PETITION IN CONDEMNATION

Transcription

1 DISTRICT COURT, SUMMIT COUNTY, COLORADO 501 N. Park Ave. P.O. Box 269 CO DATE SumD FILED: m AT it E C63 December 12, :24 PM Review FILING Clerk: ID: 808E8030F2FA4 Chris Kilkenny CASE NUMBER: 2013CV30244 Petitione r: THE BOARD OF COUNTY COMMISSIONERS OF SUMMIT COUNTY, COLORADO v. Respondents: UNCLE DICK S, LLC, a Wisconsin limited liability company, and BILL WALLACE, in his official capacity as Public Trustee and Treasurer of Summit County, Colorado COURT USE ONLY Attorneys for Petitioner: Jeffrey L. Huntley, No Franklin P. Celico, No Office of the Summit County Attorney 208 E. Lincoln Ave. P.O. Box 68 Telephone: (970) Fax: (970) jeffh@co.summit.co.us frankc@co.summit.co.us Case Number: Div.: PETITION IN CONDEMNATION Ctrm.: Petitioner, the Board of County Commissioners of Summit County, Colorado, by and through the Office of the County Attorney, alleges as follows: ALLEGATIONS 1. Petitioner is a political subdivision and body corporate of the State of Colorado organized and existing pursuant to Title 30, Colorado Revised Statutes and Article XIV of the Colorado Constitution. 2. Petitioner has the power of eminent domain as provided in C.R.S et seq. and therefore can acquire private property as park and recreation lands for public uses as public

2 recreation facilities and to preserve and conserve open space, sites, scenes and vistas for public purposes under and in accordance with Articles 1 to 7 of Title 38, Colorado Revised Statutes. 3. This proceeding is brought to acquire fee simple absolute title in fee simple absolute the property interests located entirely in Summit County, Colorado, which are described in Exhibit A and depicted on Exhibit B ("the Property") in accordance with the provisions of C.R.S (4), as amended 4. Petitioner has determined pursuant to Resolution of the Board of County Commissioners that the purposes for which the Property is needed constitute and are in furtherance of public interests and public uses, that it is necessary to obtain possession of, acquire, own, improve and operate the Property for use as public park and recreation facilities and further to conserve, preserve, and reclaim the Property for open space sites and vistas, for the benefit of the public health, safety and welfare. 5. The Petitioner is informed and believes that Uncle Dick s LLC ( Respondent- Landowner ) is the fee owner of the Property pursuant to a Warranty Deed recorded at Reception No on December 15, 2011 in the records of the Summit County Clerk and Recorder 6. Bill Wallace, in his official capacity as Public Trustee and Treasurer of Summit County, Colorado is joined as a Respondent pursuant to C.R.S Petitioner is informed and believes that this action does not affect the property of any persons in a guardianship or conservatorship. 8. In so far as it is known to Petitioner, Petitioner has specifically named as Respondents in this Petition In Condemnation ( Petition ) all parties appearing to be interested as or claiming to be owners of or otherwise holding a claim to the Property if such parties interests appear of record. 9. Through this action the Petitioner does not seek to obtain any water rights or rights to use water, either decreed or undecreed, permitted or unpermitted, tributary, nontributary, designated or undesignated, that is owned or claimed by Respondents or in any way associated with the Property that is the subject of this action. The Petitioner disclaims any interest in any water rights or rights to use water owned by the Respondents or in any uses of water associated with the Property. Nonetheless, Petitioner s disclaimer of water rights and rights to use water shall not be construed as permission for the Respondents or any others to locate or perpetuate surface facilities incident to water rights or the rights to use water that would interfere with the Petitioner s use of the Property as public park and recreation facilities or as property conserved and preserved for open space and vistas. 10. Petitioner has negotiated in good faith with Respondent/Landowner in an attempt to acquire their interests in the Property voluntarily, but has been unable to successfully complete the negotiations. The just compensation to be paid for the interests in the Property cannot be agreed upon and negotiations with Respondent/Landowner have proved to be futile. 2

3 11. Petitioner requires and is entitled to immediate possession of the Property as that term is used in the Colorado eminent domain statutes and case law in order to proceed with its establishment of park and recreation facilities upon the Property including the conservation and preservation of sites, open space and vistas as described in the Resolution and this Petition. The Petitioner has filed contemporaneously with this Petition a Motion for Immediate Possession Incorporating Legal Authorities. PRAYER FOR RELIEF WHEREFORE, Petitioner prays this Court enter Orders as follows: 1. That if Respondents ownership or interests in the Property are not correctly set forth herein, the named Respondents be required to set forth by Answer the extent of their respective interests, the names and addresses of any other interested persons or entities, and the nature and extent of such others interests in the Property; 2. That the compensation to be paid to Respondents for the Property be determined; 3. That Petitioner have judgment condemning the Property as herein described upon Petitioner's payment of just compensation to Respondents or other parties in interest, as provided by law and for a rule, decree and order conveying the Property to Petitioner in fee simple absolute. 4. That the Court determine the proper deposit to be made by the Petitioner into the Court Registry for the taking of immediate possession of the Property, and, to enter an Order authorizing the Petitioner and its contractors, agents, directors, employees, and all others acting by or on behalf of Petitioner or with its permission, to enter into, take and retain possession of the Property during the pendency of this proceeding to improve, reclaim, maintain and otherwise use the Property for the purposes set forth in the Petition without interference from Respondents, their successors, assigns, heirs, devisees, personal representatives, guests, invitees, and all other persons claiming any right, title, or interest in and to the Property by, through or under said Respondents, or any of them. 5. That this Court grants such additional relief as may be deemed just and proper. DATED: December 12, Respectfully submitted, OFFICE OF THE SUMMIT COUNTY ATTORNEY A duly signed physical copy of this document is on file at the office of Summit County Attorney pursuant to C.R.C.P. Rule 121, Section 1-26(7). By: /s/ Jeffrey Huntley 3

4 Jeffrey L. Huntley, #12328 Franklin P. Celico, #30051 ATTORNEYS FOR PETITIONER, BOARD OF COUNTY COMMISSIONERS SUMMIT COUNTY, COLORADO Address of Petitioner: Summit County Board of County Commissioners 208 Lincoln Avenue P.O. Box 68 4

5 EXHIBIT A LEGAL DESCRIPTION THE HUNTER MINING CLAIM, U.S. MINERAL SURVEY NO. 3786, LOCATED IN SECTIONS 31 AND 32, TOWNSHIP 7S, RANGE 77W, AND SECTION 6, TOWNSHIP 8S, RANGE 77W OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF SUMMIT, STATE OF COLORADO A/K/A, pursuant to Warranty Deed by which Uncle Dick s LLC acquired the Property dated December 13, 2011 recorded at reception No of the records of the Clerk and Recorder of Summit County, Colorado, as: Parcel B HUNTER MINING CLAIM UNITED STATES MINERAL SURVEY 3786, COUNTY OF SUMMIT, STATE OF COLORADO. 5

6 DATE FILED: December 12, :24 PM FILING ID: 808E8030F2FA4 CASE NUMBER: 2013CV30244

7 DISTRICT COURT, SUMMIT COUNTY, COLORADO 501 N. Park Ave. P.O. Box 269 CO SumD m AT it E C63 Review DATE Clerk: FILED: Chris December Kilkenny 12, :24 PM FILING ID: 808E8030F2FA4 CASE NUMBER: 2013CV30244 Petitione r: THE BOARD OF COUNTY COMMISSIONERS OF SUMMIT COUNTY, COLORADO v. Respondents: UNCLE DICK S, LLC, a Wisconsin limited liability company, and BILL WALLACE, in his official capacity as Public Trustee and Treasurer of Summit County, Colorado COURT USE ONLY Attorneys for Petitioner: Jeffrey L. Huntley, No Franklin P. Celico, No Office of the Summit County Attorney 208 E. Lincoln Ave. P.O. Box 68 Telephone: (970) Fax: (970) jeffh@co.summit.co.us frankc@co.summit.co.us Case Number: Div.: Ctrm.: MOTION FOR IMMEDIATE POSSESSION INCORPORATING LEGAL AUTHORITIES COMES NOW Petitioner, the Board of County Commissioners of Summit County, Colorado, by and through the Office of the County Attorney, and requests that the Court hold a hearing on immediate possession and thereafter enter an Order granting Petitioner immediate possession of the subject property located in Summit County, Colorado and described in the attached and hereby incorporated Exhibit A (the Property ) in fee simple absolute. As grounds therefor, the Petitioner states as follows: 1. This is an action in eminent domain pursuant to C.R.S et. seq. brought for Petitioner s acquisition of title to the Property in fee simple absolute for recreational and open space and vista conservation and protection purposes as described in the Petition in Condemnation and located in Summit County, Colorado. 1

8 2. In the case before the Court, Petitioner has alleged in its Petition in Condemnation that: a) it has statutory authority to acquire the Property Interest through the exercise of its eminent domain powers; b) it has need for immediate possession of the Property Interest for public recreational and open space and vista conservation and protection purposes; c) the Property is needed for and will be put to use by Petitioner for a public purpose; d) the Petitioner has conducted good faith negotiations for acquisition of the Property Interests, however, such good faith negotiations have failed and further negotiations would be futile. 3. Pursuant C.R.S (6)(a), Petitioner is entitled to obtain an order authorizing Petitioner to take possession of and use the Property during the pendency of proceedings. C.R.S (6)(a) provides in relevant part that: At any stage of such new proceedings... the court, by rule in that behalf made, may authorize the petitioner... to take possession of and use, said premises during the pendency and until the final conclusion of such proceedings... if such petitioner pays a sufficient sum into court, or to the clerk thereof, to pay the compensation in that behalf when ascertained. 4. Petitioner intends to offer competent evidence at the hearing as to the amount of the deposit it shall pay into the Court Registry pursuant to C.R.S (6)(a). Pursuant to C.R.S (6)(a), upon the payment of a deposit into the Court s registry, 5. Pursuant C.R.S (6)(a), following a determination of the deposit, the Order for Immediate Possession may authorize the Petitioner to take possession of the Property Interests, effective 30 days after service or acceptance of service of the Petition in Condemnation, or earlier upon consent of the Respondent. WHEREFORE, the Petitioner prays that this Court hold a hearing for Immediate Possession and further requests that upon the conclusion of such hearing that this Court enter an Order of Immediate Possession of the Property in the Petitioner's favor setting forth the amount of deposit necessary for possession of the Property and authorizing such possession be effective thirty (30) days after service or acceptance of service of the Petition in Condemnation upon Respondent, together with such further relief as may be deemed appropriate by this Court. A proposed Order is attached for the convenience of the Court. 2

9 DATED: December 12, Respectfully submitted, OFFICE OF THE SUMMIT COUNTY ATTORNEY A duly signed physical copy of this document is on file at the office of Summit County Attorney pursuant to C.R.C.P. Rule 121, Section 1-26(7). By: /s/ Jeffrey Huntley Jeffrey L. Huntley, #12328 Franklin P. Celico, #30051 ATTORNEYS FOR PETITIONER, BOARD OF COUNTY COMMISSIONERS SUMMIT COUNTY, COLORADO Address of Petitioner: Summit County Board of County Commissioners 208 Lincoln Avenue P.O. Box 68 3

10 EXHIBIT A LEGAL DESCRIPTION THE HUNTER MINING CLAIM, U.S. MINERAL SURVEY NO. 3786, LOCATED IN SECTIONS 31 AND 32, TOWNSHIP 7S, RANGE 77W, AND SECTION 6, TOWNSHIP 8S, RANGE 77W OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF SUMMIT, STATE OF COLORADO A/K/A, pursuant to Warranty Deed by which Uncle Dick s LLC acquired the Property dated December 13, 2011 recorded at reception No of the records of the Clerk and Recorder of Summit County, Colorado, as: Parcel B HUNTER MINING CLAIM UNITED STATES MINERAL SURVEY 3786, COUNTY OF SUMMIT, STATE OF COLORADO. 4