HomeMy WebLinkAbout2023CV30659 - East Larimer County Water Dist. Et Al V. K & M Co., Et Al. - 024 - Respondent's Response Mot Imm PossDISTRICT 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
RESPONDENT’S RESPONSE TO PETITIONERS’ MOTION
FOR IMMEDIATE POSSESSION
Respondent K & M Company, LLLP (“Respondent Landowner”), through its counsel,
submits the following Response to Petitioners’ Motion for Immediate Possession, and in support
states the following:
CONFERRAL
1. Respondent Landowner does not object to Petitioners’ request that this Court set a
hearing under C.R.S. § 38-1-105(6).
DATE FILED: January 12, 2024 5:39 PM
FILING ID: 9260CB691AEC8
CASE NUMBER: 2023CV30659
Page 2 of 11
2. However, Respondent Landowner disagrees that Petitioners are entitled to
immediate possession of the property described in Exhibit 2 and Exhibit 3 of Petitioners’ Petition
in Condemnation (the “Subject Property”). See Motion for Immediate Possession, at ¶ 4.
LEGAL STANDARD FOR POSSESSION
3. Colorado courts have repeatedly recognized that Colorado’s eminent domain
statute, section 38-1-101, et seq., C.R.S., is to be strictly construed. See Dep't of Transp. v.
Stapleton, 97 P.3d 938, 949-50 (Colo. 2004). This rule of strict construction is premised on the fact
that “the power of eminent domain is one of the most harsh proceedings known to the law.” Id., at
949.
4. During a condemnation proceeding, an entity seeking to condemn private property
may move for immediate possession of the land, to be determined in an immediate possession
hearing. Town of Silverthorne v. Lutz, 370 P.3d 368, 373 (Colo. App. 2016); see Glenelk Ass'n,
Inc. v. Lewis, 260 P.3d 1117, 1122 (Colo. 2011) (citing C.R.S. §§ 38–1–105(6), 38–1–106).
5. The Colorado Revised Statutes state:
At any stage of such new proceedings or of any proceedings under this
article, the court, by rule in that behalf made, may authorize the petitioner,
if already in possession, to use, and, if not in possession, to take possession
of and use, said premises during the pendency and until the final conclusion
of such proceedings and may stay all actions and proceedings against such
petitioner on account thereof, if such petitioner pays a sufficient sum into
court, or to the clerk thereof, to pay the compensation in that behalf when
ascertained. The court wherein any such proceedings are had shall
determine the amount such petitioner is required to pay or d eposit pending
any such ascertainment. In every case where possession is so authorized, it
is lawful for either party to conduct the proceedings to a conclusion, if the
same are delayed by the other party.
C.R.S. § 38-1-105(6)(a).
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6. At the immediate possession hearing in section 38-1-105, C.R.S., “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.” C.R.S. 38-1-109.
7. The term may (as opposed to shall) in C.R.S. § 38-1-105(6)(a) notes that the
granting of immediate possession is subject to the Court’s discretion. See McClain v. People, 11
P. 85, 87 (1886) (“We are of opinion that the statutory expression, ‘the court or judge may, by rule,
authorize the said petitioner to take possession,’ etc., confers upon him a discretionary power; that
the word ‘may’ does not mean ‘shall.’”).
8. To obtain possession, the condemnor has the burden of proving the following:
authority, public purpose, necessity, good faith negotiations, immediate need, and a sufficient
deposit (collectively, the “Immediate Possession Requirements”). Petitioners are not entitled to
immediate possession unless and until they satisfy their burden before this Court.
9. To date, Petitioners have not supplied any evidence to satisfy the Immediate
Possession Requirements.
A. Petitioners have not provided evidence to establish that there is a public purpose for this
project and that acquiring the easements is necessary for the project.
10. Under Colo. Const. Art. II, § 15:
Private property shall not be taken or damaged, for public or private use,
without just compensation. . . . whenever an attempt is made to take private
property for a use alleged to be public, the question whether the
contemplated use be really public shall be a judicial question, and
determined as such without regard to any legislative assertion that the use
is public.
11. Courts may consider several factors when making a public use determination,
including “(1) the physical conditions of the country; (2) the needs of a community; (3) the
character of the benefit the project may confer upon a locality; and (4) the necessities for such
improvement in the development of resources of a state.” Carousel Farms Metro. Dist. v.
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Woodcrest Homes, Inc., 442 P.3d 402,408 (Colo. 2019), citing Tanner v. Treasury Tunnel, Mining
& Reduction Co., 83 P. 464, 465 (Colo. 1906). These factors are not exhaustive but are used as
“guidelines”, thus, public use determinations are decided on a case-by-case basis. Carousel Farms,
442 P.3d at 408 (citing Tanner, 83 P. at 465).
12. “The determination of necessity is an essential part of the power of eminent domain.
Once necessity is determined by legislative act, no further finding or adjudication is required.”
City of Thornton v. Farmers Reservoir & Irr. Co., 575 P.2d 382, 389 (Colo. 1978).
13. The Petitioners’ determination of necessity is “not reviewable absent a showing of
fraud or bad faith.” Id.
14. Petitioners have not presented competent evidence that the proposed project serves
a public purpose or that obtaining the Subject Property is necessary for the project. Importantly,
this Court need not defer to Petitioners’ determination that their project serves a public purpose.
B. Petitioners must prove they engaged in good faith negotiations.
15. C.R.S. § 38-1-102 allows an entity with authority to condemn to initiate a
condemnation petition when the “compensation to be paid for [the property] . . . cannot be agreed
upon by the parties interested.”
16. The Colorado Supreme Court has held:
The prerequisite of a failure to agree upon the purchase price for the
property sought to be condemned generally requires only that the
condemning authority make a reasonable good faith offer to reach an
agreement with the owner of the property for its purchase. Lengthy or face-
to-face negotiations are not required. The making of a reasonable purchase
in good faith by letter and allowing the property owner time to respond is
sufficient. If the property owner remains silent or rejects the offer without
making an acceptable counter-offer, a condemnation action may be
instituted.
City of Thornton, 575 P.2d at 392.
Page 5 of 11
17. Petitioners have not presented evidence that they engaged in good faith negotiations
as required under Colorado law.
C. Petitioners have not presented competent evidence that they have the authority to condemn
the Subject Property.
18. In their Petition in Condemnation, Petitioners assert they are political subdivisions
of the State of Colorado, special districts, as defined in C.R.S. § 32-1-103(20), and water districts,
as defined in C.R.S. § 32-1-103(25). See Petition in Condemnation, at ¶¶ 3-4. Aside from these
conclusory statements, Petitioners have not provided relevant formation documents, articles of
incorporation, bylaws, operating agreements, or other competent evidence to prove they are
political subdivisions of the State of Colorado, special districts, or water districts.
19. Petitioners assert they are “vested by law with the power to take private property
for public use without the owner’s consent, including the rights granted to them by C.R.S. § 32-1-
1006(1)(f) . . . and the Colorado Constitution Art. XVI, Section 7.” Id. at ¶ 5.
20. C.R.S. § 32-1-1006(1)(f) states that water districts have “the power of eminent
domain and dominant eminent domain and, in the manner provided by article 1 of title 38, C.R.S.,
to take any property necessary for the exercise of the powers granted, both within and without the
special district . . .”
21. Until Petitioners prove they are water districts, as prescribed under Colorado law,
this Court cannot find that Petitioners possess the power of eminent domain.
22. Colo. Const. art. XVI, § 7 does not clearly provide Petitioners with the authority to
condemn the Subject Property, stating:
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All persons and corporations shall have the right-of-way across public,
private and corporate lands for the construction of ditches, canals and
flumes for the purpose of conveying water for domestic purposes, for the
irrigation of agricultural lands, and for mining and manufacturing purposes,
and for drainage, upon payment of just compensation.
23. Petitioners seek to acquire a permanent easement for:
[A]ccessing, surveying, locating, marking and maintaining the marking of
the location with suitable markers, relocating, installing, constructing,
using, operating, maintaining, inspecting, repairing, altering, removing, and
replacing one or more buried water pipelines at the depth and location
shown on the construction plans . . . and all necessary subsurface and
surface appurtenances, for the transportation of water and the operation and
control of water facilities . . .
Petition in Condemnation, at ¶ 13.
24. Colo. Const. art. XVI, § 7 does not ex pressly grant eminent domain authority for
water pipelines and “all necessary subsurface and surface appurtenances,” as it only authorizes
condemnation for the construction of ditches, canals, and flumes for the purpose of conveying
water for domestic purposes. See Larson v. Sinclair Transp. Co., 284 P.3d 42, 44 (Colo. 2012)
(“We have stated, therefore, that condemnation authority, ‘being against the common right to own
and keep property, must be given expressly or by clear implication; it can never be implied from
doubtful language.’”); but see Town of Lyons v. City of Longmont (holding that Colo. Const. art.
XVI, § 7 granted the City of Longmont the right to condemn a right of way for its gravity flow
pipeline through the streets and alleys of the Town of Lyons.).
25. Petitioners must present evidence that they are expressly or by clear implication
authorized to take the Subject Property for a water pipeline and “all necessary subsurface and
surface appurtenances.”
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D. Petitioners have not presented competent evidence that they have a need for immediate
possession.
26. Both the Colorado Constitution and the Colorado Revised Statutes protect
Respondent Landowner from needless possession by a government entity in the context of eminent
domain.
27. The Colorado Constitution provides that:
Private property shall not be taken or damaged, for public or private use,
without just compensation. Such compensation shall be ascertained by a
board of commissioners, of not less than three freeholders, or by a jury,
when required by the owner of the property, in such manner as may be
prescribed by law, and until the same shall be paid to the owner, or into the
court for the owner, the property shall not be needlessly disturbed, or the
proprietary rights of the owner therein divested . . .
Colo. Const. art. II, § 15 (emphasis added).
28. Interpreting the above provision, the Colorado Supreme Court held that “the word
‘needlessly’ in this connection implies an investigation of some sort. A disturbance which in one
case might be deemed needful, in another might, with equal propriety, be adjudged needless.”
McClain, 11 P. at 87 ; see also Bd. of Cnty. Comm'rs of Weld Cnty. v. Highland Mobile Home
Park, Inc., 543 P.2d 103, 107 (Colo. App. 1975) (“A hearing for immediate possession is an in
limine proceeding in which immediate possession of the property, if need be shown, may be
granted to the condemning authority provided that adequate security is deposited for the benefit
of the property owner.”).
29. Petitioners must prove they have a need for immediate possession. Petitioners state
they “require immediate possession of the [Subject Property] in order to allow the full and
complete public use of the [Subject Property] as set forth in their Petition.” Motion for Immediate
Possession, at ¶ 5.
Page 8 of 11
30. However, the question of whether the pipeline serves a public use is irrelevant to
the question of whether Petitioners need immediate possession. Petitioners have not supplied a
construction schedule or other relevant information indicating that Petitioners need possession of
the Subject Property prior to the determination of just compensation.
31. On the contrary, the case posture suggests Petitioners do not need possession of the
Subject Property. Petitioners filed the Petition in Condemnation on August 1 6, 2023, without a
Motion for Immediate Possession. Petitioners sent Respondent Landowner a Notice of Intent to
Acquire on December 16, 2022. It is hard to believe, given the amount of time that has passed
since Petitioners first contacted Respondent Landowner, that they have a sudden and immediate
need to possess the Subject Property.
E. Petitioners have not presented competent evidence to establish a sufficient deposit.
32. Before Petitioners may take possession of the Subject Property, the Court must
determine the amount Petitioners must deposit and such deposit must reflect the amount
Respondent Landowner is likely entitled to receive. See Highland Mobile Home Park, Inc., 543
P.2d at 107.
33. The purpose of an immediate possession deposit is to provide the landowner with
security for the payment of compensation and damages ultimately awarded. City of Englewood v.
Reffel, 522 P.2d 1241, 1244 (Colo. App. 1974); ; see also Denver & R.G.R. Co. v. Mills, 147 P.
681, 684 (Colo. 1915) (“It is plain that the deposit under the statute is required for the sole purpose
of making secure the award of compensation to be made for the taking of the land.”); E-470 Public
Hwy. Auth. v. The 455 Co., 997 P.2d 1273, 1276 (Colo. App. 1999).
34. In determining the “sufficient sum” for an immediate possession deposit, “it is
incumbent upon the court or judge, when temporary possession is sought . . . to require competent
evidence as to the market value of the premises sought to be taken and determine therefrom the
Page 9 of 11
amount of the deposit which will compensate the owner . . .” Swift v. Smith, 201 P.2d 609, 615
(Colo. 1948).
35. In order to make this determination:
[T]here must be an investigation made by the court, and, either from the
judge’s own inspection or from affidavits of those competent to express
opinions as to valuations, or from oral evidence of competent witnesses,
there must be a determination of value which will be in an amount equal, in
all probability, to compensation which will ultimately be awarded the
landowner when the same is determined by a commission or jury . . . .
Id.
36. The Court, however, recognizes that “in an eminent domain proceeding[], . . . there
should [not] be two complete trials to determine the compensation to be awarded to the landowner.
Id.
37. Initially, Petitioners ignored the high likelihood that their project would cause
damages to Respondent Landowner’s remainder property. However, for the past six months,
Petitioners and Respondent-Landowners and their respective civil engineers have discussed the
damages caused by the project and appropriate compensation for those damages. To date, the
parties disagree on the extent of damages and compensation.
38. Petitioners’ position regarding a sufficient deposit to secure possession is unclear.
It is quite possible the parties are millions of dollars apart on what constitutes a sufficient deposit.
If Petitioners and Respondent Landowner cannot resolve this issue, the Court will need to hear
competent evidence regarding the fair market value of the Subject Property and related damages
to determine the proper deposit.
Page 10 of 11
WHEREFORE, Respondent Landowner respectfully requests this Court to set a hearing
pursuant to C.R.S. § 38-1-105(6) to ensure that Petitioners provide competent evidence proving
(1) Petitioners are acquiring the easements for a public purpose and the easements are necessary
for the project; (2) Petitioners negotiated in good faith; (3) Petitioners have the authority to
condemn; (4) Petitioners have a pressing need for immediate possession; and (5) the deposit is
sufficient to dispossess Respondent Landowner from the Subject Property.
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/ Joshua T. Mangiagli _____________________
Page 11 of 11
CERTIFICATE OF SERVICE
I hereby certify that on this 12th day of January 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:
Timothy L. Goddard
Goddard Law Office, PLLC
210 East 29th Street
Loveland, CO 80538
Attorney for Petitioner
Jamie N. Cotter, No. 40309
Lauren A. Taylor, No. 52452
SPENCER FANE LLP
1700 Lincoln Street, Suite 2000
Denver, Colorado 80203
Attorneys for Petitioners
Ryan Malarky
Fort Collins City Attorney’s Office
300 Laporte Avenue
PO Box 500
Fort Collins, Colorado 80522
Attorneys for City of Fort Collins
_______/s/__________________________
Cindy Bolton