HomeMy WebLinkAbout2024CV30118 - City v. Horsetooth Convenience Center, et al - 02 - Petition Condemnation2/12/2024
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DISTRICT COURT, LARIMER COUNTY, COLORADO
201 LaPorte Ave., 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 E. JOSEY, in her official
capacity as the COUNTY TREASURER OF LARIMER
COUNTY.
Attorneys for Petitioner:
M. Patrick Wilson, No. 26303
Katharine J. Vera, No. 53995
Hoffmann, Parker, Wilson & Carberry, P.C.
511 16th Street, Suite 610
Denver, Colorado 80202
Telephone: 303-825-6444
E-mail: pwilson@hpwclaw.com; kjv@hpwclaw.com
Case Number:
Division:
PETITION IN CONDEMNATION
Petitioner City of Fort Collins (the "City"), by and through its attorneys, Hoffmann, Parker,
Wilson & Carberry, P.C., for its Petition in Condemnation, alleges as follows:
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.
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.
3. Pursuant to C.R.S. § 38-1-102, this Court has jurisdiction over 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.
DATE FILED: February 12, 2024 3:51 PM
FILING ID: C86299897272A
CASE NUMBER: 2024CV30118
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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.
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.
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.
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.
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.
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.
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.
12. The following parties are named herein as Respondents:
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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. § 39-3-
134.
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.
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.
15. Further negotiations in this regard would be futile.
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.
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.
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
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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.
19. Upon information and belief, this action does not affect the property of any persons
under guardianship or conservatorship.
20. Respondents have a duty to mitigate their damages, if any, by reason of this
acquisition.
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).
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.
WHEREFORE, the City prays this Court Orders as follows:
A. That the compensation to be paid to Respondents for the Subject Property be
determined;
B. That the City have judgment condemning the Subject Property as hereinabove
described, upon payment of just compensation to Respondents or other parties in interest, as
provided by law and for entry of a final rule and order conveying the Subject Property to the City
pursuant to C.R.S. § 38-1-105(3);
C. That the Court determine the proper deposit to be made by the City into the Court
Registry for the taking of immediate possession of the Subject Property pursuant to C.R.S. § 38-1-
105(6)(a), and to enter an Order authorizing the City and its contractors, agents, servants, and
employees to enter into, take and retain possession of the Subject Property, together with the right
to bore thereon and to take and use therefrom or add thereto any and all earth, stone, gravel, timber
or other materials for construction and maintenance purposes, during the pendency of this
proceeding, without interference from Respondents, or any of them, or their successors, assigns,
heirs, devisees, personal representatives, guests, or invitees, or any person or persons claiming by,
through and under said Respondents, or any of them;
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D. That if the ownerships or interests in the Subject Property are not herein correctly
set forth, the named Respondents be required to set forth by answer the extent of his, her, its, or
their respective interests and the names and addresses of any other interested persons and the
nature and extent of their interests; and
E. For such other and further relief as the Court may deem proper.
DATED this 12th day of February, 2024.
HOFFMANN, PARKER, WILSON &
CARBERRY, P.C.
By: /s/ Katharine J. Vera
Katharine J. Vera
M. Patrick Wilson
ATTORNEYS FOR PETITIONER CITY
OF FORT COLLINS
Address of Petitioner:
City of Fort Collins
300 LaPorte Avenue
Fort Collins, CO 80522