June 26, 2019

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.
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