The Colorado Court of Appeals issued its opinion in 1405 Hotel, LLC v. Colorado Economic Development Commission on Thursday, September 10, 2015.
Standing—Timeliness—CRCP 106(b)—CRS § 24-4-106(4).
In 2009, the General Assembly enacted the Colorado Regional Tourism Act (RTA) to provide a mechanism through which as many as two local governments per year can obtain sales tax increment financing for the development of large-scale regional tourism projects. Before approving a project, the Colorado Economic Development Commission (CEDC) is required to make several specific findings and to adopt a resolution with specific funding and authorization provisions.
During the RTA’s inaugural application cycle in 2011, the City of Aurora (Aurora) submitted a proposal to build a $824 million hotel and conference center (Gaylord Project). In May 2012, the CEDC announced its intention to approve the Gaylord Project’s requested $81 million tax increment subsidy if certain conditions were met within 120 days. Later that month, the developer announced it was going to withdraw from the Gaylord Project. During the May 2013 CEDC meeting, Aurora announced that RIDA Development Corp. (RIDA) had agreed to develop a project similar to the Gaylord Project and that Marriot International would operate it (IDA/Marriot Project). Aurora did not submit a new RTA application.
In July 2013, plaintiffs, eleven hotels along Colorado’s Front Range (collectively, Hotels), joined by others, submitted a petition to the CEDC requesting it require Aurora to submit a new RTA application for the RIDA/Marriot Project. In August 2013, the Attorney General denied the petition as untimely. In October 2013, the CEDC adopted a final resolution approving Aurora’s RTA application for the RIDA/Marriot Project.
In September 2013, the Hotels filed this action against the CEDC and Aurora. In December 2013, Aurora moved for a CRCP 12(c) judgment on the pleadings as to three of its claims and for judgment on the third claim. The district court granted the motion.
The Court of Appeals first addressed the issue of whether the Hotels’ claims were untimely, thereby depriving the court of subject matter jurisdiction. CRCP 106(b) requires a party seeking judicial review pursuant to CRCP 106(a)(4) to file a complaint within 28 days after the final decision of the tribunal being challenged. CSR § 24-4-106(4) provides for a 35-day window to challenge a final agency action. The issue here was when the “point of administrative finality” was for purposes of judicial review. The Court held it was in October 2013, when the CEDC adopted a resolution memorializing the terms of the award. Consequently, the Court had to consider whether the premature filing of a complaint by the Hotels in September 2013 rendered it untimely. The Court determined it did not and held that the district court obtained jurisdiction of the earlier filed complaint in October 2013.
The Court then turned to the Hotels’ argument that it was error to find they lacked standing to bring three of their four asserted claims for relief. Standing requires establishment of an “injury in fact” to a legally protected interest. The Court concluded that the Hotels’ alleged injury was “indirect and incidental” to Aurora’s alleged wrongdoing: even if the RIDA/Marriot Project would cause the Hotels economic harm by taking customers from them, the harm is not directly caused by the CEDC or Aurora’s conduct in allegedly failing to comply with the RTA. The Hotels therefore lacked standing to bring three of their four claims for relief.
Finally, because the remaining claim turned on finding that the May 2012 approval of the Gaylord Project constituted a final agency action, and the Court found that was not the case, it did not need to address the appeal of this claim. The order was affirmed.