BRILLIANT. BOLD. EFFECTIVE.
Contesting Quasi-Legislative Decisions of Local Governments and City Councils in Colorado
In Colorado, a significant amount of authority is delegated to local governments and city councils to govern and regulate conduct within their boundaries. Most commonly, these local governments are formed as incorporated municipalities, such as the City and County of Denver, and have a presiding city council acting as the legislative, and in some circumstances, executive powers within the municipality.
Where a municipality wishes to pass laws or regulations governing conduct within its boundaries, the municipality will usually do so by submitting proposed laws or regulations to its city council for approval. If approved, the proposed laws or regulations become effective and are referred to as municipal ordinances. The specific procedure for adopting municipal ordinances is typically outlined in the establishing document for the municipality, for example, its city charter.
Because municipal ordinances represent laws and regulations applicable to people within the municipality, when a local governing body or city council adopts an ordinance it is frequently acting in a legislative capacity. Accordingly, under Colorado law these types of decisions are deemed quasi-legislative in nature.
Importantly, because the passage of municipal ordinances can take different procedural pathways, and because city councils and local governing bodies frequently act in a variety of capacities aside from quasi-legislative ones, such as a quasi-judicial capacity, whether or not a specific decision of a local governing body qualifies as a quasi-legislative decision can be unclear. The determination of what capacity a local governing body acted in can have significant effects on how aggrieved parties can contest the decision.
This article generally discusses what constitutes a quasi-legislative decision as well as how to contest quasi-legislative decisions made by local governments and city councils in Colorado.
What Constitutes a Quasi-Legislative Decision under Colorado Law
Generally speaking, when a local governing body or city council acts or makes a decision, they are acting in one of two types of capacities: a quasi-judicial capacity or a quasi-legislative capacity.
Where the local governing body is applying facts to the law and making a determination of the rights, duties, or obligations of specific individuals, it is acting in a quasi-judicial capacity. Further, because quasi-judicial decisions affect the rights of specific people, the decision itself must comply with notice and due process requirements such that affected people have the right and ability to be heard before a decision is made. Quasi-judicial decisions are subject to review under Colorado Rule of Civil Procedure (“C.R.C.P.”) 106(a)(4).
In contrast, a decision that is reflective of some type of public policy, that relates to matters of a permanent or general character, that is not restricted to identifiable persons or groups, and that is prospective in nature will usually qualify as a quasi-legislative decision. Further, while quasi-judicial decisions must comply with notice and due process requirements, quasi-legislative decisions do not. Instead, for quasi-legislative decisions the legislative process supplants traditional due process requirements. Quasi-legislative decisions are most commonly reviewed under C.R.C.P. 57 as declaratory judgment actions. See Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441 (1915).
Because the distinction between a quasi-legislative and quasi-judicial decision is a relatively fine one, the question of whether or not a particular local governing body or city council decision qualifies as quasi-legislative or quasi-judicial is a question of law that may ultimately have to be answered by a court. See Concerning the Application for Water Rights of the Colo. Water Conservation Bd. in the San Miguel River v. Colorado Water Conservation Board, 346 P.3d 52 (Colo. 2015).
Specific examples of decisions that have found to be quasi-judicial in nature include the approval of site specific development permits for a particular parcel of land, the granting of licenses to particular businesses or individuals, and the approval of renovation or rehabilitation permits for particular structures.
Conversely, decisions that have been found to be quasi-legislative in nature include the approval of zoning regulations that apply to large plats of land, the adoption of a city master plan that generally establishes land-use policies, and the adoption of an ordinance requiring electricity and communication utility facilities to be relocated underground. See Michael M. Shultz & Jeffrey B. Groy, Land Use Decisionmaking: Legislative or Quasi-Judicial Action, 18 Colo. Law. 241 (1989).
Contesting a Quasi-Legislative Decision of a Local Government or City Council in Colorado
Where a quasi-legislative decision has been made, there are specific routes to contest the decision or otherwise have the decision reviewed. Notably, quasi-legislative decisions are separate from administrative and quasi-judicial decisions and, accordingly, are not subject to review under C.R.C.P. 106(a)(2) or C.R.C.P. 106(a)(4). See Cherokee Water & Sanitation v. El Paso, 770 P.2d 1339 (Colo. App. 1988).
Instead, quasi-legislative decisions are most frequently contested under C.R.C.P. 57 as actions seeking a declaratory judgment that the decision is invalid or should otherwise be overturned. In particular, C.R.C.P. 57 provides that:
[a]ny person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.
Accordingly, under C.R.C.P. 57, plaintiffs may seek to have a court determine the validity, enforceability, or other legal relations with respect to a quasi-legislative decision rendered by a local governing body.
As applied to the adoption of municipal ordinances, specific examples of cases brought under C.R.C.P. 57 include claims asserting that adoption of an ordinance did not comply with applicable procedural requirements; that the adopted ordinance deprives affected individuals of their procedural or substantive due process rights; or that the ordinance is unconstitutional on some other basis. See Mahaney v. City of Englewood, 226 P.3d 1214 (Colo. App. 2009); JJR 1, LLC v. Mt. Crested Butte, 160 P.3d 365 (Colo. App. 2007); Native American Rights Fund, Inc. v. City of Boulder, 97 P.3d 283 (Colo. App. 2004).
Parties and Standing in Contesting a Quasi-Legislative Decision under C.R.C.P. 57
In pursuing a challenge to a quasi-legislative decision under C.R.C.P. 57, there are specific requirements as to who must be included as a party in the action. In particular, C.R.C.P. 57(j) provides:
. . . all persons shall be made parties who have or claim any interest which would be affected by the [declaratory judgment], and no [declaratory judgment] shall prejudice the rights of persons not parties to the proceeding.
While the rule is worded relatively broadly suggesting that anybody potentially affected by a declaratory judgment must be included as a party in the action, case law has limited the rule’s scope. In particular, the necessity for including particular parties in a declaratory judgment action is determined based on whether or not they are indispensable to the litigation. See Margolis v. District Court, In and For Arapahoe County, 638 P.2d 297 (Colo. 1981).
More specifically, under C.R.C.P. 19(a)(2)(A), a person is an indispensable party to the litigation if disposition in the party’s absence may impair his ability to protect their interest. If the interests of the parties before the court may be adjudicated without affecting the rights of an absent party, the absent party need not be joined. Where a party is indispensable, they must be included in the declaratory judgment action.
Colorado case law specific to this area indicates that, generally, the more direct of an effect a declaratory judgment would have on an individual or entity, the more likely that individual or entity needs to be joined. Where the declaratory judgment would only indirectly affect a potential party, such as where the effect would be the same on the potential party as any other residents in the area, that party does not need to be included in the action. Importantly, however, the local government body or city council that issued the quasi-legislative decision almost always must be included as a party. See Board of County Com’rs of County of San Miguel v. Roberts, 159 P.3d 800 (Colo. App. 2006); Margolis v. District Court, In and For Arapahoe County, 638 P.2d 297 (Colo. 1981).
Along these same lines, any plaintiffs seeking relief in a declaratory judgment action must have standing to do so. In order for a party to have standing, the party must have sufficiently demonstrated that the challenged activity or decision in question has caused, or has threatened to cause, injury to the party such that a court can say with fair assurance that there is an actual controversy. Where there is no injury or threat of an injury, there is no standing and the case will be dismissed. See Condiotti v. Board of County Com’rs of County of La Plats, 983 P.2d 184 (Colo. App. 1999).
Notably, standing can be satisfied in a variety of ways. Examples of which include, for land-use related decisions such as zoning decisions, owning property in or adjacent to the affected area; for constitutional challenges to an ordinance, being affected by the unconstitutional defect; and, for business related decisions, the decision having a direct economic effect on the party. See 1405 Hotel, LLC v. Colorado Economic Development Commission, 370 P.3d 309 (Colo. App. 2015); Condiotti v. Board of County Com’rs of County of La Plats, 983 P.2d 184 (Colo. App. 1999); People v. Brown, 632 P.2d 1025 (Colo. 1981).
Ultimately, if standing is satisfied and the parties are properly included, the case will proceed to trial or briefing and the presiding court will have to review and render a judgment on the quasi-legislative decision. In reviewing a quasi-legislative decision, the standard of review applicable to the construction and interpretation of law is de novo, meaning that a governing body’s interpretations are given no deference in the review process.
Importantly, however, depending on the specific type of quasi-legislative decision and type of declaratory judgment sought, there may be additional standards and presumptions that apply, including a presumption that the law or regulation being contested is valid. See Native American Rights Fund, Inc. v. City of Boulder, 97 P.3d 283 (Colo. App. 2004).
Specifically Challenging a Quasi-Legislatively Adopted Ordinance in Colorado as Unconstitutional
As discussed above, one specific avenue to challenging a quasi-legislative decision is alleging that the decision adopts an unconstitutional law or regulation. Indeed, because the adoption of municipal ordinances often fall within the realm of quasi-legislative decisions, ordinances are frequently challenged on these grounds.
Where an ordinance is challenged as unconstitutional, the reviewing court reviews the ordinance de novo, meaning no deference is given to the city council’s or local governing body’s interpretation of the ordinance. However, despite review being de novo, the ordinance is generally presumed to be constitutional and the party challenging the ordinance bears the burden of proving its unconstitutionality beyond a reasonable doubt. See Dillon v. Yacht Club Condominiums Home Owners Ass’n, 325 P.3d 1032 (Colo. 2014).
Some specific common grounds for challenging an ordinance as unconstitutional include:
– The ordinance is too vague. The void for vagueness doctrine stems from principles of procedural due process and generally requires that laws must be specific enough such that persons of normal intelligence do not have to guess as to their meaning or application. Where a law is too vague to comply with this requirement it will be deemed unconstitutional See Rocky Mountain Retail Management, LLC v. City of Northglenn, 393 P.3d 533 (Colo. 2017).
– The ordinance violates first amendment protections. The First Amendment of the United States Constitution prohibits governments from passing laws that abridge or infringe on the people’s right to free speech. Additionally, the Colorado Constitution provides broader freedom of speech rights to the people of Colorado than those guaranteed by the United States Constitution. Where an adopted ordinance infringes on these rights it will be struct down as unconstitutional. Notably, infringement can come in various forms, including laws targeting religion and laws mandating or prohibiting certain types of speech. See Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272 (Colo. App. 2015).
– The ordinance is an abuse of governmental police power. A government’s police power is an inherent attribute of sovereignty that local governments have to establish the power to establish reasonably laws that promote, the health, safety, and welfare of citizens. Where a city, municipality, or other local government has adopted an ordinance that is unreasonable, arbitrary and capricious or that does not bear a rational relation to the local government’s police power, the ordinance will be deemed unconstitutional. See Dillon v. Yacht Club Condominiums Home Owners Ass’n, 325 P.3d 1032 (Colo. App. 2014).
– The ordinance constitutes an unconstitutional taking. The Fifth Amendment of the United States Constitution provides that no person shall be deprived of life, liberty, or property without due process of law. Accordingly, an ordinance that infringes on these rights is unconstitutional and will be struck down. Examples of takings arguments that have been specifically applied to municipal ordinances include cases alleging that the rezoning of property deprived the property owner of use and enjoyment of the property, and a case alleging that an ordinance requiring utility companies to move their facilities underground and pay for that expense constituted a taking. See U.S. West Communications, Inc. v. City of Longmont, 948 P.2d 509 (Colo. 1997).
– The ordinance does not comply with due process rights. The United States Constitution guarantees due process rights to the people of the United States. Notably, there are two types of due process rights: substantive due process rights and procedural due process rights. Substantive due process rights prohibit the government from infringing on fundamental rights such as the right to vote, the right to marry, the right to privacy, and the right to interstate travel. In contrast, procedural due process rights require that government officials follow fair procedures before depriving a person of life, liberty, or property. Where an ordinance infringes on a substantive due process right or doesn’t provide a fair legal process it will be found unconstitutional as a denial of due process. See Colorado Dog Fanciers, Inc. v. City and County of Denver By and Through City Council, 820 P.2d 644 (Colo. 1991).
– The ordinance violates equal protection principles. The United States Constitution entitles all citizens to equal protection of the laws. In effect, the purpose of the equal protection clause is to prevent governments from favoring or targeting individuals or classes of people based on distinctions that are irrelevant to governmental objectives. Accordingly, where an ordinance improperly targets or makes a distinction between classifications of people it will be found unconstitutional. See Colorado Dog Fanciers, Inc. v. City and County of Denver By and Through City Council, 820 P.2d 644 (Colo. 1944).
Importantly, alleging that an ordinance is unconstitutional does not have to be specifically tied to the United States Constitution, it may be unconstitutional under the Colorado Constitution as well. That is, adopted ordinances must comply with both the United States Constitution as well as the Colorado Constitution.
If an ordinance complies with the United State Constitution but not the Colorado Constitution, it will still be found unconstitutional. Notably, in some respects, the Colorado Constitution offers broader protections than the United States Constitution and may offer an easier basis to challenge an ordinance as unconstitutional than under the United State Constitution. See Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272 (Colo. App. 2015).
Where an ordinance or provisions within the ordinance are found to be unconstitutional, any unconstitutional aspects will be struck as opposed to invalidating the entire ordinance. However, where it is impossible to server the unconstitutional provisions, then the entire ordinance must be invalidated. See Native American Rights Fund, Inc. v. City of Boulder, 97 P.3d 283 (Colo. App. 2004).
Lastly, where a municipal ordinance is alleged to be unconstitutional, the Colorado attorney general must be served with a copy of the proceeding to enable him or her to determine whether to intervene in the case and be heard. See C.R.C.P. 57(j).
Timing Issues in Contesting a Quasi-Legislative Decision in Colorado
While the distinction between a quasi-legislative decision and a quasi-judicial is a nuanced one, correctly determining what category any one particular decision falls into is important since quasi-judicial decision have different time limitations for seeking review than quasi-legislative decisions.
In particular, actions seeking review of quasi-judicial decisions under C.R.C.P. 106(a)(4) must be filed within 28 days after the final decision of the officer or body. In contrast, the 28-day requirement does not apply to lawsuits seeking review of quasi-legislative decisions. Indeed, where a lawsuit is specifically challenging an ordinance or regulation as unconstitutional, there is no statute of limitations and the challenge may be made at any time. See C.R.C.P. 106(b); Pub. Serv. Co. of Colo., Corp. v. City of Boulder, 2016 COA 138 (Colo. App. 2016).
However, one important exception to this rule is where a declaratory judgment under C.R.C.P. 57 is sought in relation to a quasi-judicial decision because review under C.R.C.P. 106(a)(4) would not provide an adequate remedy. Accordingly, under such circumstances, the 28-day filing deadline requirement applicable to C.R.C.P. 106(a)(4) actions still applies because, even though review is sought under C.R.C.P. 57, it is still sought in relation to a quasi-judicial decision. See Native American Rights Fund, Inc. v. City of Boulder, 97 P.3d 283 (Colo. App. 2004).
Overall, because it can be hard to determine whether any particular decision qualifies as a quasi-judicial or quasi-legislative action, to the extent the decision will be contested, it is wise to file a lawsuit within 28 days to preserve both routes of review. If a lawsuit is not filed within 28 days and the contested decision is later determined to be quasi-judicial, then the lawsuit will be dismissed based on failure to comply with jurisdictional timing requirements.
© 2017 J.D. Porter, LLC. Author: Jordan Porter. Denver, Colorado.