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Appealing a Quasi-Judicial Zoning Decision in Colorado Under C.R.C.P. 106(a)(4)

Zoning ordinances and regulations are the most common method local governments use to determine and regulate specific uses of land in their local area. For example, communities will often adopt zoning regulations to limit the use of particular parcels of land to specific types, such as commercial, residential, or industrial use. These restrictions are intended to protect the character of particular areas in the community to prevent conflicting uses of property that could be potentially harmful, such as the building of an industrial facility in the middle of a residential area.

Accordingly, because zoning regulations are generally oriented towards promoting public health and safety in a local area, zoning determinations are generally deemed to be matters of local concern as opposed to a statewide interest. That is, zoning regulations are typically promulgated by local governments at the county and municipality level as opposed to being adopted at the state level in the form of state laws. From a legal perspective, zoning requirements fall under a local government’s power to regulate the behavior within its own territory and the exercise of that power by counties and municipalities has been deemed a legitimate and constitutional exercise of that power. See Levy v. Arapahoe Cnty. Bd. Of Adjustment, 369 P.2d 991 (Colo. 1962).

While the passing of initial zoning ordinances or regulations is generally seen as the local government acting in a legislative capacity, applying those zoning ordinances or varying those zoning ordinances is generally seen as quasi-judicial action. See City of Louisville v. Dist. Court, 543 P.2d 67 (Colo. 1975); City of Greeley v. Ells, 527 P.2d 538 (Colo. 1974).

In other words, adopting zoning regulations or changing zoning regulations for an entire area is considered a legislative act while decisions to apply zoning regulation or vary them for specific parcels of property is seen as a quasi-judicial decision. See Jafay v. Boulder Cnty. Comm’rs, 848 P.2d 892 (Colo. 1993). This is an important distinction since zoning decisions that are legislative in nature have a different review process than zoning decisions that are quasi-judicial in nature.

Where a quasi-judicial zoning decision has been made, judicial review of that decision can be sought under Colorado Rule of Civil Procedure (“C.R.C.P.”) 106(a)(4). If review is sought under C.R.C.P. 106(a)(4), a state court will review the lower governing body’s decision in accordance with the rule. This article discusses review of quasi-judicial zoning decisions under C.R.C.P. 106(a)(4). However, a background on zoning regulations will be provided below first followed by a discussion of the C.R.C.P. 106(a)(4) process and considerations in litigating a C.R.C.P. 106(a)(4) action.

 

Background on Zoning Regulations in Colorado

The act of zoning is generally a separate and distinct activity from other land use planning activities. Specifically, land use plans, also known as comprehensive plans, are typically passed by planning commissions in local governments. These plans set forth the recommended use of particular pieces of land in the local community but, generally speaking, do not actually implement binding zoning regulations. Instead these plans are purely advisory and merely recommend particular uses of land.

In contrast, the adoption of zoning regulations or ordinances implement actual requirements on how the land can be used and give legal effect to the land use plan’s policies and principles. While the policies and principles set out in the land use plan are generally advisory as opposed to legally binding, zoning regulations are usually implemented that are in conformance with the land use plan. See Friends of Black forest Preservation Plan, Inc. v. Board of County Commissioners of El Paso County, 381 P.3d 396, 401 (Colo. App. 2016). That is, in adopting zoning regulations, local governing bodies will typically look to the land use plan in determining what regulations to adopt.

Importantly, while the authority to zone comes from the local government’s inherent power to regulate activities in its territory, that power is not without restrictions. Specifically, zoning regulations that are implemented must comply with constitutional limitations. In particular, any specific regulation passed must bear a reasonable relationship to some legitimate government interest and, as applied to specific property, must not create an unreasonable burden on the owner. See Combined Communications Corp. v. City & County of Denver, 542 P.2d 79 (Colo. 1975); Apple v. City & County of Denver, 390 P.2d 91 (Colo. 1964). Where zoning regulations do not comply with these limitations, they will be found unconstitutional and, thus, will be unenforceable.

 

The Rezoning Process and Specific Uses of Zoned Property in Colorado

After initial zoning regulations have been passed, those regulations can be changed through the process of rezoning. The rezoning process is also part of a local government’s inherent power to regulate activities under its jurisdiction and generally consists of amending the local government’s zoning regulations or zoning map. A rezoning process can typically be initiated by a property owner, the locality itself, or at the initiative of local county or government leaders.

In determining whether a rezoning application is proper, the local governing body usually asks whether the proposed zoning amendment will comply with the local land use plan. If so, the proposed rezoning need only comply with the constitutional limitations discussed above. If not, the application will need to show either that an error was made in establishing the current zoning or there has been a change in the conditions of the area in question that supports a zoning change. See Applebaugh v. San Miguel County Comm’rs, 837 P.2d 304 (Colo. App. 1992). Examples of local governing bodies that are frequently in charge of these types of decisions include city councils, planning and commission boards, and boards of adjustment; depending on the community.

Additionally, in some circumstances, if a person or entity wishes to use a particular piece of property in a specific way, that use may require approval by the local governing body. Because there are various categories of uses within a specific zoning area and, depending on whether the proposed use is in conformance with those categories, the use may be subject to approval requirements.

In particular, “permitted uses” or “uses by right” are, in effect, approved uses where a person or entity who wishes to use the zoned property in accordance with the zoning requirements cannot be denied; unless the use fails to meet other applicable development criteria. See City of Colorado Springs v. SecurCare Self Storage, Inc., 10 P.3d 1244 (Colo. 2000).

In contrast, “conditional” or “special” uses are uses that are not preapproved and can be denied if the use does not fit in with its surroundings or otherwise conform to the zoning requirements. Penrose Hosp. of Colorado Springs v. City of Colorado Springs, 802 P.2d 1167 (Colo. App. 1990). Importantly, “conditional” or “special” uses are subject to heightened review whereby the local government body may require that specific conditions be met before the use is approved. Examples of specific conditions may include solutions to mitigate potential problems such as increased, sound, light, noise, or traffic.

Generally rezoning and zoning use decisions are made by the executive branch of the local government body. While the specific rezoning and zoning use processes may vary from locality to locality, the general procedure is that an administrative official may make the initial decision which, in turn, may be appealed to a board or the governing body itself which will either affirm or overturn the decision. In some localities, the initial decisions may be made by the governing body itself, for example, special use permits decided by the City Council.

Regardless of the name of the locality’s final decision making body, only after that body has rendered a decision will affected parties be able to seek independent judicial review of the decision under C.R.C.P. 106(a)(4). That is, the entire administrative procedure in the locality must have been pursued and exhausted before an affected party can request review of the decision by a court.

With respect to C.R.C.P. 106(a)(4) review, generally rezoning or special use hearings that determine whether a particular piece of property may be used in a particular manner are quasi-judicial hearings and fall under the purview of C.R.C.P. 106(a)(4). Accordingly, it is these types of zoning decisions, as opposed to initial passing of zoning regulations, that are typically appealed to a court under C.R.C.P. 106(a)(4).

 

Procedural Requirements for Judicial Review Under C.R.C.P. 106(a)(4)

Importantly, C.R.C.P. 106(a)(4) review is no just limited to review of quasi-judicial zoning decisions but, instead, can be applied to a variety of different types of administrative and quasi-judicial actions. However, despite C.R.C.P. 106(a)(4) applying to different of actions, the review process is mandated by rule and is the same regardless of the type of action, including review of zoning decisions.

More specifically, C.R.C.P. 106(a)(4) provides:

(a)(4)          Where any governmental body or officer or any lower judicial body exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy otherwise provided by law:

(I)           Review shall be limited to a determination of whether the body or officer has exceeded its jurisdiction or abused its discretion, based on the evidence in the record before the defendant body or officer.

(II)          Review pursuant to this subsection (4) shall be commenced by the filing of a complaint. An answer or other responsive pleading shall then be filed in accordance with the Colorado Rules of Civil Procedure.

(III)         If the complaint is accompanied by a motion and proposed order requiring certification of a record, the court shall order the defendant body or officer to file with the clerk on a specified date, the record or such portion or transcript thereof as is identified in the order, together with a certificate of authenticity. The date for filing the record shall be after the date upon which an answer to the complaint must be filed.

(IV)         Within 21 days after the date of receipt of an order requiring certification of a record, a defendant may file with the clerk a statement designating portions of the record not set forth in the order which it desires to place before the court. The cost of preparing the record shall be advanced by the plaintiff, except that the court may, on objection by the plaintiff, order a defendant to advance payment for the costs of preparing such portion of the record designated by the defendant as the court shall determine is unessential to a complete understanding of the controversy; and upon a failure to comply with such order, the portions for which the defendant has been ordered to advance payment shall be omitted from the record. Any party may move to correct the record at any time.

(V)          The proceedings before or decision of the body or officer may be stayed, pursuant to Rule 65 of the Colorado Rules of Civil Procedure.

(VI)         Where claims other than claims under this Rule are properly joined in the action, the court shall determine the manner and timing of proceeding with respect to all claims.

(VII)        A defendant required to certify a record shall give written notice to all parties, simultaneously with filing, of the date of filing the record with the clerk. The plaintiff shall file, and serve on all parties, an opening brief within 42 days after the date on which the record was filed. If no record is requested by the plaintiff, the plaintiff shall file an opening brief within 42 days after the defendant has served its answer upon the plaintiff. The defendant may file and serve an answer brief within 35 days after service of the plaintiff’s brief, and the plaintiff may file and serve a reply brief to the defendant’s answer brief within 14 days after service of the answer brief.

(VIII)      The court may accelerate or continue any action which, in the discretion of the court, requires acceleration or continuance.

(IX)         In the event the court determines that the governmental body, officer or judicial body has failed to make findings of fact or conclusions of law necessary for a review of its action, the court may remand for the making of such findings of fact or conclusions of law.

. . .

(b)          Limitations as to Time. Where a statute provides for review of the acts of any governmental body or officer or judicial body by certiorari or other writ, or for a proceeding in quo warranto, relief therein provided may be had under this Rule. If no time within which review may be sought is provided by any statute, a complaint seeking review under subsection (a)(4) of this Rule shall be filed in the district court not later than 28 days after the final decision of the body or officer. A timely complaint may be amended at any time with leave of the court, for good cause shown, to add, dismiss or substitute parties, and such amendment shall relate back to the date of filing of the original complaint.

Accordingly, the main aspects of initiating a C.R.C.P. 106(a)(4) action are:

(1) the filing of a complaint seeking review of the decision within 28 days of the local governing body’s decision being rendered;

(2) determining what materials and documents should be part of the record and requesting certification of the record as prescribed under C.R.C.P. 106(a)(4)(IV);

(3) if necessary, requesting a stay of the underlying decision pending resolution of the review as permitted under C.R.C.P. 106(a)(4)(V); and

(4) filing the opening and reply briefs in the time frame prescribed by C.R.C.P. 106(a)(4)(VII).

Further, where a stay of the underlying decision is requested under C.R.C.P. 106(a)(4)(V), the stay will be granted pursuant to C.R.C.P. 65 and may require the posting of a security bond representative of the potential harm and damages that may be incurred if the underlying decision is affirmed. If a security bond is required but is not posted, the C.R.C.P. 106(a)(4) action may proceed; however, the defendant will not be prevented from enforcing or acting on the decision since no stay will be issued.

 

Application of C.R.C.P. 106(a)(4) to Quasi-Judicial Zoning Decisions in Colorado

Where a quasi-judicial decision has been made by a local governing body and a C.R.C.P. 106(a)(4) action has been properly filed, the reviewing court will review the local governing body’s decision for an abuse of discretion. If an abuse of discretion is found the local governing body’s decision will be overturned; otherwise, the decision will be affirmed.

Litigating a C.R.C.P. 106(a)(4) can be a complex task as the case subject matter frequently varies and there are many nuances in the relevant case law. Specific application of C.R.C.P. 106(a)(4) to zoning decisions, and requirements and considerations in litigating zoning decision actions include:

– Whether or not the decision qualifies as a quasi-judicial decision eligible for review under C.R.C.P. 106(a)(4);

– Whether the appropriate parties have been named in the action;

– Whether the plaintiff has standing to bring a C.R.C.P. 106(a)(4) action;

– Identifying the record for review in a C.R.C.P. 106(a)(4) action;

– The abuse of discretion standard in C.R.C.P. 106(a)(4) actions; and

– Whether the action has become moot due to subsequent changes in events.

These requirements and considerations will be discussed in further detail below.

 

Zoning Decisions as Quasi-Judicial Actions Under C.R.C.P. 106(a)(4)

Importantly, C.R.C.P. 106(a)(4) review is only applicable for quasi-judicial decisions. Specifically, the Colorado Supreme Court has determined that the following factors must exist in order for a decision to qualify as quasi-judicial in nature:

(1) A requirement that adequate notice be given before taking action;

(2) A requirement that a hearing be conducted before a decision is made; and

(3) A requirement that the action being taken result from the application of prescribed criteria to the individual facts of the case.

See Baldauf v. Roberts, 37 P.3d 483 (Colo. App. 2001). In essence, a quasi-judicial decision is made where the affected party has had an opportunity to present facts, evidence, and argument to the governing body at a hearing; and the governing body applies those facts and evidence to the law in rendering its decision.

With respect to zoning decisions, and as discussed above, the primary distinction is whether the decision qualifies as quasi-judicial or quasi-legislative.   In general, quasi-legislative decisions are actions taken by the local governing body that are prospective in nature and have a broader impact relative to quasi-judicial decisions.

Examples of quasi-legislative decisions include actions where the governing body is acting in a legislative capacity which, as discussed above, may include adopting a land use or comprehensive plan, adopting initial zoning regulations, or adopting broad changes to zoning regulations that affect a significant number of parcels of land. See Jafay v. Board of County Com’rs of Boulder County, 848 P.2d 892 (Colo. 1993).

In contrast, quasi-judicial decisions are generally oriented towards determining the rights of particular parties. Examples of quasi-judicial decisions include determinations as to whether a particular piece of property conforms with zoning requirements and may be used in a certain manner, approval of plans to develop a particular piece of property, and decisions for special use permits for particular pieces of property.

Practically speaking, if a local government body has made a decision with respect to how a particular piece of property may be used, it will likely be a quasi-judicial decision and qualify for review under C.R.C.P. 106(a)(4). If a decision is quasi-legislative in nature, it will not be reviewable under C.R.C.P. 106(a)(4); however, it may be reviewable under C.R.C.P. 57 pertaining to declaratory judgment. See Tepley v. Public Employees Retirement Ass’n, 955 P.2d 573 (Colo. App. 2000).

 

Standing and Indispensable Parties in C.R.C.P. 106(a)(4) Reviews of Zoning Decisions

In addition to C.R.C.P. 106(a)(4) review only applying to quasi-judicial decisions, the party seeking review must have standing to do so and must include all other indispensable parties when bringing the C.R.C.P. 106(a)(4) action. Failure to satisfy either one of these requirements will result in dismissal of the lawsuit.

More specifically, in order to seek review of a quasi-judicial action, the party seeking review must be affected by the quasi-judicial action in some manner. That is, an individual or entity that is completely unaffected by a quasi-judicial action will not be permitted to seek review of that action.  This is called standing and, under Colorado law, a plaintiff must satisfy a two-part test in order to establish it. In order to establish standing, the plaintiff must:

(1) allege an injury-in-fact from the decision to be reviewed, such as physical damage, economic harm, aesthetic harm, or deprivation of civil liberties; and

(2) the injury must be to a legally protected interest.

See 1405 Hotel, LLC v. Colorado Economic Development Commission, 370 P.3d 309 (Colo. App. 2015).

With respect to zoning decisions, Colorado courts have liberally construed the standing requirement such that property owners adjacent to the affected parcel or owners of the affected parcel have standing to challenge the decision. See Rangeview, LLC v. City of Aurora, 381 P.3d 445 (Colo. App. 2016). Indeed, even where the zoning decision affects only an individual’s aesthetic interest, that individual will have standing to request review of the decision. See Reeves v. City of Fort Collins, 170 P.3d 850 (Colo. App. 2007).

Additionally, while procedurally it is proper to allege the specific injury that confers standing in the C.R.C.P. 106(a)(4) complaint, failure to do so is not fatal to the action where the alleged injury is otherwise reflected on the record. That is, courts may look beyond the complaint and into the allegations made in the record in order to determine whether a party has alleged a sufficient injury to confer standing. See Rangeview, LLC v. City of Aurora, 381 P.3d 445 (Colo. App. 2016).

Further, in addition to meeting standing requirements, the party seeking review of the quasi-judicial decision must include all indispensable parties in the lawsuit. An indispensable party is a “person or entity whose absence prevents complete relief from being accorded among those already parties.” See Frazier v. Carter, 166 P.3d 193 (Colo. App. 2007). Importantly, failure to join an indispensable party is a jurisdictional defect that can be raised at any time. See id.

For review of zoning decisions, the appropriate parties to be joined in a C.R.C.P. 106(a)(4) include the local governing body that made the final zoning decision, the party that sought the zoning decision, and the owners of any property that a zoning change directly affects. See Neighbors for a Better Approach v. Nepa, 770 P.2d 1390 (Colo. App. 1989); Gold Star Sausage Co. v. Kempf, 653 P.2d 397 (Colo. 1982).

While the appropriate parties do need to be joined in a C.R.C.P. 106(a)(4) action, the proceeding is relatively lenient in when and how those parties may be included. Specifically, C.R.C.P. 106(b) provides that a “complaint may be amended at any time with leave of the court, for good cause shown, to add, dismiss or substitute parties.” Accordingly, where a C.R.C.P. 106(a)(4) is filed and it is later determined that not all indispensable parties have been included, any party move to amend the complaint to add those parties and serve them, thereby curing the deficiency.

 

Identifying the Record to Be Reviewed in a C.R.C.P. 106(a)(4) Action

Because a C.R.C.P. 106(a)(4) action seeks review of a lower governing body’s decision, determining the record for review is an important step in litigating a C.R.C.P. 106(a)(4) action. More specifically, because the reviewing court is only permitted to review the evidence that was in front of the lower governing body, determining what that evidence is will inherently have an effect on what the reviewing court can consider.

In particular, C.R.C.P. 106(a)(4)(IV) specifically indicates that the plaintiff may include a motion and a proposed order designating what will be on the record and requesting the court order the governing body produce the record for certification.  In response, parties may object to the record as designated, or, within 21 days after the court enters an order requiring certification of the record, move to designate additional portions of the record that are not included in the order. See C.R.C.P. 106(a)(4)(IV).

In designating the record, C.R.C.P. 106(a)(4) review is limited solely to the record that was before the governing body. See Lieb v. Trimble, 183 P.3d 702 (Colo. App. 2008). Accordingly, in actions where the remedy can be provided exclusively under C.R.C.P. 106(a)(4), new evidence is not allowed since the reviewing court does not independently weigh the evidence. Thus, discovery is not permitted in cases that are seeking a remedy solely under C.R.C.P. 106(a)(4). See Boles v. Bartruff, 228 P.3d 183 (Colo. App. 2009). But see Whelden v. Board of County Commr’s, 782 P.2d 853 (Colo. App. 1989) (indicating discovery may be permitted if the plaintiff can make a threshold showing of impropriety by the governing body).

Notably, where the record has been designated and certified, if there are errors in the record or additional information needs to be supplemented, any party may move to correct the record at any time. See C.R.C.P. 106(a)(4)(IV). Accordingly, errors or omissions in the record are relatively easy to correct in a C.R.C.P. 106(a)(4) action.

Importantly, where review of the record is insufficient in itself to provide relief under C.R.C.P. 106(a)(4), declaratory judgment review under C.R.C.P. 57 may be the appropriate remedy. While similar to each other, C.R.C.P. 57 review is appropriate for review of quasi-legislative decisions by local governing bodies and where sole review of the record under C.R.C.P. 106(a)(4) will be insufficient to provide a remedy.

 

Review of Zoning Decisions for Abuse of Discretion

After the record has properly been designated and certified, the appellant’s opening brief will be due within 42 days of certification of the record. See C.R.C.P. 106(a)(4)(VII). Once both parties have fully briefed the issues, the presiding court will then make a determination as to whether or not the local governing body exceeded its jurisdiction or abused its discretion in rendering its decision.

Importantly, because the abuse of discretion standard is a relatively high burden for the appealing party to meet, the lower decisions is, in effect, presumed valid unless there were serious flaws in the governing body’s decision or its process in rendering the decision.

In particular, there are three primary ways in which a local governing body can exceed its jurisdiction or abuse its discretion in rendering a decision. Those three ways are:

– The governing body’s decision making process violated due process guarantees;

– The governing body misconstrued or misapplied governing law; or

– There was insufficient factual evidence on the record to support the governing body’s decision.

Each of these will be discussed in sequence.

For due process violations; because the Colorado Constitution and United States Constitution require appropriate procedures before a person’s life, liberty or property can be deprived; the governing body generally needs to have given notice and an opportunity to be heard to any individuals potentially affected by its decision in order to satisfy due process requirements.

Accordingly, with respect to zoning decisions, due process violations may occur where the governing body failed to sufficiently notify neighbors about an upcoming decision or where a zoning decision was made without a proper hearing. See Eason v. Board of County Com’rs of County of Boulder, 70 P.3d 600 (Colo. App. 2003) (finding a due process violation where a county changed the permitted uses of a particular piece of property without providing a hearing for the property owner).

Secondly, for misconstruction or misapplication of governing law, an abuse of discretion will be found where the local governing body applied an erroneous legal standard in rendering its decision. See City and County of Denver v. Board of Adjustment for City and County of Denver, 55 P.3d 252 (Colo. App. 2002). For example, where a zoning decision requires construction and application of a statute or municipal ordinance, if the local governing body misconstrued or misapplied the statute or ordinance, it will be considered an abuse of discretion and the decision will be overturned.

In determining whether a local governing body misconstrued or misapplied the law, the reviewing court reviews the question of law de novo, meaning that the reviewing court is not bound by the lower body’s interpretation of the statute or ordinance. See Friends of Black forest Preservation Plan, Inc. v. Board of County Commissioners of El Paso County, 381 P.3d 396 (Colo. App. 2016).

When construing a land use ordinance or regulation in a C.R.C.P. 106(a)(4) proceeding, courts first look first to the plain language interpretation under the presumption that the governing body enacting the code meant what it enacted. If the code’s language is ambiguous, then deference is given to the lower body’s interpretation of the code as long it has a reasonable basis in law and is warranted by the record. However, if the lower body’s interpretation is inconsistent or not uniform, then that interpretation is not entitled to deference. See Shupe v. Boulder County, 230 P.3d 1269 (Colo. App. 2010).

Lastly, with respect to whether there is evidentiary support on the record, a local governing body will be found to have abused its discretion where there is no competent evidence on the record to support its decision. Where the decision of the lower body is so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority, it will be an abuse of discretion and the decision overturned. See Rangeview, LLC v. City of Aurora, 381 P.3d 445 (Colo. App. 2016).

Indeed, arguing that there is insufficient evidence on the record to support a local governing body’s decision is the hardest type of abuse of discretion to prove. A significant amount of deference is given to the local governing body’s reasoning and decision making meaning that, in effect, if there is any satisfactory evidence in the record to support the lower body’s decision, the decision will be upheld. See Board of County Com’rs of Routt County v. O’Dell, 920 P.2d 48 (Colo. 1996).

 

Mootness of Action

Finally, where a zoning decision is under C.R.C.P. 106(a)(4) review, no stay has been requested by the plaintiff, and the defendant moves forward in conformance with that zoning decision, the issues on review can later be deemed moot and, consequently, dismissed.

For example, in Zoning Bd of Adjustment of Garfield County v. DeVilbiss, 729 P.2d 353 (Colo. 1986), a coal company sought and obtained a height zoning variance for building a $7.7 million coal loading facility. A nearby property owner then filed a C.R.C.P. 106(a)(4) action seeking review of the decision approving the variance but did the property owner failed to ask for a stay or preliminary injunction pending the outcome of the C.R.C.P. 106(a)(4) action.

During the 6-year pendency of the lawsuit and while the action wound itself through the various levels of the court system, the coal company built the facility and had it operational in conformance with the approved variance. When the lawsuit finally reached the Colorado Supreme Court, the Colorado Supreme Court dismissed the claims as moot since the property owner had failed to request a stay or injunction, the coal company acted in conformance with the approved zoning variance, and if the property owner’s claims were granted it would result in an unfair loss and hardship on the coal company.

In contrast, however, in Russell v. City of Central, 892 P.2d 432 (Colo. App. 1995), a similar but differentiable lawsuit, the Colorado Supreme Court found that review issues had not become moot where the defendant had received a special use permit, spent $2 million building an opera house, and had been operating the opera house for 6 months by the time the lawsuit reached the Colorado Supreme Court. The Colorado Supreme Court found that the appealing party was seeking declaratory judgment review under C.R.C.P. 57 in addition to C.R.C.P. 106(a)(4), and that the issues were not moot despite the opera house being build and operational.

After determining that the city council had abused its discretion by amending a zoning ordinance in a manner that failed to comply with mandated processes, the Colorado Supreme Court declared the amendment invalid under C.R.C.P. 57. Consequently, the granting of a special use permit in light of the improper amendment was determined to be an abuse of discretion as well.

Overall, while there are few Colorado cases addressing when exactly an issue becomes moot in a C.R.C.P. 106(a)(4) action, it is clear that a party who does not request a stay or preliminary injunction runs the risk of having their action later be declared moot where the defending party has taken actions in reliance of the pending zoning decision. However, if a party is worried about mootness issues, the party request a stay or preliminary injunction prevent the opposing party from proceeding in conformance with the lower body’s decision and preserving the status quo of the parties during the progression of the lawsuit.

© 2017 J.D. Porter, LLC. Author: Jordan Porter. Denver, Colorado.

Disclaimer: The information on this website is intended to be general information only and not legal advice. Laws change frequently and the information on this website may not be up to date, nor is the information intended to be fully comprehensive. For legal advice specific to your case please contact J.D. Porter, LLC or another licensed attorney.