HomeMy WebLinkAbout2024CV30118 - City v. Horsetooth Convenience Center, et al - 19 - Motion to Amend Petition in Condemnation6/28/2024
Q:\USERS\FORT COLLINS\CONDEMNATION\7-ELEVEN\PLEADINGS\MOTION TO AMEND PETITION IN CONDEMNATION-
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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 No.: 2024CV30118
Division: 4A
MOTION TO AMEND PETITION IN CONDEMNATION
Petitioner, City of Fort Collins (the "City"), by and through its attorneys, Hoffmann,
Parker, Wilson, & Carberry, P.C., and pursuant to C.R.S. § 38-1-104 and C.R.C.P. 15(a), hereby
submits this Unopposed Motion to Amend Petition in Condemnation. In support of its Motion,
Petitioner states as follows.
Certificate of Compliance with C.R.C.P. 121 § 1-15(8): Undersigned counsel has
conferred with counsel for Respondents Horsetooth Convenience Center, LLC ("Horsetooth")
and 7-Eleven Inc. ("7-Eleven") (collectively, the "Respondents"), and opposing counsel for the
Respondents have stated that their clients do not oppose Petitioner's proposed amendments to
DATE FILED: June 28, 2024 4:04 PM
FILING ID: BA9D2B4B1C4FE
CASE NUMBER: 2024CV30118
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Exhibits 2 and 3 (the revised Access and Maintenance Easement stipulated to in the Stipulation
for Possession and the revised Utility Easement). Neither do Respondents object to Petitioner
refiling Exhibit 1 with this Motion. Undersigned counsel and Respondents have been conferring
on amendments to Exhibit 4, the Temporary Construction Easement, and as of the time of filing
this Motion, Respondents have not taken a position on the edits to the Temporary Construction
Easement.
1. The City brought this condemnation action on February 12, 2024 to acquire
certain real property interests in Larimer County for the purpose of constructing public street
right of way and related improvements at the South College Avenue and Trilby Road intersection
(the "Project"). A description of the real property interests the City is seeking to acquire (the
"Subject Property") is attached to the original Petition in Condemnation.
2. On April 11, 2024, the City and Respondents entered into a Stipulation for
Possession and under the terms of that Stipulation, all Parties consented to an amendment to the
Petition in Condemnation to replace the terms and conditions of PE-15 and PE-16 with the
exhibit attached as Exhibit 1 to the Stipulation.
3. The City and Respondents agree that Exhibit 2 to the Petition will be replaced by
the Exhibit 1 attached to the Stipulation for Possession. Exhibit 1 to the Petition contains the
legal description of the property being conveyed in fee simple and remains unchanged. The
Parties also agree to minor amendments to the Utility Easement attached as Exhibit 3 to the
Petition in Condemnation. Additionally, Petitioner is proposing, and Respondents have not yet
consented to, minor amendments to the Temporary Construction Easement agreement attached
as Exhibit 4 to the Petition in Condemnation. Neither amendments alter the legal descriptions
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contained in the agreements, they merely reflect a change in the terms contained in the
instruments. For the Court's ease, the City is refiling all exhibits to the Petition in Condemnation
with its Amended Petition in Condemnation.
3. On account of these changes, the City seeks to amend its Petition in
Condemnation to reflect the updated language to the Permanent Easement, Temporary
Construction Easement, and Utility Easement.
4. Amendments to the pleadings should be freely granted when justice so requires.
C.R.C.P. 15(a). The same approach is provided for in the condemnation statutes. C.R.S. § 38-1-
104 ("Amendment to the petition . . . may be permitted whenever necessary to a fair trial and
final determination of the questions involved."). See also Cucharas Sanitation and Water v.
Mounsey, 805 P.2d 1177 (Colo. App. 1990).
5. Leave to amend the Petition should be granted because it serves the interests of
justice, reflects the current terms and scope of work under which the City is performing work to
the Subject Property, and no other party to this action will be prejudiced by the amendment.
6. Petitioner's Amended Petition in Condemnation is attached to this filing as
Exhibit A; the only changes therein are to the terms of the Permanent Easement, Temporary
Construction Easement and Utility Easement. There are no changes to the Petition itself;
Exhibits 2, 3, and 4 have been updated to reflect these changes, and the City is refiling Exhibit
1 to the Petition in Condemnation as well to avoid any confusion. Petitioner requests that the
Court accept that document for filing and that it relate back to the date of the filing of the
original Petition pursuant to C.R.C.P. 15(c).
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DATED this 28th day of June, 2024.
HOFFMANN, PARKER, WILSON &
CARBERRY, P.C.
By: /s/ Katharine J. Vera_________________
Katharine J. Vera
ATTORNEYS FOR PETITIONER CITY
OF FORT COLLINS
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CERTIFICATE OF SERVICE
I certify that on this 28th day of June, 2024, I caused a true and correct copy of the
foregoing MOTION TO AMEND PETITION IN CONDEMNATION to be served via CCES,
U.S mail and/or E-mail to the following:
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
Attorneys for Respondent Horsetooth Convenience Center, LLC
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
Attorneys for 7-Eleven, Inc.
Frank N. Haug, Reg. No. 41427
Larimer County Attorney’s Office
224 Canyon Ave., Suite 200
Post Office Box 1606
Fort Collins, Colorado 80522
Telephone (970) 498-7450
Email: fhaug@larimer.org
Attorneys for Larimer County Treasurer
/s/ Katharine J. Vera