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Rangeview, LLC v. City of Aurora

Court of Appeals of Colorado, First Division

July 14, 2016

Rangeview, LLC, a Colorado limited liability company; Pamela Eades; and John Sellery, Plaintiffs-Appellants,
City of Aurora, a municipal corporation; City Council of the City of Aurora, a governing body; and Mitrah Investment and Holdings, LLC, a Colorado limited liability company. Defendants-Appellees.

         Arapahoe County District Court No. 13CV722 Honorable Frederick T. Martinez, Judge

          Foster Graham Milstein & Calisher, LLP, David Wm. Foster, Chip G. Schoneberger, Melanie MacWilliams-Brooks, Denver, Colorado, for Plaintiffs-Appellants

          Brownstein Hyatt Farber Schreck, LLP, Martha L. Fitzgerald, Carrie E. Johnson, Denver, Colorado; Wood, Ris & Hames, P.C., Todd E. Mackintosh, Denver, Colorado, for Defendants-Appellees


          FOX JUDGE

         ¶ 1 Rangeview, LLC, Pamela Eades, and John Sellery (collectively Rangeview) appeal the trial court's judgment affirming, under C.R.C.P. 106(a)(4), the Aurora City Council's approval of a rezoning application submitted by BFR, LLC (BFR) and Mitrah Investments and Holdings, LLC (Mitrah). We affirm.

         I. Background

         ¶ 2 BFR owned a rectangular parcel of property located at the intersection of Havana Street and Kentucky Avenue in Aurora, Colorado (the property). The property consists of 1.894 acres of vacant land measuring 300 feet by 275 feet. Mitrah is the developer of the property. The site plan was proposed as follows:

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         ¶ 3 Rangeview, LLC owns Rangeview estates - which borders the property to the west - and Eades and Sellery each own property in the neighborhoods surrounding the property. In 2012, BFR and Mitrah applied to rezone the property from B-1 (business zoning district) on the east side and R-3 (residential zoning district) on the west side to Aurora's new Sustainable Infill Redevelopment (SIR) Zoning District. BFR's and Mitrah's site plan included a proposal to split the property into two lots, the first to be developed into a gas station with a convenience store and the second to be reserved for a future commercial retail building. In February 2013, Aurora's Planning and Zoning Commission denied the application. BFR and Mitrah appealed the denial to the Aurora City Council (City Council).

         ¶ 4 City Council conducted a hearing and received testimony from proponents and opponents of the rezoning application. City Council also heard testimony on the goals of SIR zoning and considered the potential utility of BFR's and Mitrah's development plans in the area surrounding the property. City Council approved, in a 6-2 vote, BFR's and Mitrah's request to rezone the property and approved, in a 7-2 vote, the proposed site plan for Lot 1.

         ¶ 5 Rangeview filed a C.R.C.P. 106(a)(4) action in the district court against the City of Aurora, City Council, BFR, and Mitrah (collectively rezoning proponents) claiming that City Council exceeded its jurisdiction and abused its discretion in granting the application to rezone the property and approve the proposed site plan. During the course of the proceedings, Mitrah purchased the property from BFR and the district court dismissed BFR from the case. The district court concluded that City Council's decision was reasonably supported by the record and that City Council had a reasonable basis for its interpretation of the ordinances governing SIR zoning districts. The district court thus affirmed City Council's decision.

         ¶ 6 Rangeview appeals the district court's decision, arguing that City Council abused its discretion by (1) approving the site plan when the plan did not include an outdoor gathering space that meets SIR design standards and (2) rezoning the property to SIR zoning when the property does not meet the requirements of an "infill development parcel" as defined in the Aurora Municipal Code.

         II. Standing

         ¶ 7 The parties' original briefing to this division did not address whether Rangeview had standing to challenge City Council's actions, but this panel sua sponte raised the issue.[1] See Moody v. People, 159 P.3d 611, 616 (Colo. 2007) (appellate courts have authority to address standing sua sponte if there is a sufficient factual record upon which to resolve the issue). The parties supplied additional briefing on the issue of standing, [2] and we conclude that Rangeview has sufficient standing to proceed with its claims on appeal.

         ¶ 8 Standing is a jurisdictional prerequisite that requires a named plaintiff to bring suit to protect a cognizable interest. Friends of the Black Forest Reg'l Park, Inc. v. Bd. of Cty. Comm'rs, 80 P.3d 871, 877 (Colo.App. 2003). Whether a plaintiff has standing depends on whether the plaintiff has alleged an injury-in-fact and, if so, whether the injury is to a legally protected or cognizable interest. Bd. of Cty. Comm'rs v. Bowen/Edwards Assocs., Inc., 830 P.2d 1045, 1052 (Colo. 1992). In an action under the Uniform Declaratory Judgments Law, §§ 13-51-101 to -115, C.R.S. 2015, "the injury-in-fact element of standing is established when the allegations of the complaint, along with any other evidence submitted on the issue of standing, establishes that the regulatory scheme threatens to cause injury to the plaintiff's present or imminent activities." Bowen/Edwards Assocs., Inc., 830 P.2d at 1053. Colorado courts provide for broad individual standing. Hickenlooper v. Freedom from Religion Found., Inc., 2014 CO 77, ¶ 17.

         ¶ 9 Colorado case law is inconsistent regarding whether an appellate court may look beyond the four corners of the complaint and examine the contents of the appellate record to assess whether a party has proper standing to bring an action. Compare Colo. Gen. Assembly v. Lamm, 700 P.2d 508, 516 (Colo. 1985) ("If the complaint fails to allege injury, the case must be dismissed."), and C M I Corp. v. Bd. of Adjustment, 528 P.2d 409, 410 (Colo.App. 1974) (not published pursuant to C.A.R. 35(f)) (courts are not at liberty to go beyond the confines of a pleading when evaluating standing), with Marks v. Gessler, 2013 COA 115, ¶ 88 ("[I]n conducting our de novo standing review, we may examine record evidence outside of the complaint.") (cert. granted June 23, 2014), and Bowen/Edwards Assocs., Inc., 830 P.2d at 1052 (standing is established if the allegations in the complaint, along with any other evidence submitted on the issue of standing, demonstrate an injury-in-fact), and Coates v. City of Cripple Creek, 865 P.2d 924, 926 (Colo.App. 1993) (concluding, based on evidence in the appellate record, that plaintiffs had standing when plaintiffs alleged, at a city council hearing, that their property adjacent to land subject to a rezoning proposal would be adversely affected).

         ¶ 10 We note that the supreme court in Lamm, in articulating the relevant standing framework, was not presented with the issue of whether a court may look outside of the four corners of a complaint, or whether a court can look to the record to determine standing. See Lamm, 700 P.2d at 515-16. And, more recently, the supreme court stated, in Bowen/Edwards, that the injury-in-fact component of standing involves an inquiry of the allegations in the complaint along with any other evidence submitted in support of standing. Bowen/Edwards Assocs., Inc., 830 P.2d at 1053. Because the framework articulated in Bowen/Edwards is more recent and more specific to our present issue than the aforementioned cases rejecting the ability to look outside of the complaint for evidence supporting standing, we must follow it. See, e.g., Keller v. People, 29 P.3d 290, 298 (Colo. 2000) (more recent and more specific case controls).

         ¶ 11 Therefore, along with the allegations in the complaint, an appellate court may consider testimony and other documentary evidence in the appellate record to determine whether the parties have standing. See Bowen/Edwards Assocs., Inc., 830 P.2d at 1053; Marks, ¶ 88; Durdin v. Cheyenne Mtn. Bank, 98 P.3d 899, 902-03 (Colo.App. 2004); Coates, 865 P.2d at 926.

         ¶ 12 Rangeview's complaint never alleges that City Council's approval of the proposed site plan or the request to rezone the property will harm Rangeview, LLC, Eades, or Sellery. However, Rangeview presented testimony at the hearing before the City Council that several homes located in Rangeview Estates are located adjacent to the property. Colorado courts have recognized that owners of property adjacent to rezoned land have standing to challenge rezoning that adversely affects them. See, e.g., Bd. of Cty. Comm'rs v. City of Thornton, 629 P.2d 605, 609 (Colo. 1981); Wells v. Lodge Props., Inc., 976 P.2d 321, 324 (Colo.App. 1998); Coates, 865 P.2d at 926. Rangeview also offered expert testimony that the proposed site plan would result in a decrease in home values in adjacent neighborhoods, including Rangeview Estates. Rangeview's complaint alleges that Eades and Sellery own homes in the Rangeview Estates neighborhood. Therefore, we conclude that the record supports a showing of an injury-in-fact, that Rangeview had standing, and that the trial court had jurisdiction to adjudicate the claims before it. See Bowen/Edwards Assocs., Inc., 830 P.2d at 1052.

         ¶ 13 Although Rangeview's complaint could have been more complete and specific regarding their alleged injuries relating to the absence from the site plan of an outdoor gathering space, the record supports the conclusion that the properties surrounding the gas station and convenience store would suffer economic and aesthetic harm. See Ainscough v. Owens, 90 P.3d 851, 855 (Colo. 2004) (it is sufficient to allege harm based on aesthetic issues); see also Thornton, 629 P.2d at 609 ...

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