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Heartland Biogas, LLC v. Board of County Commissioners of Weld County

United States District Court, D. Colorado

August 30, 2017



          Nina Y. Wang United Stated Magistrate Judge.

         This matter is before the court on two pending motions:

         (1) Defendant Board of County Commissioners of Weld County's (the “Board”) Motion to Dismiss the Seconded Amended Complaint and Jury Demand (the “Motion to Dismiss), [#73, filed May 16, 2017]; and

         (2) Defendants David Kreutzer, Heather Barbare, Michael Bankoff, and Donald Snapp's (collectively, “Individual Defendants”) Motion to Dismiss, [#90, filed June 30, 2017].

         The undersigned considers the pending motions pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated January 17, 2017 [#31], and the Memoranda dated May 17, 2017 [#75] and June 30, 2017 [#92]. Upon review of the Motions and related briefing, the entire case file, the applicable case law, and the comments offered at the August 8, 2017 Motions Hearing, this court respectfully RECOMMENDS that the Board's Motions to Dismiss be GRANTED IN PART and DENIED IN PART, and that the Individual Defendants' Motion to Dismiss be GRANTED.


         Plaintiff Heartland Biogas, LLC (“Plaintiff” or “Heartland”), a Delaware limited liability company with its principal place of business in San Diego County, California, [1] owns and operated a “4, 700 MMBtu/day renewable natural gas facility that is roughly equivalent to a 20MW electric plant (the “Facility”), [] located in part of the SE 1/4 of Section 25, Township 4 North, Range 65 West of the 6th P.M. in Weld County, Colorado.” [#64 at ¶ 18]. “The Facility used an anaerobic digester system to convert cow manure, food waste, and other organic waste from local sources into renewable natural gas. After the natural gas was cleaned and compressed, it was injected into the Colorado Interstate Gas Company Pipeline.” [Id. at ¶19]. The Facility's anaerobic digester also generated Liquid Soil Amendment (“LSA”), a fertilizer substitute, used by local farms, and compost, distributed by local businesses. [Id. at ¶¶ 2, 19]. Heartland contends that the Facility had positive effects on the environment by reducing greenhouse gas emissions and decreasing the amount of waste in landfills, and that it had positive impacts in the community. See [id. at ¶¶ 19-21].

         In early 2009, Heartland's predecessor-in-interest, Heartland Renewable Energy, LLC (“Heartland Renewable”), began obtaining the necessary state and local permits and approvals to construct the Facility, submitting an application for a Certificate of Designation (“CD”) for the proposed facility to Weld County as well as to the Colorado Department of Public Health and Environment (“CDPHE”). [Id. at ¶¶ 22-23]. The CDPHE recommended that the Board approve the CD in accordance with Colorado's Solid Waste Regulations, 6 Colo. Code Regs. § 1007- 2:1.6. [Id. at ¶ 24]. On July 21, 2010, the Board issued a resolution approving the application for a Use by Special Review Permit (“USR-1704”) in addition to Heartland Renewable's CD, but conditioned both on the preparation and the recordation of a plat for the Facility. [Id. at ¶¶ 25-26].

         On May 1, 2013, the Board issued a Resolution approving a request to modify the original CD to reflect significant changes to the proposed layout of the Facility. [Id. at ¶ 27]. Around this same time, Heartland Renewable engaged in several discussions with the CDPHE and the Colorado Department of Agriculture (“CDA”) regarding the Facility's production of “digestate liquor, ” a liquid containing various nutrients and minerals that could be beneficial to crop growth. [Id. at ¶¶ 28-29]. Allegedly, Heartland Renewable, the CDPHE, and the CDA reached an agreement whereby Heartland Renewable could freely market its digestate liquor as LSA, so long as it complied with the CDA's rules and regulations concerning the testing and labeling of the digestate liquor. See [id. at ¶¶ 30-38, 40-42]. The CDA eventually issued to Heartland Renewable (later issued and re-issued to Plaintiff) Energy Certificate of Registration 9931 for “Digestate Liquor, ” and approved Plaintiff's LSA labels. See [id. at ¶¶ 38-39, 41]. Plaintiff alleges that the CDA and CDPHE continually affirmed that it could distribute its digestate liquor as LSA, not as a regulated solid waste, and, thus, Plaintiff proceeded with the Facility's development in reliance on these affirmations. [Id. at ¶¶ 40, 42-43].

         Between August and December 2013, Heartland Renewable transferred its ownership of the Facility to Plaintiff, and the Board and the CDPHE allegedly recognized Plaintiff as the owner and operator of the Facility for purposes of the CD and USR-1704. [Id. at ¶¶ 44-49]. Specifically, on December 19, 2013, the Board issued a resolution approving an Improvements Agreement (that the Board later entered with Heartland) and accepted collateral for USR-1704 from Heartland-the resolution also recognized Plaintiff as Heartland Renewable's successor. [Id. at ¶ 50]. Then, in January 2014, the Board approved the plat for USR-1704, and issued Heartland a building permit for the Facility on March 31, 2014. [Id. at ¶¶ 51-53]. The Weld County Planning Director also approved Heartland's request for a “Minor Amendment to the Site Specific Development Plan MUSR 14-0030, ” and, because Plaintiff believed it had the requisite assurances to continue development of the Facility from the Board, CDPHE, and CDA, it constructed the Facility and distributed LSA to local farmers for the 2016 growing season. [Id. at ¶¶ 54-61].

         However, on about April 27, 2016, during the Facility's incipiency, a Weld County inspector reported that the Facility emitted odor exceeding the “7:1 dilution standard for odor under the Special Review Permit.” [Id. at ¶¶ 62-63]. Heartland allegedly undertook extensive measures to mitigate the odor issues, but nevertheless received a compliance advisory from the Air Pollution Control Division (“APCD”) of the CDPHE on June 30, 2016. [Id. at ¶¶ 64-66]. Because of this odor violation, the Board held a probable cause hearing on July 11, 2016, to determine whether it had sufficient evidence to proceed with a show cause hearing regarding the April 2016 odor violation. [Id. at ¶ 67]. At the July 2016 probable cause hearing, Plaintiff alleges that the Board received testimony from the Department of Planning Services that the April 2016 violation was the only recorded odor violation, and that it was an abnormal weather day the day the inspector recorded the violation, “resulting in an abnormally high odor.” [Id. at ¶¶ 68-69]. Nonetheless, the Board concluded that it had sufficient evidence to hold a show cause hearing regarding this sole violation. [Id. at ¶¶ 70-71]. From here, Heartland's relationship with the Board and the CDPHE began to deteriorate.

         For example, Heartland alleges that it began experiencing issues relating to its distribution of LSA. Specifically, on September 8, 2016, Defendant Barbare emailed Heartland and informed it that its LSA was now considered a solid waste that required a discharge permit before Heartland could distribute it to third parties. [Id. at ¶ 72]. Plaintiff alleges that Defendant Barbare's email constituted the first change in the CDPHE's position in the three years since the CDA approved Heartland's distribution of LSA. [Id. at ¶¶ 72-73]. Similarly, Defendants Bankoff and Snapp sent Plaintiff a letter informing it that the CDPHE now considered the LSA regulated solid waste, requiring CDPHE approval prior to its distribution. See [id. at ¶¶ 86-88].

         As to the odor violation, the Board held a show cause hearing to determine whether it should revoke USR-1704 on September 19, 2016. [Id. at ¶ 74]. At this hearing, the Board received testimony from the Weld County inspector who relayed that no other violations had occurred since April 2016; however, several community members testified to odors emanating from the Facility. [Id.]. Ultimately, the Board continued the hearing until November 14, 2016, to allow Heartland to pursue further mitigation measures-Heartland alleges that it complied with this directive, as well as the Board's “unauthorized” conditions that the Facility limit its gas production to 60% of its design capacity, limit its receipt of organic materials, and that it conduct at least two community meetings. [Id. at ¶¶ 75-80].

         Prior to the November 14, 2016 show cause hearing, Heartland voluntarily entered into a Compliance Order with the APCD to abate the odor issues. [Id. at ¶ 89]. Heartland agreed to invest approximately $3 million in odor mitigation, capture, and control systems. [Id. at ¶¶ 90- 91]. Heartland then presented the Compliance Order to the Board at the November 14 show cause hearing, and informed the Board that it had until 2017 to attain its obligations under the order and, if it succeeded, the APCD would take no further action on the April 2016 odor violation. [Id. at ¶¶ 93-95]. According to Heartland, the Board then offered a myriad of “new alleged violations . . . [that] would be sufficient reason to revoke or suspend Heartland's Special Use Permit, ” but did so without proper notice. [Id. at ¶¶ 97, 99]. For example, the Board identified an alleged violation that Heartland was operating the Facility without a valid CD, based on Defendant Kreutzer's November 8 letter that Heartland Renewable did not transfer the CD to Plaintiff. See [id. at ¶¶ 81-85, 98]. The Board also raised potential violations of USR-1704's Conditions and Development Standards related to nuisance control. See [id. at ¶ 99]. At the conclusion of the November 14 show cause hearing, the Board re-imposed its September 19 conditions on the Facility, and then issued a resolution concluding that it had sufficient evidence to hold a further show cause hearing on the newly identified violations, violations the Plaintiff alleges were based on public complaints, not factual evidence. See [id. at ¶¶ 100-01].

         On December 19, 2016, the Board held another show cause hearing. [Id. at ¶ 110]. At this hearing, Heartland submitted evidence in support of its contention that no violation of USR-1704 had occurred and, to the extent any violation had occurred, revocation or suspension was unwarranted. [Id. at ¶ 111]. Heartland avers, however, that despite its evidence, the Board had already predetermined that it would suspend USR-1704, and then issued an oral decision indefinitely suspending USR-1704. See [id. at ¶¶ 112-120]. Plaintiff continues that the Board subjected it to “unprecedented enforcement efforts, ” including at least seven (7) inspections of the Facility, many of which were unannounced or preceded by little notice, and injected itself into Heartland's disputes with Defendants Barbare, Bankoff, and Snapp regarding its LSA distribution. See [id. at ¶¶ 102-09]. Plaintiff avers that the Board treated it differently than similarly situated entities. See [id. at ¶ 120].

         Ultimately, on December 28, 2016, the Board issued a resolution indefinitely suspending USR-1704 pending resolution of the alleged violations, i.e., Heartland's lack of a proper CD and violations of USR-1704's conditions and standards. [Id. at ¶¶ 121-23]. Plaintiff avers that the resolution contains no discussion of the required mitigating factors applicable to the decision to suspend USR-1704, and is unsupported by law or fact. [Id. at ¶¶ 124-25]. Because of the enormous costs associated with suspending its operations, Heartland alleges that it began the winding down process for the Facility on January 28, 2017. See [id. at ¶¶ 127-131]. According to Heartland, the actions of the named Defendants have resulted in Plaintiff's loss of its $102 million investment in the Facility as well as its projected profits “over the next 18 years while its natural gas contract was in effect.” [Id. at ¶¶ 132-34].

         Accordingly, Plaintiff initiated this action by filing its initial Complaint against the Board, and Weld County Commissioners Barbara Kirkmeyer, Mike Freeman, Julie Cozad, Steve Moreno, and Sean Conway-each in their respective official capacities, on December 27, 2016. [#1]. Concomitantly, Plaintiff filed a Motion for Temporary Restraining Order (“TRO”) against the Board, seeking to enjoin the suspension of USR-1704. [#2].

         On December 28, 2016, Plaintiff filed an Amended Complaint as a matter of right under Rule 15 of the Federal Rules of Civil Procedure. [#13]. The First Amended Complaint (“FAC”) asserted the following claims: (1) violation of Rule 106(a)(4) of the Colorado Rules of Civil Procedure; (2) Regulatory Taking; (3) violation of Plaintiff's Substantive Due Process rights; (4) violation of Plaintiff's Equal Protection rights; and (5) violation of Plaintiff's Procedural Due Process rights. [#13]. On December 30, 2016, the presiding judge, the Honorable Raymond P. Moore, denied the Motion for TRO as moot, but allowed Heartland to submit a renewed Motion for TRO. [#18]. Following an evidentiary hearing, Judge Moore denied Plaintiff's renewed Motion for TRO on January 9, 2017. [#29].[2]

         On February 1, 2017, the Board and Commissioners Kirkmeyer, Freeman, Cozad, Moreno, and Conway filed a partial Answer to the FAC's Rule 106(a)(4) claim and asserted a counterclaim against Plaintiff, seeking injunctive relief. See [#40]. Then, the Board and Commissioners Kirkmeyer, Freeman, Cozad, Moreno, and Conway filed their first Motion to Dismiss, seeking dismissal of the FAC's remaining claims. [#42].

         The undersigned held a Scheduling Conference on March 7, 2017, setting the following relevant deadlines: (1) March 13, 2017 for submitting the Administrative Record regarding the Rule 106(a)(4) claim plus an associated briefing schedule; and, with respect to the remaining claims, (2) setting a discovery schedule, as well as April 21, 2017, as the deadline for joinder of parties and amendment of pleadings. See [#47]. On March 31, the Board and Commissioners Kirkmeyer, Freeman, Cozad, Moreno, and Conway filed their Motion for Protective Order Against All Discovery or in the Alternative Motion to Stay All Discovery Until After Resolution of Plaintiff's C.R.C.P. 106(a)(4) Claim (“Motion to Stay”). [#57]. However, on April 21, 2017, Plaintiff filed its Motion to Amend Complaint and Dismiss Rule 106(a)(4) Claim (“Motion to Amend”). [#62]. Judge Moore granted the Motion to Amend, and ordered Plaintiff to serve and file its Second Amended Complaint (“SAC”) on or before May 3, 2017. [#63].

         On May 2, 2017, Plaintiff filed its SAC, the operative complaint in this matter. [#64]. The SAC dismisses Plaintiff's Rule 106(a)(4) claim and dismisses as Defendants Commissioners Kirkmeyer, Freeman, Cozad, Moreno, and Conway and all official capacity claims against them. [Id.]. Instead, the SAC adds individual capacity claims against several employees of the CDPHE-Defendants Barbare, Bankoff, Snapp, and Kreutzer. Compare [#13] with [#64].[3]Accordingly, the operative claims in this matter include: (1) promissory estoppel against the Board regarding the CD and USR-1704 (“Claim I”); (2) Regulatory Taking against the Board (“Claim II”); (3) Substantive Due Process violations regarding the CD and USR-1704 against the Board and Defendant Kreutzer (“Claim III”); (4) Equal Protection violations against the Board (“Claim IV”); (5) Procedural Due Process violations against the Board and Defendant Kreutzer (“Claim V”); and (6) Substantive Due Process violations regarding the LSA against Defendants Barbare, Bankoff, and Snapp (“Claim VIII”).

         On May 16, 2017, the Board filed its Motion to Dismiss the SAC. [#73]. Then, on June 30, 2017, the Individual Defendants filed their Motion to Dismiss the SAC, and their Motion to Stay all discovery pending the court's resolution of their Motion to Dismiss. [#90; #91]. The undersigned then conducted a Telephonic Discovery Conference with the Parties on July 6, 2017. [#94]. At this Conference, this court granted in part and denied in part the two motions to stay discovery [#57; #91] and Heartland's Motion to Amend the Scheduling Order [#88]. See [#94]. Accordingly, the undersigned stayed all discovery in this matter until August 25, 2017, and set a Status Conference for September 7, 2017. [Id.].

         On August 8, 2017, the undersigned held a Motions Hearing on the two pending Motions to Dismiss, and took the Motions under advisement. [#99]. The Motions are ripe for Recommendation, see [#83; #86; #95; #97], and this court considers the Parties' arguments below.


         I. Rule 12(b)(1)

         Federal courts are courts of limited jurisdiction and, as such, “are duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction.” The Wilderness Soc. v. Kane Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring). Indeed, courts have an independent obligation to determine whether subject matter jurisdiction exists, even in the absence of a challenge from any party. 1mage Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)).

         Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may bring either a facial or factual attack on subject matter jurisdiction, and a court must dismiss a complaint if it lacks subject matter jurisdiction. See generally Pueblo of Jemez v. United States, 790 F.3d 1143, 1147 n.4 (10th Cir. 2015). For a facial attack, the court takes the allegations in the Complaint as true; however, when reviewing a factual attack, the court may not presume the truthfulness of the Complaint's factual allegations and may consider affidavits or other documents to resolve jurisdictional facts. Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). The burden of establishing jurisdiction rests with the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).

         II. Rule 12(b)(6)

         Under Rule 12(b)(6) a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However, the court may consider materials outside the complaint without converting a motion to dismiss to one for summary judgment if the documents are central to the plaintiff's claims, referred to in the complaint, and if the parties do not dispute their authenticity. See Cty. of Santa Fe, N.M. v. Public Serv. Co. of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002). Additionally, the court may take judicial notice of undisputed court documents and matters of public record. See Tal v. Hogan, 453 F.3d 1244, 1264 n. 24 (10th Cir. 2006).[4]

         In any case, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (explaining that plausibility refers “to the scope of the allegations in a complaint, ” and that the allegations must be sufficient to nudge a plaintiff's claim(s) “across the line from conceivable to plausible.”). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).


         Because the Board and the Individual Defendants both move for dismissal of Heartland's claims under Rules 12(b)(1) and 12(b)(6), this court turns first to Defendants' arguments implicating this court's subject matter jurisdiction. Bell v. Hood, 327 U.S. 678, 682 (1946); Cunningham v. BHP Petroleum Great Britain PLC, 427 F.3d 1238, 1245 (10th Cir. 2005) (holding that once a federal court determines that it is without subject matter jurisdiction, it must not proceed to consider any other issue). Then, to the extent this court concludes that subject matter jurisdiction exists, this court proceeds with an analysis of Defendants' arguments under Rule 12(b)(6).

         I. Dismissal under Rule 12(b)(1)

         A. The Board

         The Board first moves for dismissal pursuant to Rule 12(b)(1) of Claims I, II, III, IV, and V, arguing that Heartland's promissory estoppel claim is barred by the Colorado Governmental Immunity Act (“CGIA”), [5] and that all of Plaintiff's federal constitutional claims are unripe for lack of a final agency action under Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 186 (1985).[6] This court considers the Board's arguments in turn.

         1. Claim I - Promissory Estoppel

         Under Colorado law, “[t]he elements of a promissory estoppel claim are: (1) the promisor made a promise to the promisee; (2) the promisor should reasonably have expected that the promise would induce action or forbearance by the promise; (3) the promisee in fact reasonably relied on the promise to the promisee's detriment; and (4) the promise must be enforced to prevent injustice.” Marquardt v. Perry, 200 P.3d 1126, 1129 (Colo.App. 2008). “The promise must be clear and unambiguous. . . . It also must be sufficiently definite to allow a court to understand the nature of the obligation.” Peace v. Parascript Mgmt., Inc., 59 F.Supp.3d 1020, 1029 (D. Colo. 2014) (internal quotations and citations omitted).

         Here, the Board moves to dismiss Claim I, because Heartland's promissory estoppel claim “is really an alleged negligent or intentional misrepresentation of fact, it is or could be a tort and the CGIA precludes it.” [#73 at 14]; see also [#86 at 14-15]. Because this court agrees with the Board's first argument, it focuses on it and does not consider the Board's alternate argument that Heartland fails to allege an actionable promise made by the Board. See [#73 at 14-15].

         The CGIA provides that a “public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort.” Colo. Rev. Stat. § 24-10-106(1). Whether an action lies or could lie in tort “depends on the factual basis underlying the claim and, specifically, the by law, are designed to protect against the risk of harm to persons or property. Foster v. Bd. of Governors of the Colorado State Univ. Sys. by & on behalf of Colorado State Univ., 342 P.3d 497, 501 (Colo.App. 2014).

         As relevant here, “a promissory estoppel claim is properly characterized as one in the nature of a contract claim and is thus not barred by the [CGIA].” Bd. of Cty. Comm'rs of Summit Cty. v. DeLozier, 917 P.2d 714, 715 (Colo. 1996) (“DeLozier”). However, the “doctrine of promissory estoppel should not be confused with the doctrine of equitable estoppel[, ]” which applies to misstatements of fact and lies in tort.[7] Id. at 716. For example, “a contracting party's negligent misrepresentation of material facts prior to the execution of an agreement may provide the basis for a tort claim asserted by a party detrimentally relying on such negligent misrepresentations[, ]” and, where contract and tort principles overlap, the CGIA bars such claims. See Robinson v. Colorado State Lottery Div., 179 P.3d 998, 1004-05 (Colo. 2008) (explaining, “a claim that is supported by allegations of misrepresentation or fraud is likely a claim that could lie in tort.”).

         Heartland contends that the SAC adequately alleges that the Board “promised” that Heartland could operate the Facility “going forward, ” a promise the Board did not keep, but that Plaintiff relied on to its detriment. [#83 at 18-19 (emphasis in original)]. Specifically, Plaintiff avers that in October 2013, following Heartland Renewable's transfer of the Facility to Plaintiff, the Board affirmed its promise that Plaintiff owned the Facility and could continue its development of the Facility without government interference. See [id. at 19]. For the following reasons, this court respectfully disagrees; several cases from Colorado guide this court's inquiry.

         First, in DeLozier, Ms. DeLozier filed a complaint against the Board of County Commissioners of Summit County (“Commissioners of Summit County”) asserting claims for breach of contract and promissory estoppel. 917 P.2d at 715. The basis of Ms. DeLozier's promissory estoppel claim was that the Commissioners of Summit County promised to offer Ms. DeLozier the next available paramedic position with the ambulance service, which was allegedly to occur in early 1993. Id. In alleged reliance on this promise, Ms. DeLozier left her job in Denver and moved to Summit County in December 1992; however, the ambulance service hired a different applicant in February of 1993. Id. The Colorado Supreme Court held that Ms. DeLozier's promissory estoppel claim sounded in contract and was thus not barred by the CGIA, because she alleged a future promise of employment with the ambulance service, that she relied on that future promise to her detriment, and that the Commissioners of Summit County broke that future promise-there was no allegation of any misrepresented facts that existed to support a claim for fraud or misrepresentation. See Id. at 716-17.

         Second, in Lehman v. City of Louisville, the plaintiffs alleged that they relied on a city official's representations that they could purchase an historic church and renovate that church for use as a family residence and place of business operated by non-family members. 857 P.2d 455, 456 (Colo.App. 1992). Subsequent to the plaintiffs' purchase and renovation of the church, the City Administrator determined that the plaintiffs' use of the property violated a Louisville zoning ordinance. Id. The plaintiffs filed suit, seeking damages and injunctive relief under a theory of common law estoppel. Id. A division of the Colorado Court of Appeals held that the CGIA barred plaintiffs claim, because the plaintiffs relied to their detriment on past misrepresentations of fact by a city official, i.e., that they could renovate and use the church as a residence and place of business, which “could lie in tort.” Id. at 457.

         Relatedly, in Patzer v. City of Loveland, the plaintiffs brought suit following the defendant's failure to issue a certificate of occupancy upon the plaintiffs' completion of a residence in accordance with a city-issued building permit. 80 P.3d 908, 910 (Colo.App. 2003). The plaintiffs asserted, inter alia, a promissory estoppel claim against the defendant and sought damages for the costs they incurred “as a result of being unable to market [their] property until the [defendant] issued the certificate of occupancy.” Id. A division of the Colorado Court of Appeals held that the CGIA barred the plaintiffs' promissory estoppel claim, because the building permit contained no future promise to issue a certificate of occupancy, and that ...

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