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HomeMy WebLinkAbout2024CV30118 - City v. Horsetooth Convenience Center, et al - 20 - Amended Petition in Condemnation6/28/2024 Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\PLEADINGS\EXHIBIT A-AMENDED PETITION IN CONDEMNATION.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: 2024CV30118 Division: 4A AMENDED 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: June 28, 2024 4:04 PM FILING ID: BA9D2B4B1C4FE CASE NUMBER: 2024CV30118 2 6/28/2024 Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\PLEADINGS\EXHIBIT A-AMENDED PETITION IN CONDEMNATION.DOCX 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 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 easement agreement set forth in Exhibit 2. The real property described in Exhibit 3 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 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: 3 6/28/2024 Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\PLEADINGS\EXHIBIT A-AMENDED PETITION IN CONDEMNATION.DOCX 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 4 6/28/2024 Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\PLEADINGS\EXHIBIT A-AMENDED PETITION IN CONDEMNATION.DOCX 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; 5 6/28/2024 Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\PLEADINGS\EXHIBIT A-AMENDED PETITION IN CONDEMNATION.DOCX 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 as of February 12, 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