HomeMy WebLinkAbout2024CV30118 - City v. Horsetooth Convenience Center, et al - 11 - 7-Eleven Response Mot Immediate PossessionDISTRICT 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
RESPONDENT 7-ELEVEN, INC.’S RESPONSE TO
PETITIONER’S MOTION FOR IMMEDIATE POSSESSION
Respondent 7-Eleven, Inc. (“7-Eleven”), by and through its counsel, Alderman Bernstein
LLC, submits the following Response to Petitioner’s Motion for Immediate Possession, and in
support states the following:
CONFERRAL
1. Petitioner did not confer with 7-Eleven regarding its Motion for Immediate
Possession.
2. This matter is set for a hearing under C.R.S. § 38-1-105(6) (“Immediate Possession
Hearing”) on April 12, 2024, at 3:00 p.m. 7-Eleven does not object to the Court holding an
Immediate Possession Hearing.
DATE FILED: March 5, 2024 2:41 PM
FILING ID: B18326F1B032E
CASE NUMBER: 2024CV30118
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3. However, 7-Eleven disagrees that Petitioner is entitled to immediate possession of
the property described in Exhibits 1-4 of the Petition in Condemnation (the “Subject Property”)
and objects to any ruling that would grant Petitioner immediate possession. See Motion for
Immediate Possession, at ¶ 2.
LEGAL STANDARD FOR POSSESSION
4. Colorado courts have repeatedly recognized that Colorado’s eminent domain
statute, section 38-1-101, et seq., C.R.S., is to be strictly construed. See Dep’t of Transp. v.
Stapleton, 97 P.3d 938, 941 (Colo. 2004).
5. During a condemnation proceeding, an entity seeking to condemn property may
move for immediate possession of the land subject to an immediate possession hearing. Town of
Silverthorne v. Lutz, 370 P.3d 368, 373 (Colo. App. 2016); see Glenelk Ass’n. Inc. v. Lewis, 260
P.3d 1117, 1122 (Colo. 2011) (citing C.R.S. §§ 38-1-105(6), 38-1-106).
6. The Colorado Revised Statutes state:
At any stage of such new proceedings or of any proceedings under this
article, the court, by rule in that behalf made, may authorize the petitioner,
if already in possession, to use, and, if not in possession, to take possession
of and use, said premises during the pendency and until the final conclusion
of such proceedings and may stay all actions and proceedings against such
petitioner on account thereof, if such petitioner pays a sufficient sum into
court, or to the clerk thereof, to pay the compensation in that behalf when
ascertained. The court wherein any such proceedings are had shall
determine the amount such petitioner is required to pay or deposit pending
any such ascertainment. In every case where possession is so authorized, it
is lawful for either party to conduct the proceedings to a conclusion, if the
same are delayed by the other party.
C.R.S. § 38-1-105(6)(a).
7. At the immediate possession hearing in section 38-1-105, C.R.S., “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.” C.R.S. 38-1-109.
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8. The term may (as opposed to shall) in C.R.S. § 38-1-105(6)(a) notes that the
granting of immediate possession is subject to the Court’s discretion. See McClain v. People, 11
P. 85, 87 (Colo. 1886) (“We are of opinion that the statutory expression, ‘the court or judge may,
by rule, authorize the said petitioner to take possession,’ etc., confers upon him a discretionary
power; that the word ‘may’ does not mean ‘shall.’”).
9. A condemnor cannot take possession of the property unless it proves the following:
authority, public purpose, necessity, good faith negotiations, immediate need, and a sufficient
deposit (collectively, the “Immediate Possession Requirements”). Petitioner is only entitled to
immediate possession if and when it satisfies its burden before this Court.
10. To date, Petitioners have yet to supply any evidence to satisfy the Immediate
Possession Requirements.
11. 7-Eleven will submit a brief before the immediate possession hearing, outlining
why Petitioner is not entitled to immediate possession of the Subject Property.
WHEREFORE, 7-Eleven respectfully requests this Court hold Petitioner to its burden of
providing competent evidence proving (1) Petitioner is entitled to acquire the Subject Property for
a public purpose and that the Subject Property is necessary for the project; (2) Petitioner negotiated
in good faith; (3) Petitioner has the authority to condemn; (4) Petitioner has a pressing need for
immediate possession of the Subject Property; and (5) the deposit suffices to dispossess 7-Eleven
and Horsetooth Convenience Center, LLC from the Subject Property.
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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