HomeMy WebLinkAbout2023CV30659 - East Larimer County Water Dist. Et Al V. K & M Co., Et Al. - 011 - City's ResponseLarimer County, Colorado, District Court
Larimer County Justice Center
201 LaPorte Avenue, Suite 100
Fort Collins, Colorado 80521-2761
970.494.3500
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Petitioners: EAST LARIMER COUNTY WATER
DISTRICT, a quasi-municipal corporation and
political subdivision of the State of Colorado; and
NORTH WELD COUNTY WATER DISTRICT, a
quasi-municipal corporation and political subdivision
of the State of Colorado
v.
Respondents: K & M COMPANY, LLLP, a Colorado
limited liability limited partnership; BOXELDER
SANITATION DISTRICT; THE CITY OF FORT
COLLINS, a municipal corporation; ANADARKO
E&P ONSHORE LLC, a Delaware limited liability
company; ANADARKO LAND CORP., a Nebraska
corporation; POUDRE VALLEY RURAL
ELECTRIC ASSOCIATION, INC., a Colorado
cooperative association; and IRENE JOSEY in her
official capacity as the COUNTY TREASURER OF
LARIMER COUNTY, COLORADO
Case No. 2023CV30659
Courtroom 3B
Attorneys for City of Fort Collins
Ryan Malarky, #41577
FORT COLLINS CITY ATTORNEY’S OFFICE
300 Laporte Avenue
PO Box 500
Fort Collins, Colorado 80522
970.221.4328
rmalarky@fcgov.com
CITY OF FORT COLLINS’S RESPONSE TO PETITION IN CONDEMNATION
Respondent City of Fort Collins (the “City”), by and through Ryan Malarky with the Fort
Collins City Attorney’s Office, submits its Response to the Petition in Condemnation (the
“Petition”) and states as follows:
DATE FILED: September 14, 2023 8:58 AM
FILING ID: 7FB06AEE95843
CASE NUMBER: 2023CV30659
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1. The allegations contained in Paragraph 1 are legal conclusions to which no response
is required. To the extent a response is required, these allegations are denied.
2. The allegations in Paragraph 2 are legal conclusions to which no response is
required. To the extent a response is required, these allegations are denied.
3. The City is without knowledge sufficient to admit or deny the allegations contained
in Paragraph 3, and therefore, denies the same.
4. The City is without knowledge sufficient to admit or deny the allegations contained
in Paragraph 4, and therefore, denies the same.
5. The City is without knowledge sufficient to admit or deny the allegations contained
in Paragraph 5, and therefore, denies the same.
6. The allegations contained in Paragraph 6 are legal conclusions, to which no
response is required. To the extent a response is required, these allegations are denied.
7. The City admits the property described on Exhibit 1 to the Petition (the “Property”)
is located in Larimer County. The remaining allegations contained in Paragraph 7 are legal
conclusions, to which no response is required. To the extent a response is required, these
allegations are denied.
8. The City is without knowledge sufficient to admit or deny the allegations contained
in Paragraph 8, and therefore, denies the same.
9. The City is without knowledge sufficient to admit or deny the allegations contained
in Paragraph 9, and therefore, denies the same.
10. The City is without knowledge sufficient to admit or deny the allegations contained
in Paragraph 10, and therefore, denies the same.
11. The City is without knowledge sufficient to admit or deny the allegations contained
in Paragraph 11, and therefore, denies the same.
12. The City is without knowledge sufficient to admit or deny the allegations contained
in Paragraph 12, and therefore, denies the same.
13. The City is without knowledge sufficient to admit or deny the allegations contained
in Paragraph 13, and therefore, denies the same.
14. The City is without knowledge sufficient to admit or deny the allegations contained
in Paragraph 14, and therefore, denies the same.
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15. The City is without knowledge sufficient to admit or deny the allegations contained
in Paragraph 15, and therefore, denies the same.
16. The City is without knowledge sufficient to admit or deny the allegations contained
in Paragraph 16, and therefore, denies the same.
17. The City is without knowledge sufficient to admit or deny the allegations contained
in Paragraph 17, and therefore, denies the same.
18. The City is without knowledge sufficient to admit or deny the allegations contained
in Paragraph 18, and therefore, denies the same, and further states that any public purpose or use,
as a matter of law, must be subject to the prior public use of the City in the City Easement,
identified below, which public use is dominant to any use claimed by the Petitioners.
19. The City is without knowledge sufficient to admit or deny the allegations contained
in Paragraph 19, and therefore, denies the same, and further states that any possession of that
portion of the Property that is encumbered by the City Easement must be subject to and cannot
interfere with the prior public use of the City Easement, which public use is prior to and dominant
to any use or possession claimed by the City.
20. With respect to subparagraph C of Paragraph 20, the City admits it has an interest
in the Property and the Deed of Easement recorded August 14, 1985, under Reception No.
85040103 in the office of the Larimer County Clerk and Recorder (the “City Easement”) speaks
for itself. In addition to the easement interest, the City owns and operates water delivery
infrastructure and facilities on the Property that extend critical service to City customers.
With respect to subparagraph F of Paragraph 20, the City admits that Irene Josey is the
Treasurer of Larimer County, Colorado.
The City is without knowledge sufficient to admit or deny the remaining allegations
contained in Paragraph 20, and therefore, denies the same.
21. The City is without knowledge sufficient to admit or deny the allegations contained
in Paragraph 21, and therefore, denies the same.
22. The City is without knowledge sufficient to admit or deny the allegations contained
in Paragraph 22, and therefore, denies the same.
23. The City is without knowledge sufficient to admit or deny the allegations contained
in Paragraph 23, and therefore, denies the same.
24. The City is without knowledge sufficient to admit or deny the allegations contained
in Paragraph 24, and therefore, denies the same.
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GENERAL DENIAL
Any allegations contained in the Petition not otherwise specifically admitted herein are
denied.
AFFIRMATIVE DEFENSES
1. The Petition fails to state a claim upon which relief may be granted.
2. Petitioners have failed to negotiate in good faith as a prerequisite to this action.
3. Petitioners have failed to satisfy the conditions and prerequisites set forth in C.R.S.
§ 38-1-101, et seq.
4. Any right, title, or interest the Petitioners seek to acquire that is adverse to the City
or its continued public use of the City Easement is inferior to the City’s right, title, and interest in
the City Easement.
5. To the extent Petitioners seek to extinguish, terminate, modify, or interfere with the
City’s property rights in the Property and use thereof, the City is entitled to just compensation for
any property rights that Petitioners seek to take, including, without limitation, the reasonable
market value of the City’s property interest described in the Petition and any damages to the
remaining property resulting from the Petitioners’ project.
6. The City reserves the right to raise any additional defenses or other matters at an
immediate possession hearing or other in limine hearing as provided for in C.R.S. § 38-1-101, et
seq. and other relevant laws.
7. Pursuant to C.R.S. § 38-1-122, the City is entitled to recover its attorney fees
incurred in defending and protecting its interests in the City Easement.
8. To the extent they may be applicable to the City, the City incorporates by reference
any affirmative defense raised by any other Respondent.
9. The City reserves the right to add to, remove, or amend its affirmative defenses as
claims, facts, and disputed issues are clarified through discovery or otherwise.
WHEREFORE, the City respectfully requests that the Court:
a. Dismiss the Petition in Condemnation; and/or
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b. Order the Petitioners have no right, power, or authority to condemn that portion of the
Property that is subject to the City Easement; and/or
c. Grant appropriate relief on the affirmative defenses described above; and/or
d. Require Petitioners to pay just compensation to the City under the Colorado
Constitution, the United States Constitution, and all other applicable laws, including
without limitation, laws governing the payment of interest, attorney fees, court costs,
witness fees, expert witness fees, consultant fees, appraisal costs, and any other costs
which are otherwise appropriate for Petitioners to pay the City in the condemnation
proceeding pending before this Court; and/or
e. Grant such further relief as this Court deems just and proper.
Dated: September 14, 2023 Respectfully submitted:
s/ Ryan Malarky
Ryan Malarky
Attorney for City of Fort Collins
CERTIFICATE OF SERVICE: I hereby certify that on September 14, 2023, I filed the foregoing
CITY OF FORT COLLINS’S RESPONSE TO PETITION IN CONDEMNATION via CCE
which will serve true and correct copies upon the following:
Timothy Goddard, timg@hfglawfirm.com
GODDARD LAW OFFICE PLLC
Attorney for Petitioners
Frank N. Haug, fhaug@larimer.org
LARIMER COUNTY ATTORNEY’S OFFICE
Attorney for Ireme Josey Larimer County Treasurer
Carrie Sue Bernstein, csb@ablawcolorado.com
Joshua Mangiagli, jtm@ablawcolorado.com
ALDERMAN BERNSTEIN
Attorneys for K & M Company LLP
Michael A. Westbrook, mike@starrwestbrook.com
STARR & WESTBROOK, P.C.
Attorney for Poudre Valley Rural Electric Association
s/ Briana McCarten