City of Thorton, Acting By and Through Utilities Bd. v. Farmers Reservoir & Irr. Co.

Decision Date06 February 1978
Docket NumberNo. 27462,27462
PartiesCITY OF THORNTON, Colorado, a Municipal Corporation of the State of Colorado, Acting By and Through its UTILITIES BOARD, Petitioner-Appellant, v. The FARMERS RESERVOIR AND IRRIGATION COMPANY, a Mutual Ditch Company organized pursuant to the corporation laws of the State of Colorado, et al., Respondents-Appellees.
CourtColorado Supreme Court

Davis, Graham & Stubbs, John M. Sayre, Donald E. Phillipson, Robert V. Trout, Felicity Hannay, Denver, for petitioner-appellant City of Thornton.

Akolt, Dick & Akolt, Robert A. Dick, Denver, for respondent-appellee The Farmers Reservoir and Irrigation Co.

Goldstein, Armour & Lonnquist, P. C., Alan A. Armour, Abe L. Hoffman, Denver, for respondents-appellees Victor L. Jacobucci and 229 other respondents, being stockholders of The Farmers Reservoir and Irrigation Co. receiving water from its Standley Lake Division.

Holland & Hart, John U. Carlson, Charles M. Elliott, Denver, for respondent-appellee City of Westminster.

Gorsuch, Kirgis, Campbell, Walker & Grover, Joseph M. Montano, Denver, for respondent-appellee Rocky Mountain Fuel Co.

Lynn A. Hammond, Jr., Loveland, for respondents-appellees Herman Ehler and Meta L. Keil.

Loup-Miller, a General Partnership, Melvin Dinner, Greeley, for respondent-appellee No. 147.

Berenbaum, Weinberger & Susman, Michael L. Ehrlich, Denver, for respondent-appellee The 2131 Corp.

Susan K. Griffiths, Wheat Ridge, for amicus curiae Colorado Municipal League.

Vranesh & Musick, Alan E. Schwartz, Wayne B. Schroeder, Boulder, Charles L. Sharp, Jr., City Atty., Northglenn, for amicus curiae City of Northglenn.

Welborn, Dufford, Cook & Brown, Robert F. Welborn, John D. Faught, Bruce G. Smith, Denver, for amici curiae The Colorado Farm Bureau, North Colorado Boulevard Land Associates and North Washington Land Associates.

Lysle R. Dirrim, Brighton, Moses, Wittemyer, Harrison & Woodruff, P. C., Boulder, for amici curiae The Farmers High Line Canal and Reservoir Co. and Lower Clear Creek Ditch Co.

GROVES, Justice.

The City of Thornton ("Thornton"), a home rule municipality, on November 14, 1973 brought a proceeding in eminent domain against The Farmers Reservoir and Irrigation Company ("Farmers"). The property sought to be condemned may be described generally as the water and water rights, ditches and ditch rights of the Standley Lake Division of Farmers.

Farmers is a mutual ditch company, organized and acting under sections 7-42-101 et seq., C.R.S.1973. The Standley Lake Division is one of four divisions of Farmers' extensive water distribution system. The legal title of the property sought to be condemned is in Farmers. At the time the action was brought Farmers had 1105 shareholders, 271 of whom held shares allocated to the Standley Lake Division. More detail as to the property of the Standley Lake Division and as to the use of the water of that division is to be found in Jacobucci v. District Court, Colo., 541 P.2d 667 (1975).

Some of the Farmers' shareholders, who owned shares allocated to the Standley Lake Division, sought to intervene in the action. The district court found that they were not indispensable parties and denied their motion to intervene. Jacobucci, supra, was an original proceeding filed here on February 11, 1975. There Mr. Justice Erickson writing for a unanimous court stated that Farmers was obligated to store and transport the water involved, and that the so-called Standley Lake Division shareholders were, not only entitled to receive the water, but were the actual owners of the water rights themselves. These shareholders were held to be indispensable parties who should be joined in the action. After the announcement of Jacobucci on September 19, 1975, these stockholders were made respondents.

On June 29, 1975 the Water Rights Condemnation Act was adopted, to become effective on July 1, 1975. Sections 38-6-201 through 216, C.R.S.1973 (1976 Supp.). 1 This legislation is here referred to as the 1975 Act. With notable exceptions, the 1975 Act contains the same provisions as sections 38-6-101 through 118, C.R.S.1973 (Eminent Domain Proceedings by Cities and Towns). 2

We now consider some of these exceptions. The 1975 Act provides that, in its petition for condemnation filed in the district court, the municipality shall pray for the appointment of three commissioners "to determine the issue of the necessity of exercising eminent domain as proposed in the petition." The 1975 Act further states that no municipality shall be allowed to condemn water rights for any anticipated or future needs in excess of 15 years. The 1975 Act further specifies that the municipality shall prepare a "community growth development plan" and a detailed statement concerning the proposed condemnation of water rights and the effect of the taking of the same. The plan and statement are to be presented to the commissioners.

Throughout these proceedings Thornton has maintained the position that it derives its authority to condemn from the Colorado Constitution and it is attempting to follow the procedures of the general eminent domain statute, sections 38-1-101 et seq., C.R.S.1973. It has consistently taken the position that the action was not brought under the 1975 Act for the reason that it regards provisions of that act to be unconstitutional as applied to it.

After the Standley Lake Division stockholders were brought into the action, six motions to dismiss and two motions for summary judgment were filed. Most of these contained the ground, among others, that Thornton had failed to comply with the provisions of the 1975 Act. The district court granted all of these motions in a single order of dismissal. In this order, preceding the decretal portion thereof, the court made findings and conclusions to the following effect:

1. Thornton need not comply with C.R.S.1973 §§ 38-6-101 et seq., since it is a home rule city and has elected to proceed under C.R.S.1973 §§ 38-1-101 et seq.

2. Thornton "made a legitimate determination of the necessity of the taking of the property" and Farmers' challenge to Thornton's determination of necessity of the taking was legally insufficient.

3. Thornton was not required to have an immediate future purpose for the property, and challenges based upon Thornton's condemnation for future uses were legally insufficient.

4. Thornton performed all acts required by "C.R.S.1973 § 38-1-121." (This must mean the section now shown as 38-1-121, C.R.S.1973 (1976 Supp.)).

Immediately prior to ordering dismissal under C.R.C.P. 12(b)(1) and 56, the court stated:

"Although the Court has found all jurisdictional issues except the applicability of the (1975 Act) in favor of (Thornton), that Act and (Thornton's) failure to comply with its new provisions are fatal to the maintenance of this action. Since all respondents except (Farmers) must be dismissed for (Thornton's) failure to comply with the (1975 Act), the mandate of the Colorado Supreme Court that all shareholders of the Standley Lake Division of (Farmers) as of November 14, 1973 be joined in this action has not been met, so the action against (Farmers) must also be dismissed."

From this order of October 6, 1976 a timely appeal was taken to the Colorado Court of Appeals. We accepted jurisdiction of the case from the court of appeals.

Prior to March 7, 1977, five rather voluminous briefs were filed with us. On that date one of the justices of our court presided over a preargument conference. This was attended by 19 attorneys representing about 200 respondents and four amici. Shortly thereafter nine more briefs were filed.

Counsel attending the preargument conference unanimously requested that we rule on the question of whether the provisions of the 1975 Act are facially unconstitutional. We decline so to rule because the constitutional questions before us involve home rule cities and not other municipalities. This factor, and other reasons, cause us to conclude not to pass on the question of facial constitutionality or unconstitutionality of the Act.

There was also unanimous agreement that we should rule on whether or not the provisions of the 1975 Act apply to Thornton. As will shortly appear, we hold that certain provisions cannot be constitutionally applied to Thornton. However, we do not address ourselves to whether other provisions of the Act can be constitutionally applied to Thornton.

I. CONSTITUTIONALITY AS APPLIED TO THORNTON
A. Commission to Determine Necessity.

The 1975 Act contains the following provisions relating to the commission:

The municipality's petition for condemnation of a water right "shall pray for the appointment of three disinterested commissioners appointed by the court . . . to determine the issue of the necessity of exercising eminent domain as proposed in the petition and, if the condemnation is to be allowed, to appraise the award of damages." Section 38-6-202(1), C.R.S.1973 (1976 Supp.).

Prior to any hearing of condemnation the municipality shall prepare and update a community growth development plan and a detailed statement describing: (1) the water rights to be required and their present uses; (2) the effects from the change of the use of the water to the proposed use, including economic and environmental effects; (3) unavoidable adverse and irreversible effects from the taking; and (4) alternative sources of water supply that might be acquired. These statements shall be presented to the commission. Section 203.

It is the duty of the commissioners to "(e)xamine and assess the growth development plan and statement provided by the municipality . . . obtain necessary information pursuant to powers granted . . . and make a determination as to the necessity of exercising the power of eminent domain for the proposed purposes." The commissioner shall provide "one of the following recommendations to the court, based upon their findings: (I...

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