August 25, 2019

Archives for May 18, 2015

Frederick Skillern: Real Estate Case Law — Zoning and Land Use Control (3)

Editor’s note: This is Part 22 of a series of posts in which Denver-area real estate attorney Frederick Skillern provides summaries of case law pertinent to real estate practitioners (click here for previous posts). These updates originally appeared as materials for the 32nd Annual Real Estate Symposium in July 2014.

By Frederick B. Skillernfrederick-b-skillern

Board of County Commissioners of Teller County v. City of Woodland Park
Colorado Supreme Court, May 20, 2014
2014 CO 35

Municipal Annexation Act of 1965; timely motion for reconsideration with the municipality as condition to judicial review; C.R.S. § 31-12-116.

The Supreme Court, in a direct appeal by Woodland Park under C.A.R. 21, holds that the district court lacked jurisdiction to review Teller County’s petition for judicial review of an annexation by the City of Woodland Park under C.R.S. § 31-12-116. Subsection (2)(a)(II) of the statue requires a party (such as a county in which the property is located) to file a motion for reconsideration with the governing body of the annexing municipality within ten days of the effective date of an annexation ordinance as a precondition for obtaining judicial review of a municipal annexation. The effective date of the ordinance can, and is here, different than the effective date of the annexation. The petition for reconsideration with the City should have been filed by September 16, 2013, but was not filed until September 20, 2013.


Town of Dillon v. Yacht Club Condominiums Home Owners Association
Colorado Supreme Court, May 27, 2014
2014 CO 37

Homeowners association; town parking ordinance; “tandem” parking in town right-of-way; police power; due process.

This is a declaratory judgment action brought by a condominium association near the Dillon Marina in Summit County. The small complex was built in the 1960’s, not long after the creation of the Dillon reservoir, and occupies the corner of an intersection of two residential streets (Tenderfoot and Gold). The reservoir lies to the rear. The condominium buildings consist of approximately 64 “available units,” but only 44 parking spaces. The discrepancy is apparently due to the creation of additional “lockoff” units through subdivision of original units over the years. Over the decades, parking became a problem, for neighbors, bicyclists, and the town. The project provides parking for its owners in paved spaces in front of the building, which is parallel to the adjacent streets. In recent years the occupants have adopted the practice of parking “two cars deep,” front to rear, at right angles to the building along both city streets. This created some stress, as cars parked in front of the building might be forced to back out through a “tunnel” of two cars on each side. Moreover, the second row of cars frequently (neighbors might say substantially) encroached on the town “right-of-way,” which is Town property.

The Town sought by ordinance to prohibit the stacked parking procedure, citing the danger and inconvenience to town residents and interference with the town’s new recreational path — a popular bicycle path connecting Dillon with Frisco and Keystone.

Noting that “only one” accident had been reported in the past 40 years, the district court ruled that the parking ordinance was unreasonable, and a violation of procedural due process. Along with this came an award for attorney fees against the Town under 42 U.S.C. § 1985. The court of appeals affirmed, in an unpublished decision, reasoning that the ordinances were not reasonably related to a legitimate governmental interest because they caused the condo owners significant economic harm and there were alternatives available which would have furthered the Town’s interests. The supreme court accepted the case for review, which is interesting for an unpublished, 3-0 decision. The court reverses the lower courts.

The Supreme Court, in a 7-0 decision by Justice Marquez, holds that the Town did not abuse its police power in enacting the two parking ordinances at issue here.

Can a municipality constitutionally exercise its police power to undertake a road improvement project that eliminates parking on the municipality’s street near a condominium? An ordinance comports with due process where it bears a reasonable relationship to a legitimate government interest. The two ordinances here were within the Town’s police power to regulate matters of public health, safety, and welfare, and were a reasonable exercise of that power because the measures are reasonably related to the Town’s objectives of improving traffic safety, improving water drainage, and remedying a missing portion of a recreational bike path.

Importantly, the Court holds that the inquiry turns on the reasonableness of the relationship between the ordinance and the government objectives to be achieved, and not on the burden on the complaining party or the availability of less burdensome alternatives. Accordingly, the Court reversed the court of appeals’ judgment, and remands the case to the court of appeals for further proceedings – the lower court had affirmed the district court’s ruling solely on the police power issue, without considering the district court’s alternative findings that the ordinances were unconstitutionally retrospective.

Frederick B. Skillern, Esq., is a director and shareholder with Montgomery Little & Soran, P.C., practicing in real estate and related litigation and appeals. He serves as an expert witness in cases dealing with real estate, professional responsibility and attorney fees, and acts as a mediator and arbitrator in real estate cases. Before joining Montgomery Little in 2003, Fred was in private practice in Denver for 6 years with Carpenter & Klatskin and for 10 years with Isaacson Rosenbaum. He served as a district judge for Colorado’s Eighteenth Judicial District from 2000 through 2002. Fred is a graduate of Dartmouth College, and received his law degree at the University of Colorado in 1976, in another day and time in which the legal job market was simply awful.

Medical Marijuana, Statewide Ballot Initiatives, and More Bills Signed

On Monday, May 18, 2015, Governor Hickenlooper signed five bills into law. To date, he has signed 224 bills this legislative session. The bills signed Monday are summarized here.

  • HB 15-1270 – Concerning Authorization for Local Education Providers to Operate Pathways in Technology Early College High Schools, and, in Connection Therewith, Making an Appropriation, by Reps. Crisanta Duran & Mike Foote and Sens. Nancy Todd & Laura Woods. The bill authorizes the creation of a P-Tech school to prepare students for careers in industry.
  • HB 15-1274 – Concerning the Creation of Career Pathways for Students for Critical Occupations in Growing Industries, and, in Connection Therewith, Making an Appropriation, by Reps. Alec Garnett & Jovan Melton and Sens. Andy Kerr & Laura Woods. The bill requires that the Colorado Workforce Development Council design integrated career pathways in identified industries where no clear career pathways are indicated.
  • SB 15-197 – Concerning the Prescriptive Authority of Advance Practice Nurses, by Sens. Larry Crowder & Cheri Jahn and Reps. Rhonda Fields & Yeulin Willett. The bill makes several changes to the prescriptive authority of advance practice nurses, including eliminating preceptorship hours and reducing mentorship hours.
  • HB 15-1057 – Concerning the Process for a Statewide Initiative to be Placed on a Ballot, and, in Connection Therewith, Making an Appropriation, by Reps. Lois Court & Brian DelGrosso and Sens. Jerry Sonnenberg & Mary Hodge. The bill requires the Legislative Council Staff to prepare fiscal impact statements for all ballot measures submitted to the title board, not just citizen-initiated measures.
  • SB 15-014 – Concerning Marijuana Issues that are Not Regulated by the Department of Revenue, and, in Connection Therewith, Making Appropriations, by Sen. Irene Aguilar and Rep. Jonathan Singer. The bill makes several changes to the regulation of medical marijuana in Colorado, including requiring DORA to establish guidelines for physicians to follow when prescribing medical marijuana for severe pain.

For a complete list of Governor Hickenlooper’s 2015 legislative decisions, click here.

Colorado Supreme Court: Announcement Sheet, 5/18/2015

On Monday, May 18, 2015, the Colorado Supreme Court issued one published opinion.

Pena-Rodriguez v. People

The summary of this case is forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 5/18/2015

On Monday, May 18, 2015, the Tenth Circuit Court of Appeals issued two published opinions and seven unpublished opinions.

London v. Beaty

United States v. Steele

United States v. Washington

United States v. Helton

United States v. Ailsworth

United States v. Tucker

Yellowbear v. Ashe, Director, U.S. Fish & Wildlife Service

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Several Bills Signed Last Week by Governor Hickenlooper

On Monday through Thursday last week, Governor Hickenlooper signed several bills into law. To date, the governor has signed 219 bills into law. The bills signed last week are summarized here.

Monday, May 11, 2015

  • HB 15-1198 – Concerning Enactment of the 2008 Amendments to the “Uniform Interstate Family Support Act”, by Rep. Mike Foote and Sen. Pat Steadman. The bill updates the Uniform Interstate Family Support Act to comply with mandates of the Hague Convention.
  • HB 15-1212 – Concerning Making Permanent the State Board of Land Commissioners’ Authority to Sell State Trust Land to Local Governments, by Rep. KC Becker and Sens. Andy Kerr & Michael Merrifield. The bill makes permanent the State Land Board’s authority to convey land to a local government twice in a year.
  • HB 15-1214 – Concerning Opioid Analgesics with Abuse-Deterrent Properties, by Rep. Jonathan Singer and Sen. John Cooke. The bill requires the governor to direct the Colorado Consortium for Prescription Drug Abuse Prevention to study the use of abuse-deterrent opioid analgesic drugs.
  • HB 15-1280 – Concerning the Creation of a Capital Reserve in Certain Cash Funds, by Rep. Dave Young and Sen. Kevin Grantham. The bill requires state agencies to identify capital reserves to pay costs associated with capital assets.
  • HB 15-1308 – Concerning Certain Responsibilities of the Legislative Branch with Respect to the “State Measurement for Accountable, Responsive, and Transparent (SMART) Government Act”, by Reps. Dominick Moreno & Polly Lawrence and Sens. Kevin Lundberg & Rollie Heath. The bill amends provisions of the SMART Act concerning meetings between members of the General Assembly and executive directors of state agencies.
  • SB 15-100 – Concerning Implementation of Recommendations of the Committee on Legal Services in Connection with Legislative Review of Rules and Regulations of State Agencies, by Sen. Pat Steadman and Reps. Mike Foote & Beth McCann. The bill continues some agency rules and regulations and allows others to expire based on recommendations of the Committee on Legal Services.
  • SB 15-104 – Concerning the Continuation of the Colorado Division of Securities, and, in Connection Therewith, Implementing the Recommendations of the 2014 Sunset Report by the Department of Regulatory Agencies, by Sen. Chris Holbert and Rep. Pete Lee. The bill continues the Division of Securities and implements the recommendations of the sunset review.
  • SB 15-110 – Concerning the Continuation of the Regulation by the Director of the Division of Professions and Occupations of Funeral Establishments, and, in Connection Therewith, Implementing the Recommendations of the Department of Regulatory Agencies as Contained in the 2014 Sunset Report and Making an Appropriation, by Sen. Randy Baumgardner and Rep. Joann Ginal. The bill continues the registration of funeral homes and crematories and implements suggestions of the sunset review.
  • SB 15-211 – Concerning an Automatic Funding Mechanism for Payment of Future Costs Attributable to Certain of the State’s Capital Assets, by Sen. Kent Lambert and Rep. Bob Rankin. The bill creates a process to automatically set aside capital to finance depreciation of assets.
  • SB 15-250 – Concerning Capital-Related Transfers of Moneys, by Sen. Kent Lambert and Rep. Millie Hamner. The bill changes the source of some capital construction fund moneys and makes three transfers to the CCF.

Tuesday, May 12, 2015

  • SB 15-022 – Concerning the Wildfire Risk Reduction Grant Fund, by Sen. Ellen Roberts and Rep. J. Paul Brown. The bill transfers funds into the Wildfire Risk Reduction Grant Fund and changes terminology.
  • SB 15-205 – Concerning the Utilization of Veterans’ Fire Corps Programs by the Division of Fire Prevention and Control in the Department of Public Safety, by Sens. Ellen Roberts & Leroy Garcia and Reps. Jon Keyser & Millie Hamner. The bill recognizes the existence of veterans’ fire corps programs and authorizes the Department of Public Safety to use the Wildfire Preparedness Fund to train, equip, and supervise a veterans’ fire corps crew.
  • HB 15-1006 – Concerning the Establishment of a Grant Program for the Management of Invasive Phreatophytes, and, in Connection Therewith, Making an Appropriation, by Reps. Don Coram & Ed Vigil and Sen. Jerry Sonnenberg. The bill creates a two-year grant program for the management of invasive phreatophyte plants in riparian zones of the state.

Wednesday, May 13, 2015

  • HB 15-1173 – Concerning a Requirement that Motor Vehicles Have Certain Traction Equipment when Driving on the Interstate 70 Mountain Corridor, by Reps. Diane Mitsch Bush & Bob Rankin and Sen. Nancy Todd. The bill requires all drivers using I-70 between Morrison and Dotsero between November 1 and May 15 to use mountain snow tires or chains or have a four-wheel drive/all-wheel drive vehicle and imposes penalty for drivers who do not comply with this regulation.
  • HB 15-1225 – Concerning the Provision of State Assistance to Local Governments for the Purpose of Improved Coordination in Federal Land Management Decision-Making, and, in Connection Therewith, Making an Appropriation, by Reps. Bob Rankin & KC Becker and Sens. Ellen Roberts & Kerry Donovan. The bill requires certain executive branch officers and directors to provide support to local governments affected by federal land management.
  • HB 15-1271 – Concerning the Funding of Mobile Learning Labs Through the Colorado Existing Industry Training Program, by Reps. Susan Lontine & Millie Hamner and Sens. Vicki Marble & Kerry Donovan. The bill authorizes the Colorado Existing Industry Training Program to fund mobile learning labs, or stand-alone vehicles equipped with program-specific hands-on learning modules.
  • SB 15-138 – Concerning Funding for the Accelerating Students Through Concurrent Enrollment Program, by Sen. Kerry Donovan and Rep. Jim Wilson. The bill clarifies distribution of funding for ASCENT students.
  • SB 15-282 – Concerning the Establishment of a Rural Jump-Start Program in Highly Distressed Counties of the State for New Businesses that Bring New Jobs to the State, and, in Connection Therewith, Making an Appropriation, by Sens. Ray Scott & Michael Johnston and Reps. Crisanta Duran & Yeulin Willett. The bill provides tax benefits to new businesses that locate in a rural jump-start zone.

Thursday, May 14, 2015

  • HB 15-1217 – Concerning the Ability of a Local Licensing Authority to Provide Input to the State Licensing Authority on Applications for Approval to Operate a Sales Room Submitted by Certain Persons Licensed Under the “Colorado Liquor Code”, and, in Connection Therewith, Making an Appropriation, by Rep. Jonathan Singer and Sen. Chris Holbert. The bill allows local governments to provide input on sales room license requests.
  • HB 15-1232 – Concerning the Emergency Use of Epinephrine Auto-Injectors by Authorized Entities, and, in Connection Therewith, Making an Appropriation, by Reps. Joann Ginal & Lois Landgraf and Sens. Nancy Todd & Beth Martinez Humenik. The bill authorizes various facilities such as daycare centers, amusement parks, restaurants, and other locations where anaphylaxis could occur, to stock a supply of epinephrine auto-injectors via a valid prescription.
  • HB 15-1358 – Concerning Creating a Permanent Differential Response Program for Child Abuse or Neglect Cases of Low or Moderate Risk, by Rep.  Jonathan Singer and Sens. Kevin Lundberg & John Kefalas. The bill continues the Differential Response Pilot Program to divert low- and moderate-risk cases of abuse or neglect to voluntary services rather than adversarial court intervention.
  • SB 15-253 – Concerning the Funding of Colorado Water Conservation Board Projects, and, in Connection Therewith, Making an Appropriation, by Sen. Jerry Sonnenberg and Rep. Ed Vigil. The bill appropriates money from the CWCB Construction Fund for specific projects in FY 2015-16 and authorizes additional transfers.

For a complete list of Governor Hickenlooper’s 2015 legislative decisions, click here.

Tenth Circuit: No Error in Admission of Anonymous 911 Call for Purpose of Explaining Investigation

The Tenth Circuit Court of Appeals issued its opinion in United States v. Edwards on Tuesday, March 24, 2015.

After an anonymous 911 call alerted McAlester, Oklahoma police about two men transporting drugs, Maurice Edwards and Tony Washington were arrested. Both were charged with aiding and abetting each other to possess controlled substances with intent to distribute. At trial, Edwards objected to admitting the phone call into evidence, but the trial court ruled that the call was admitted for the limited purpose of explaining why an investigation was undertaken and therefore was not hearsay. The jury found defendant guilty beyond a reasonable doubt of either possession with intent to distribute or aiding and abetting possession with intent of marijuana and 5 grams or more of methamphetamine.

Edwards raised three arguments on appeal: (1) the phone call was testimonial hearsay and its admission violated the Confrontation Clause; (2) his indictment charged him only as an aider and abettor, not a principal, so the trial evidence and jury instructions constructively amended his indictment; and (3) in order for him to have been convicted as an aider and abetter, the jury was required to find beyond a reasonable doubt that someone else was the principal.

The Tenth Circuit first addressed the anonymous 911 call. Even assuming the call was inadmissible hearsay, the Tenth Circuit found any error was harmless because other evidence of Edwards’ guilt was overwhelming, the trial court issued a limiting instruction, and the Tenth Circuit found Edwards’ proffered defense “utterly implausible.”

Next, the Tenth Circuit evaluated Edwards’ constructive amendment argument for plain error since it was not properly preserved below. The Tenth Circuit found that Edwards’ argument failed at the first prong of the plain error test because there was no error. His indictment was sufficient to charge him both as a principal and an aider and abettor. The Tenth Circuit noted the indictment allowed Edwards to assert a double jeopardy defense.

The Tenth Circuit next evaluated Edwards’ argument that the aiding and abetting instruction omitted the essential element that someone else committed the crime. Again, the Tenth Circuit’s review was for plain error because the argument was not preserved below. The Tenth Circuit first noted there was no requirement for the district court to follow pattern jury instructions, and found that if there was any error in the proffered instructions, it was not plain.

The Tenth Circuit affirmed Edwards’ conviction.

Colorado Court of Appeals: Announcement Sheet, 5/14/2015

On Thursday, May 14, 2015, the Colorado Court of Appeals issued no published opinion and 41 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 5/15/2015

On Friday, May 15, 2015, the Tenth Circuit Court of Appeals issued one published opinion and seven unpublished opinions.

United States v. Raymonde

United States v. Allen

United States v. Allen

United States v. Jackett

Warden v. City of Grove, Oklahoma

Jimenez v. Stone

Whitmore v. Mask

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.