to the Colorado Court of Appeals Court of Appeals Case No.
Attorneys for Petitioner: Gibson, Dunn & Crutcher, LLP
Laura M. Sturges John D. W. Partridge Katherine C. Yarger
Timothy M. Zimmerman Sara E. Carlisle Monica K. Loseman
Attorneys for Respondent: Carver, Schwarz, McNab, Kamper
& Forbes, LLP Peter C. Forbes Denver, Colorado Jesse N.
Lipschuetz Denver, Colorado
Attorneys for Amicus Curiae Colorado Counties, Inc.: Hall
& Evans, L.L.C. Thomas J. Lyons Malcolm S. Mead Denver,
In this case, Jesse Lipschuetz challenged the validity of a
rooming and boarding permit that the City and County of
Denver ("the City") issued to Open Door Ministries
("Open Door"). Lipschuetz-who owns a property
adjacent to Open Door's property- filed claims against
the City and Open Door seeking revocation of the permit. Open
Door filed cross-claims against the City, seeking declaratory
and injunctive relief to prevent the revocation of its
permit. The trial court concluded that the City should not
have issued the permit, but stayed its order to revoke the
permit until Open Door's cross-claims were resolved.
Several months later, the trial court granted summary
judgment in favor of Open Door on the cross-claims.
On appeal, Lipschuetz argued that Open Door's
cross-claims against the City were barred by the Colorado
Governmental Immunity Act ("the CGIA" or "the
Act") because they "could lie in tort."
See § 24-10-106, C.R.S. (2015). To make a claim
under the CGIA, a party must notify the governmental entity
prior to filing the claims. § 24-10-109(1), C.R.S.
(2015). This notice requirement is jurisdictional.
Id. Because Open Door did not notify the City prior
to filing its cross-claims, Lipschuetz argued that the trial
court lacked subject matter jurisdiction over the
cross-claims. The court of appeals agreed. Lipschuetz v.
Open Door Ministries, No. 13CA461, slip op. at 7 (July
17, 2014). Because Open Door failed to comply with the notice
provision, the court of appeals concluded, the trial court
lacked subject matter jurisdiction over the cross-claims.
Id. at 1.
However, the court of appeals failed to consider whether, at
the time of filing, Open Door had suffered an injury that
would subject its cross-claims to the CGIA. We conclude that
the CGIA does not apply to Open Door's request for
prospective relief to prevent future injury. Because Open
Door had not suffered an injury before it filed its
cross-claims, the CGIA did not bar its cross-claims seeking
prospective relief from future injury, and the trial court
had jurisdiction over the cross-claims.
Facts and Procedural History
In June 2010, the Denver City Council passed Ordinance 333.
Denv., Colo. Ordinance No. 333, Series of 2010. This
ordinance replaced the old zoning code but included an
exception that allowed any person seeking to "erect or
alter structures" to apply for a permit under the old
zoning code until December 30, 2010. Id. On December
30, 2010, Open Door applied for a use permit under the old
code to change the use of 740 Clarkson Street to provide
housing for people in need. The Denver Zoning Authority
("the DZA") issued the rooming and boarding permit.
Open Door then purchased the property for $700, 000; made
improvements to the property; and began providing room and
board to people at risk of becoming homeless.
Several months later, Lipschuetz, who owns a home adjacent to
740 Clarkson, sought administrative review of the DZA's
decision to issue the permit. He argued that Open Door did
not meet the exception under Ordinance 333 because the permit
was for a change of use, not to "erect or alter" a
structure. The DZA defended its decision to issue the permit,
explaining that it had consistently interpreted the exception
to allow parties to seek any kind of permit under the old
zoning code until December 30, 2010. The Board of Adjustment
for Zoning Appeals ("the BOA") denied
Lipschuetz's request to revoke the permit.
Lipschuetz then filed an administrative appeal under C.R.C.P.
106 against the BOA, the individual members of the BOA, and
the Zoning Administrator for the City, seeking revocation of
the permit. Lipschuetz moved to amend his complaint to add
Open Door as a party because Open Door, "as an applicant
for the permit in question, [was] a proper defendant in this
action." The trial court granted this motion. The trial
court also granted Lipschuetz's motion to add the City as
Open Door answered the complaint, then filed cross-claims
against the City for promissory estoppel and requested a
declaratory judgment that the permit would remain valid. The
City admitted all of the allegations in Open Door's
cross-claim and argued that the permit was properly issued.
The trial court then permitted Lipschuetz to intervene in
Open Door's cross-claims against the City.
On July 26, 2012, the trial court found that the BOA abused
its discretion when it affirmed the DZA's decision to
issue the permit to Open Door. The court ordered the City to
revoke the permit but stayed its order pending the resolution
of Open Door's cross-claims. Open Door then filed a
motion for summary judgment on its cross-claims on November
29, 2012. On January 25, 2013, the trial court found that
promissory estoppel was an appropriate claim for relief for
Open Door, but that the cross-claims also incorporated the
elements of equitable estoppel. The trial court first
concluded that Open Door had satisfied the elements of both
promissory and equitable estoppel and then granted Open
Door's motion for summary judgment. The trial court
concluded that "the permit must be enforced to prevent
Lipschuetz appealed, arguing for the first time that Open
Door's cross-claims "could lie in tort" and
were therefore subject to the CGIA. See §§
24-10-101 to -120, C.R.S. (2015). He argued that the
cross-claims amounted to an equitable estoppel claim based on
Open Door's reliance on the City's
"misrepresentation" that the permit was valid, and
therefore, the claims could lie in tort. Lipschuetz contended
that, because Open Door failed to give the City notice as
required by the CGIA, the trial court lacked subject matter
jurisdiction over the cross-claims. See §
24-10-109(1). The court of appeals agreed, holding that Open
Door's estoppel cross-claims "could lie in
tort." Lipschuetz, slip op. at 7 (citing
Bd. of Cty. Comm'rs v. DeLozier, 917 P.2d 714,
715 (Colo. 1996) (distinguishing promissory estoppel from
equitable estoppel based on either a negligent or intentional
misrepresentation of fact and concluding that a promissory
estoppel claim is not subject to the CGIA)). Thus, the court
of appeals concluded that Open Door should have notified the
City of its intent to file the cross-claims.
Lipschuetz, slip op. at 12. The court of appeals
concluded that, because Open Door failed to comply with the
CGIA's notice requirement, the trial court did not have
jurisdiction over Open Door's claims. Id.
We granted Open Door's petition for certiorari to
consider whether the CGIA required Open Door to notify the
City before filing its cross-claims against the City ...