MILLER, Senior District Judge.
This case is before me on the Motion for Summary Judgment (ECF No. 79) filed by Defendant City of Cortez (the "City") and Defendant Nickerson's Motion for Summary Judgment Based Upon Qualified Immunity (ECF No. 72). Plaintiffs oppose the motions. I have reviewed the pertinent portions of the record and the legal authorities and arguments contained in the parties' briefs. For the reasons that follow, the motions will be granted.
Plaintiffs allege that the City's Public Works Department and Jack Nickerson, its Director, have violated their civil rights by virtue of certain decisions made regarding construction projects. Plaintiff Furlong Enterprises ("Furlong") also asserts a claim of breach of contract.
Furlong, Residential Building Systems, Inc. ("RBS"), and D & L Construction ("D & L") are construction companies involved in various projects in and around the City. The principals of Furlong are John and Stacey Stramel and Dave Kimble. D & L is owned by Dave and Lana Waters. RBS is owned by Don Etnier.
Furlong, with assistance from D & L, is constructing a development called Brandon's Gate Planned Unit Development ("Brandon's Gate"). RBS is constructing a development known as Sedona Estates Phase 3 ("Sedona Estates"). D & L is also involved in the construction of a development known as San Juan Park Addition or the Acoma Special Improvement District ("Acoma SID"). Brandon's Gate and Sedona Estates are residential developments and, pursuant to City regulations, the developers were required to enter into Subdivision Improvement Agreements ("SIA") with the City. In general, the SIA concerns the obligation of the developer to construct public improvements in the development,
The Acoma SID resulted from a petition by lot owners, including the Waters, to create a special improvement district to construct certain street paving improvements in an existing neighborhood. Exh. A-2 to City's Mot. for Summ. J., ECF No. 79-4. The Acoma SID was passed by a government resolution and was a City funded, designed, engineered, and bid project. Id. Because the Acoma SID is a City project, there is no SIA. Id. D & L submitted the lowest bid and was awarded the project. Exhs. A-5 & A-6 to City's Mot. for Summ. J., ECF Nos. 79-7, 79-8.
In their Amended Complaint (ECF No. 8), Plaintiffs assert that the City permitted developers of two other projects to use native soil as trench backfill in construction of right of ways ("ROW") and roadways but that Plaintiffs, unaware that the City might permit this, used more expensive backfill material, known as CDOT
Plaintiffs' claims concerning the backfill issue rest in large part on the interpretation and application of the City's Construction Design Standards ("CDS"), which were modified over the years. It appears to be undisputed that the Plaintiffs' projects were all subject to the 1980 CDS. That version the CDS does not specify any particular material to be used for trench backfill. 1980 CDS, Exh. A-7 to City's Mot. for Summ. J., ECF No. 79-9, at Sec. 4.4.2.A (generally requiring backfill material to consist of "sound earth material free from frozen materials, large rocks, broken concrete, timber, and other debris."). The parties agree that by its plain terms, it does not prohibit the use of native soil as backfill or require Class 6. However, according to deposition testimony by Bruce Smart, the Director of Public Works until April 2007, the City had previously experienced problems with trench settlement related to the use of native material because contractors had a hard time getting appropriate compaction. Exh. A-1 to City's Mot. for Summ. J., ECF No. 79-2, at 5. The City found that Class 6 material was easier to compact and the use of Class 6 materials became a preference, if not a de facto standard, in City projects.
The CDS were revised, effective May 22, 2007. The 2007 CDS specifically provide that trench backfill for city right of ways, roadways, alleys and driveways "shall be approved road base material (CDOT Class 6 A.B.C) for the full depth of the trench." 2007 CDS, Exh. A-9 to City's Mot. for Summ. J., ECF No. 79-11, at Sec. 2.4.2.B. However, the 2007 CDS also give the City Engineer authority to enforce and administer the CDS (Sec. 1.1), to make changes to approved plans or specifications (Sec. 1.7), to permit substitution of materials or
During the relevant time period, two other projects were permitted to use native soil as backfill. One of those projects was the Rodeo PUD, a residential development. Its engineer, and part owner, is Clinton "Cap" Allen. Phase 1 of the Rodeo project was subject to the 1980 CDS. Sometime in late 2005, Mr. Allen made a proposal to the City Engineer (at the time, Jon Butler) requesting to use native material as trench backfill. In a letter to Mr. Butler dated December 6, 2005, Mr. Allen provided a detail of the proposed trench construction, proposed testing, and various provisions for site supervision and inspection. Exh. A-10 to City's Mot. for Summ. J., ECF No. 79-12. In a letter in response, Mr. Butler indicated a willingness to permit the use of native material but imposed additional and more stringent requirements relating to compaction and testing. Exh. A-11 to City's Mot. for Summ. J., ECF No. 79-13. Phase 1 of the Rodeo project apparently successfully used native material as trench backfill. Mr. Allen then sought to use the same materials for Phase IIA of the Rodeo project, which was subject to the 2007 CDS. Defendant Nickerson, who became the Director of Public Works in April 2007, allowed the continued use of native material as backfill on the project.
The second project that was permitted to use native soil as backfill was the Southwest Memorial Hospital PUD (the "Hospital" project). This was a commercial development in connection with a hospital special district. Again, the engineer with the project, Ryan Griglack, made a proposal to the City to use native soil and CDOT specifications related to compaction and testing. Griglak Dep., Exh. A-1 to City's Mot. for Summ. J., ECF No. 79-1, at 13-18, 27-28. This phase of the Hospital project was governed by the 1980 CDS. After a series of negotiations and design modifications, the City permitted native soil to be used on the Hospital project as backfill. Id. In connection with the proposal and negotiation, Mr. Griglack provided the City with a geotechnical engineering report, soil tests, and a pavement design in order to satisfy the City Engineer that the proposal would meet the City's requirements regarding compaction, settlement, and other specifications. Id.
It is undisputed that none of the Plaintiffs nor anyone on their behalf ever requested to use native material for backfill on their projects
The second major issue in this litigation arises from a dispute regarding the adequacy of a road under construction in a portion of the Brandon's Gate development. In the spring of 2007, Mr. Smart became aware of problems with the sub-grade on 1000 linear feet of the roadway in Brandon's Gate, Block 6. Exh. A-1 to City's Mot. for Summ. J., ECF No. 79-2, at 23. It had been a particularly wet spring and portions of the roadway were saturated and soggy and there was some concern about whether the roadway could hold a road. Eric Gray, the then City Engineer, shared these concerns. Jon Butler, who was formerly the City Engineer but at this time worked for a private engineering firm, was consulted to perform analysis and assist in determining what needed to be done. The principals of Furlong and D & L believed that the addition of storm drains would solve the moisture problems and that the design for the road was adequate.
On April 19, 2007, there was a meeting at the Block 6 site with Mr. Butler, representatives of Furlong and D & L, Bruce Smart (the Director of Public Works), and Eric Gray (the City Engineer). Four compaction tests were performed on the sub-grade material, which showed results within standards. Exh. 29 to Pls.' Resp., ECF No. 82-29. Mr. Butler followed up with a letter dated April 24, 2007 to Mr. Gray "to provide general comments regarding the strength characteristics of the proposed pavement section for the subject project." Exh. 28 to Pls.' Resp., ECF No. 82-28. He notes that the proposed design consists of 2½ inches of pavement supported over eight inches of CDOT Class 6 aggregate material. Id. "The actual strength characteristics, or R-Value, of the subgrade support material has a major influence on the overall strength of the pavement section." Id. The R-value for the roadway was not known but Mr. Butler anticipated that it would range from 5-10, which is typical for the area. Id. Mr. Butler notes that there are several other factors that could influence the overall performance of the pavement section but that the proposed use of a woven geotextile fabric placed between the subgrade soils and the gravel/asphalt section could improve the overall strength and compaction of the materials. Id.
The principals of Furlong and D & L believed that they had an agreement with the City as a result of the April 19, 2007 meeting that their road design would be adequate, as did Mr. Butler. Butler Dep., Exh. 5 to Pls.' Resp., ECF No. 82-5, at 32. Defendant Nickerson replaced Mr. Smart as Director of Public Works on April 30, 2007. When Defendant Nickerson took over, Mr. Gray related his concerns about the adequacy of the roadway design for Block 6. Mr. Nickerson reviewed soils reports for the property and visited the site. Another meeting was held with Mr. Nickerson, Mr. Gray, Mr. Butler, and representatives from Furlong on May 15, 2007. In a letter dated May 16, 2007, addressed to John Stramel of Furlong, Mr. Nickerson states that as a result of the meeting, "it is my understanding that the following agreement is in place." Exh. A-15 to City's Mot. for Summ. J., ECF No. 79-17. The agreement he recites is that the roadway would be paved with 3½ inches of asphalt, instead of the 2½ inches originally designed, and that there would be additional
In response to Mr. Nickerson's letter, Mr. Stramel wrote a letter dated May 18, 2007. Exh. A-15 to City's Mot. for Summ. J., ECF No. 79-18. In it, he states "we wish to clarify that we are not in agreement with [Mr. Nickerson's] letter." Id. He goes on to say that "we feel that it is [in] everyone's best interest to stay with the original road design for Block 6 in Brandon's Gate, as agreed upon by Bruce Smart, Eric Gray, Jon Butler for Trautner Engineering, Dave Waters of D & L Construction, David Kimble, and myself. This meeting was held on site and on the afternoon of 04-19-2007." Id. Mr. Stramel goes on to say that he believes the soils are adequate to hold a road, particularly since a road under construction on nearby streets is not being required to be built to a higher standard. Id. "We realize that this is not the City Engineer's opinion. We also realized that the new City Engineer's opinion is not consistent with that of the area's professionals (i.e., engineering firms, road construction companies, gravel companies, and asphalt professionals.)" Id. Finally, he states that "we would like to clarify that if a geotechnical firm is contracted to do an engineered pavement design that the City Engineer will abide by that design." Id.
Mr. Nickerson responded to Mr. Stramel's letter with the "cease and desist" letter at issue. Exh. A-17 to City's Mot. for Summ. J., ECF No. 79-19. The letter, containing a subject line of "Brandon's Gate Paving — Block 6," states,
Id. Mr. Nickerson then cites provisions in the CDS which require soils sampling and testing and states that Furlong will be required to submit a soils report and street design to the City Engineer for review. Id. It appears that at the time Mr. Nickerson wrote the letter he was unaware of the compaction tests and results.
Approximately a week later, Mr. Nickerson issued at "Construction Engineering Memo," dated May 30, 2007, to Furlong and its principals. The memo reads as follows:
Exh. A-18 to City's Mot. for Summ. J., ECF No. 79-20. The memo was signed without comment by Mr. Kimble (Mr. Stramel was out of the country) but the Plaintiffs contend that Mr. Kimble did not have authority to bind Furlong to any agreement and that he signed only for receipt.
The City did pay for the soils tests and engineering report, performed by Mr. Butler's firm. Exh. A-19 to City's Mot. for Summ. J., ECF No. 79-21. The report confirmed that the soils at issue were of questionable strength in a few spots and made suggestions regarding construction and subgrade stabilization. Id. The report also showed that there were lower R-values on Block 6 than on the nearby section of road that Mr. Stramel contended was equivalent. Id. In the end, however, Mr. Nickerson allowed Furlong and D & L to build the road as originally designed, although with additional subgrade fill.
In his deposition testimony, Mr. Butler agrees that the City had justifiable concerns about the subgrade on Block 6. Butler Dep., Exh. A-1 to City's Mot. for Summ. J., ECF No. 79-1, at 71. Indeed, Furlong's own engineer, Terri Forth stated in her deposition that while she felt the subgrade was adequate, she did not have test results to back up her opinion. Exh. 7 to Pls.' Resp., ECF No. 82-7, at 37.
Furlong contends that the cease and desist order was unconstitutional and violated the SIA. The SIA provides that "If the City determines that there is a violation of present State laws, City regulations, Planning Commission requirements, and/or the terms and provisions of this Agreement, the Public Works Director may issue a cease and desist order." SIA, Exh. A-3 to City's Mot. for Summ. J., ECF No. 79-5, at ¶ 17. Furlong argues that there was no violation of any law, regulation, requirements or of the SIA and so the issuance of the cease and desist order was improper. Furlong alleges additional breaches of the SIA because the City required Furlong to build an access road ahead of schedule but then closed the road after there were problems with mud being tracked. Furlong also contends that the City required "construction of improvements beyond the improvements specified in the Furlong SIA." Amended Complaint, ECF No. 8, ¶ 53. Furlong has not specified what this refers to, however, and so I deem this basis of the claim to be abandoned.
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56. A factual issue is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Where "the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying `a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.'" Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir.2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998)). Then, "[t]o avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case." Id.
Defendant City moves for summary judgment on the grounds that Plaintiffs
I address at the outset certain evidentiary objections Plaintiffs raise in their response briefs to both motions. Plaintiffs argue that I should not accept as evidence Defendant Nickerson's testimony as contained in his affidavit because its reliability is called into question, citing Argo v. Blue Cross Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir.2006). As grounds, Plaintiffs offer affidavit and depositions from City employees and others who have a poor opinion of Mr. Nickerson's truthfulness. Argo sets forth the usual standard for evidence to be considered at the summary judgment stage, i.e., that "a court necessarily may consider only the evidence that would be available to the jury." Id. The statements contained in Mr. Nickerson's affidavit are primarily factual statements that are based on personal knowledge and are consistent with the documentation created contemporaneously. While I need not take as undisputed any self-serving statements regarding intent or his interpretation of the relevant documents, I see no basis to disregard his testimony as to factual matters and events that occurred.
Plaintiffs also contend that certain documents and deposition testimony from persons with technical knowledge, such as Mr. Butler, should be disregarded as "undisclosed expert testimony." Most of these witnesses are fact witnesses, not specially retained experts, whose knowledge and role in the relevant events were well known to Plaintiffs since before the litigation commenced and their testimony concerns the events that occurred and their observations and conclusions from the time. Similarly, the documents were created contemporaneously and are not expert reports containing opinions for the purposes of litigation. In the absence of a motion to strike containing legal authority and persuasive argument, I will consider this evidence.
The Equal Protection Clause provides that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Equal protection "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). The Clause "does not forbid classifications. It simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike." Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). If groups are treated differently, the government must provide some justification for the difference in treatment; unless the classification involves a suspect class or fundamental rights, the government can overcome an equal protection challenge by showing that the classification bears a "rational relation to some legitimate end." Kinnell v. Graves, 265 F.3d 1125, 1128 (10th Cir.2001) (quoting Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996)). Plaintiffs do not
The City argues that Plaintiffs' equal protection claim fails because they cannot demonstrate that they were treated differently from similarly situated persons with respect to being granted permission to use native soil as backfill instead of Class 6 material.
In response, Plaintiffs contend that the issue of whether they were similarly situated to the Rodeo and Hospital project developers must be determined by a jury. I disagree. While the question of whether two entities are similarly situated is often a question of fact, the Tenth Circuit has made clear that at summary judgment, it is my role to determine whether the "plaintiff has adduced enough evidence to support a finding that the [alleged comparator] and plaintiff were sufficiently similarly situated to support an inference of discrimination." Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1117 (10th Cir. 2007). Here, there is no issue of fact to resolve regarding the key differences between Plaintiffs and the representatives of the Rodeo and Hospital projects, i.e., whether a request or proposal was made to use an alternative to the City's standard specification for backfill material. The City has also presented undisputed evidence that developers who, like Plaintiffs, did not request to use native soils were treated exactly the same as Plaintiffs.
Plaintiffs also appeared to argue that they were discriminated against because they were required to enter into SIAs with the City, whereas a few other projects were not required to do so. The City has offered evidence as to why certain projects were not required to enter into an SIA,
Furlong also claims that the issuance of the cease and desist letter was a violation of its equal protection rights. It is again unclear what Furlong considers to be the relevant class for the purposes of this claim and so I will again assume Furlong considers itself to be a class of one. Furlong does not identify any other persons it claims were similarly situated but received different treatment from the City. The situation presented here is that of a developer or other builder who has stated an intent to proceed with a design despite concerns from the City Engineer and Public Works Director about the strength and stability of the resulting product. Furlong has shown no similar situation in which a developer was permitted to continue without interference from the City. To show unequal treatment, Furlong relies on its contention that the City had not issued a "cease and desist" letter for some 25 years. However, the evidence shows that numerous "stop work" orders had issued by the City with regard to a variety of projects. Exh. A-20 to City's Mot. for Summ. J., ECF No. 79-22. Plaintiffs fail to demonstrate any meaningful distinction between the cease and desist order, which stopped work on road construction at Brandon's Gate until the City was satisfied that the design would meet its performance requirements, and the stop work orders issued previously, which also ordered a halt to construction projects until the City determined that the project was in compliance with governing law and regulations.
"Substantive due process arises from the Fourteenth Amendment's protections against governmental deprivations `without due process of law.'" Williams v. Berney, 519 F.3d 1216 (10th Cir.2008). It extends to bar certain government conduct regardless of the fairness of the procedures used to implement them. Id. (citations omitted). "In its substantive mode, the Fourteenth Amendment provides protection against arbitrary and oppressive government action, even when taken to further a legitimate governmental objective." Seegmiller v. LaVerkin City, 528 F.3d 762, 767 (10th Cir.2008) (citations omitted). Substantive due process doctrine is broadly divided into two areas, one "protects an individual's fundamental liberty interests, while the other protects against the exercise of governmental power that shocks the conscience." Id.
A fundamental right or liberty interest is one that is "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty." Chavez v. Martinez, 538 U.S. 760, 775, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003). Plaintiffs do not appear to contend that this case concerns a fundamental liberty interest. Rather, it seems their claim is that the City and Nickerson acted so arbitrarily that it deprived Plaintiffs of their substantive due process interests.
To prevail on any due process claim, a plaintiff must first establish that a defendant's actions deprived the plaintiff of a protectible property or liberty interest. Crider v. Board of County Com'rs of County of Boulder, 246 F.3d 1285 (10th Cir.2001). "An individual has a property interest in a benefit for purposes of due process protection only if he has a `legitimate claim of entitlement' to the benefit, as opposed to a mere `abstract need or desire' or `unilateral expectation.'" Teigen v. Renfrow, 511 F.3d 1072, 1078-79 (10th Cir.2007) (citation omitted). Defendants argue that Plaintiffs cannot show that they had a constitutionally protected property or liberty interest in using native soils instead of Class 6 materials or in being informed that the City might permit this under certain circumstances. In addition, Defendants contend that even if this were a protected interest, Plaintiffs were not deprived of this right since they never asked to exercise it. Finally, Defendants argue that the City's actions were not conscience shocking or arbitrary. With respect to the cease and desist order, Defendants again argue that there was no property interest or arbitrary government action since there was legitimate concern about the road construction.
With respect to the backfill issue, Plaintiffs contend that they had a property right based on various City ordinances or regulations. Hulen v. Yates, 322 F.3d 1229, 1240 (10th Cir.2003) ("constitutionally protected property interests are created and defined by statute, ordinance, contract, implied contract and rules, and understandings developed by state officials."). However, Plaintiffs do not offer any clear explanation to demonstrate that they had any kind of property right in being permitted to use a particular material as backfill or in having the City suggest that they present a proposal to do so. Plaintiffs first argue that they "had a property right based on a legitimate claim of entitlement to the use of native material for trench backfill because the City did not have discretion." Pls.' Resp., ECF No. 82 at 24. I understand this to mean that Plaintiffs are arguing that the City did not have discretion to deny them the ability to use native materials. This is directly in conflict with their other arguments that the City did not have discretion to permit the other property owners to use native soils
Plaintiffs have not identified any standard, regulation, statute, or other binding rule that would have given them a legitimate claim of entitlement, rather than a unilateral desire or expectation, regarding the types of material permitted to be used for backfill. They have also not shown that there was any rule imposing a duty on the part of City representatives to inform Plaintiffs of potential alternatives to the preferred standard.
Even if Plaintiffs demonstrated that they had a protectible property interest, I see nothing in Defendants' conduct that shocks the conscience. Plaintiffs offer no evidence to indicate that had they made a proper request and shown that they could meet the City's compaction and durability requirements, the City would have denied them the opportunity to use native material as an alternative to the preferred Class 6 material. Plaintiffs and the Rodeo and Hospital developers were all in the essentially the same position: they received the same information from the City regarding its de facto standard for backfill material and the City did not suggest to any developers that it might vary from this standard. However, as noted by the City, unlike the Rodeo and the Hospital projects, "Plaintiffs simply failed to explore, pursue or otherwise exercise due diligence related to their projects, they failed to ask the City about the feasibility or suitability of using native material and they failed to submit plans or proposal for using same." City's Reply, ECF No. 92, at 14. I see no oppressive abuse of government authority in the City's failure to suggest to Plaintiffs that they make the same efforts that other developers had made.
Similarly, with respect to the cease and desist order to Furlong, even if I assume Furlong had a property interest in continuing to build its road, I again see no arbitrary conduct by the City that shocks the conscience. Rather, the undisputed evidence shows that the City Engineer and Public Works Director had a concern about the stability of the roadway. Although Plaintiffs disagree that there was a problem, they have not shown that the concern was illegitimate or objectively unreasonable. The undisputed evidence, including from Furlong's engineer, indicate that there were no definitive tests showing the strength of the soils on Block 6 and neutral third parties such as Mr. Butler agreed that there were indications that could give rise to concern. Defendant Nickerson had only just become the City's Public Works Director and there is nothing to suggest that he had any hostility at the time
Under the circumstances, I see nothing arbitrary or abusive in Mr. Nickerson's decision to use his authority to halt construction until he was satisfied that the road would perform as the City required. Indeed, by thereafter offering to have the City bear the costs of additional testing and lifting the cease and desist order upon agreement that such testing and redesign would be done, it is clear that his intent was directed at solving the problem and properly constructing the road, not at harassing or oppressing Furlong. I conclude that no reasonable jury could find otherwise. The fact that Nickerson thereafter changed his mind does not show that the initial decision was unreasonable or done with wrongful intent. Therefore, Plaintiffs' substantive due process claims also fail.
The City moves for summary judgment on Furlong's breach of contract claim for the City's alleged violations of the SIA. I agree that summary judgment is appropriate.
Interpretation of a contract is a question of law. Ad Two, Inc. v. City and County of Denver, ex rel. Manager of Aviation, 9 P.3d 373, 376 (Colo.2000). "A court's duty is to interpret a contract in a manner that effectuates the manifest intention of the parties at the time the contract was signed. The touchstone in determining the intention of the parties is the language of the written agreement. If the language is plain, clear and unambiguous, a contract must be enforced as written." Randall & Blake, Inc. v. Metro Wastewater Reclamation Dist., 77 P.3d 804, 806 (Colo.App.2003) (citations and internal punctuation omitted). Whether a contract is ambiguous is also a question of law for the court. Pepcol Mfg. Co. v. Denver Union Corp., 687 P.2d 1310, 1314 (Colo.1984). A contract is ambiguous when it is susceptible to more than one reasonable interpretation. National Cas. Co. v. Great Southwest Fire Ins. Co., 833 P.2d 741, 746 (Colo.1992). If I conclude that a contract is ambiguous then its meaning is a question of fact to be determined by the jury or court. Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 919 (Colo. 1996).
As noted, Furlong argues that even though the SIA gives the City authority to issue a cease and desist order, that power was improperly used because no actual violation had occurred, or, at a minimum, there is a factual dispute as to whether there was a violation.
I first examine the SIA and its purpose. As noted, the SIA governs the developer's obligation to construct public improvements in a residential or commercial development. Brandon's Gate SIA, Exh. A-3 to City's Mot. for Summ. J., ECF No. 79-5, at ¶ 1. These public improvements are to be built in accordance with the specifications submitted by the developer and with all legal standards. Id. In the preamble, the SIA states that "the purpose of this Subdivision Improvements Agreement ... is to protect the City from incurring the cost of completing the improvements under this [Agreement] and not to benefit those providing work, services or material
The clear and expressly stated purpose of the SIA is to ensure that the developer builds the improvements in compliance with law and regulation and to protect the City from incurring costs or obligations in completing the improvements or addressing substandard work. Moreover, the power to determine that a violation has occurred is vested solely in the City. In light of this language, I conclude that the agreement unambiguously gives the City the discretion to determine on its own that the construction of improvements is not in accordance with standards and to take action accordingly. Here, the evidence is undisputed that the City Engineer and Director of Public Works had an objectively reasonable belief that the road under construction would not satisfy the City's strength and durability requirements. Given that the benefits of the SIA inure to the City, not to the developer, I conclude that the City's good faith determination in this regard, even if possibly mistaken, cannot amount to a breach. This is particularly so where the cease and desist was intended to be lifted as soon as the City's concerns were addressed. Accordingly, I agree that summary judgment should enter against Furlong on this claim.
Furlong's second basis for breach is that the City required it to accelerate the construction of a road in the subdivision, called Gateway Drive, but then closed it for some time. It appears that in addition to constructing Gateway Drive, the SIA required Furlong to "pioneer" an additional short section of dirt road connecting Gateway drive to another city street; the City would pave it thereafter. There is no dispute that the SIA required the construction of Gateway Drive and of the short dirt section, Furlong's only dispute that is that it had to do so sooner than it wanted. Furlong claims this acceleration was clearly unnecessary because, when the unfinished dirt section was used and began causing problems with mud around the property, the City closed the entire road for nearly two years (until it had the funds to complete the paving). Furlong also claims that it offered to gravel the dirt section but that Defendant Nickerson rejected this and simply kept the road closed. Furlong does not identify any provision in the SIA that was allegedly breached by this conduct and I see no basis to conclude that there was a breach.
Defendant Nickerson moves for summary judgment on the basis of qualified immunity. "In an action under section 1983, individual defendants are entitled to qualified immunity unless it is demonstrated that their alleged conduct violated clearly established constitutional rights of which a reasonable person in their positions would have known." Murrell
Mr. Nickerson also argues that he is not a party to the SIA and therefore cannot be liable for any alleged breach. Plaintiffs do not contest this; moreover, as discussed above, I conclude there was no breach. Therefore, summary judgment in Defendant Nickerson's favor is appropriate on all claims asserted against him.
Accordingly, it is ordered:
