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HomeMy WebLinkAbout2023CV30659 - East Larimer County Water Dist. Et Al V. K & M Co., Et Al. - 023 - City Response Mot Imm PossLarimer County, Colorado, District Court Larimer County Justice Center 201 LaPorte Avenue, Suite 100 Fort Collins, Colorado 80521-2761 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 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 MOTION FOR IMMEDIATE POSSESSION Respondent The City of Fort Collins (the “City”), by and through undersigned counsel, responds to the East Larimer County Water District’s and North Weld County Water District’s (the “Districts”) Motion for Immediate Possession as follows: DATE FILED: January 12, 2024 4:43 PM FILING ID: 375FB98ACC750 CASE NUMBER: 2023CV30659 2 PROCEDURAL HISTORY 1. The Districts filed a Petition in Condemnation (the “Petition”) on August 16, 2023, to acquire permanent and temporary construction easements (the “Easements”)over a portion of property on which the City has a property interest by way of an easement, pursuant to which the City operates and maintains a water pipeline that is the sole water service line to the Anheuser- Busch brewery. The Districts allege the Easements are necessary for the purpose of constructing a waterline pipeline project at the Properties (the “Project”). 2. Respondents Poudre Valley Rural Electric Association, Inc., Irene Josey, Anadarko E&P Onshore LLC, and Anadarko Land Corp disclaimed interest in the proceedings and the easements petitioned for. Respondents City and K&M Company, LLLP answered the Petition. Respondent Boxelder Sanitation District and the Districts stipulated to specific language to be included in any easements granted as the result of this litigation. 3. On January 4, 2024, the Districts moved for immediate possession of the Properties (the “Motion”) alleging immediate possession is necessary to complete the Project. 4. This Court ordered the parties to respond to the Motion on or before January 12, 2024. 5. A hearing on immediate possession has not yet been set. A status conference is set for March 14, 2024. RESPONSE 6. The City and the Districts have been working to come to a stipulated agreement regarding the Districts’ possession and use of the property, in which the City has real property interests and operates and maintains critical infrastructure. 7. As of the date of this pleading, the City and the Districts appear close to finalizing such a stipulation, but the City requires additional time to confirm all aspects of the stipulation are acceptable to the City. 8. Without the stipulation ready for submission to the Court, the City responds to the Motion by stating that the Court has the discretionary authority whether to grant possession to a condemning entity. Vivian v. Bd. of Trustees of Colo. School of Mines, 383 P.2d 801, 804 (Colo. 1963) (trial court has discretion in determining whether immediate possession of property should be given to condemning entity); McClain v. People, 11 P. 85 (Colo. 1886). 9. Furthermore, other provisions of the eminent domain statutes support the conclusion that it is the trial court’s authority to decide whether to grant immediate possession. C.R.S. section 38-1-109 provides that “at the hearing provided for in section 38-1-105, the court shall hear and dispose of all objections that may be raised touching the legal sufficiency of the petition or cross petition or the regularity of the proceedings in any other respect.” 3 10. In the absence of a stipulation for the Districts’ possession of the Easements, the Districts must still prove that they have the legal authority to proceed with the condemnation; that the Districts engaged in good faith negotiations with the property owner(s); and that their intended possession and use would serve a proper public purpose. 11. Contrary to the Districts’ assertion, C.R.S. section 38-1-105(6)(a) does not automatically entitle them to immediate possession of the Easements. Rather, this Court “may authorize” possession of the Easements upon the Court’s satisfaction that the Districts have met statutory requirements that, absent an agreement between the parties, is to be determined at a hearing held before this Court. 12. Any possession and use of the Easements by the Districts must include terms and conditions sufficient to protect the City’s property rights and the critical infrastructure the City operates and maintains pursuant to said rights. WHEREFORE, while the City anticipates a stipulation for the Districts’ possession will be submitted to the Court, at this time the City respectfully requests the Court deny the Motion. Dated: January 12, 2024 Respectfully submitted: s/ Ryan Malarky Ryan Malarky Attorney for City of Fort Collins CERTIFICATE OF SERVICE I hereby certify that on January 12, 2024, I filed the foregoing CITY OF FORT COLLINS’S RESPONSE TO MOTION FOR IMMEDIATE POSSESSION 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