HomeMy WebLinkAbout2024CV30118 - City v. Horsetooth Convenience Center, et al - 12 - Horsetooth CC Answer
DISTRICT COURT, LARIMER COUNTY,
COLORADO
201 LaPorte Avenue, Suite 100
Fort Collins, Colorado 80521
▲COURT USE ONLY▲
Petitioner:
CITY OF FORT COLLINS, a Colorado home rule
municipality,
vs.
Respondents:
HORSETOOTH CONVENIENCE CENTER, LLC,
a Colorado limited liability company; 7-ELEVEN INC.,
a Texas corporation; and IRENE E. JOSEY, in her
official capacity as the COUNTY TREASURER OF
LARIMER COUNTY.
Attorneys for Respondent Horsetooth
Convenience Center, LLC
Sarah M. Kellner, No. 38111
Lindsey P. Folcik, No. 55167
DAVIS GRAHAM & STUBBS LLP
1550 17th Street, Suite 500
Denver, Colorado 80202
Telephone: 303.892.9400
Email: sarah.kellner@dgslaw.com
lindsey.folcik@dgslaw.com
Case No.: 2024CV030118
Div.: 4A
ANSWER TO PETITION IN CONDEMNATION
AND AFFIRMATIVE DEFENSES
Respondent Horsetooth Convenience Center, LLC, a Colorado limited liability company
(“Horsetooth”), through its undersigned counsel, hereby submits its Answer to Petition in
Condemnation (“Petition”) filed by Petitioner City of Fort Collins, a Colorado home rule
municipality (the “City”), and asserts its Affirmative Defenses as follows:
DATE FILED: March 7, 2024 3:08 PM
FILING ID: E05DE820F7B8F
CASE NUMBER: 2024CV30118
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1. The City is a Colorado home rule municipality organized, existing and possessing
the powers and authorities set forth in its home rule charter, as adopted by the voters of the City
beginning on October 5, 1954, and as subsequently amended from time to time thereafter.
RESPONSE: Paragraph 1 contains legal conclusions to which no response is required. To
the extent a response is required, Horsetooth denies the same. Horsetooth is without
sufficient information to form a belief as to the truth of the remaining allegations in
Paragraph 1 and therefore denies the same.
2. This is an eminent domain proceeding brought pursuant to the procedures set forth
in Title 38, Article 1, Colorado Revised Statutes ("C.R.S."). Eminent domain proceedings are
expedited proceedings pursuant to C.R.S. § 38-1-119 and are thereby entitled to preference on the
Court's docket.
RESPONSE: Paragraph 2 contains legal conclusions to which no response is required. To
the extent a response is required, Horsetooth admits the applicability of Title 38, Article 1,
Colorado Revised Statutes and C.R.S. § 38-1-119 to this proceeding.
3. Pursuant to C.R.S. § 38-1-102, this Court has jurisdiction over this proceeding.
RESPONSE: Paragraph 3 contains legal conclusions to which no response is required. To
the extent a response is required, Horsetooth admits the applicability of C.R.S. § 38-1-102
to this proceeding.
4. Venue is proper in this Court under C.R.C.P. 98(a) because the real property
interests sought to be acquired are located entirely within the County of Larimer, State of Colorado.
RESPONSE: Horsetooth admits that the real property interests sought to be acquired are
located entirely within the County of Larimer, State of Colorado. The remainder of
Paragraph 4 contains legal conclusions to which no response is required. To the extent a
response is required, Horsetooth admits the applicability of C.R.C.P. 98(a).
5. The City is authorized to condemn the real property described in this 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. The City elects to follow the procedures for
condemnation as outlined in C.R.S. § 38-1-101, et seq.
RESPONSE: Whether the City is authorized to condemn the real property described in
this 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 a response is required, Horsetooth denies the
same. Whether the City may elect to follow the procedures 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 a response is required, Horsetooth admits the applicability of C.R.S. § 38-1-101, et
seq.
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6. On November 2, 2021, the City Council of the City of Fort Collins adopted
Ordinance No. 136, 2021 approving and specifically authorizing the use of eminent domain to
acquire certain real property interests. The City is acquiring these interests for public street right
of way and related improvements including without limitation widening rights-of-way, adding turn
lanes, and bicycle and pedestrian connections at the South College Avenue and Trilby Road
intersection (the "Project"). The City is authorized to acquire the real property rights that are the
subject of this condemnation action, as more particularly described in Exhibits 1, 2 3 and 4
(collectively, the "Subject Property"), which are attached hereto and incorporated herein by this
reference.
RESPONSE: Whether the City is authorized to acquire the real property rights that are the
subject of this condemnation action, as more particularly described in Exhibits 1, 2 3 and
4 to the Petition (collectively, the "Subject Property"), is a legal conclusion to which no
response is required. To the extent a response is required, Horsetooth denies the same.
Horsetooth is without sufficient information to form a belief as to the truth of the remaining
allegations in Paragraph 6, and therefore denies the same.
7. The real property described in Exhibit 1 consists of land to be acquired in fee
simple. The real property described in Exhibit 2 consists of a utility easement to be acquired on,
over, across and through the property described therein to construct the Project and will be subject
to the terms and conditions in the respective easement agreement set forth in Exhibit 2. The real
property described in Exhibit 3 consists of two permanent easements to be acquired on, over,
across and through the property described therein in order to construct the Project and will be
subject to the terms and conditions in the respective easement agreement set forth in Exhibit 3.
The real property in Exhibit 4 consists of temporary construction easements to be acquired on,
over, across and through the property described therein in order to construct the Project and will
be subject to the terms and conditions in the easement agreement set forth in Exhibit 4.
RESPONSE: Horsetooth is without sufficient information to form a belief as to the truth
of the allegations in Paragraph 7, and therefore denies the same.
8. With Ordinance No. 136, 2021, the City Council found, determined and declared
that acquiring the Subject Property is necessary to complete the Project and that the same is a
public use and serves a public purpose.
RESPONSE: Horsetooth is without sufficient information to form a belief as to the truth
of the allegations in Paragraph 8, and therefore denies the same.
9. The Project is necessary to construct needed public infrastructure through the
widening and improvement of portions of Trilby Road and College Avenue. The intersection
construction will facilitate an improved level of service for the City and is therefore necessary and
essential to protect, preserve and promote the health, safety, welfare and convenience of the public.
RESPONSE: Horsetooth is without sufficient information to form a belief as to the truth
of the allegations in Paragraph 9, and therefore denies the same.
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10. The purpose and use for which the Subject Property is needed and sought
constitutes a public purpose and a public use, and there is a need and necessity for the City to
acquire title to, and possession of, the Subject Property.
RESPONSE: Paragraph 10 contains legal conclusions to which no response is required.
To the extent a response is required, Horsetooth denies the same.
11. The City's exercise of eminent domain to acquire the Subject Property comports
with all applicable provision of law and all pre-requisites and conditions of exercising eminent
domain authority have been satisfied.
RESPONSE: Paragraph 11 contains legal conclusions to which no response is required.
To the extent a response is required, Horsetooth denies the same.
12. The following parties are named herein as Respondents:
A. HORSETOOTH CONVENIENCE CENTER, LLC, a Colorado limited liability
company, may hold an interest in the Subject Property, by virtue of a Quit Claim
Deed dated November 22, 2011 (Reception No. 20110076538; Recorded
December 8, 2011), a Bargain and Sale Deed dated September 19, 2011 (Reception
No. 20110059928; Recorded October 3, 2011), and/or a Quit October 3, 2011).
B. 7-ELEVEN, INC., a Texas corporation, may hold an interest in the Subject Property
by virtue of Memorandum of Lease Agreement dated December 20, 1999
(Reception No. 0099108075; Recorded December 30, 1999), Amendment to
Memorandum of Lease Amendment dated January 23, 2001 (Reception No.
2001006037; Recorded January 29, 2001), Amendment No. 2 of Memorandum of
Lease Agreement dated September 24, 2007 (Reception No. 20070078484;
Recorded October 17, 2007), and Assignment and Assumption of Lease dated
November 21, 2001 (Reception No. 2001111375; Recorded December 7, 2001).
C. IRENE JOSEY, in her official capacity as the COUNTY TREASURER OF
LARIMER COUNTY, is named as a Respondent herein pursuant to C.R.S. § 39-
3134.
RESPONSE: Horsetooth admits that it is the fee owner of the Subject Property, and that
7-Eleven leases the Subject Property. Horsetooth is without sufficient information to form
a belief as to the truth of the remaining allegations in Paragraph 12 and therefore denies
the same.
13. Respondents, who may be interested as owners or otherwise in the Subject Property,
insofar as the same appear of record, are named in the caption of this Petition in Condemnation.
RESPONSE: Horsetooth is without sufficient information to form a belief as to the truth
of the allegations in Paragraph 13 and therefore denies the same.
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14. 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. The City has made a final
written offer to those Respondents but the parties have been unable to reach an agreement on the
voluntary acquisition of the Subject Property prior to the filing of this condemnation action.
RESPONSE: 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,
Horsetooth denies the same. Horsetooth admits that the City sent a final written offer to
acquire the Subject Property to Horsetooth and 7-Eleven, and that Horsetooth has been
unable to reach an agreement with the City on the voluntary acquisition of the Subject
Property prior to the filing of this condemnation action. Horsetooth 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 Treasurer of Larimer County, or whether the City was unable
to reach an agreement on the voluntary acquisition of the Subject Property with Ms. Josey
or 7-Eleven, and therefore denies the same.
15. Further negotiations in this regard would be futile.
RESPONSE: Horsetooth denies the allegations in Paragraph 15.
16. After exercising due diligence and upon information and belief, the City believes
there are no other persons or entities who may claim any right, title, or interest in or to the Subject
Property, other than those named as Respondents herein, or those with whom the City has made
other arrangements.
RESPONSE: Horsetooth is without sufficient information to form a belief as to the truth
of the allegations in Paragraph 16 and therefore denies the same.
17. Through this action, the City does not seek to condemn or obtain any water rights or
rights to use water, decreed or undecreed, permitted or unpermitted, tributary, non-tributary, or not
non-tributary, designated or undesignated (collectively "Water Rights") that are owned or claimed
by Respondents, or in any way associated with the Subject Property. Except for any Water Rights
it already has (if any), the City disclaims any interest in any Water Rights in any way associated
with the Subject Property. Nonetheless, the City's disclaimer of Water Rights shall not allow
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 as described herein.
RESPONSE: Horsetooth 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. Horsetooth 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, Horsetooth denies the same.
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18. This proceeding is brought pursuant to the provisions of C.R.S. § 38-1-105(4),
which shall apply with regard to any vein, ledge, lode or deposit. The City disclaims any interest
in any such vein, ledge, lode or deposit owned or claimed by Respondents or to any rights or
interest in minerals, aggregates, oil, gas, shale or other similar rights in the subsurface estate that
constitute mineral rights associated with the Subject Property ("Mineral Rights"). Nonetheless, the
City's disclaimer of Mineral Rights shall not allow Respondents or any others 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 as described herein. Furthermore, the City maintains and
reserves all rights in the Subject Property that may be necessary for the City's use of the Subject
Property as described herein, including for stability and sub-adjacent and lateral support.
RESPONSE: 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, Horsetooth admits
the applicability of C.R.S. § 38-1-105(4). Horsetooth is without sufficient information to
form a belief as to the truth of whether the City disclaims any interest in Mineral Rights
and therefore denies the same. 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, Horsetooth
denies the same.
19. Upon information and belief, this action does not affect the property of any persons
under guardianship or conservatorship.
RESPONSE: Horsetooth is without sufficient information to form a belief as to the truth
of the allegations in Paragraph 19 and therefore denies the same.
20. Respondents have a duty to mitigate their damages, if any, by reason of this
acquisition.
RESPONSE: Paragraph 20 contains legal conclusions to which no response is required.
To the extent a response is required, Horsetooth denies the same.
21. Because acquisition of the Subject Property is required to undertake the Project in
a timely manner, the City requires, and is entitled to obtain immediate possession of the Subject
Property pursuant to C.R.S. § 38-1-105(6)(a).
RESPONSE: Horsetooth 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
pursuant to 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, Horsetooth denies the same. Further, Horsetooth
affirmatively objects to the City’s assertion that it is entitled to immediate possession of
the Subject Property pursuant to C.R.S. § 38-1-105(6)(a).
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22. It is necessary and in furtherance of a public use and purpose that the City be
permitted to enter immediately upon the Subject Property and acquire immediate possession for
the public use specified herein upon depositing with the Court such sums as the Court may fix in
accordance with the law.
RESPONSE: Paragraph 22 contains legal conclusions to which no response is required.
To the extent a response is required, Horsetooth denies the same.
GENERAL DENIAL
Horsetooth denies each and every allegation of the Petition except as expressly admitted
or qualified herein. Horsetooth further denies that the City is entitled to the relief requested in its
Prayer for Relief.
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. There is no necessity for the City to condemn the Subject Property.
4. The City does not have an immediate need to condemn or possess the Subject
Property.
5. The City has not negotiated in good faith with Horsetooth for the acquisition of the
Subject Property.
6. The City has not complied with all conditions precedent to filing its condemnation
action.
7. The City’s likely proposed deposit to take immediate possession of the Subject
Property is insufficient.
8. Horsetooth reserves the right to raise any additional defenses or other matters at an
immediate possession hearing or other in limine hearing as provided for in C.R.S. § 38-1-105, -109
and other relevant laws.
9. If additional facts come to light that are relevant to any of Horsetooth’s defenses, it
reserves the right to amend its answer to allege such facts.
WHEREFORE, Horsetooth prays for the following:
1. That the Court dismiss the Petition and award Horsetooth its reasonable attorney
fees and costs under C.R.S. 38-1-122(1).
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2. In the alternative, that the Court deny the City’s request for immediate possession
of the Subject Property.
3. In the alternative, if the Petition is not dismissed, that the Court:
a. Require the City to pay just compensation to Horsetooth pursuant to the
provisions of Article II, Section 15 of the Colorado Constitution and all
other applicable laws relating to the taking of property for public use;
b. Require the City to pay interest as provided by law;
c. Require the City to pay all the expenses incurred by Horsetooth in
defending this proceeding as are appropriate under law including,
without limitation, all of Horsetooth’s court costs, deposition costs,
witness fees, expert witness fees, consultant fees, appraisal costs,
attorney fees, and any other litigation expenses which are otherwise
appropriate for the City to pay to Horsetooth in eminent domain
proceedings;
d. Should a sufficient award be entered, require the City to pay all of
Horsetooth’s attorney fees pursuant to C.R.S. § 38-1-122(1.5); and
e. Grant such other relief that the Court deems appropriate.
Respectfully submitted this 7th day of March 2024.
DAVIS GRAHAM & STUBBS LLP
/s/ Sarah M. Kellner
Sarah M. Kellner, No. 38111
Lindsey P. Folcik, No. 55167
Attorneys for Respondent
Horsetooth Convenience Center, LLC
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CERTIFICATE OF SERVICE
I hereby certify that on this 7th day of March 2024, a true and correct copy of the foregoing
ANSWER TO PETITION IN CONDEMNATION AND AFFIRMATIVE DEFENSES was filed with
the Court and served on all counsel of record via the Colorado Courts E-Filing System (CCES).
DAVIS GRAHAM & STUBBS LLP
/s/Elizabeth Schoenung
Elizabeth Schoenung
Paralegal