2015 COA 80
Colo. Ct. App.2015Background
- In 1890s–1930s the property in Colorado Springs housed a coal gasification plant; the City bought it in 1925 and ceased gas production by the 1930s. Subsurface contamination from those early operations was undisputed.
- The City later built a Gas Admin Building (1960s–70s) on the site for administrative use only; it contained friable asbestos and was demolished beginning in late 2012.
- Smokebrush (a neighboring health/wellness center) sued the City alleging demolition in 2012 released airborne asbestos and other contaminants that migrated onto its property, causing injury. Hudspeth (contractor) was also sued but is not part of this appeal.
- The City moved to dismiss for lack of subject matter jurisdiction, asserting sovereign immunity under the Colorado Governmental Immunity Act (CGIA). Smokebrush contended immunity was waived by two CGIA exceptions: the gas facility exception (§ 24-10-106(1)(f)) and the public building (dangerous condition) exception (§ 24-10-106(1)(c)).
- The district court denied the City’s motion, ruling the CGIA waivers applied (and could be applied retroactively). The Court of Appeals reviewed whether CGIA waivers apply retroactively and whether either waiver covers the alleged asbestos release during demolition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CGIA waivers apply retroactively to contamination that occurred before July 1, 1972 | CGIA waivers (gas facility and public building) should cover historic contamination from early 20th-century gas plant | CGIA is prospective; legislature did not intend waiver to apply retroactively | Court: CGIA operates prospectively; waivers do not apply to pre-1972 contamination (City immune for historic contamination) |
| Whether the Gas Admin Building is a "gas facility" under § 24-10-106(1)(f) for asbestos release during 2012 demolition | Gas Admin Building, owned by Gas Department, falls within "gas facility" waiver | "Gas facility" is limited to structures engaged in collection/production/distribution of gas; building was only administrative | Court: Not a gas facility; exception does not apply |
| Whether the public building (dangerous condition) exception applies to asbestos released during demolition | Asbestos migration during demolition was caused by construction/maintenance of a public building and created an unreasonable health risk known/knowable to the City | Demolition is not "constructing" or "maintaining" as those terms are used in CGIA; wholesale demolition ends the building’s service life | Court: Building was "public," but demolition does not fall within "constructing" or "maintaining" for the dangerous-condition waiver; exception does not apply |
| Whether the City was performing an activity that fell within CGIA's definition of "maintaining" or "constructing" when demolition released asbestos | Demolition can be viewed as work on a public building that caused the dangerous condition | "Maintain/maintenance" means keeping a facility in repair; "constructing" means forming/building or altering during its service life; wholesale demolition is the opposite | Court: Demolition is not "maintenance" nor "constructing" within CGIA; waiver inapplicable |
Key Cases Cited
- Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993) (procedure for resolving jurisdictional factual disputes under CGIA)
- Evans v. Board of County Commissioners, 482 P.2d 968 (Colo. 1971) (prospective abolition of governmental immunity; context for CGIA enactment)
- Springer v. City & County of Denver, 13 P.3d 794 (Colo. 2000) (CGIA waivers construed broadly; immunity strictly)
- Padilla v. School Dist. No. 1 in City & County of Denver, 25 P.3d 1176 (Colo. 2001) (interpretation of "constructing" to include alterations during a facility’s service life)
- Pack v. Ark. Valley Corr. Facility, 894 P.2d 34 (Colo. App. 1995) (limitations on what activities qualify as part of operation/maintenance for waiver purposes)