Chapter 13.05
WATER RIGHTS DEDICATION
Sections:
13.05.040 Basic dedication requirement.
13.05.010 Title.
This chapter shall be known and may be cited as the town of Granby water rights dedication chapter. [Ord. 387, 1985. Code 1999 § 18-1-1].
13.05.020 Intent and purpose.
It is the intent and purpose of this chapter to further the health, safety and welfare of the citizens of the town of Granby by requiring the dedication of water rights and to thereby assure an adequate and stable supply of water to the town of Granby service area; to prevent the abandonment of water rights to the detriment of the town; to ensure the financial of the town water utility; and to promote the general welfare of the public. This chapter, in part, provides a supplemental requirement for annexation pursuant to the Municipal Annexation Act of 1965, C.R.S., 1973 Section 31-12-101, et seq., and is not to be construed as altering, modifying, eliminating or replacing any requirements set forth in that Act. [Ord. 387, 1985. Code 1999 § 18-1-2].
13.05.030 Definitions.
As used in this chapter, unless the context otherwise requires:
“Annexation” means the act of attaching, adding, joining or uniting a parcel of land to the legal entity known as the town of Granby.
“Appurtenant” means belonging to, accessory or incident to, adjunct, appended or annexed to.
“Board” means the board of trustees of Granby, Colorado.
“Conveyance of water rights” means the legal process by which legal title to the water rights to be dedicated is transferred to the town of Granby by warranty deed.
“Dedication” means an appropriation of an interest in land or water to some public use, made by the owner and accepted for such use by or on behalf of the public.
“Domestic unit” means three and one-half people consuming 250 gallons of water per person per day, or 0.20 acre-feet of water per year.
“Historical use affidavit” means a document which sets forth the following information concerning the water rights proposed for dedication:
(1) The name(s) and address(es) of the owner(s) of the water rights proposed for dedication;
(2) A legal description of the land to be annexed or provided with municipal water service;
(3) The total number of acres to be annexed, subdivided, replatted, or provided with municipal water services and the current use of the property;
(4) The total number of acres presently being irrigated and/or intended to remain in irrigation;
(5) A copy of all decrees concerning all water rights appurtenant to property and/or all water rights proposed for dedication;
(6) A copy of any legal decree or judgment which affects the title of those water rights entered since the owner received title to the water rights appurtenant to the property and/or proposed for dedication;
(7) A copy of the documents by which the owner received title to the water rights appurtenant to the property and/or proposed for dedication;
(8) A copy of all diversion records of the water rights proposed for dedication;
(9) The owner’s statement as to the historic use of the water rights appurtenant to the property and/or proposed for dedication.
“Lease” means any grant for permissive use which results in the creation of a landlord-tenant relationship on a contractual basis.
“Party” means an individual, a partnership, a corporation, a municipality or any other legal entity, public or private.
“Plat” is an accurately surveyed map or chart of a piece of land subdivided into lots with streets, alleys, roads and other such avenues of transportation delineated thereon and drawn to scale.
“Replat” means to make a change in the original plat.
“Subdivide” shall mean that definition as provided in GMC Title 17.
“Sufficient legal priority” means that the water rights proposed for dedication may be reasonably expected to provide a dependable water supply throughout the season of use in the amount for which they are decreed. In making this determination, factors to be considered shall include, but not by way of limitation, the adjudication date and appropriation date of the water rights, the decreed use(s), the historic use of the water under the decree, the physical flow available, and the administration practices of the office of the state engineer.
“Town” means the town of Granby, Colorado.
“Transfer of water rights” means the conveyance of legal title to water rights to the town of Granby in addition to referring to all actions required under the laws of the state of Colorado to be brought in the water court to ensure that the dedication requirement is fulfilled. Such actions may include, but not by way of exclusion of limitation:
(1) A change in the type, place or time of use;
(2) A change in the point of diversion;
(3) A change from a fixed point of diversion to alternate or supplemental points of diversion;
(4) A change from alternate or supplemental points of diversion to a fixed point of diversion;
(5) A change in the means of diversion;
(6) A change in the place of storage and subsequent application;
(7) A change from storage and subsequent application to direct application;
(8) A change from a fixed place of storage to alternate places of storage;
(9) A change from alternate places of storage; or
(10) Any combination of such changes.
“Transfer of water rights” includes transfer of conditional water rights as well as transfer of water rights.
“Water right” means a decreed right to use, in accordance with its priority, a certain portion of the waters of the state by reason of the appropriation of the same. [Ord. 387, 1985. Code 1999 § 18-1-3].
13.05.040 Basic dedication requirement.
(a) A dedication or transfer of direct flow and/or storage water rights to the town shall be required prior to the approval of the annexation of any land to the town or the subdivision or replatting of any land previously annexed and upon a rezoning resulting in an increased density of residential units than that previously approved and, whether within or without the geographic boundaries of the town, prior to all new extensions of municipal treated water service and all extensions of raw water service which will thereafter be used for domestic purposes.
(b) The basic requirement shall be as follows:
(1) Residential users shall dedicate to the town 0.20 acre-foot per year for each proposed domestic unit to be served by the municipal water utility and an amount of water necessary to serve any open space or common area.
(2) Commercial, Raw Water and Other Users. The quantity of water required for dedication shall be that quantity of water to be required ultimately in the satisfaction of the use or uses contemplated by the new user.
(c) The basic requirement shall be satisfied by the party seeking the approval of the subdivision of any land previously annexed, annexation or seeking any new extension of municipal treated water service or raw water service which will thereafter be used for domestic purposes whether or not the person will be the ultimate user(s). [Ord. 387, 1985. Code 1999 § 18-1-4].
13.05.050 Exceptions.
(a) The board may substitute or waive any conditions or requirements deemed necessary to meet the purposes of this section or to relieve undue hardship where the interest of the town will not be jeopardized.
(b) This chapter shall not apply to a single-family domestic unit seeking new municipal treated water service where the person seeking such service is the owner of the real estate to be served and only one dwelling unit will be located upon the real estate.
(c) This chapter does not apply to the extension of new municipal treated water service or raw water service for which the basic dedication requirement has been previously complied with by any person.
(d) The terms of this chapter may be waived when the person seeking the subdivision, rezoning or annexation has agreed to pay a sum of money in lieu of providing water rights such that the town can purchase the additional water for the development. [Ord. 387, 1985. Code 1999 § 18-1-5].
13.05.060 Procedure.
(a) In accordance with the basic requirements set forth in GMC 13.05.040, the board shall determine, after consultation with a person or persons skilled in the knowledge of water rights, whether the water rights proposed for dedication pursuant to the provisions of this chapter will be of sufficient legal priority under the laws of the state of Colorado to ensure the town’s ability to meet the service demands of the new user. This determination will be aided by a historic use affidavit provided by the new user.
(b) The town shall have the right, in its sole discretion, to accept or reject any water rights proposed for dedication pursuant to the provisions of this chapter which the board has determined do not have sufficient legal priority. If the board determines that the water rights proposed fail to satisfy the basic dedication requirement, the following alternatives or combination thereof may be used to otherwise satisfy the basic dedication requirements:
(1) The person required to comply with the basic dedication requirement may pay to the town a cash amount equal to the fair market value of the water rights necessary to satisfy the basic dedication requirement, as determined in the sole discretion of the town.
(2) The board may, in its discretion, negotiate with the new user to establish other terms or conditions which shall constitute compliance with the basic dedication requirement of this chapter.
(c) The new user shall dedicate the water rights determined by the town by making to the town board an offer thereof. It is the intent of this chapter that no water service shall be extended to a new user until the agreed to water rights have been dedicated to the town; however, if there are matters pending resolution in the water court concerning the water rights to be dedicated, or if there is other delay beyond the control of the new user, the board shall have the discretion to approve the extension of such water service prior to the dedication of water rights to the town by the new user or person seeking approval of annexation, subdivision or replatting, new extension of municipal treated water service or extension of raw water service which will thereafter be used for domestic purposes.
(d) Subject to negotiations with the board, all costs and expenses attendant to the conveyance and transfer of water rights dedicated to the town shall be borne by the new user; but, in no event shall a new user be responsible for any expenses or costs of transfer in excess of $500.00 for each acre-foot of water, or fraction thereof, to be dedicated. [Ord. 387, 1985. Code 1999 § 18-1-6].
13.05.070 Agricultural and open space property.
If the owner of the property proposed to be annexed or subdivided desires to retain the land or any portion thereof in agricultural production or as open space prior to development, he shall be permitted to lease back, on an annual basis, and for irrigation, aesthetic and recreational purposes only, the water rights transferred pursuant to this chapter. The terms of the lease shall be negotiated with the board. [Ord. 387, 1985. Code 1999 § 18-1-7].
13.05.080 Option to purchase.
(a) Time. Any person required to comply with the basic dedication requirement shall also grant to the town the option to purchase any and all water rights which are appurtenant to the land to be annexed but which are in excess of the basic dedication requirement. Said option may be exercised by the town at any time for a period of one year following the date of the grant to the town with regard to any or all of the water rights subject to the grant.
(b) Price. The option price shall be that price agreed upon by the parties. If the parties do not agree upon an option price within 30 days after notice of the town’s intent to exercise its option is received by the owner, appraisal at the town’s expense will establish the price that reflects the fair market value of the water right(s). The appraisal shall be conducted by one appraiser appointed by the town, one appraiser appointed by the owner of the water rights, and a third appraiser who shall be appointed by both parties. The average of the three appraisals shall be the option price.
(c) Right of First Refusal.
(1) Grant of Right. In addition to the grant of said option to purchase by the new user(s), there shall be a grant to the town by the user(s) of a right of first refusal regarding the water rights subject to said option to purchase. If the town, for any reason, should choose not to exercise its option to purchase, it shall retain said right of first refusal, in the event the water rights are sold independently of the land, for a period of 10 years following annexation or final approval or replatting or extension of water service to a subdivision.
(2) Notice Period. If the owner of the water rights subject to said right of first refusal wishes to sell said water rights to a third party, he shall give to the town at least 90 days’ notice of his intention to effect a sale of said water rights by delivering to the town a bona fide written offer to purchase for cash or with terms made by a third party.
(3) Exercise of Right. During the 90-day notice period provided for in subsection (c)(2) of this section, the town shall enjoy its right of first refusal entitling it to purchase the water rights subject to its right and proposed for sale. If, within 90 days following notice by the owner of his intention to sell his water rights, the town chooses to exercise its right of purchase, then the town shall pay to the owner the fair market price of the water rights prevailing at the time of the offer, which price shall be at least equal to the amount tendered to the owner in the bona fide offer by the third party. In the event that the town determines not to exercise its right to purchase the water rights offered for sale, the owner shall be free to sell the water rights to said third party for a price which is at least equal to that price which was tendered to and refused by the town. [Ord. 387, 1985. Code 1999 § 18-1-8].
13.05.090 Safety clause.
If any provision of this chapter or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this chapter which can be given effect without the invalid provisions or application; and, to this end, the provisions or applications of this chapter are declared to be severable. [Ord. 387, 1985. Code 1999 § 18-1-9].