the City requires additional time to confirm all aspects of the stipulation are
acceptable to the City.
8. Without the stipulation ready for submission to the Court, the City responds to the
Motion by stating that the Court has the discretionary authority whether to grant possession to a
condemning entity. Vivian v. Bd. of Trustees of Colo. School of Mines, 383 P.2d 801, 804 (Colo.
1963) (trial court has discretion in determining whether immediate possession of property should
be given to condemning entity); McClain v. People, 11 P. 85 (Colo. 1886).
9. Furthermore, other provisions of the eminent domain statutes support the
conclusion that it is the trial court’s authority to decide whether to grant immediate possession.
C.R.S. section 38-1-109 provides that “at the hearing provided for in section 38-1-105, the court
shall hear and dispose of all objections that may be raised touching the legal sufficiency of the
petition or cross petition or the regularity of the proceedings in any other respect.”
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10. In the absence of a stipulation for the Districts’ possession of the Easements, the
Districts must still prove that they have the legal authority to proceed with the condemnation; that
the Districts engaged in good faith negotiations with the property owner(s); and that their intended
possession and use would serve a proper public purpose.
11. Contrary to the Districts’ assertion, C.R.S. section 38-1-105(6)(a) does not
automatically entitle them to immediate possession of the Easements. Rather, this Court “may
authorize” possession of the Easements upon the Court’s satisfaction that the Districts have met
statutory requirements that, absent an agreement between the parties, is to be determined at a
hearing held before this Court.
12. Any possession and use of the Easements by the Districts must include terms and
conditions sufficient to protect the City’s property rights and the critical infrastructure the City
operates and maintains pursuant to said rights.
WHEREFORE, while the City anticipates a stipulation for the Districts’ possession will be
submitted to the Court, at this time the City respectfully requests the Court deny the Motion.
Dated: January 12, 2024 Respectfully submitted:
s/ Ryan Malarky
Ryan Malarky
Attorney for City of Fort Collins
CERTIFICATE OF SERVICE
I hereby certify that on January 12, 2024, I filed the foregoing CITY OF FORT
COLLINS’S RESPONSE TO MOTION FOR IMMEDIATE POSSESSION via CCE which will
serve true and correct copies upon the following:
Timothy Goddard, timg@hfglawfirm.com
GODDARD LAW OFFICE PLLC
Attorney for Petitioners
Frank N. Haug, fhaug@larimer.org
LARIMER COUNTY ATTORNEY’S OFFICE
Attorney for Ireme Josey Larimer County
Treasurer
Carrie Sue Bernstein,
csb@ablawcolorado.com
Joshua Mangiagli, jtm@ablawcolorado.com
ALDERMAN BERNSTEIN
Attorneys for K & M Company LLP
Michael A. Westbrook,
mike@starrwestbrook.com
STARR & WESTBROOK, P.C.
Attorney for Poudre Valley Rural Electric
Association
s/ Briana McCarten