Court rejects Gypsum’s condemnation action
March 22, 2017
EAGLE — In an order issued this week, Eagle County District Court Judge Frederick Gannett has ruled that the town of Gypsum failed to follow its own regulations when it launched a condemnation action against Clearwater Ventures LLC, the owner of the property where the Eagle Valley Clean Energy biomass plant is located.
Gannett's order voids the town's condemnation action stating, Gypsum "failed to meet the procedural requisites of public notice required … and acted arbitrarily and took action beyond their authority."
The order also awarded court costs to Clearwater Ventures.
"We are disappointed but we will need to sit down and really examine the order," said Gypsum Town Manager Jeff Shroll.
Shroll said the Town Council will have to decide if it wants to appeal the decision, drop the condemnation action or start over with a new condemnation process to make sure the procedural issues highlighted in the judge's order are addressed.
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The lawsuit stemmed from actions by the Gypsum Town Council in July 2016 when members passed an ordinance approving the acquisition or condemnation of property belonging to Clearwater Ventures LLC. Town officials insisted their intention was to launch a negotiation process to determine a fair market price for the 69 acres located along the Eagle River. Once that price was determined, town officials said they would either proceed with a purchase or walk away from a deal.
But the biomass plant representatives steadfastly insisted the Town Council's action was a prelude to an eminent domain taking of the property. They also argued that by passing the ordinance, the town had negatively impacted their property's market value because of the threat of condemnation.
"Clearwater Ventures is encouraged by the recent Eagle County District Court order that invalidated Gypsum's ordinance to condemn our property," said Dean Rostrom, one of the principals of Clearwater Ventures. "We believe that Gypsum overstepped the boundaries of good faith and fair government by attempting to take our property by force without giving the public fair notice or opportunity to weigh in on the wisdom or necessity of the condemnation."
Rostrom said Eagle Valley Clean Energy relies on the property to support its biomass power plant and the condemnation would have adversely impacted the plant's operation.
"Gypsum's government shouldn't take private property rights so lightly and without even following its own rules, and we hope that in the future the town will better listen to the people and respect the private property rights of its citizens," Rostrom said.
In his 13-page ruling, Judge Gannett noted that as a home rule municipality, Gypsum's charter specifically lays out the process for condemnation proceedings.
The Clearwater lawsuit, filed after the July action, argued that the ordinance was not valid "on the grounds that Defendants (the town of Gypsum) did not sufficiently publish or post a notice that contained all of the information required under the Gypsum Charter."
Specifically, Gannett noted shortcomings of the legal notice regarding the ordinance public hearing.
"The publication does not include notice of a public hearing to be held on the ordinance. The publication also does not include the hour, the date or the place of a public hearing to be held regarding the ordinance," Gannett said.
Actions Now Invalid
He said the wording of the public notice that was published in the county's legal newspaper, the Eagle Valley Enterprise, gave the false impression that the ordinance allowing the action was already approved "without any opportunity for a public hearing or public address. This completely violated the words and spirit of the (Gypsum) charter," Gannett ruled.
Because of the notice issue, Gannett ruled any subsequent actions by the Gypsum Town Council regarding the condemnation are invalid.