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Foundation v. City of Colorado Springs

Court of Appeals of Colorado, Second Division

June 18, 2015

Smokebrush Foundation, Katherine Tudor, and Donald Herbert Goede, III, Plaintiffs-Appellees,
v.
City of Colorado Springs, Colorado, Defendant-Appellant.

El Paso County District Court No. 13CV1469 Honorable Timothy J. Schutz, Judge

Law Offices of Randall M. Weiner, P.C., Randall M. Weiner, Boulder, Colorado, CordingLaw, Annemarie Cording, Boulder, Colorado, for Plaintiffs-Appellees

Treece Alfrey Musat, P.C., Robert J. Zavaglia, Jr., Denver, Colorado, for Defendant-Appellant

OPINION

DUNN JUDGE

¶ 1 Plaintiffs, Smokebrush Foundation, Katherine Tudor, and Donald Herbert Goede, III (collectively, Smokebrush), filed an action against defendant, the City of Colorado Springs (City), asserting various tort claims. Specifically, Smokebrush alleged that various contaminants had migrated from the City's property onto its property, causing damages. Claiming governmental immunity, the City moved to dismiss for lack of subject matter jurisdiction. After a hearing, the district court denied the City's motion, concluding that the City's immunity was waived under two statutory provisions of the Colorado Governmental Immunity Act (CGIA): the gas facility exception, § 24-10-106(1)(f), C.R.S. 2014, and the public building exception, § 24-10-106(1)(c). The district court also concluded that these waiver provisions applied retroactively to contamination that undisputedly occurred before the CGIA was enacted.

¶ 2 We first conclude that the General Assembly did not intend to retroactively apply the CGIA's waiver provisions. We then address whether the two asserted waiver provisions apply to alleged asbestos contamination that occurred after the effective date of the CGIA. We conclude that they do not. Accordingly, we reverse the district court's order and remand with directions to grant the City's motion to dismiss.

I. Background

¶ 3 In 1890, a private company operated a coal gasification facility in Colorado Springs (the property). The City purchased the property in 1925 and continued to operate it as a coal gasification plant until roughly 1931, when the City began using natural gas. The plant then sat idle for decades until it was dismantled in the 1950s and 1960s.

¶ 4 At some point in the 1960s or 1970s, the City built an office building on the property for its Gas Department. Known as the Gas Admin Building, it housed administrative functions of the Gas Department, but did not produce or distribute gas.

¶ 5 The subsurface of the property was undisputedly contaminated by the coal gasification activities in the late 1800s through the early twentieth century. In 1993, the United States Environmental Protection Agency (EPA) assessed the property and listed it as a potential environmental hazard. The EPA's preliminary assessment concluded, however, that the risks associated with the subsurface contaminants were minimal because (1) the surface areas of the property were covered by asphalt parking lots and buildings and (2) migration of the contaminants into the drinking water supply was unlikely. As a result, the EPA concluded that no further remedial action was required and de-listed the property.

¶ 6 By 2009, the Gas Admin Building was no longer in use and the City began planning for demolition of the two remaining structures on the property.[1] To that end, the City contracted with an environmental engineering firm to determine the location and extent of asbestos-containing materials. The engineering firm identified friable asbestos-containing materials in two areas of the Gas Admin Building.[2] The City then contracted with Hudspeth & Associates, Inc. (Hudspeth) to (1) demolish the remaining structures on the site, including asbestos abatement in the Gas Admin Building; and (2) backfill and pave the areas where the two buildings stood. Demolition began in late 2012.

¶ 7 Smokebrush operated a health and wellness center on land neighboring the property. In March 2013, Smokebrush filed a complaint against the City and Hudspeth.[3] Smokebrush alleged that, as a result of the demolition activities, the individual plaintiffs had "breathed and continue to breathe contaminants contained in the airborne dirt and dust which migrate[d]" onto their property. Specifically, Smokebrush alleged that the demolition activities allowed airborne migration of "asbestos, heavy metals[, ] and other toxic substances" onto their property and that, on one day, one of the individual plaintiffs "received a blast of wind and dust . . . which covered her face and person." Smokebrush asserted a variety of tort claims and a claim for "equitable relief."

¶ 8 The City moved to dismiss Smokebrush's claims for lack of subject matter jurisdiction. Specifically, the City argued that it was immune from suit under the CGIA.

¶ 9 Smokebrush responded that the City's immunity was waived under the gas facility exception, § 24-10-106(1)(f), and the public building exception, § 24-10-106(1)(c). Smokebrush also argued, for the first time, that a subsurface plume of contaminants had leached onto its property over a long period of time.

¶ 10 The district court held a hearing to determine whether the City was immune under the CGIA. See Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993). The district court concluded that the asserted waiver provisions applied and ...


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