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HomeMy WebLinkAbout2024CV30118 - City v. Horsetooth Convenience Center, et al - 10 - 7-Eleven AnswerDISTRICT COURT, LARIMER COUNTY, COLORADO 201 LaPorte Avenue, Suite 100 Fort Collins, Colorado 80521 (970) 494-3500 ▲COURT USE ONLY▲ Petitioner: CITY OF FORT COLLINS, a Colorado home rule municipality v. Respondents: HORSETOOTH CONVENIENCE CENTER, LLC, a Colorado limited liability company; 7-ELEVEN, INC., a Texas corporation; and IRENE JOSEY in her official capacity as the COUNTY TREASURER OF LARIMER COUNTY, COLORADO Attorneys for 7-Eleven, Inc. 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: 2024CV30118 Division: 4A ANSWER TO PETITION IN CONDEMNATION Respondent 7-Eleven, Inc. (“7-Eleven”), by and through its counsel, Alderman Bernstein LLC, hereby submits its Answer to Petition in Condemnation ("Answer") in the above-captioned matter. The numbered paragraphs in this Answer coincide with those in the Petition in Condemnation (“Petition”). Capitalized terms not otherwise defined herein shall have the same meaning set forth in the Petition. 1. Whether the City is a Colorado home rule municipality organized, existing, and possessing the powers and authorities set forth in its home rule charter is a legal conclusion to which no response is required. To the extent a response is required, 7-Eleven denies the same. 7- Eleven is without sufficient information to form a belief as to the truth of whether the City's home rule charter was adopted by the voters of the City beginning on October 5, 1954, and subsequently amended from time to time thereafter. Therefore, 7-Eleven denies the same. 2. Paragraph 2 of the Petition contains legal conclusions to which no response is required. To the extent a response is required, 7-Eleven admits the applicability of C.R.S. § 38-1- 101 et seq. and C.R.S. § 38-1-119 to this proceeding. DATE FILED: March 5, 2024 2:41 PM FILING ID: B18326F1B032E CASE NUMBER: 2024CV30118 2 3. Paragraph 3 of the Petition contains legal conclusions to which no response is required. To the extent a response is required, 7-Eleven admits the applicability of C.R.S. § 38-1- 102. 4. Paragraph 4 of the Petition contains legal conclusions to which no response is required. To the extent a response is required, 7-Eleven admits the applicability of C.R.C.P. 98(a) and that the real property the City seeks to acquire is located entirely within the County of Larimer, State of Colorado. 5. Whether the City is authorized to condemn the real property described in the Petition pursuant to Article IV, Section 14 of its Home Rule Charter, Article XX, §§ 1 and 6, of the Colorado Constitution, and C.R.S. § 38-6-101, et seq. is a legal conclusion to which no response is required. To the extent that a response is required, 7-Eleven denies the same. Whether the City may elect to follow the procedure for condemnation as outlined in C.R.S. § 38-1-101, et seq., is a legal conclusion to which no response is required. To the extent that a response is required, 7-Eleven admits the applicability of C.R.S. § 38-1-101, et seq. 6. 7-Eleven is without sufficient information to form a belief as to the truth of the matters asserted in Paragraph 6 and, therefore, denies the same. 7. 7-Eleven is without sufficient information to form a belief as to the truth of the matters asserted in Paragraph 7 and, therefore, denies the same. 8. 7-Eleven is without sufficient information to form a belief as to the truth of the matters asserted in Paragraph 8 and, therefore, denies the same. 9. 7-Eleven is without sufficient information to form a belief as to the truth of the matters asserted in Paragraph 9 and, therefore, denies the same. 10. Paragraph 10 of the Petition contains legal conclusions to which no response is required. To the extent a response is required, 7-Eleven denies the same. 11. Paragraph 11 of the Petition contains legal conclusions to which no response is required. To the extent a response is required, 7-Eleven denies the same. 12. 7-Eleven admits that Horsetooth Convenience Center, LLC (“Horsetooth”) owns the Subject Property and that 7-Eleven leases the Subject Property. 7-Eleven is without sufficient information to form a belief as to the remaining allegations in Paragraph 12 and, therefore, denies the same. 13. 7-Eleven is without sufficient information to form a belief as to the truth of the matters asserted in Paragraph 13 and, therefore, denies the same. 14. Whether the City has negotiated in good faith with the Respondents, who may have an interest in or claim to the underlying fee simple estate of the Subject Property, is a legal conclusion to which no response is required. To the extent a response is required, 7-Eleven denies 2 the same. 7-Eleven admits that the City sent a final written offer to 7-Eleven and Horsetooth and that 7-Eleven has been unable to reach an agreement with the City on the voluntary acquisition of the Subject Property prior to the City’s filing of this condemnation action. 7-Eleven is without sufficient information to form a belief as to whether the City sent a final written offer to Irene Josey in her official capacity as the County Treasurer of Larimer County and, therefore, denies the same. 7-Eleven is also without sufficient information to form a belief as to whether the City was unable to reach an agreement on the voluntary acquisition of the Subject Property with Horsetooth or Ms. Josey and, therefore, denies the same. 15. 7-Eleven denies the allegations in Paragraph 15. 16. 7-Eleven is without sufficient information to form a belief as to the truth of the matters asserted in Paragraph 16 and, therefore, denies the same. 17. 7-Eleven is without sufficient information to form a belief as to the truth of whether the City seeks to condemn or obtain any Water Rights and, therefore, denies the same. 7-Eleven is also without sufficient information to form a belief as to the truth of whether the City disclaims any interest in Water Rights and, therefore, denies the same. Whether the City’s disclaimer of Water Rights allows Respondents or any others to locate or perpetuate surface or subsurface facilities incident to Water Rights that would interfere with the City’s use of the Subject Property is a legal conclusion to which a response is not required. To the extent that a response is required, 7-Eleven denies the same. 18. 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 that a response is required, 7-Eleven admits the applicability of C.R.S. § 38-1-105(4). 7-Eleven is without sufficient information to form a belief as to the truth of whether the City disclaims any interest in Mineral Rights. Whether the City’s disclaimer of Mineral Rights allows Respondents to locate or perpetuate surface or subsurface facilities incident to the Mineral Rights that would interfere with the City’s use of the Subject Property is a legal conclusion to which a response is not required. To the extent that a response is required, 7-Eleven denies the same. 19. 7-Eleven is without sufficient information to form a belief as to the truth of the matters asserted in Paragraph 19 and, therefore, denies the same. 20. Paragraph 20 of the Petition contains legal conclusions to which no response is required. To the extent a response is required, 7-Eleven denies the same. 21. 7-Eleven is without sufficient information to form a belief as to the truth of whether the City must undertake the Project in a timely manner and, therefore, denies the same. Whether the City is entitled to obtain immediate possession of the Subject Property under C.R.S. § 38-1- 105(6)(a) is a legal conclusion to which no response is required. To the extent that a response is required, 7-Eleven denies the same. Additionally, 7-Eleven affirmatively objects to the City’s assertion that it is entitled to possession under C.R.S. § 38-1-105(6)(a). 2 22. Paragraph 22 of the Petition contains legal conclusions to which no response is required. To the extent a response is required, 7-Eleven denies the same. GENERAL DENIAL 7-Eleven denies any allegation not specifically admitted herein. AFFIRMATIVE DEFENSES 1. The Petition fails to state a claim upon which relief can be granted. 2. The City does not have the authority to condemn the Subject Property. 3. The City does not need to condemn all of the Subject Property for the Project. 4. The City does not have an immediate need to condemn the Subject Property. 5. The City has not negotiated with 7-Eleven in good faith. 6. The City’s likely proposed deposit to take immediate possession of the Subject Property is insufficient. 7. The City has not complied with all conditions precedent to filing this condemnation action. 8. 7-Eleven 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, 7-Eleven prays as follows: 1. The Court dismiss the Petition and award 7-Eleven its attorney fees and costs under C.R.S. § 38-1-122(1). 2. In the alternative, that the Court deny the City’s request for immediate possession. 3. In the alternative, if the Court does not dismiss the Petition, 7-Eleven prays that the Court: (a) Require the City to pay just compensation for the Subject Property according to the provisions of Article II, Section 15 of the Colorado Constitution, and all other applicable laws; (b) Require the City 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 the City to pay all costs and expenses incurred by 7-Eleven in defending this proceeding as required under the law; 2 (d) Should a sufficient award be entered, require Petitioners to pay 7-Eleven’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. 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 By: /s/ Joshua T. Mangiagli Joshua T. Mangiagli Carrie S. Bernstein ATTORNEYS FOR 7-ELEVEN, INC. CERTIFICATE OF SERVICE I hereby certify that on this 5th day of March 2024, 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: M. Patrick Wilson Katharine J. Vera Hoffmann, Parker, Wilson & Carberry, P.C. 511 16th Street, Suite 610 Denver, CO 80202 Attorney for Petitioner _______/s/__________________________ Cindy Bolton