HomeMy WebLinkAbout2024CV30118 - City v. Horsetooth Convenience Center, et al - 23 - 7-Eleven Answer to Amended PetitionDISTRICT COURT, LARIMER COUNTY, COLORADO
201 LaPorte Avenue, 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 JOSEY in her
official capacity as the COUNTY TREASURER OF
LARIMER COUNTY, COLORADO
Attorneys for 7-Eleven, Inc.
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
Case Number: 2024CV30118
Division: 4A
ANSWER TO AMENDED PETITION IN CONDEMNATION
Respondent 7-Eleven, Inc. (“7-Eleven”), by and through its counsel, Alderman Bernstein
LLC, hereby submits its Answer to Amended Petition in Condemnation ("Amended Answer") in
the above-captioned matter. The numbered paragraphs in this Amended Answer coincide with
those in the Amended Petition in Condemnation (“Amended Petition”). Capitalized terms not
otherwise defined herein shall have the same meaning set forth in the Amended Petition.
1. Whether the City is a Colorado home rule municipality organized, existing, and
possessing the powers and authorities set forth in its home rule charter is a legal conclusion to
which no response is required. To the extent a response is required, 7-Eleven denies the same. 7-
Eleven is without sufficient information to form a belief as to the truth of whether the City's home
rule charter was adopted by the voters of the City beginning on October 5, 1954, and subsequently
amended from time to time thereafter. Therefore, 7-Eleven denies the same.
2. Paragraph 2 of the Amended Petition contains legal conclusions to which no
response is required. To the extent a response is required, 7-Eleven admits the applicability of
C.R.S. § 38-1-101 et seq. and C.R.S. § 38-1-119 to this proceeding.
DATE FILED: July 15, 2024 4:46 PM
FILING ID: A80EAF0B1E984
CASE NUMBER: 2024CV30118
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3. Paragraph 3 of the Amended Petition contains legal conclusions to which no
response is required. To the extent a response is required, 7-Eleven admits the applicability of
C.R.S. § 38-1-102.
4. Paragraph 4 of the Amended Petition contains legal conclusions to which no
response is required. To the extent a response is required, 7-Eleven admits the applicability of
C.R.C.P. 98(a) and that the real property the City seeks to acquire is located entirely within the
County of Larimer, State of Colorado.
5. Whether the City is authorized to condemn the real property described in the
Amended 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 that a response is required, 7-Eleven denies the same.
Whether the City may elect to follow the procedure 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 that a response
is required, 7-Eleven admits the applicability of C.R.S. § 38-1-101, et seq.
6. 7-Eleven is without sufficient information to form a belief as to the truth of the
matters asserted in Paragraph 6 and, therefore, denies the same.
7. 7-Eleven is without sufficient information to form a belief as to the truth of the
matters asserted in Paragraph 7 and, therefore, denies the same.
8. 7-Eleven is without sufficient information to form a belief as to the truth of the
matters asserted in Paragraph 8 and, therefore, denies the same.
9. 7-Eleven is without sufficient information to form a belief as to the truth of the
matters asserted in Paragraph 9 and, therefore, denies the same.
10. Paragraph 10 of the Amended Petition contains legal conclusions to which no
response is required. To the extent a response is required, 7-Eleven denies the same.
11. Paragraph 11 of the Amended Petition contains legal conclusions to which no
response is required. To the extent a response is required, 7-Eleven denies the same.
12. 7-Eleven admits that Horsetooth Convenience Center, LLC (“Horsetooth”) owns
the Subject Property and that 7-Eleven leases the Subject Property. 7-Eleven is without sufficient
information to form a belief as to the remaining allegations in Paragraph 12 and, therefore, denies
the same.
13. 7-Eleven is without sufficient information to form a belief as to the truth of the
matters asserted in Paragraph 13 and, therefore, denies the same.
14. 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, 7-Eleven denies
the same. 7-Eleven admits that the City sent a final written offer to 7-Eleven and Horsetooth and
that 7-Eleven has been unable to reach an agreement with the City on the voluntary acquisition of
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the Subject Property prior to the City’s filing of this condemnation action. 7-Eleven 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 County Treasurer of Larimer County and, therefore, denies the
same. 7-Eleven is also without sufficient information to form a belief as to whether the City was
unable to reach an agreement on the voluntary acquisition of the Subject Property with Horsetooth
or Ms. Josey and, therefore, denies the same.
15. 7-Eleven denies the allegations in Paragraph 15.
16. 7-Eleven is without sufficient information to form a belief as to the truth of the
matters asserted in Paragraph 16 and, therefore, denies the same.
17. 7-Eleven 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. 7-Eleven 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,
7-Eleven denies the same.
18. 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, 7-Eleven admits the applicability of
C.R.S. § 38-1-105(4). 7-Eleven is without sufficient information to form a belief as to the truth of
whether the City disclaims any interest in Mineral Rights. 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, 7-Eleven
denies the same.
19. 7-Eleven is without sufficient information to form a belief as to the truth of the
matters asserted in Paragraph 19 and, therefore, denies the same.
20. Paragraph 20 of the Amended Petition contains legal conclusions to which no
response is required. To the extent a response is required, 7-Eleven denies the same.
21. 7-Eleven 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 under 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, 7-Eleven denies the same. Additionally, 7-Eleven affirmatively objects to the City’s
assertion that it is entitled to possession under C.R.S. § 38-1-105(6)(a).
22. Paragraph 22 of the Amended Petition contains legal conclusions to which no
response is required. To the extent a response is required, 7-Eleven denies the same.
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GENERAL DENIAL
7-Eleven denies any allegation not specifically admitted herein.
AFFIRMATIVE DEFENSES
1. The Amended 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. The City does not need to condemn all of the Subject Property for the Project.
4. The City does not have an immediate need to condemn the Subject Property.
5. The City has not negotiated with 7-Eleven in good faith.
6. The City’s likely proposed deposit to take immediate possession of the Subject
Property is insufficient.
7. The City has not complied with all conditions precedent to filing this condemnation
action.
8. 7-Eleven reserves the right to raise any additional defenses or other matters at an in
limine hearing as provided for in C.R.S. § 38-1-109 and other relevant laws.
WHEREFORE, 7-Eleven prays as follows:
1. The Court dismiss the Amended Petition and award 7-Eleven its attorney fees and
costs under C.R.S. § 38-1-122(1).
2. In the alternative, that the Court deny the City’s request for immediate possession.
3. In the alternative, if the Court does not dismiss the Amended Petition, 7-Eleven
prays that the Court:
(a) Require the City to pay just compensation for the Subject Property
according to the provisions of Article II, Section 15 of the Colorado Constitution, and all other
applicable laws;
(b) Require the City to pay interest as provided by law pursuant to the
provisions of Article 1, Title 38 of C.R.S, and any other applicable laws;
(c) Require the City to pay all costs and expenses incurred by 7-Eleven in
defending this proceeding as required under the law;
(d) Should a sufficient award be entered, require Amended Petitioners to pay
7-Eleven’s attorney fees under C.R.S. § 38-1-122(1.5); and
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(e) Grant such other and further relief that the Court deems appropriate.
Respectfully submitted,
ALDERMAN BERNSTEIN LLC
This document is e-filed per C.R.C.P. 121, section 1-
26. A duly signed copy is on file at the offices of
Alderman Bernstein LLC
By: /s/ Joshua T. Mangiagli
Joshua T. Mangiagli
Carrie S. Bernstein
ATTORNEYS FOR 7-ELEVEN, INC.
CERTIFICATE OF SERVICE
I hereby certify that on this 15th day of July 2024, a true and correct copy of the foregoing
was filed and served via ICCES or placed in the United States Mail, first class, postage prepaid,
addressed to the following:
M. Patrick Wilson
Katharine J. Vera
Hoffman, Parker, Wilson & Carberry, P.C.
511 16th Street, Suite 610
Denver, Colorado 80202
Attorneys for City of Fort Collins
Sarah M. Kellner
Lindsey P. Folcik
Davis Graham & Stubbs LLP
1550 17th Street, Sute 500
Denver, CO 80202
Attorneys for Horsetooth Convenience Center, LLC
Frank N. Haug, Reg. No. 41427
Larimer County Attorney’s Office
224 Canyon Ave., Suite 200
Post Office Box 1606
Fort Collins, Colorado 80522
Attorneys for Larimer County Treasurer
_______/s/__________________________
Cindy Bolton