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HomeMy WebLinkAboutLIND PROPERTY - PDP - 39-94B - LEGAL DOCS - LEGAL NOTICEMembers of the Planning Commission and the City Council for the City of Fort Collins May 6, 2003 Page 4 taken by the government without just compensation because of government regulations which disallowed the development by the companies of their mineral rights.3 5. The Anadarko Entities Have Entered into Many Agreements with Developers With Respect to the Disposition of the Minerals at the Time that the Developer Proposes to Develop the Surface Estate, and the Public Interest is Served by the Parties Entering into Such an Agreement. The Anadarko entities have extensive mineral interests throughout Colorado where the surface estate and the mineral estate have been severed. The Anadarko entities have worked with many parties who wish to develop the surface estate in order to assure the compatible development of the surface and the minerals or to effect some other disposition of the minerals. The Anadarko entities wish to work with the Applicant in the same manner that they have worked with other developers. The Anadarko entities object to the Application, however, until such time as they reach an agreement with the Applicant with respect to their oil and gas interests and request that the City make any approval of a final plat for the Property conditioned upon an agreement between the Applicant and the Anadarko entities. Very truly yours, KRUG & SOBEL, LLC Molly Sommerville MS/sa cc: Donna Powers, Esq. Don Ballard Chuck Traxler Yvonne Seaman/ Centex Homes 3See for example Whitney Benefits, Inc. v. United States, 18 C1.Ct. 394 (1989), corrected, 20 C1.Ct. 324 (1990), affd., 926 F.2d 1169 (Fed.Cir.), cert. denied, 112 S.Ct. 406 (1991); United Nuclear Corporation v. United States, 17 C1.Ct. 768, affd., 912 F.2d 1432 (1990). Members of the Planning Commission and the City Council for the City of Fort Collins May 6, 2003 Page 3 3. Government Action Which Allows Surface Development in a Manner Which Precludes Mineral Development May Impair the Vested Property and Contractual Rights of the Mineral Interest Owner. Colorado case law provides that the mineral owner has the right of reasonable access to and use of the surface estate to extract minerals and that the surface owner and mineral owner must exercise their rights in a manner consistent with one another. Actions by a government entity which may have the effect of reversing this basic tenet of Colorado property law and thereby deprive the mineral interest owner of its vested property and contractual rights may violate federal and state constitutional provisions. Union Pacific Railroad Company gave a deed to Nels Johnson dated July 29, 1905 and recorded October 3, 1905 in Book 150, Page 49 in which the Railroad reserved the minerals for the Property. The Railroad granted the minerals to Union Pacific Land Resources Corporation by quitclaim deed dated April 1, 1971 and recorded on April 14, 1971 in Book 1458, Page 456. Applicant had record notice at the time it acquired its interests in the Property that the minerals were severed from the surface estate and that it received less than the entire interest in the Property. 4. An Action by the City to Approve the Application May Amount to a Regulatory Taking within the Meaning of the State and United States Constitutions. Action by the City to approve an application for surface development may constitute a regulatory taking, especially where the operator is deprived of all economically viable use of land or his investment -backed expectations to develop his property.2 The United States Claims Court and the Federal Circuit Courts have awarded compensation or affirmed decisions to award compensation to energy and mining companies based upon claims by the companies that their mineral properties had been 'See Frankfort Oil Company v. Abrams, 413 P.2d 190 (Colo. 1966) and Gerrity Oil & Gas Corporation v. Magness, 946 P.2d 913 (Colo. 1977). 2See, for example, Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed. 2d 798 (1992). Members of the Planning Commission and the City Council for the City of Fort Collins May 6, 2003 Page 2 Anadarko Land and Anadarko E&P wish to give notice to the City of the mineral interests they own under the Property and to make the City aware that any subsequent approval by the City of an application for a final plat may make the oil and gas resources that underlie the Property undevelopable. Anadarko Land and Anadarko E&P object to the approval by the City of a final plat for the Property unless and until an agreement on surface use is reached between the Anadarko entities and the Applicant with respect to oil and gas. The following are comments in support of this Notice and Objection: The Oil and Gas Resources Owned by the Anadarko Entities. The oil and gas interests for the Property are the subject of an exploration agreement between a predecessor company to Anadarko E&P and United States Exploration, Inc. Current rules and regulations of the Colorado Oil and Gas Conservation Commission ("COGCC") would allow four drillsites in each quarter section, one in the center of each quarter quarter section. COGCC reports reflect that there are at least nine producing oil or gas wells in the adjacent Section 30. 2. There Is Clear Statutory Authority and Direction for the City to Take into Account the Rights of Mineral Interest Owners in Its Consideration of Land Use Applications. The State of Colorado recognizes the important rights of mineral owners and lessees in C.R.S. § 30-28-133(10) which states and acknowledges that both the mineral estate and the surface estate are interests in land and that the two interests are "separate and distinct." The subsection specifically recognizes that the owners of subsurface mineral interests and their lessees have "the same rights and privileges as surface owners." Further, C.R.S. § 24-65.5-101, et sea., requires that applicants for development approvals give notice to mineral estate owners of hearings to be held before local jurisdictions for applications for development and further requires that the developer certify that he has given the required notice as a condition to the approval of the application by the local jurisdiction. KRUG er' SOBEL, LLC ATTORNEYS AT LAW Molly Sommerville, Esq. msommerville@krug-sobel.com May 6, 2003 Via Telefax and Federal Express Members of the Planning Commission and the City Council for the City of Fort Collins 281 North College Avenue Post Office Box 580 Fort Collins, Colorado 80552-0580 1700 Broadway, Suite 508 Denver, Colorado 80290 Telephone: 303-831-8450 Facsimile: 303-831-8482 E-mail: law@krug-sobel.com NOTICE OF OIL AND GAS INTERESTS OWNED BY ANADARKO LAND CORP. AND ANADARKO E&P COMPANY LP AND OBJECTION Re: Lind Project Development Plan/ Centex Homes Township 8 North, Range 68 West Section 29: W/2 (approximate 45 acre parcel) City of Fort Collins, Larimer County, Colorado Ladies and Gentlemen: This law firm represents Anadarko Land Corp. ("Anadarko Land"), formerly known as RME Land Corp. and Union Pacific Land Resources Corporation, and Anadarko E&P Company LP ("Anadarko E&P"), formerly known as RME Petroleum Company and Union Pacific Resources Company, with respect to the application that has been filed with the City of Fort Collins ("City") for the approval of the Lind Project Development Plan ("Application") for property that covers approximately 45 acres in the SW/4 of Section 29, Township 8 North, Range 68 West, Larimer County ("Property"). The Anadarko entities own all of the minerals that underlie the Property. Bob Barkeen May 6, 2003 Page 3 Anadarko Land Corp. P.O. Box 9149 Houston, Texas 77387-9147 Attention: Manager, Property and Rights -of -Way If you have any questions, please call me. Best regards, KRUG & SOBEL, LLC Molly Sommerville MS/sa Enclosure cc: Donna Powers, Esq. Don Ballard Chuck Traxler Yvonne Seaman/Centex Homes \\Molly\molly docum \Files\UNION\Cmtex\objection Itr cover f-Barke".doc Bob Barkeen May 6, 2003 Page 2 Centex sent a development referral letter to the Anadarko entities notifying them that Centex intended to file a development application with the City on October 16, 2002. I submitted a letter to you dated November 6, 2002 on behalf of the Anadarko entities entitled "Notice of Mineral Interests Owned by the Anadarko Entities" in which I indicated that the Anadarko entities would object to any application that Centex filed with the City if the Anadarko entities did not work out an agreement that provided for the compatible development of the surface estate and the mineral estate prior to the time the City approved a final plat for the property. Enclosed please find a letter entitled "Notice of Oil and Gas Interests owned by Anadarko Land Corp. and Anadarko E&P Company LP and Objection" which I ask that you provide to the adminstrative hearing officer and the Planning Commission and the City Council with respect to the application. I ask that you please include the objection letter as a part of the record of the proceedings for the application The Anadarko entities work with developers at the time surface development is proposed to enter into agreements that provide for the compatible development of the surface estate and the mineral estate or some other disposition of the minerals. The Anadarko entities have contacted the developer to try to resolve the issues; however, there are no agreements in place to date. For this reason, the Anadarko entities have filed the objection with the City and request that the City make the approval of any final plat for the property conditioned upon an agreement between the developer and the Anadarko entities with respect to the oil and gas mineral interests. The Anadarko entities anticipate that they will receive notices of hearings on applications filed in connection with this matter pursuant to C.R.S. § 31-23-215 and C.R.S. § 24-6-402(7) and C.R.S. § 24-65.5-101, et seg.. Please have notices of all land use hearings for the Property sent to Anadarko E&P and Anadarko Land as follows: Anadarko E&P Company LP P.O. Box 9149 Houston, Texas 77387-9147 Attention: Manager, Land -Western Division KRUG &SOBEL, LLC ATTORNEYS AT LAW Molly Sommerville, Esq. msommerviile@krug-sobel.com Via Telefax and Federal Express Bob Barkeen Current Planning Department City of Fort Collins 281 North College Avenue Post Office Box 580 Fort Collins, Colorado 80522-0580 1700 Broadway, Suite 508 Denver, Colorado 80290 Telephone: 303-831-8450 Facsimile: 303-831-8482 E-mail: law@krug-sobel.com RF May 6, 2003 cu�//j O �V�CO Rq e �NN�ryc Re: Lind Project Development Plan/Centex Homes Township 8 North, Range 68 West Section 29: SW/4 (approximate 45 acre parcel) Fort Collins, Larimer County, Colorado Dear Mr. Barkeen: I understand that Centex Homes ("Centex") recently filed an application with the City of Fort Collins ("City") for the development of property that is described as a portion of the W2 of Section 29, Township 8 North, Range 68 West ("Property") and known as the Lind Development Project. As I think you are aware, Anadarko E&P Company LP (`.`Anadarko E&P"), formerly known as RME Petroleum Company and Union Pacific Resources Company, and Anadarko Land Corp. ("Anadarko Land"), formerly known as RME Land Corp. and Union Pacific Land Resources Corporation, own all of the minerals that underlie the Property. Anadarko E&P owns the oil, gas and associated liquid hydrocarbons that underlie the Property, and Anadarko Land owns the minerals other than the oil, gas and associated liquid hydrocarbons.