Court re­jects Gyp­sum’s con­dem­na­tion of land

The rul­ing is cen­tered on acreage near the Ea­gle River that is owned by a biomass plant op­er­a­tor.

The Denver Post - - BUSINESS - By Ja­son Blevins

An Ea­gle County District Court has re­jected the Town of Gyp­sum’s con­dem­na­tion of land next to the Ea­gle River owned by a biomass plant op­er­a­tor, say­ing the town failed to fol­low its own rules for pub­licly an­nounc­ing its em­i­nent do­main plans.

Judge Fred­er­ick Gan­nett said Gyp­sum’s town coun­cil “acted ar­bi­trar­ily and took ac­tions be­yond its author­ity” when it ap­proved an or­di­nance al­low­ing the town to launch em­i­nent do­main pro­ceed­ings against the landowner.

Clear­wa­ter Ven­tures, which owns 106 acres along the Ea­gle River, in­clud­ing the land be­neath the Ea­gle Val­ley Clean En­ergy biomass plant, sued the town last fall, ar­gu­ing that Gyp­sum failed to prop­erly no­tify the pub­lic of its plans to force the com­pany to sell 69 acres of river­front. Gyp­sum wants the land for open space, re­cre­ation, wet­lands pro­tec­tion and wa­ter stor­age.

The town of­fered $800,000 for the land, but Clear­wa­ter ar­gued that the land was worth twice that. The com­pany early last year paid Gyp­sum a pub­lic land ded­i­ca­tion fee equiv­a­lent to 5 per­cent of its 106 acres — val­ued at $22,500 an acre — as part of a 2012 an­nex­a­tion agree­ment.

The town’s coun­cil in July ap­proved an or­di­nance to con­demn the prop­erty, hop­ing to com­pel Clear­wa­ter to sell. Clear-

wa­ter leases 18 acres to the op­er­a­tors of the $60 mil­lion biomass plant that burns bee­tle kill trees and for­est waste to gen­er­ate enough elec­tric­ity to power 10,000 homes. The plant needs the acreage to ac­cess wa­ter for its op­er­a­tions.

Gan­nett agreed with Clear­wa­ter that Gyp­sum’s pub­lic no­ti­fi­ca­tion of the con­dem­na­tion or­di­nance was “mis­lead­ing” by im­ply­ing in a news­pa­per an­nounce­ment that the ac- tion had al­ready been ap­proved and was sim­ply sched­uled for adop­tion.

“This is in dere­lic­tion of the Gyp­sum’s char­ter man­date and eas­ily gives the false im­pres­sion that the ‘ap­proved’ or­di­nance had al­ready been en­acted, with­out any op­por­tu­nity for a pub­lic hear­ing or pub­lic ad­dress,” the judge ruled. “This com­pletely vi­o­lated the words and spir­its of the char­ter.”

Dean Rostrom, a prin­ci­pal at Clear­wa­ter Ven­tures who also man­ages the biomass plant, said con­demn­ing the prop­erty would have in­jured plant op­er­a­tions.

“Gyp­sum’s gov­ern­ment shouldn’t take pri­vate prop­erty rights so lightly and with­out even fol­low­ing its own rules,” he said in an email. “We hope that in the fu­ture the Town will bet­ter lis­ten to the peo­ple and re­spect the pri­vate prop­erty rights of its ci­ti­zens.”

Gyp­sum’s town man­ager, Jeff Shroll, said the town is “ob­vi­ously dis­ap­pointed.”

The coun­cil will dis­cuss the rul­ing — which awards court costs to Clear­wa­ter Ven­tures — next week in ex­ec­u­tive ses­sion, with three po­ten­tial op­tions: re­fil­ing the con­dem­na­tion with proper pub­lic no­tice, ap­peal­ing the court’s de­ci­sion or do­ing noth­ing.

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