HomeMy WebLinkAbout2023CV30659 - East Larimer County Water Dist. Et Al V. K & M Co., Et Al. - 012 - K&M Answer1
DISTRICT COURT, LARIMER COUNTY, COLORADO
201 LaPorte Avenue, Suite 100
Fort Collins, CO 80521
970-494-3500
▲COURT USE ONLY▲
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
Attorneys for K & M Company, LLLP
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: 23CV30659
Division: 3B
ANSWER TO PETITION IN CONDEMNATION
Respondent K&M Company, LLLP (“Respondent-Landowner”), by and through its
counsel, Alderman Bernstein LLC, hereby submits its Answer to the Petition in Condemnation
(“Answer”) in the above-captioned matter. The numbered paragraphs in this Answer coincide with
the numbered paragraphs in the Petition in Condemnation (“Petition”). Capitalized terms not
otherwise defined herein shall have the same meaning as set forth in the Petition.
DATE FILED: September 15, 2023 11:57 AM
FILING ID: BA89D965F2823
CASE NUMBER: 2023CV30659
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1. Paragraph 1 of the Petition contains legal conclusions to which no response is
required. To the extent a response is required, Respondent-Landowner admits the applicability of
C.R.S. § 38-1-101, et seq., to this proceeding.
2. Paragraph 2 of the Petition contains legal conclusions to which no response is
required. To the extent a response is required, Respondent-Landowner admits the applicability of
C.R.S. § 38-1-119 but denies that C.R.C.P. 16 and 26 are inapplicable.
3. Whether ELCO is a political subdivision of the State of Colorado; a special district
as defined in C.R.S. § 32-1-103(20); and a water district, as defined in C.R.S. § 32-1-103(25) are
legal conclusions to which no response is required. To the extent a response is required,
Respondent-Landowner denies the same. Respondent-Landowner is without sufficient
information to form a belief as to the truth of whether ELCO’s principal business address is 232
South Link Lane, Fort Collins, Colorado.
4. Whether NWCWD is a political subdivision of the State of Colorado; a special
district, as defined in C.R.S. § 32-1-103(2); and a water district, as defined in C.R.S. § 32-1-
103(25) are legal conclusions to which no response is required. To the extent a response is required,
Respondent-Landowner denies the same. Respondent-Landowner is without sufficient
information to form a belief as to the truth of whether NWCWD’s principal business address is
32825 County Road 39, Lucerne, Colorado.
5. Paragraph 5 of the Petition contains legal conclusions to which no response is
required. To the extent a response is required, Respondent-Landowner denies the same.
6. Paragraph 6 of the Petition contains legal conclusions to which no response is
required. To the extent a response is required, Respondent-Landowner admits that this Court has
jurisdiction over this proceeding.
7. Paragraph 7 of the Petition contains legal conclusions to which no response is
required. To the extent a response is required, Respondent-Landowner admits the property
interests sought to be taken are located entirely within the County of Larimer, State of Colorado.
8. Respondent-Landowner is without sufficient information to form a belief as to the
truth of the matters asserted in Paragraph 8 of the Petition and, therefore, denies the same.
9. Respondent-Landowner is without sufficient information to form a belief as to the
truth of the matters asserted in Paragraph 9 of the Petition and, therefore, denies the same.
10. Respondent-Landowner is without sufficient information to form a belief as to the
truth of the matters asserted in Paragraph 10 of the Petition and, therefore, denies the same.
11. Respondent-Landowner is without sufficient information to form a belief as to the
truth of the matters asserted in Paragraph 11 of the Petition and, therefore, denies the same.
12. Respondent-Landowner is without sufficient information to form a belief as to the
truth of the matters asserted in Paragraph 12 of the Petition and, therefore, denies the same.
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13. Respondent-Landowner is without sufficient information to form a belief as to the
truth of the matters asserted in Paragraph 13 of the Petition and, therefore, denies the same.
14. Respondent-Landowner is without sufficient information to form a belief as to the
truth of the matters asserted in Paragraph 14 of the Petition and, therefore, denies the same.
15. Respondent-Landowner is without sufficient information to form a belief as to the
truth of the matters asserted in Paragraph 15 of the Petition and, therefore, denies the same.
16. 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 a response is required, Respondent-Landowner admits the
applicability of C.R.S. § 38-1-105(4). Respondent-Landowner is without sufficient information to
form a belief as to the truth of whether the Districts disclaim any interest in Mineral Rights.
Whether the Districts’ disclaimer of Mineral Rights shall not be construed as permission by
Respondents or any others to locate or perpetuate surface or subsurface facilities incident to the
Mineral Rights that would interfere with the Districts’ use of the Permanent Easement is a legal
conclusion to which no response is required. To the extent a response is required, Respondent-
Landowner denies the same.
17. Respondent-Landowner is without sufficient information to form a belief as to the
truth of the matters asserted in Paragraph 17 of the Petition and, therefore, denies the same.
18. Paragraph 18 of the Petition contains legal conclusions to which no response is
required. To the extent a response is required, Respondent-Landowner denies the same.
19. Respondent-Landowner is without sufficient information to form a belief as to the
truth of the matters asserted in Paragraph 19 of the Petition and, therefore, denies the same.
20. Respondent-Landowner admits the allegations in Paragraph 20(A). Respondent-
Landowner is without sufficient information to form a belief as to the truth of the matters asserted
in Paragraphs 20(B)-(F) of the Petition and, therefore, denies the same.
21. Respondent-Landowner is without sufficient information to form a belief as to the
truth of the matters asserted in Paragraph 21 of the Petition and, therefore, denies the same.
22. Respondent-Landowner is without sufficient information to form a belief as to the
truth of the matters asserted in Paragraph 22 of the Petition and, therefore, denies the same.
23. Respondent-Landowner is without sufficient information to form a belief as to the
truth of the matters asserted in Paragraph 23 of the Petition and, therefore, denies the same.
24. Paragraph 24 of the Petition contains legal conclusions to which no response is
required. To the extent a response is required, Respondent-Landowner denies the same.
Respondent-Landowner states affirmatively that the Districts did not make a good faith offer to
purchase or otherwise negotiate with Respondent-Landowner.
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GENERAL DENIAL
Respondent-Landowner denies any allegation not specifically admitted herein.
AFFIRMATIVE DEFENSES
1. The Petition fails to state a claim upon which relief can be granted.
2. Petitioners lack constitutional authority under Article XVI, Section 7, of the
Colorado Constitution to condemn the Property for all of the purposes proposed in the Petition in
Condemnation.
3. Petitioners lack statutory authority to condemn Respondent-Landowner’s interest
in the Property.
4. There is no necessity to condemn Respondent-Landowner’s interest in the Property
for the Project.
5. There is no immediate need to condemn Respondent-Landowner’s interest in the
Property for the Project.
6. There have been no good faith negotiations with Respondent-Landowner.
7. Petitioners’ likely proposed deposit to take immediate possession of the Property is
insufficient.
8. Petitioners have not complied with all conditions precedent to filing this
condemnation action, including failure to comply with C.R.S. § 38-1-121(1).
9. Respondent-Landowner 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, Respondent-Landowner prays as follows:
1. The Court dismiss the Petition and award Respondent-Landowner its attorney fees
and costs under C.R.S. § 38-1-122(1).
2. In the alternative, if the Court does not dismiss the Petition, Respondent-
Landowner prays that the Court:
(a) Require Petitioners to pay just compensation to Respondent-Landowner
according to the provisions of Article II, Section 15 of the Colorado Constitution, and all other
applicable laws;
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(b) Require Petitioners 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 Petitioners to pay all costs and expenses incurred by Respondent-
Landowner in defending this proceeding as required under the law;
(d) Should a sufficient award be entered, require Petitioners to pay Respondent-
Landowner’s attorney fees under C.R.S. § 38-1-122(1.5); and
(e) Grant such other and further relief that the Court deems appropriate.
Dated September 15, 2023
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
/S/ Carrie S. Bernstein____________________
CERTIFICATE OF SERVICE
I hereby certify that on this 15th day of September 2023, 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:
Timothy L. Goddard
Goddard Law Office, PLLC
210 East 29th Street
Loveland, CO 80538
Attorney for Petitioner
Ryan Malarky
Fort Collins City Attorney’s Office
300 Laporte Avenue
PO Box 500
Fort Collins, Colorado 80522
Attorneys for City of Fort Collins
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Frank N. Haug
Larimer County Attorney’s Office
224 Canyon Ave., Suite 200
Post Office Box 1606
Fort Collins, Colorado 80522
Attorney for Irene Josey, Treasurer of Larimer County
Michael A. Westbrook
Starr & Westbrook, P.C.
210 East 29th Street
Loveland, CO 80538
Attorney for Poudre Valley Rural Electric Association, Inc.
_______/s/__________________________
Cindy Bolton