DISTRICT COURT, EAGLE COUNTY DATE FILED: March 22, 2017 4:06 PM

FILING ID: 9D4DEC7AAEF84

STATE OF COLORADO
CASE NUMBER: 2016CV30239
885 Chambers Ave
P.O. Box 597
Eagle, CO 81631
Telephone: (970) 328-6373
_________________________________________
Petitioner:
TOWN OF GYPSUM COURT USE ONLY
v.

Respondents: Case Number: 2016CV30315

CLEARWATER VENTURES, LLC; Div.: 4
WELLONS, INC.;
EAGLE VALLEY CLEAN ENERGY, LLC; and Consolidated with cases:
MARI RENZELMAN 2016CV30239, 2016CV30261
Under 2016CV30239
_________________________________________
Attorneys:
SARAH J. BAKER PC
Sarah J. Baker, #32806
PO Box 4551
Eagle, CO 81631
Telephone: (970) 331-0799
Facsimile: (866) 597-4823
E-mail: sbaker@sbakerpc.com
Attorneys for Respondent Clearwater Ventures LLC

BRYAN CAVE LLP

Stephen D. Gurr, #19789
1700 Lincoln Street, Suite 4100
Denver, Colorado 80203-4541
Telephone: (303) 861-7000
Facsimile: (303) 866-0200
E-mail: steve.gurr@bryancave.com
Attorneys for Respondent Eagle Valley Clean Energy,
LLC

JOINT MOTION TO DISMISS

GYPSUMS PETITION IN CONDEMNATION
 Respondents Clearwater Ventures, LLC (Clearwater) and Eagle Valley Clean Energy,

LLC (Eagle Valley), by and through their undersigned counsel, submit the following Joint

Motion to Dismiss Gypsums Petition in Condemnation pursuant to C.R.C.P. 12(b)(1) and

C.R.C.P. 12(b)(5) and based upon the Courts March 20, 2017 Order Granting Plaintiffs

[Clearwaters] Motion for Determination of Law Pursuant To C.R.C.P. 56(h) (March 20 Order)

(holding void the Ordinance underlying Gypsums Petition in Condemnation).

CERTIFICATE OF COMPLIANCE

Pursuant to C.R.C.P. 121 1-15(8), undersigned counsel for Clearwater has conferred with

counsel for Petitioner Town of Gypsum and Respondent Wellons, Inc. concerning the relief

requested in this Motion. Gypsum has not yet taken a position on the relief requested. Wellons

takes no position with respect to this Motion.

INTRODUCTION

The March 20 Order establishes that Petitioner Town of Gypsum (Gypsum) is not

authorized by law to acquire by condemnation the real property it seeks to take under its First

Amended Petition in Condemnation (Gypsums Petition). Accordingly, the Court should

dismiss Gypsums unauthorized Petition.

The underlying real property (the Property) is owned by Clearwater and occupied by

Eagle Valley under a ground lease. The March 20 Order established that Gypsum is not authorized

to condemn the Property because Gypsum failed to comply with the Gypsum Municipal Charter

(Charter), a constitution enacted by Gypsums citizens in 1982 which operates to limit the

authority of the government of the Town of Gypsum. Specifically, the Charter requires that any

2
action placing any burden upon or limiting the use of private property without the consent of the

owner shall be by Ordinance.

In furtherance of its efforts to condemn Clearwaters property, Gypsum passed Ordinance

No. 08, Series 2016An Ordinance Approving Acquisition or Condemnation of Certain Property

(the Ordinance), purporting to authorize the condemnation of the Property. Gypsum then

proceeded to file its Petition seeking an Order from this Court condemning the Property in favor

of Petitioner. See First Amended Petition in Condemnation, 2016CV30315, Eagle County,

Colorado District Court.

Clearwater challenged the validity of the Ordinance, and this Court by its March 20 Order

ordered that the Ordinance [be] vacated since [Gypsum] failed to meet the procedural requisites

of public notice required by Sections 8.2 and 8.4 of their Charter, and acted arbitrarily and took

actions beyond their authority.

As a result of the findings of the March 20 Order, (i) Gypsum has no legal authority to

acquire the Property, (ii) this Court lacks subject matter jurisdiction over Gypsums Petition, (iii)

Gypsum can prove no set of facts which would entitle it to condemn the Property, and (iv)

Gypsums Petition in Condemnation must therefore be dismissed.

STANDARD OF REVIEW

Under C.R.C.P. 12(b)(1), the plaintiff has the burden of proving jurisdiction, and the trial

court is authorized to make appropriate factual findings. See Medina v. State of Colorado, 35 P.3d

443, 452 (Colo. 2001). It need not treat the facts alleged by the non-moving party as true Id.

Rule 12(b)(1) permits the court to weigh the evidence and satisfy itself as to the existence of its

power to hear the case. Id.

3
 In the alternative, in reviewing a motion to dismiss pursuant to Rule 12(b)(5), a complaint

should not be dismissed unless it appears beyond a doubt that the plaintiff can prove no set of

facts in support of the claim which would entitle him to relief... But if the plaintiff is not entitled

to relief upon any theory of the law, the complaint should be dismissed for failure to state a claim.

See Colorado Medical Soc. v. Hickenlooper, 353 P.3d 396, 401 (Colo.App. 2012) (internal

citations omitted). In resolving a motion under Rule 12(b)(5), the court may consider only the

facts alleged in the complaint, documents attached as exhibits or referenced in the complaint, and

matters of which the Court may take judicial notice. See Walker v. Van Laningham, 148 P.3d 391,

397 (Colo.App. 2006). In considering a Rule 12(b)(5) motion, it is acceptable for a court to

judicially notice the contents of court records in a related proceeding. See id.

ARGUMENT

The sole alleged basis of Gypsums authority to condemn the Property is the now-

invalidated Ordinance. Where, as here, the Charter mandates that Gypsum pass an ordinance in

order to plac[e] any burden upon or limit[] the use of private property without the consent of the

owner, Gypsum must actually and validly pass such an ordinance in order for its actions to have

legal force or effect. Failure to comply with the essential mandates of the statute constitutes a

jurisdictional defect and invalidates the entire proceeding. Gordon v. Board of County

Commissioners of County of El Paso, 382 P.2d 545, 547 (Colo. 1963). Because the Ordinance

was invalidly adopted, Gypsum lacks any condemnation authority under it.

This Court can entertain Gypsums Petition only if it has subject matter jurisdiction. In the

specific context of a law requiring an action by a condemning authority as a prerequisite to the

exercise of eminent domain, it has been determined that the Colorado Courts lack subject matter

4
jurisdiction until and unless the statutorily-required action occurs. See Colorado and S. Ry. Co. v.

District Court, 493 P.2d 657, 660 (Colo. 1972) (holding that the Court could not acquire

jurisdiction when the condemning authority had failed to satisfy conditions precedent to its

authority to bring a petition for condemnation). Because the Court in its March 20 Order

established that Gypsum failed to satisfy the conditions precedent required under Gypsums

Charter, Gypsum has no authority to condemn, and a fortiori, this Court is without subject matter

jurisdiction over Gypsums unauthorized Petition.

In addition, Gypsum has failed to state a claim upon which relief can be granted. To

invoke the power of eminent domain, a governmental or public instrumentality must have eminent

domain power, must intend to use the property taken for a proper public purpose, and must pay

the owner just compensation for the property after giving the owner due process of law. Trinity

Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916, 921 (Colo. 1993). By virtue

of the March 20 Order, Gypsums Petition fails on two of these required elements; it can prove no

set of facts establishing either that (i) it has the power of eminent domain over the Property, or (ii)

it has afforded Clearwater and Eagle Valley due process of law. With respect to the firstthe

power of eminent domain over the PropertyGypsums Petition must fail because the Ordinance

on which its purported condemnation authority depends is void. With respect to the seconddue

process of lawthis Court has already determined that allowing Gypsum to proceed under an

improperly instituted condemnation proceeding would violate Colorado law and our notions of

constitutional due process. March 20 Order, p.6. For these reasons, Gypsum can prove no set

of facts which entitles it to condemn the Property and Gypsums Petition must be dismissed for

failure to state a claim upon which relief can be granted.

5
 CONCLUSION

The March 20 Order establishes that the Ordinance underlying Gypsums alleged authority

to pursue the Condemnation is void and invalid. As a result, this Court lacks subject matter

jurisdiction over Gypsums Petition. In addition, because Gypsum is without the constitutional

and statutory authority to condemn the Property, Gypsum has failed to state a claim upon which

relief can be granted. For these reasons, this Court should dismiss Gypsums Petition forthwith.

Respectfully submitted March 22, 2017.

SARAH J. BAKER PC

/s/ Sarah J. Baker

Sarah J. Baker, #32806
PO Box 4551
Eagle, CO 81631
Telephone: (970) 331-0799
Facsimile: (866) 597-4823
E-mail: sbaker@sbakerpc.com
Attorneys for Respondent Clearwater Ventures LLC

BRYAN CAVE LLP

/s/ Stephen D. Gurr

Stephen D. Gurr, #19789
1700 Lincoln Street, Suite 4100
Denver, Colorado 80203-4541
Telephone: (303) 861-7000
Facsimile: (303) 866-0200
E-mail: steve.gurr@bryancave.com
Attorneys for Respondent, Eagle Valley Clean
Energy, LLC

6
 CERTIFICATE OF MAILING

I certify that on March 22, 2017, a true and correct copy of the JOINT MOTION TO DISMISS
GYPSUMS PETITION IN CONDEMNATION was served via ICCES e-filing to:

Donald M. Ostrander, No. 12458

Richard F. Rodriguez, No. 25105
Anthony J. Basile, No. 43782
Stephanie Ceccato (Special Counsel), No.46974
Hamre, Rodriguez, Ostrander & Dingess, P.C.
3600 S. Yosemite Street, Suite 500
Denver, Colorado 80237-1829

Robert G. Cole, No. 15943

Town of Gypsum
Collins Cockrel & Cole
390 Union Boulevard, Suite 400
Denver, CO 80228

Darrell G. Waas, No. 10003

Mikaela V. Rivera, No. 34085
Waas Campbell Rivera Johnson & Velasquez LLP
1350 Seventeenth Street, Suite 450
Denver, CO 80202

/s/ Sarah J. Baker