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HomeMy WebLinkAboutFORT COLLINS RETAIL CENTER PUD - Filed RD-ROW DEDICATION - 2003-11-03DISTRICT COURT, LARIMER COUNTY,COLORADO CASE NO. 87 CV 1813 Rr-�r � •�" D ;U '' � 19:8 CITY ATTORNEY CITY OF FORT COLLINS, COLORADO, a municipal corporation, Petitioner, VS. GEORGE A. HOLTER and NADINE HOLTER, Respondents. THIS MATTER is before the court with -regard to the Motion in Limine filed by Respondents. This motion raises, with regard to this condemnation proceeding, the threshold issues of necessity, public purpose, and good faith negotia- tions. The Court finds, concludes, and orders as set forth below. Petitioner filed this eminent domain action on December 30, 1987. Respondents have put in issue the three issues described above. Petitioner has alleged that it is necessary to acquire 486 square feet of property in Larimer County, owned by Respondent, for the purpose of constructing a curb return at the intersection of Pavilion Lane and South College Avenue. Petitioner further alleges that good faith negotiations have taken place and a good faith offer has been made pursuant to C.R.S. 38-1-121(6). Necessity for the taking is alleged as found in the resolution of the Fort Collins City Council dated October 20, 1987. Respondents dispute the existence of a public purpose,the necessity for the taking, or good faith negotiations. Respondents assert that the proposed taking is for a purely private purpose, without any necessity, and this action is a sham brought in bad faith by the City of Fort Collins. Pavilion Lane, a dedicated road now in use, lies between property owned by Respondents, on the south, and Troutman Properties, on the north. The Troutman Properties development is a shopping center. Ordinarily the city would have required that the road be built one-half on Respondents' property and one-half on the Troutman land; in this case, after extensive negotiations, the city agreed that the entire road be built on Troutman land. However, the City maintains it is necessary to condemn a portion of Respondents' property to construct the curb return (a widening of the road at the intersection, to facilitate turning by vehicle traffic). Prior to involvement by the City of Fort Collins, unsuccessful negotiations had taken place between the Troutman developers and Respondents, wherein the shopping center developers sought to purchase an easement from Respondents for Pavilion Lane. These negotiations not being fruitful, the City became formally 87CV1811 Pg 2 involved, in an attempt to facilitate resolution of the issue between the private landowners. Again, no progress was made, and the City determined to seek condemnation of the property at issue herein. The situation was complicated further by a contractor's mistake in that the curb return has actually been built, mistakenly, on Respondents' property, without legal authority. NECESSITY The existence of necessity for the condemnation is a threshold issue which must be resolved prior to trial (Colorado State Board of Land Commissioners V. District Court, 163 Colo. 338, 430 P2d 617 (1967)). Absent fraud or bad faith, the determination of the public agency involved of the necessity for the taking is final and conclusive, and binding on the court (Colorado State Board, supra). The fact that there may be private benefit to certain individuals, if there also is public necessity, does not negate the existence of such necessity. It should be pointed out, before proceeding further, that, contrary to one assertion of Respondents, the condemnation sought herein does not involve an attempt by Petitioner to establish a private way of necessity (Crystal Park Company v. Morton, 27 Colo. App. 74, 146 P 566 (1913)). Respondents deny the existence of necessity for the 87CV1813 Pg. 3 % condemnation. Petitioner asserts the existence of such necessity, as found in Resolution 87-158. College Avenue is a major, vehicle thoroughfare, and Pavilion Lane provides access to the shopping center off of it. Substantial vehicle traffic may be expected. The curb return is necessary to the safe operation of vehicles on Pavilion Lane. There has been no engineering reason shown by the evidence why Pavilion Lane could not have been placed elsewhere, had the City so elected. Approval by the City of the Pavilion development contained a requirement that the developer negotiate with Respondents to acquire the easement in question. Respondents Point to this as illustrating their contention that the easement constitutes a purely private purpose. In the Court's view this mistakes the purpose of the easement and purpose of this requirement by the City. Although the Holters and the developers negotiated, no easement was ever agreed upon. While the City may require the parties to negotiate, the City cannot require them to agree. If and when they fail to agree, it is not unreasonable for the City, having failed to obtain resolution of the matter by agreement, to then exercise its condemning authority in the public interest. The fact that the City attempted previously to bring about a resolution of this problem 87CV1813 Pg. 4 through private negotiations does not indicate bad faith, or that the City is serving as a stalking horse for a private developer. Nor does the fact that Pavilion Lane - including a safer Pavilion Lane due to the curb returns - obviously benefits the developer, as well as the public as a whole, diminish the necessity for the taking. A determination by the condemning authority of the existence of necessity is final, conclusive and binding on the Court, in the absence of a showing of bad faith or fraud. This includes a determination as to the location for the road, easement, etc. being condemned (Colorado State Board of Land Commissioners V. District Court, supra; Dallastra v. Department of HiQhways 153 Colo. App. 519, 387 P 2d 25). In other words, the Court cannot impute bad faith or other improper motives to the City by speculating that the City might as easily put the lane further north. Similarly, the efforts of the City to resolve this matter, without the necessity of a condemnation proceeding and at less cost to the taxpayers, through negotiations between the private parties, are commendable, and do not establish bad faith. There being no showing of bad faith or other conditions which would allow the Court to disregard the finding of the City of the existence of necessity, the Court is bound by such finding. Thus, the Court determines 87CV1813 Pg. 5 that Petitioner has made a sufficient showing of necessity. PUBLIC USE OR PURPOSE The Court must find that the proposed taking is for a public purpose or use, before the matter may proceed further. This term is not precisely defined; rather, the existence of a public purpose must be determined based upon the facts of.each case, considering, among other things, thle physical conditions of the area, the needs of the community, the character of the benefit, and all other relevant factors (Tanner v. Treasury Tunnel Mininq and Reduction'Company, 35 Colo. 593, 85 P 464 (1906)). In this case, Pavilion Lane provides access from College, a major thoroughfare in Fort Collins. Considerable additional use over that now existing is expected in the future, due to future growth. Pavilion Lane now serves a shopping center. The public utilizes such shopping center. The curb returns are needed in order to maximize the safety of vehicles turning onto Pavilion Lane, and to comply with Federal standards. The Court finds that there has been a clear showing of public purpose or use. The curb returns will enhance the operational efficiency and safety of Pavilion Lane (Buck v. District Court, 199 Colo. 344, 608 P2d 350 (1980)). There is a clear beneficial public purpose. The curb 87CV1813 Pg. 6 return is not analogous to a passage way to enable a single farmer to pasture his sheep (Crystal Park Company, supra), or a condemnation to enable one business to store coal (Potashnik v. Public Service Company, 122 Colo. 98, 247 P2d 137 (1952)). The fact that there may be some ancillary private benefit is, as a matter of law, not sufficient to require a different finding. The Court does not disagree with the principle enunciated by the line of cases cited by Respondent, including City of Center Line v. Chmelko, 416 N.W. 2d 401 (Mich. App. 1987) and Wilminqton Parking Authority V. Land With Imorovements, Del. Supr., 521 A 2d 227 (1986), that is, that a public entity lacks the power to pursue condemnation proceedings where the taking, although asserted to be for a public purpose, is in fact for a purely private purpose, such as to benefit one favored business or entity, and not the public as a whole. Rather, the Court finds that the facts of this case do not support such a finding. Unlike Chmelko, where the City proposed to condemn certain property merely to benefit a car dealership, or Wilmington Parking Authority, where the condemnation was for the sole benefit of a major newspaper which threatened, absent the condemnation proceedings, to relocate outside of Wilmington, establishment of the curb return on Pavilion Lane benefits the public 87CV1813 Pg. 7 as a whole. The public as a whole will utilize Pavilion Lane. Although obviously some benefit will inure to the Troutman developers, the primary purpose of the curb return is to serve the interest of the entire community. This is qualitatively different from the results that would have been obtained had the condemnations proceeded in Chmelko and Wilmington, and renders those cases inapposite. - GOOD FAITH NEGOTIATIONS The existence of good faith negotiations prior to initiation of the condemnation proceeding is a jurisdictional prerequisite (Board of County Commissioners of Jefferson County v. Auslander, 745 P2d 999 (Colo. 1987)). The burden of proof as to this issue is on the Petitioner. Respondents point out that no offer was made to them after the City council meeting of October 20, 1987, wherein the condemnation proceeding was authorized. This appears to be correct. However, a written offer was extended by Ron Mills on October 1, 1987. Respondents either did not respond to this offer or made a counter-offer attempting to tie into resolution of this issue resolution of another, unrelated dispute with the City. Petitioner's conduct meets the requirement of good faith negotiations (City of Thornton v. Farmer's Reservoir and Irrigation Comoany, 194 Colo. 526, 575 P2d 382 (1978); 87CV1813 Pg. 8 Board of County Commissioners of Mesa County v. Blecha, 697 P2d 416 (Colo. App. 1985)). What is required is a reasonable offer, and reasonable time to respond (Cif of Thcrntcn, supra). Here, the offer was made October 1, and suit not initiated until December 30th. The offer in question was not so low as be in bad faith. The time afforded Respondents was far more than the six days found to be inadequate in Auslander. The Court concludes that the City has met its burden of proof with regard to the existence of prior good faith negotiations. IT IS THEREFORE ORDERED that, as to the three threshold issues raised by the Motion in Limine, the Court finds and concludes as set forth above. Dated this d`? day of August, 1988. BY THE COURT: BY: DISTRICT COURT JUDGE 87CV1813 Pg. 9