April 21, 2019

Frederick Skillern: Real Estate Case Law — Zoning and Land Use Control (1)

Editor’s note: This is Part 21 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

Mountain-Plains Investment Corp. v. Parker Jordan Metropolitan District
Colorado Court of Appeals, August 15, 2013
2013 COA 123

Special districts; Colorado Open Records Act; fee; deposit; attorney-client privilege log.

Mountain-Plains Investment Corporation and others appeal a summary judgment entered in favor of defendant Parker Jordan Metropolitan District (District) in a dispute over an open records act claim. The court holds:

  • The special district did not have to reveal a consultant’s emails (that it no longer retained) to Mountain-Plains’ shareholders, under C.R.S. § 24-72-202(7), because the District did not make or keep the emails and the consultant did not keep them for it.
  • Charging a retrieval fee without having in place a records retention policy, and requiring a deposit to cover the retrieval fee, did not violate the Colorado Open Records Act, C.R.S. §§ 24-72-201, et seq. No policy was required at the time the records were sought, and C.R.S. § 24-72-203 allows a fee.
  • A fee can be charged to segregate privileged material because C.R.S. § 24-72-204(3)(a)(IV) bars inspection of privileged matter.
  • A fee for a privilege log was proper because C.R.S. § 24-72-205(3) allows a fee for creating a record, and the fee did not exceed the log’s cost.

 

Friends of Denver Parks, Inc. v. City and County of Denver
Colorado Court of Appeals, December 26, 2013
2013 COA 177

City park; conveyance of park land; Denver Charter § 2.4.5.

Defendant, the City and County of Denver (City), agreed to transfer a parcel of land (southern parcel) to a school district so that the district could build a school on it. Plaintiffs, an organization called Friends of Denver Parks, Inc. and several other interested parties, tried to file a referendum petition to repeal the ordinance transferring the southern parcel; however, the City’s Clerk and Recorder refused to accept the petition. Plaintiffs then filed a motion for a preliminary injunction to enjoin the City’s transfer of the southern parcel to the school district. The court denied both requests.

On appeal, plaintiffs argued that the trial court erred in denying their requested relief because (1) the City’s conduct over the years had dedicated the southern parcel as a park under the common law; and (2) the City’s charter requires that voters approve the transfer of a “park belonging to the city as of December 31, 1955.” The Court of Appeals disagreed on both counts.

Denver Charter § 2.4.5 sets forth the sole mechanism as of December 31, 1955 for creating parks and transferring parks. The City did not pass an ordinance dedicating the southern parcel as a park pursuant to § 2.4.5 after December 31, 1955. Additionally, the record did not clearly establish that the City, through its unambiguous actions, had demonstrated an unequivocal intent to dedicate the southern parcel as a park on or before December 31, 1955. Therefore, Denver Charter § 3.2.6 authorized the City to sell or transfer it without following the requirements of § 2.4.5, and the trial court did not abuse its discretion when it determined that plaintiffs did not establish a reasonable likelihood of success on the merits of this issue. The order was affirmed.

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.
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