June 26, 2019

Colorado Court of Appeals: Town’s Special District Cannot Include Unincorporated Land Without County Approval

The Colorado Court of Appeals issued its opinion in Bill Barrett Corp. v. Sand Hills Metropolitan District on Thursday, October 6, 2016.

Summary Judgment—Special District Act—Altering District Boundaries and Service Plan—Material Modification Requiring Approval of County Commissioners.

In 2004, the town of Lochbuie approved a proposed service plan (2004 plan) and the district court issued an order and decree organizing the Altamira Metropolitan District No. 6 (the Altamira District). The Altamira District’s boundaries were entirely within Lochbuie. The Altamira development was to include single family homes and commercial space within Lochbuie’s boundaries, but it never occurred.

70 Ranch, LLC owns acreage approximately 30 miles northeast of Lochbuie in unincorporated Weld County. In 2009, the district purported to include the 70 Ranch property within its boundaries, and the district court granted the inclusion. In 2010, the district changed its name from Altamira District to the Sand Hills Metropolitan District. In 2011, the court entered an order granting the district’s exclusion from its boundaries of all the land in Lochbuie that originally comprised the Altamira District. Through this sequence of events, the district relocated itself from Lochbuie to encompass only the 70 Ranch property. No notice was given or approval obtained from the Board of County Commissioners of Weld County.

Bill Barrett Corporation and Bonanza Creek Energy (taxpayers) and Noble Energy, an involuntary plaintiff-appellee (Noble), are oil and natural gas exploration companies that lease mineral interests at 70 Ranch. In 2008, the district’s board of directors approved certification of a mill levy for the district’s general operating expenses. Taxpayers have paid millions of dollars since 2009 (when 70 Ranch was included) in ad valorem taxes to the district.

Despite its 2009 and 2011 actions, the district did not prepare a revised service plan to reflect its new location and adjusted purpose until 2013. Taxpayers sued Sand Hills (the district, United Water and Sanitation District, and Lochbuie (collectively Sand Hills))  in 2013, claiming it exceeded its authority and violated parts of the Special District Act, C.R.S. §§ 32-1-101 to -1807, and the Colorado Constitution. Cross-motions for summary judgment were filed and each was granted in part. The trial court found that (1) the district lost its legal authority to collect taxes after April 28, 2011 when it unilaterally removed itself entirely from Lochbuie, so taxpayers are entitled to a tax refund for taxes paid for tax years 2011, 2012, and 2013; and (2) the district had the authority to tax taxpayers from April 29, 2009 until April 28, 2011, when the District’s boundaries included the 70 Ranch property and the original Altamira District property.

On appeal, Sand Hills argued that it was error to find that the district lost its authority to tax when it relocated itself in 2011. On cross-appeal, taxpayers argued that it was error to find that the district had authority to impose taxes on their mineral interests from 2009 to 2011.

The Colorado Court of Appeals’ analysis of the case focused on applying the plain meaning of C.R.S. § 32-1-207(2)(a), which provides a nonexhaustive list of factors specifying when a district’s modification of its service plan is considered material and requires a petition to and approval from the board of county commissioners. The district court concluded, and the court of appeals agreed, that the district’s failure to comport with the purposes of the 2004 plan along with its complete geographic overhaul in 2011 constituted a material departure from the original service plan. The district was required to obtain approval from the board of county commissioners for such a change. Therefore, the court affirmed the trial court’s grant of taxpayers’ motions for summary judgment as to the time period after April 28, 2011.

The court also concluded that the district’s geographic shift in 2009 to include the 70 Ranch property was a material modification of the district’s 2004 plan that required, but did not receive, the approval of the board of county commissioners. Therefore, the district also did not have taxing authority after 2009. The court reversed the trial court’s judgment as it relates to Sand Hills’ motion for summary judgment for the time period from 2009 until 2011.

The court further concluded that the relief granted to taxpayers applies also to Noble.

The judgment was affirmed in part and reversed in part, and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: County’s Master Plan Retained Advisory Status when Not Incorporated Into Land Development Code

The Colorado Court of Appeals issued its opinion in Friends of the Black Forest Preservation Plan, Inc. v. Board of County Commissioners on Thursday, April 7, 2016.

C.R.C.P. 106(a)(4)—Special Use Permit Appeal—Binding Nature of Master Plans.

Under C.R.C.P. 106(a)(4), plaintiffs, Friends of Black Forest Preservation Plan, Inc. and several residents of the Black Forest area, appealed the district court’s judgment affirming the decision of defendant Board of County Commissioners of El Paso County (Board) approving the special use permit application of defendant Black Forest Mission, LLC (BFM) to construct a greenhouse operation in the Black Forest Preservation area.

BFM proposed to construct a 1.19-acre greenhouse on a 4.87-acre lot it owned in an area governed by the Black Forest Preservation Plan (BFPP), which is contained within El Paso County’s overall master plan. Greenhouses are allowed if less than one acre in size, but a special use permit is required for larger greenhouses.

The Planning Commission recommended by a 6–2 vote that the Board deny BFM’s application for a special use permit because of its inconsistency with both El Paso County’s Policy Plan and the BFPP. At the first hearing before the Board, BFM was granted a continuance to amend its application to attempt to ameliorate various concerns of the Planning Commission and residents. At the next hearing, BFM presented a revised plan proposing three smaller greenhouses that collectively would be larger and would be built on two parcels instead of one. BFM also modified the location to address concerns about light pollution, view obstruction, and traffic congestion. The Board approved BFM’s amended special use application by a vote of 3–2.

Plaintiffs filed this action, arguing the Board misapplied governing law and abused its discretion because of its belief, as relayed by a county attorney, that the county’s master plan was merely advisory. The district court affirmed the Board’s decision, agreeing that the county’s master plan was advisory and there was competent evidence in the record supporting the Board’s decision to approve BFM’s special use permit application. Plaintiffs appealed.

The court of appeals noted that C.R.S. § 30-28-106 provides that master plans may be made binding by formal inclusion in county land use regulations. The court undertook an extensive analysis of El Paso County’s land use regulation scheme and rejected plaintiffs’ argument that the Board’s approval was based on an erroneous legal standard, concluding there was a reasonable basis for the Board’s interpretation of its own regulatory framework. It held that the master plan was advisory and the Board has discretion in deciding how to apply the master plan in its decisions on special use applications.

Plaintiffs also argued it was error for the district court to find competent evidence in the record to support the Board’s decision. The court disagreed.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Excess Mill Levy Tax Illegal Under Special District Act

The Colorado Court of Appeals issued its opinion in Prospect 34, LLC v. Gunnison County Board of County Commissioners on Thursday, November 5, 2015.

Mill Levy—Abatement—Illegal—Abuse of Discretion.

Reserve Metropolitan District No. 2 (RMD2) is a special district located entirely within the town of Mt. Crested Butte (Town) in Gunnison County. RMD2’s service plan—a document statutorily required to organize a special district—states that RMD2’s mill levy “shall not exceed 50 mills, subject to Gallagher Adjustments,” and that any levy beyond 50 mills requires Town approval. By 2013, the mill levy totaled 52.676 mills, including the Gallagher Adjustment of 2.676 mills. The RMD2 board approved certifying to the Gunnison County Board of County Commissioners (BOCC) 55.676 mills, 3mills in excess of the cap in the 2000 service plan, which the Town counsel protested. When RMD2 taxed Prospect Development Company, Inc., and Prospect 34, LLC (collectively, Prospect) at a higher rate, Prospect petitioned the BOCC to abate the excess taxes. After the BOCC denied the petition, Prospect appealed to the Board of Assessment Appeals (BAA). Instead of reaching the merits of this issue, the BAA resolved it against Prospect on the basis of the court’s order denying a summary judgment motion on this issue in a parallel district court action involving RMD2 and Prospect.

On appeal, Prospect first contended that the BOCC must abate the excess mill levy under CRS § 39-10-114(1)(a)(I)(A). The four grounds for abatement provide relief from taxes “levied erroneously or illegally.” Here, the mill levy caps are enforceable. Because the stated procedure was not followed to increase those caps, the excess mill levy was illegal.

Prospect also contended that the BAA acted arbitrarily and capriciously and abused its discretion by relying on an order denying summary judgment as a final determination. Because such an order is not a final determination of the issue raised in the motion, the BAA abused its discretion by not exercising its authority to decide whether the excess mill levy was illegal. The order was reversed and the case was remanded with directions.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Declaratory Judgment Appropriate and Statutory Definition of Firearm Encompasses Bow Hunting

The Colorado Court of Appeals issued its opinion in Moss v. Board of County Commissioners for Boulder County on Thursday, March 26, 2015.

Declaratory Judgment—Firearm—Definition—County Board—Geographic Area.

This case concerns a county resolution that prohibits firearm discharges in a designated area of Sugar Loaf Mountain in unincorporated Boulder County. Moss and Westby live and own property in this area. Colorado Advocates for Public Safety is a nonprofit corporation whose mission is to assist in protecting the public from safety hazards, such as those involving firearms. This dispute between plaintiffs and the Board of County Commissioners for Boulder County (County Board) centers around the definition and scope of this resolution.

On appeal, plaintiffs contended that the district court erred in dismissing their declaratory judgment claim, wherein plaintiffs sought a judicial determination that, as a matter of law, the word “firearm” in CRS §§ 30-15-301 to -302 and Resolution 80-52 includes bows and arrows. Because a declaratory judgment would terminate the controversy or uncertainty regarding the scope of the resolution, plaintiffs’ declaratory judgment claim was properly raised in the district court and the district court erred in declining to address it.

The statute that authorizes counties to prohibit firearm discharges expressly defines “firearm” or “firearms” as “any pistol, revolver, rifle, or other weapon of any description from which any shot, projectile, or bullet may be discharged.” A bow is a weapon and an arrow is a projectile. Therefore, a bow and arrow constitute a “firearm” under this statute, and plaintiffs were entitled to a declaratory judgment in their favor on this issue.

Plaintiffs also requested an expansion of the geographic area covered by the resolution in their claim for injunctive relief. CRS § 30-15-302 does not subject the County Board to any procedural requirements to address plaintiffs’ request, and Colorado’s Administrative Procedure Act does not apply to the County Board. Additionally, plaintiffs concede that they have not asserted and cannot assert a claim under CRCP 106(a)(4) because there has been no final agency action in this case. Finally, plaintiffs have failed to state a constitutional due process claim on which relief can be granted. Therefore, the district court did not err in dismissing plaintiffs’ claim for injunctive relief on this issue.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Board of Assessment Appeals Erred by Not Addressing YMCA’s Declaration of Religious Purposes

The Colorado Court of Appeals issued its opinion in Larimer County Board of Commissioners v. Colorado Property Tax Administrator on Thursday, April 11, 2013.

Property Tax Exemption—Charitable Use Exemption—Religious Purpose Exemption—Jurisdiction.

In this property tax exemption case, the Young Men’s Christian Association of the Rockies (YMCA) and the Colorado Property Tax Administrator (Administrator) appealed the Board of Assessment Appeals (BAA) orders. The BAA found that the YMCA was not entitled to a charitable use exemption or a religious purposes exemption from property taxes, except for its chapels and religious activity center. The orders were vacated in part, the appeal was dismissed in part, and the case was remanded.

The YMCA owns and operates facilities in Grand and Larimer Counties. The Counties contended that the Court of Appeals did not have jurisdiction to entertain the Administrator’s appeal. Because the BAA did not recommend that the matter was of statewide concern, the Administrator may not appeal. Accordingly, the Court did not have jurisdiction to hear the Administrator’s appeal and, therefore, dismissed it.

The Counties contended that the Court did not have jurisdiction to entertain the YMCA’s appeal. CRS § 39-2-117(5)(b) gives any owner of taxable property in such county the right to appeal the tax administrator’s determination regarding an application for a property tax exemption. Therefore, the Court of Appeals had jurisdiction to hear the YMCA’s appeal from the BAA’s determination.

The YMCA also argued that the BAA erred when it found that the YMCA did not qualify for a religious purposes exemption. The BAA did not discuss the YMCA’s declared purpose in using the properties, whether the YMCA’s activities are in furtherance of the YMCA’s religious purposes, or whether the activities are an integral part of the YMCA’s religious worship. Further, the BAA did not address the YMCA’s declaration of religious purposes contained in its application, the effect of the declaration’s presumed validity, or whether the presumption had been overcome. Because such declarations are presumptive with regard to the religious purposes for which property is used, the BAA did not apply the proper legal standards and, therefore, erred as a matter of law.

The YMCA further contended that the BAA erred when it found that the YMCA did not qualify for a charitable use exemption. Based on the record, the BAA did not properly consider whether the YMCA used the properties solely and exclusively for charitable purposes. Accordingly, the BAA did not apply the correct legal standards and, therefore, erred as a matter of law.

Summary and full case available here.

Colorado Court of Appeals: Board of County Commissioners Has Authority to Determine Permitted Uses of Property for Zoning Purposes

The Colorado Court of Appeals issued its opinion in Giuliani v. Jefferson County Board of County Commissioners on Thursday, November 1, 2012.

Medical Marijuana—Local Zoning—Summary Judgment—Colorado Constitution, Amendment 20—Mootness—Medical Marijuana Code.

In this action concerning whether a county may prohibit the operation of a medical marijuana dispensary as a non-permitted use under a local zoning plan, plaintiffs Marc Giuliani and Footprints Health and Wellness, Inc. (collectively, providers) and Christopher Peck and Frank Campbell (collectively, patients) appealed the trial court’s orders partially dismissing their claims and affirming the resolution of the Jefferson County Board of Adjustment (Board). They also appealed the trial court’s summary judgment in favor of defendants, the Jefferson County Board of County Commissioners (BOCC), the Board, and the Jefferson County Division of Planning and Zoning (collectively, County). The appeal was dismissed in part, the judgment was affirmed in part, and the order was affirmed.

The providers leased a commercial unit in a shopping center in unincorporated Jefferson County in September 2009 for the purpose of operating a medical marijuana dispensary. Believing this use would be compatible with the official development plan (ODP) of the shopping center, as zoned, the providers hired a contractor to perform tenant improvements and obtained various permits from Jefferson County.

The business opened in late October 2009. Two months later, the zoning administrator issued a zoning violation notice to the providers, stating the operation of a medical marijuana dispensary was not a permitted use in the zone district. The providers appealed to the Board, which affirmed the administrator’s conclusion.

In May 2010, the providers filed this action, seeking declaratory and injunctive relief and money damages. In March 2011, the patients were permitted to intervene and joined the providers’ claim that the County was preempted by Amendment 20 to the Colorado Constitution from interpreting its zoning regulations so as to impose a de facto ban on medical marijuana dispensaries.

The trial court granted in part the County’s motion to partially dismiss the complaint and denied the request for a preliminary injunction. It also affirmed the Board’s resolution that the dispensary was not a permitted use. It then granted the County’s motion for summary judgment on all remaining claims.

Amendment 20, passed in November 2000, permits patients to possess and use medical marijuana without criminal prosecution in certain circumstances. In the 2010 legislative session, the Colorado Medical Marijuana Code (Code) was enacted. Pursuant to authority granted in the Code, the BOCC approved a resolution in July 2010 prohibiting businesses that cultivate, manufacture, or sell marijuana or marijuana products within unincorporated Jefferson County. None of the parties addressed how the Code affected the issues they raised on appeal, and the Court of Appeals therefore requested supplemental briefing to determine whether the claims were moot in light of the Code’s enactment.

The County asserted that any claims for prospective relief were moot because the Code would prevent the providers from operating the dispensary in unincorporated Jefferson County. The Court agreed.

The Court held that even if it assumed that Amendment 20 created a constitutional right to distribute marijuana for medical use and to receive in from a provider of one’s choice, such rights are not unfettered. Here, the request for declaratory and injunctive relief would have no practical legal effect because of the County’s July 2010 ban on dispensaries and the Code’s requirement that all existing and new dispensaries operate their businesses in accordance with applicable state or local laws. Thus, even without the ban, the providers would have needed to apply and be approved by a local licensing authority. Such approval cannot be obtained under the ban; therefore, the claims for injunctive and declaratory relief are moot.

Alternatively, the patients and providers claimed they were “grandfathered” under CRS § 38-1-101. The Court disagreed. The statute limits the broad land-use-planning authority of counties by prohibiting a local government from enacting or enforcing an ordinance, resolution, or regulation in such a way that terminates or eliminates by amortization a nonconforming property use that was lawful at its inception. Here, assuming the statute applies, the dispensary was not lawful in 2009; therefore, there was no basis for it to be lawfully grandfathered.

The providers argued it was error to dismiss their equitable estoppel claim because the Colorado Governmental Immunity Act (CGIA) does not apply to claims seeking injunctive and declaratory relief. The Court disagreed. Equitable estoppel applies where a plaintiff detrimentally relies on a defendant’s misstatement of fact. It lies in tort. Here, the providers claimed the County led them to reasonably believe a dispensary was a permitted use on their property. Thus, the claim was a tort claim and it was not error to dismiss it under the CGIA (the nature of the damages sought is immaterial).

The providers also contended it was error to dismiss their money damages claims for the County’s violations of their due process, equal protection, and article XVIII, § 14, rights under the Colorado Constitution. The Court disagreed. The due process clause of the Colorado Constitution does not create an implied cause of action in damages. Equal treatment under the laws in Colorado is a right under the due process clause. The providers thus have no entitlement to money damages for state due process and equal protection claims.

The providers further argued that the Board impermissibly based its decision on a de facto ban on dispensaries. Because the Board reasonably concluded the dispensary was not a use expressly contemplated by the zoning resolution, the Court found no abuse of discretion. The appeal was dismissed with respect to the patients’ and providers’ claims for declaratory and injunctive relief. In all other respects, the judgment was affirmed.

Summary and full case available here.