To: Honorable Mayor and Members of Town Council
Through: David L. Corliss, Town Manager
From: Dan Sailer, P.E., Director of Public Works
Aaron Monks, CIP Project Manager
Title
Ordinance Amending Ordinance No. 2019-008 Regarding the Exercise of the Town’s Powers of Eminent Domain to Acquire Certain Real Property Interests Necessary for the Crystal Valley Interchange Project (Second Reading - Approved on First Reading on November 1, 2022, by a vote 7-0) (Hyperian Fund, L.P. Property)
Body
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Executive Summary
This ordinance authorizes the acquisition of property interests necessary for construction of the Crystal Valley Interchange Project under the power of eminent domain. Those property interests are attached as Exhibit A to the ordinance (Attachment A). The Town staff and the Town’s Attorney Office approached Town Council on May 7th of 2019 to request approval of Ordinance #2019-008 which authorizes the exercise of the Town’s eminent domain powers. This ordinance was based off of the original property needs for the configuration of the interchange at that time. To improve operational efficiencies of the interchange a preferred alternate design was recommended. With the preferred alternate design, which included a roundabout at the East Frontage Road and Crystal Valley Pkwy intersection and a loop on ramp the property needs to construct the interchange was revised. Attachment B indicates the original interchange configuration and the original property need of the Hyperion property. The original ordinance did not extend to the entire parcel. Attachment C indicates the preferred alternative configuration of the interchange and the current property needs.
This ordinance mandates Town compliance with applicable statutory requirements on conducting good faith negotiations with the affected landowner, and requires all offers to be based on market valuation of the property interests to be acquired. In most instances, the landowner will have the right to obtain an independent appraisal at the expense of the Town.
In the event the Town working through its property acquisition consultant is unable to reach agreement with the property owner on purchase price, time of possession, or other terms of acquisition, the Town Attorney will so advise Town Council. In that event, the Town Council will be apprised of the prior negotiations, and determine at a Council meeting whether the judicial process for acquisition of the property interests should be initiated. The property owner will have the opportunity to address Council at that time. To reiterate, this ordinance does not authorize the filing of a petition for any property. This ordinance is for general authorization purposes only.
As has been demonstrated on recent capital projects in which the Council similarly authorized acquisition of property interests by an eminent domain ordinance, good faith negotiations almost always result in an agreement with the property owner. Consequently, we anticipate that Council intervention in the acquisition process will be infrequent.
Utilization of the statutory process provides certainty and consistency with property acquisitions and assurance that possession of the necessary property interests can be achieved within the projected timeframe and with payment of just compensation.
Discussion
Town staff and the acquisition consultant have been successfully negotiating property closings and have closed on nearly most of the properties identified for ROW acquisition.
On the west side of I-25, there are five (5) identified properties owners, which the Town has closed and taken possession of two (2). In both cases the property owner opted not to get an independent appraisal done and closed on the property utilizing the Town’s appraised value. The remaining properties on the west side are in various stages of negotiations. Staff anticipates being able to close on these properties without the use of eminent domain.
There are six (6) identified properties owners on the east side of I-25, which the Town has closed and taken possession of three (3). On two (2) of the properties, the owner opted to have their own appraisal done, which by statute the Town reimbursed the owner. The owner of the remaining property that has been purchased did not have an independent appraisal done. After negotiations the closing price for the three acquired properties was more than the Town’s appraisal. The remaining three (3) properties on the east side are in various stages of negotiations, and are not expected to require eminent domain with the exception of the Boone property. The Town Attorney office has approached Council for eminent domain process. The Town currently has procession of the property and the valuation hearing is tentatively scheduled for late March, 2023.
The original offer was sent to Hyperion in March of 2020. Town staff and the Town’s acquisition consultant met with the Hyperion representative in June of 2020. Hyperion did not make a counter offer, communications received from them indicated they were in discussions with the Douglas County and the Town’s planning departments. After the Town open house in January of 2022, where the new preferred alternate configuration was presented to the public, we received an email from the Hyperion representative asking what the status of the project was. Staff informed them that the preferred alternative configuration of the interchange would likely require a full take for the Hyperion property. In June of 2022, Staff meet with the Hyperion representative at the Town Service Center and indicated the preferred alternative would require a full take of the Hyperion property and the Town was moving forward with a new appraisal. In August of 2022, staff received communications from Legal counsel representing the Hyperion property. Staff is currently working on addressing the aspect of the letter.
Staff Recommendation
Staff recommends approval of the ordinance as presented on first reading.
Proposed Motion
“I move to approve the ordinance as introduced by title on first reading.”
“I move to approve the ordinance as introduced by title, with the following conditions: (list conditions)”
“I move to continue this item to the Town Council meeting on (date) to allow additional time to (list information needed)”
Attachments
Attachment A: Ordinance
Exhibit A: Legal Description
Attachment B: Map of Original ROW Authorization
Attachment C: Map of Preferred Alternative ROW Authorization