Shea-Connelly Development, the developer for the MorningStar assisted living facility in Fountain Hills, has filed a notice of claim against the town in Maricopa County Superior Court.

Shea-Connelly Development (SCD) is claiming intentional interference by the town in the developer’s construction contract and prospective economic advantage. The company is seeking $600,000 in damages.

The court claim states that beginning in August 2015 through early February, the town has “wrongfully interfered with SCD’s ways and means of its work.”

It states that due to such conduct by the town the developer has experienced at least 120 days of delay on the project.

The claim cites nine specific items of inappropriate action by the town including:

*requiring a development agreement for a retention pond on private property;

*creating a conflict between two private land owners relating to a private easement agreement;

*creating conflicts with the replat process;

*creating delay in the improper review and modifications of construction documents that were to be solely handled through third party review;

*insisting that deferred submittals be approved by the town prior to ordering materials;

*creating new inspection categories such as plumbing at the slab and new inspection criteria for shaft liner in pre-rock;

*working with Brown & Associates to insert items on a correction list which were inappropriate and beyond the scope of their authority;

*causing inappropriate and unwarranted redlines to SRP construction drawings;

*causing inappropriate and unwarranted inspections on trusses.

This is not the complete list, according to court documents.

“The cumulative impact of this wrongful conduct caused a minimum 120-day project delay to the detriment of SCD,” the claim states.

“Since the inception of the MorningStar project, the town has intentionally and wrongfully interfered with SCD’s ways and means of construction.”

It further states that the project was bid based on the estimates of labor and materials costs calculated in conjunction with duration of construction.

“Because construction has been delayed…as the direct and proximate result of the town’s wrongful conduct, SCD is required to commit additional overhead to the project and will be subject to liquidated damages,” the claim states.

Damages are expected to exceed $695,000 according to SCD.

The town forwarded the claim to its insurance Risk Pool and has 60 days if it chooses to answer the claim. That deadline should be April 4. If the town does not respond to the claim, SCD is likely to follow with a civil lawsuit asking the court to order compensation.

Separate action

In a separate filing of a special action, Shea-Connelly is challenging an inspection report and circumstances in bringing an appeal to a Building Safety Board of Appeals established by the town.

A staff report previously prepared for that board indicated that an inspector for the contract company doing the inspections for the town arrived on the site for an unannounced visit related to business other than an inspection.

While there, the inspector observed that drywall material on the site was stored without protection from rain that was or had been falling. Also, there was an indication drywall already installed was getting wet from the storm.

The inspector wrote this up and the town asked that the exposed drywall be replaced or monitored and tested to assure mold would not become a problem.

SCD challenged the requirement and asked for an appeal to the board, which at that time the town did not have.

The council did appoint a five-member board, plus three alternates. The board was scheduled to hear the appeal Feb. 24. However, that meeting was canceled and never rescheduled.

In its complaint SCD is alleging that staff, in this case the community development director, was the inappropriate person to interview and screen candidates for the Board of Appeals. They also state he discussed specifics of the case with candidates and his selection of members was done with deliberate bias.

They also state that the meeting of the board was cancelled unilaterally by the town manager without consultation with SCD.

“By unilaterally cancelling the meeting without just cause or reason (SCD) has been unconstitutionally denied (its) right of procedural due process.

“Moreover, in light of the patent bias relating to the selection of the board members, plaintiffs have also been denied their right to substantive due process.”

SCD is asking the court to remove the inspector’s observational reports from the correction log and order that no further destructive testing be required for the subject wall assemblies.