HomeMy WebLinkAbout2024CV30118 - City v. Horsetooth Convenience Center, et al - 03 - Motion Immediate Possession2/12/2024
Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\PLEADINGS\SERVED\MOTION FOR IMMEDIATE POSSESSION-021224.DOCX
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:
MOTION FOR IMMEDIATE POSSESSION
Petitioner City of Fort Collins (the "City"), by and through its attorneys, Hoffmann, Parker,
Wilson & Carberry, P.C., hereby moves this Court, pursuant to C.R.S. § 38-1-105(6), for an Order
granting the City immediate possession of the property interests described in the Petition in
Condemnation filed in this matter (the "Subject Property"), and requests that this Court conduct a
hearing to determine the reasonable amount of a monetary deposit to be tendered with the Court
Registry in order to for the City to be granted immediate possession of the Subject Property. As
grounds for this Motion, the City states as follows:
1. This is an action in eminent domain brought pursuant Article II, § 15, of the
Colorado Constitution. The City is a Colorado home rule municipality, possessing the statutory
DATE FILED: February 12, 2024 3:51 PM
FILING ID: C86299897272A
CASE NUMBER: 2024CV30118
2
2/12/2024
Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\PLEADINGS\SERVED\MOTION FOR IMMEDIATE POSSESSION-021224.DOCX
powers and authority of eminent domain 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 as
authorized pursuant to Ordinance No. 136, 2021, approving and specifically authorizing the use of
eminent domain to acquire certain real property interests related to the widening and improvement
of portions of Trilby Road and College Avenue (the "Project").
2. There is a necessity for the City to acquire various property interests including land
in fee simple, a utility easement, permanent easements, and temporary construction easements
(collectively, the "Subject Property," as more particularly described in Exhibits 1, 2, 3 and 4 of the
Petition in Condemnation and incorporated herein by this reference) in order to construct needed
public infrastructure through the widening and construction of portions of Trilby Road and College
Avenue.
3. The acquisition of a fee simple right of way and temporary construction easement to
construct the bridge and related facilities also serves a public purpose, as it will allow for improved
level of service for the City and promote the health, safety, welfare and convenience of the public
through improved public infrastructure.
4. The City has negotiated in good faith with Respondents who may have an interest
in or claim to the underlying fee simple estate of the Subject Property, 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.
5. Pursuant to C.R.S. § 38-1-105(6)(a), upon the payment of a deposit into the Court's
registry, the City is entitled to obtain an order authorizing it to take possession of and use the
Subject Property as follows:
3
2/12/2024
Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\PLEADINGS\SERVED\MOTION FOR IMMEDIATE POSSESSION-021224.DOCX
At any stage of such new proceedings . . . the court, by rule in that behalf made,
may authorize the petitioner . . . to take possession of and use, said premises during
the pendency and until the final conclusion of such proceedings . . . if such
petitioner pays a sufficient sum into court, or to the clerk thereof, to pay the
compensation in that behalf when ascertained.
6. Prior to entering an Order for Immediate Possession, the Court must determine the
amount of the deposit required and may hold a hearing for that purpose, or may rule on the basis of
affidavits that provide evidence of the probable amount of compensation that will be awarded to
the landowner. See Swift v. Smith, 201 P.2d 609, 614-15 (Colo. 1948). Following a determination
of the deposit, the Order for Immediate Possession may authorize the petitioner to take possession
of the Subject Property effective 30 days after service or acceptance of service of the Petition in
Condemnation or earlier upon consent of the Respondent-Landowner. C.R.S. § 38-1-105(6)(c).
7. In addition, all objections and challenges to the taking of the Subject Property,
except for the final amount of compensation owing, shall be raised, heard, and ruled upon in
connection with the hearing on immediate possession. C.R.S. §§ 38-1-105(1); 38-1-109. Here, the
City has the legal authority to acquire the Subject Property by condemnation, needs to acquire the
Subject Property for a public use and purpose, and has been unable to acquire the Subject Property
by voluntary acquisition, despite good faith negotiations with Respondents.
8. The City needs to acquire immediate possession of the Subject Property so that it
may complete the Project in a timely manner for the preservation of the health, safety, welfare, and
convenience of the public.
WHEREFORE, Petitioner City of Fort Collins respectfully requests by way of this Motion,
that this Court conduct a hearing at its earliest convenience in order to hear and determine the
4
2/12/2024
Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\PLEADINGS\SERVED\MOTION FOR IMMEDIATE POSSESSION-021224.DOCX
City's Motion for Immediate Possession of the Subject Property and to determine the amount of
deposit for taking possession of the Subject Property.
Respectfully submitted 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