GREELEY, Colo. (AP) – A one-sided battle is brewing along the county line.
Ted Simmons dreams of one day turning his land in unincorporated northwest Weld County over to his kids and his grandkids.
Looking across his property, marked by lightly rolling hills and sparsely tree-lined gullies and punctuated by an expansive home near the crest of a rise, Simmons says it hasn’t been his for all that long – he’s surprised to count up to 10 years now, in fact, since he moved to the area. Relative to his neighbors, Simmons is a newcomer.
But that property – though already sliced up in broad ribbons by a handful of un-developable sections due to easements from the likes of oil and gas companies and telecommunications giants – isn’t valuable anymore for its potential to support agriculture. Simmons’ land hasn’t been a working farm for some time. But, east a few miles of Fort Collins and north of the fast-growing towns of Timnath, Severance and Windsor, Simmons knows his property value lies in the potential to be turned into somewhat more dense residential space in the increasingly near future.
But 55 miles south an entity with more immediate growth concerns is looking to flex its considerable muscle to make Simmons’ development dreams significantly harder to realize.
Simmons is one of more than a hundred landowners – some who have been there for generations – who received a letter in recent weeks from an agent of the city of Thornton.
The letter offers Simmons and his neighbors a sum of money – Simmons reckoned the city is figuring about $7,500 per acre – for a permanent easement that would allow the city to build a jagged-lined water pipeline, north to south, across Weld County into Thornton.
“The current proposal makes that piece of land almost unusable,” Simmons told the Greeley Tribune. “I can still put up hay, but for the future, if you want to do any plans in the future, it pretty much destroys the whole piece. You can’t build over it.”
What it’s all for
In the 1980s, Thornton, like many forward-thinking Colorado municipalities, began looking for a way to secure itself adequate water access for its growing populace. The city’s answer was a substantial share in a ditch that comes off a spot on the Cache la Poudre River northwest of Fort Collins and snakes into northern Weld near Pierce. Thornton also bought dozens of farms in that region, and their water rights with them.
“It’s very high-quality water,” said Mark Koleber, director of the Thornton Water Project, pointing out the location of the ditch’s diversion from the Poudre on a map.
Pointing to a very nearby spot on the same map, Koleber continued: “Right there is where Greeley gets its water. And we’re there. So we wanted that water supply and so we bought into this ditch company. The way you do that is buy shares in the ditch company. If you buy shares, you have a piece of what they own. At that time we acquired about 47% of this company, and along with it we bought about 20,000 acres of farmland.”
Through this Reagan-era effort, the city acquired what Koleber understated as “a good section of water.”
“We needed to make it worth our while to build a very long pipeline,” Koleber said.
Thornton’s water court process started in 1986 and 1987, made its way through the Supreme Court and finally obtained a decree in 1998. The water was Thornton’s.
But it wasn’t in Thornton. It still isn’t.
“We get to the 2010s and we see the city of Thornton is growing beyond its water supply, even with very good conservation,” Koleber said. “So we’ve got the water up here, now we need the infrastructure to bring it down.”
A information-gathering process narrowed down the ideal corridor for that infrastructure – the pipeline – to a easterly jog from the mouth of the ditch northwest of Fort Collins over to just east of the Weld County line and then almost – but not quite – due south to Thornton.
The politics of it all
The permitting process has been a bit rocky. It involves both Larimer and Weld counties, and the commissioners of each county have thrown various hurdles in the way of the city which resides in neither of their jurisdictions.
Initially, the project proposed to take Weld County Road 13 much of the way south. But there was concern on the part of the Weld commissioners that that was unfair to the landowners along that stretch of highway.
“We said we were not willing to put the pipeline in our right of way,” Weld County commission chairman Mike Freeman said by phone this week. “The reason is, with farming, they farm up to the county road. So it still impacts the landowners as much. The landowners need to be paid for these easements. It’s going to impact them, so they need to be paid.”
About 160 parcels are crossed, Koleber said, as the hypothetical pipeline traverses Weld County. And the commissioners weren’t making things any easier on Thornton, either.
“Weld commissioners said, ‘We want you to acquire all of the easements that you need for the pipeline ahead of time,’ before they even look at the permit,” Koleber said. “That’s reverse of how a project normally goes. Permit-design-right of way-construction. They flipped that and continued our process for a year, from July 2019 to July 2020.”
That said, roadblocks or not, Weld has been substantially more accommodating than Larimer. There, the commissioners rejected the permit application and are on their way to court with the city of Thornton. Freeman said that that’s not the plan in Weld.
“We want to make sure they’re treating people fairly,” Freeman said. “We can’t get in the middle of negotiation, whether they’re paying enough, but we want to make sure they’re getting those easements secured, not coming in and saying, ‘We’ve got 30%.’ We’re not going to approve a pipeline if we don’t know where it’s at … but if they come in with an application demonstrating it’s complete, and it’s a good one, more than likely we’d approve it.”
The impact up north
But the landowners – at least some of them – aren’t thrilled with the idea of giving up a strip of their property to the underground pipeline, even if it can be farmed right over the top of it as Thornton claims.
That’s because, like Simmons, the value is less in agriculture now than it is in development potential. Houses or other municipal space are where the future is.
Simmons and his neighbors, including Ken and Sue Kerchenfaut, would much rather the pipeline go down Weld County Road 13, actually. But if that’s not an option, Simmons has another idea, too. Rather than jutting through the various properties in a zig-zagging line, why not take a straight shot parallel path with an existing Sinclair Energy pipeline that already stripes his and many of his neighbors’ land?
“The road would be nice,” Simmons said. “But if they’re going to do an easement, I really want them to be over against that Sinclair pipeline. It makes a lot more sense because it doesn’t really change anything, it just makes the easement wider. It’s already there. We can’t build there, anyway. I realize it costs a little more money, and I get that, but in the long run, I think the landowners would say it makes more sense.”
Like it or not, it seems they’ll probably have to give up the easement one way or another. Thornton feels comfortable its eminent domain powers will be backed up in court, should it get that far.
And they’re probably right.
Thornton is a home rule charter, and such entities are granted quite broad eminent domain power for the sake of a public good by the Colorado constitution. That’s what an expert on the subject, University of Colorado professor Richard Collins, said by phone this week.
“The home rule powers of the constitution explicitly authorize home rule charters to have eminent domain,” Collins said. “So there’s really not much doubt that a home rule city would have broad powers of eminent domain.”
Collins said the precedent largely rests in a case between the town of Telluride and a San Diego-based billionaire landowner whose property was just outside the town, Neal Blue. In that case, Telluride was determined to be able to exercise eminent domain on Blue’s property, even though his property wasn’t in Telluride boundaries.
“The pattern favors Thornton,” Collins affirmed.
That means, even though they don’t want to give up the easement, and even though they consider the offer from Thornton a “pittance,” in the words of Ken Kerchanfaut, there might not be much recourse for dissenting Weld landowners.
And that bothers them.
“I resent a town near Denver wanting to violate our land so that they can grow,” Sue Kerchenfaut said before referring to a nominal fight with their own local water authority, North Weld County Water District. “We didn’t want those tanks, either, but we have to accept it, and it’s our water – we use the water, so we’ve got a stake. We don’t have a stake in this.”
The battle may indeed be raging, but those following the situation, on either side, seem to feel the outcome is all but certain.
Copyright © 2020 The Washington Times, LLC.