Legal Opinion Sent to City that Cannot Approve Non-Final CDP

In an August 17 email to City and County of Broomfield (CCOB) Attorney Shaun Sullivan and CCOB Manager Charles Ozaki, Attorney and Wildgrass resident Mark Lindner stated his legal opinion that “the City Manager cannot approve a non-final revision of the CDP, and no party can deem such an approval to be valid in a Colorado court of law.”  He cites his reasons from the Operator Agreement, Broomfield Municipal Code and Colorado court cases involving contractual law in the following email:

“To the City Attorney and City Manager of Broomfield, CO,

I am writing to you in regard to the contractual validity of a potential approval or potential conditional approval by the City Manager of Extraction’s Comprehensive Drilling Plan (“CDP”) under the Operating Agreement(“OA”) between Broomfield and Extraction, and under the Broomfield Municipal Code 17-54(“BMC”) incorporated by the OA, as dated on October 25th, 2017.

Section 9 of the OA states:

… the Operator shall submit a Comprehensive Drilling Plan and Application for such New Wells or Well Sites for review and approval by the City”

and Section 12 of the OA further states:

“The City shall issue administrative approvals, by the City Manager or his designee, for the operations allowed for by this Agreement, in accordance with the procedures set forth in this Agreement and Chapter 17-54 of the Broomfield Municipal Code, if such operations comply with the requirements of this Agreement, …”

While the OA clearly states the City Manager is empowered to make the formal approval, the OA is silent as to the distinction between revisions of a CDP and how those revisions, if any, are to be handled in detail. However, the BMC is clear on how revisions of the CDP are to be handled.

A portion of Section BMC 17-54-200(between sections 8 and 9) reads:

If revisions [of the CDP] were necessary, the city shall be provided ten working days to review the revised application. Upon determination by the city that all issues have been resolved, the plans shall be considered the final copy of the application and exhibits. The city’s planning director shall forward the final copy of the application materials for final review by the city manager.

In this section, the BMC references a “final copy” of the CDP, and further requires that the city must determine that all issues have been resolved before a version of the CDP has been made “final”. Only then will the final copy be forwarded to the City Manager.

Under binding contract interpretation precedent as referenced in Bledsoe Land Company v. Forest Oil (Colorado Court of Appeals No. 09CA2807, 2011):

“The intent of the parties to a contract is to be determined primarily from the language of the instrument itself.” Fibreglass Fabricators, Inc. v. Kylberg, 799 P.2d 371, 374 (Colo. 1990). When several documents are part of a single transaction, they should be read together as a whole, not in isolation, to determine the parties’ intent. In re Water Rights of Town of Estes Park, 677 P.2d 320, 327 (Colo. 1984). To ascertain whether certain provisions of a contract are ambiguous, “the language used therein must be examined and construed in harmony with the plain and generally accepted meaning of the words employed and by reference to all the parts and provisions of the agreement and the nature of the transaction which forms its subject matter.” Cheyenne Mountain School Dist. No. 12 v. Thompson, 861 P.2d 711, 715 (Colo. 1993)

Under this binding precedent, the OA and BMC must be read together as a whole to determine the parties intent, and any ambiguities must be examined by reference to all parts and provisions of the agreement, including Section 17-54-200 of the BMC. Accordingly, the above referenced section of the BMC requiring a final copy of the CDP wherein the city has determined that all issues have been resolved, must be given meaning and effect under the OA.

The effect that the section of BMC 17-54-200 has on the validity of an approval of the CDP by the City Manager is that the City Manager must have received a final copy of the CDP that has been determined by the City Council that all issues have been resolved. Otherwise the City Manager doesn’t have anything in hand that can be legally and validly approved.

Furthermore, any approval by the City Manager of a non-final revision of the CDP that has not been determined by the City Council to have all issues resolved would be open to validity challenges by the City itself and by its residents, and any subsequent actions taken based on a non-valid approval would be subject to immediate injunctions and damages per liability claims.

Lastly, as a separate issue, there is no final CDP. The most recent active revision of the CDP that has not been withdrawn is the one from April, and that cannot possibly or legally constitute a final CDP.

In conclusion, under Colorado Contract Law, Broomfield Municipal Code, and the Operating Agreement, the City Manager cannot approve a non-final revision of the CDP, and no party can deem such an approval to be valid in a Colorado court of law.

Best Regards,

Mark Lindner    August 17, 2018

Colorado Atty # 49192

New York Atty # 5567375

USPTO # 77199″