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Trinity Broadcasting of Denver Inc. v. City of Westminster3/15/1993
Trinity Broadcasting of Denver, Inc. (Trinity) appeals the district court's granting of summary judgment in favor of the City of Westminster (Westminster) dismissing Trinity's claims under the Governmental Immunity Act and for inverse condemnation arising out of damage to a building built and owned by Trinity allegedly caused by water leaking from water storage tanks owned and operated by Westminster. We affirm the judgment of the district court with respect to inverse condemnation and reverse its judgment concerning the Governmental Immunity Act. We also hold that the notice requirement of the Governmental Immunity Act is not facially unconstitutional and that it is not unconstitutional as applied to Trinity based on the limited facts before us.
I.
In 1986, Trinity constructed a media center building near the top of a hill at 9020 Yates Street in Westminster. About 100 yards away at the top of this hill, Westminster owns and operates two water storage tanks, each of which has a three million gallon capacity.
In 1983, some three years before it began construction, Trinity contracted for a subsurface investigation of the building site. The contractor found no free water in its drilling samples but recommended in a November 1983 report that the building be built on piers or caissons extending into the ground rather than constructed on a pad or slab foundation. This recommendation, which was also made in September of the same year by an architectural firm, William E. Skinner & Associates, and in 1985 by a soil engineer, Raymond Stewart of Stewart Engineering, Inc., was made because of the particular soil involved. Moisture in such soil would create a high risk of structural distress in a pad foundation building. Even though the 1983 soil report found no free water in the soil, the report noted that the church building next to Trinity's site had badly heaved floors with differential vertical movement of as much as one inch.
Despite these recommendations, Trinity built its media center on a slab foundation. By October 1987, some of Trinity's employees noticed cracking in the floors and walls of the building, including at least one steel I-beam pulling out of a wall. Trinity claims that it thought that this cracking was caused by the building settling a little more than normal. In early 1988, Trinity contracted with a company called 3-D Piering to investigate. 3-D Piering reported that there seemed to be some instability in the foundation, which, without performing any tests, it thought was caused by the compressing soil. 3-D Piering installed a number of steel piers under the building in an attempt to stabilize the foundation and completed its work in the spring of 1988.
This repair work stopped the cracking for a while. In December 1988, however, the cracking began anew and, in April 1989, Trinity hired Robert Maury, a soil engineer, to investigate the cause of the cracks. In late April or early May of 1989, Maury informed Trinity that the building's distress occurred because of moisture in the soil which caused the sands in the soil to consolidate and the clays to expand, and that the probable source of that moisture was Westminster's water tanks. In an affidavit, Maury stated that Trinity's personnel appeared to be surprised that the water tanks were the probable cause of the building's structural problems.
On August 31, 1989, Trinity sent a notice of claim to Westminster via registered mail pursuant to the Governmental Immunity Act, sections 24-10-1 to -120, 10A C.R.S. (1988 & 1992 Supp.). On September 18, 1989, Trinity filed a complaint in the district court alleging breach of contract and negligence against its construction compa
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