Astrid v. Bd. of Cnty. Comm'rs of Larimer Cnty.

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ASTRID, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS OF LARIMER COUNTY, COLORADO Defendant.

Civil Action No. 23-cv-02051-PAB-JPO

United States District Court, D. Colorado

August 20, 2024

ORDER

PHILIP A. BRMMER, CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant's Motion to Dismiss Plaintiff's Amended Complaint (ECF 26) [Docket No. 34] filed by the Board of County Commissioners of Larimer County, Colorado. Plaintiff Astrid^[1]filed a response see Docket No. 36, and defendant filed a reply. Docket No. 42. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

I. BACKGROUND^[2]

Plaintiff is an individual who resides in Larimer County, Colorado (the “County”). Docket No. 26 at 2, ¶ 9. Defendant is the governing entity for the County. Id. at 3, ¶ 10. Plaintiff owns one of eight properties (collectively, the “Profile Rock Community”) located in the County on the south side of the Cache La Poudre River (the “River”). Id. ¶ 11. The only method for accessing the Profile Rock Community was through a one lane private bridge (the “Bridge”) across the River, which connected the eight properties to Colorado Highway 14. Id., ¶¶ 12-13, 16. The Bridge was supported by two support piers: a wooden North Pier and a concrete South Pier. Id., ¶ 15. The concrete South Pier was located in the River. Id. The Bridge was constructed sometime in the 1940s. Id., ¶ 14.

In 1986, the River was designated as part of the federal National Wild and Scenic Rivers System (the “System”), which was created “to preserve certain rivers with outstanding natural, cultural, and recreational values in a free-flowing condition for the enjoyment of present and future generations.” Id., ¶¶ 17-18. Within the System, the River's management plan encourages the modification or removal of low bridges and pylons on a voluntary basis. Id. at 4, ¶ 19. Officials at the United States Department of Agriculture (“USDA”) informed County officials that the Bridge should have no in-stream supports and should be higher. Id., ¶ 22. The County's code requirements for all bridges on the River were established according to the System's guidelines. Id., ¶ 21. The County has an interest in maintaining the status of the River as a Wild and Scenic River. Id., ¶ 20.

On July 20, 2021, a rainstorm caused debris and excess water to flow down the River. Id., ¶¶ 23, 25. Significant amounts of debris collided with the Bridge and piled up near the North Pier. Id., ¶ 27. Although the North Pier did not fail, the debris displaced or tilted two of the five wooden members of the North Pier. Id. at 5, ¶ 28. The increased water flow undermined the South Pier, causing the pier to “rotate and tip sideways, partially into the River.” Id., ¶ 29. Although the Bridge remained standing, there was a visible “vertical dip” in the Bridge of less than one foot. Id., ¶ 30.

On July 21, 2021, the County's engineers inspected the Bridge and two other bridges on the River. Id., ¶ 32. The County engineers' assessment noted that the structure was “currently stable but will become unstable if additional debris hits it.” Id. The assessment recommended the removal of the Bridge or that “further investigation be conducted to determine if the structure can be temporarily stabilized,” noting the risk of downstream damage if additional debris hit the Bridge. Id. On July 23, 2021, the County provided a Right of Entry Agreement to the owners of the Profile Rock Community, whereby the owners would voluntarily agree to the County removing the Bridge. Id., ¶ 33. The owners refused to sign the agreement. Id.

On July 28, 2021, the County's code official issued a Notice of Imminent Danger, pursuant to Section 109 of the County's Property Maintenance Code, prohibiting the crossing of the Bridge. Id. at 6, ¶ 35; see also Docket No. 34-1 at 1-2.^[3] The Notice of Imminent Danger concluded that, if additional debris hit the Bridge, the Bridge could collapse into pieces creating risks downstream to property and human life. Docket No. 26 at 6, ¶ 35; Docket No. 34-1 at 1. The notice found that it was “not feasible” to repair the Bridge because “the cost to repair the existing structure may be considerable and nearly the same cost as constructing a full replacement which meets or exceeds waterway conveyance requirements and removes inherent risk that piers pose in the water.” Docket No. 26 at 6, ¶ 36. The notice stated that any affected person “shall have the right to appeal to the Larimer County Board of Appeals” within 15 days. Id. at 6, 12, ¶¶ 37, 78. The appeal deadline was therefore August 12, 2021. Id. at 6, ¶ 38.

On July 28, 2021, simultaneous with issuing the Notice of Imminent Danger, the code official issued (1) a Notice of Demolition, stating that the Bridge would be demolished between July 29 and August 3, 2021; and (2) an Order for Demolition, ordering the demolition of the Bridge to begin on July 29, 2021. Id. at 7, ¶¶ 39, 41. The Notice of Demolition and Order for Demolition stated that no interested party had filed an appeal, even though there were 14 days left to file an appeal. Id., ¶¶ 40, 42.

On July 29, 2021, plaintiff objected to the demolition of the Bridge and provided defendant's staff with a temporary stabilization plan prepared by a licensed professional engineer. Id., ¶ 43. Plaintiff's engineer informed defendant's staff that the Bridge was not an imminent danger. Id., ¶ 45. On August 2, 2021, plaintiff's engineer gave defendant's staff a stabilization plan to replace the center pier, which would restore the functional capacity of the Bridge. Id. at 7-8, ¶ 46. Defendant's engineer responded that the current code does not allow center piers in rivers. Id. at 8, ¶ 47. Plaintiff's engineer subsequently provided a stabilization plan that did not include a center pier, but defendant refused to consider the plan. Id., ¶¶ 48-49. Defendant gave “no party an opportunity to exercise the appeal process” and failed to offer plaintiff a hearing before demolishing the Bridge. Id. at 13, ¶ 83.

Defendant performed temporary repairs to allow pickup trucks to drive across the Bridge, demonstrating that the Bridge was repairable. Id. at 8, ¶¶ 50-51. However, on August 4, 2021, defendant demolished the Bridge. Id., ¶ 51. Defendant did not approve repairing the Bridge and instead demolished it because the proposed in-stream pylons would “interfere with the natural, cultural, and recreational value of the River.” Id., ¶ 52. The demolition furthered the County's goal of preserving the River's status as a Wild and Scenic River. Id., ¶ 53. The removal of the Bridge was unnecessary because the Bridge could have been repaired and did not pose an imminent danger to human life or property. Id. at 13, ¶ 89. The removal of the Bridge has deprived plaintiff of the only means to access her property. Id. at 10, ¶ 62. Defendant has not provided any compensation to plaintiff. Id. at 11, ¶ 65.

Plaintiff filed this case in the District Court for Larimer County, Colorado on July 19, 2023, see Docket No. 1-1 at 1, and defendant removed the case to this Court on August 14, 2023. Docket No. 1. Plaintiff asserts two claims in her amended complaint: (1) an “inverse condemnation” or takings claim under Article II, Section 15 of the Colorado Constitution; and (2) a Fourteenth Amendment substantive and procedural due process claim pursuant to 42 U.S.C. § 1983. Docket No. 26 at 11-13, ¶¶ 67-91.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must allege enough factual matter that, taken as true, makes the plaintiff's “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The ‘plausibility' standard requires that relief must plausibly follow from the facts alleged, not that the facts themselves be plausible.” RE/MAX, LLC v. Quicken Loans Inc., 295 F.Supp.3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008)). Generally, “[s]pecific facts are not necessary; the statement need only ‘give the defendant fair notice of what the claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555) (alterations omitted). A court, however, does not need to accept conclusory allegations. See, e.g., Hackford v. Babbit, 14 F.3d 1457, 1465 (10th Cir. 1994) (“we are not bound by conclusory allegations, unwarranted inferences, or legal conclusions.”).

“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations and alterations omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his] claims across the line from conceivable to plausible in order to survive a motion to dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint's allegations are “so general that they encompass a wide swath of conduct, much of it innocent,” then plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted). Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at 1286 (alterations omitted).

III. ANALYSIS

A. Due Process Claim

Plaintiff's second claim asserts a due process claim under the Fourteenth Amendment, alleging a violation of both substantive and procedural due process. Docket No. 26 at 12-13, ...