Objection to Declaration of Taking - Colorado

OBJECTION TO PETITION AND OPPOSITION TO MOTION FOR IMMEDIATE POSSESSION; CONTEST OF DEPOSIT — COLORADO

TABLE OF CONTENTS

1. Caption
2. Introduction
3. Grounds for Objection
4. Opposition to Immediate Possession (§ 38-1-105(6))
5. Contest of the Deposit and Withdrawal Under Protest
6. Reservation of Just Compensation, Damages, and Costs/Fees
7. Demand for Hearing and Jury/Commissioners
8. Prayer for Relief
9. Verification
10. Signature and Service
11. Certificate of Service
12. Colorado Practice Notes
13. Sources and References

1. CAPTION

DISTRICT COURT, [________________________________] COUNTY, COLORADO

Court Address: [________________________________]

Case No. [________________________________] | Div./Ctrm.: [____]

RESPONDENT'S OBJECTION TO PETITION IN CONDEMNATION; OPPOSITION TO MOTION FOR IMMEDIATE POSSESSION (C.R.S. § 38-1-105(6)); AND CONTEST OF THE DEPOSIT

2. INTRODUCTION

Respondent(s) [LANDOWNER NAME(S)] ("Owner"), owner(s) of an interest in the real property described in Exhibit A (the "Subject Property"), by and through undersigned counsel, object to the Petition and to immediate possession, and state:

2.1. On [__/__/____], Petitioner [CONDEMNOR NAME] ("Condemnor") filed a Petition in Condemnation under C.R.S. § 38-1-102, and [☐ has moved / ☐ intends to move] for an order of immediate possession under C.R.S. § 38-1-105(6), proposing to deposit $[____________] as a "sufficient sum" pending ascertainment of compensation.

2.2. Colorado has no instrument styled a "declaration of taking." The immediate-possession order on deposit under § 38-1-105(6) is the Colorado analogue. Title does not vest on the deposit; it vests only on entry of the court's "rule" after compensation is ascertained and paid or deposited (§ 38-1-105(3)–(4)).

2.3. The Condemnor may not take possession earlier than 30 days after service of the summons (§ 38-1-105(6)(c)). Owner timely objects and opposes.

3. GROUNDS FOR OBJECTION

Owner objects to the Petition and to the right to take on the following grounds (check all that apply). Under C.R.S. § 38-1-105(1) the court "shall rule upon all objections," and under Colo. Const. art. II, § 15 the question whether the use is really public is a judicial question:

3.1. Lack of Authority / Right to Take

☐ The Condemnor lacks statutory or constitutional authority to acquire the Subject Property, or the interest sought, by eminent domain, or has exceeded its delegated authority.

☐ The condemning resolution/ordinance or authorization is invalid, was not properly adopted, or does not authorize this taking.

3.2. Lack of Public Use / Public Purpose

☐ The taking does not serve a public use. Under Colo. Const. art. II, § 15, public use is a judicial question determined without regard to any legislative assertion that the use is public.

☐ Private property is being taken for private use, contrary to Colo. Const. art. II, § 14, and/or the taking is for economic development in violation of C.R.S. § 38-1-101's restrictions on transfers to private parties.

☐ The stated public use is pretextual; the actual beneficiary is a private party.

3.3. Lack of Necessity

☐ The taking of the Subject Property, or the extent/configuration of the taking, is not necessary for the project; the Condemnor acted in bad faith or committed a fraud or abuse of discretion in determining necessity, and/or rejected feasible alternatives.

3.4. Excessive Taking

☐ The Condemnor seeks more property, or a greater interest, than is reasonably necessary; the taking should be denied or narrowed.

3.5. Procedural / Notice / Deposit Defects

☐ The proceedings are defective for one or more of the following:

• ☐ Defective or insufficient property description
• ☐ Failure to join or properly serve necessary parties in interest (§ 38-1-103)
• ☐ Defective or untimely service of summons; attempted possession before 30 days (§ 38-1-105(6)(c))
• ☐ The proposed deposit is not a "sufficient sum" to pay probable compensation (§ 38-1-105(6)(a))
• ☐ Other: [________________________________]

3.6. Inadequacy of the Deposit / Estimated Compensation

☐ The amount the Condemnor proposes to deposit ($[____________]) is not a "sufficient sum" to pay the compensation when ascertained and is grossly below fair market value. (Addressed in Section 5.)

3.7. Defective Offer / Failure to Negotiate in Good Faith

☐ The Condemnor failed to negotiate in good faith and/or to make a proper appraisal-based offer before filing, as required by C.R.S. § 38-1-121 (and, for certain acquisitions, the relocation/acquisition standards). Good-faith negotiation and inability to agree are conditions precedent to condemnation.

3.8. Constitutional Violations

☐ The taking violates Colo. Const. art. II, §§ 14–15 and the Fifth and Fourteenth Amendments to the United States Constitution.

3.9. Reservation

☐ Owner reserves the right to assert additional objections and defenses that discovery may reveal.

4. OPPOSITION TO IMMEDIATE POSSESSION (§ 38-1-105(6))

4.1. Owner opposes entry of an order authorizing immediate possession. The right-to-take objections in Section 3 are threshold issues and should be resolved before any possession order issues.

4.2. The Condemnor cannot satisfy C.R.S. § 38-1-105(6)(a) because:

• ☐ The Condemnor has not demonstrated a present right to take (Section 3); and/or
• ☐ The sum proposed is not a "sufficient sum ... to pay the compensation ... when ascertained" (Section 5); and/or
• ☐ Possession is sought earlier than 30 days after service of the summons (§ 38-1-105(6)(c)).

4.3. Owner requests that the Court deny or defer immediate possession, or condition any possession on an increased deposit fixed by the Court after hearing.

5. CONTEST OF THE DEPOSIT AND WITHDRAWAL UNDER PROTEST

5.1. Owner contests the adequacy of the deposit and asks the Court, in fixing the sum required for possession under § 38-1-105(6)(a), to set it at not less than $[____________], supported by:

5.2. Withdrawal under protest (§ 38-1-105(6)(b)). If a deposit is made, Owner may, upon application or stipulation and with the consent of all interested parties, withdraw up to three-fourths of the highest valuation the Condemnor placed in evidence at the possession hearing (or more if the Condemnor agrees). Any withdrawal is a partial payment credited against the final award. To avoid any argument of waiver or acceptance of the taking, Owner:

• ☐ withdraws funds UNDER PROTEST and WITHOUT PREJUDICE to the pending objections to the right to take; OR
• ☐ defers any withdrawal until the right-to-take objections are finally resolved.

6. RESERVATION OF JUST COMPENSATION, DAMAGES, AND COSTS/FEES

6.1. If the Court determines the Condemnor has the right to take, Owner demands just compensation including fair market value of the property taken, damages to the residue/remainder, and offsetting benefits properly limited, all valued as of the statutory valuation date (generally the date the condemnor is authorized to take possession; § 38-1-114).

6.2. Owner reserves all statutory costs and fees available, including costs under C.R.S. § 38-1-114 and attorney fees in the limited circumstances the statute and case law allow (e.g., where the award materially exceeds the condemnor's last offer, or on abandonment/dismissal — confirm the operative provision), and relocation benefits (42 U.S.C. § 4601 et seq.).

7. DEMAND FOR HEARING AND JURY/COMMISSIONERS

7.1. ☐ Owner requests an evidentiary hearing on the objections to the right to take and on the deposit/possession motion before any order of immediate possession is entered.

7.2. ☐ Owner demands a jury to determine compensation pursuant to C.R.S. § 38-1-106 and Colo. Const. art. II, § 15. (Absent a jury demand, compensation is determined by a board of not less than three commissioners.) The right to take is for the court.

8. PRAYER FOR RELIEF

WHEREFORE, Owner respectfully requests that the Court:

1. ☐ Sustain Owner's objections and dismiss or stay the Petition for lack of authority, public use, or necessity, or for excessive taking or procedural/deposit defects;

2. ☐ Deny or defer the Condemnor's motion for immediate possession under C.R.S. § 38-1-105(6), or resolve the right-to-take objections first;

3. ☐ Fix the sum required for possession under § 38-1-105(6)(a) at not less than $[____________];

4. ☐ Permit any withdrawal under § 38-1-105(6)(b) to be made under protest and without prejudice to the right-to-take objections;

5. ☐ Set the matter for an evidentiary hearing and, on compensation, empanel a jury (or commission) as Owner elects;

6. ☐ Award Owner costs and fees as allowed by law; and

7. ☐ Grant such other and further relief as the Court deems just and proper.

9. VERIFICATION

STATE OF COLORADO

COUNTY OF [________________________________]

I, [OWNER NAME], being first duly sworn (or affirming under penalty of perjury), state that I am the Respondent/Owner (or an authorized representative) in this action, that I have read the foregoing Objection and the matters stated therein are true and correct to the best of my knowledge, information, and belief.

[________________________________]

[OWNER NAME]

Subscribed and sworn to (or affirmed) before me on [__/__/____].

[________________________________]

Notary Public — My commission expires: [__/__/____]

10. SIGNATURE AND SERVICE

Date: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], Colorado Atty. Reg. No. [________]

Attorney for Respondent(s) / Property Owner(s)

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [NUMBER] | Email: [EMAIL]

11. CERTIFICATE OF SERVICE

I certify that on [__/__/____] a true and correct copy of the foregoing OBJECTION TO PETITION; OPPOSITION TO IMMEDIATE POSSESSION; AND CONTEST OF THE DEPOSIT was served on all parties of record by the method indicated below, in accordance with C.R.C.P. 121:

☐ Colorado Courts E-Filing (CCE)
☐ U.S. Mail, postage prepaid
☐ Hand delivery
☐ Email
☐ Other: [________________________________]

Counsel for Condemnor: [________________________________]

[________________________________]

(Signature) [________________________________]

12. COLORADO PRACTICE NOTES

• No "declaration of taking." A condemnor files a Petition (C.R.S. § 38-1-102) and obtains early possession by court order on a deposit of a "sufficient sum" under § 38-1-105(6)(a). Title vests later, on the court's "rule" after compensation is ascertained and paid/deposited (§ 38-1-105(3)–(4)).
• No possession before 30 days. The condemnor may not take possession earlier than 30 days after service of the summons, absent owner consent (§ 38-1-105(6)(c)).
• Right-to-take is judicial. Authority, public use, and necessity are judicial questions; public use is decided "without regard to any legislative assertion that the use is public" (Colo. Const. art. II, § 15). Necessity is upset only for bad faith, fraud, or abuse of discretion. The court rules on all objections (§ 38-1-105(1)).
• Deposit and withdrawal. The court fixes the deposit required for possession (§ 38-1-105(6)(a)). The owner may withdraw up to three-fourths of the highest valuation the condemnor put in evidence at the possession hearing, with consent of all interested parties; withdrawal is a credited partial payment (§ 38-1-105(6)(b)). Colorado has NO express statutory rule that withdrawal waives the right-to-take challenge (contrast California § 1255.260); nonetheless, withdraw under protest/without prejudice as a precaution. FLAG: confirm current case law on waiver/mootness.
• Compensation tribunal. A board of not less than three disinterested freeholder commissioners decides compensation unless the owner demands a jury (§ 38-1-106; Colo. Const. art. II, § 15).
• Damaging clause. Colorado compensates property "taken or damaged" (Colo. Const. art. II, § 15), affording broader protection than the federal Constitution for damage without a physical taking.
• Good-faith negotiation. Inability to agree after good-faith negotiation, and proper acquisition procedures (§ 38-1-121), are conditions precedent — test them.
• Fees. Fee-shifting is narrow; verify the specific statutory basis (e.g., award exceeding the last offer by a set margin, or abandonment) before pleading a fee claim.

13. SOURCES AND REFERENCES

• Colo. Const. art. II, §§ 14–15
• C.R.S. § 38-1-101 (limits; public use; economic-development restriction)
• C.R.S. § 38-1-102, § 38-1-103 (petition; parties)
• C.R.S. § 38-1-105 (proceedings; commission/jury; possession and deposit — § 38-1-105(6)(a)–(c)) — https://codes.findlaw.com/co/title-38-property-real-and-personal/co-rev-st-sect-38-1-105/
• C.R.S. § 38-1-106 (jury on owner's demand)
• C.R.S. § 38-1-114 (costs; valuation date)
• C.R.S. § 38-1-121 (acquisition procedures; appraisal; negotiation)
• "Eminent Domain Law in Colorado — Part I: The Right to Take," Colorado Lawyer / LandCAN — https://www.landcan.org/pdfs/Eminent%20Domain%20I.pdf
• U.S. Const. amends. V, XIV

Disclaimer: This template is for informational purposes only and is not legal advice. Colorado has no federal-style "declaration of taking"; early possession is obtained by court order on a deposit of a "sufficient sum" under C.R.S. § 38-1-105(6). Unlike California, Colorado has no express statutory rule that withdrawing the deposit waives the right-to-take challenge — withdraw under protest as a precaution and verify current case law. An attorney licensed in Colorado must review and customize this document, and verify all authorities and deadlines, before filing.