Arthur Keith Whitelaw, III; John DeRungs; Katherine K. McCrimmon; Laura Pitmon; Denise Sigon, f/k/a Denise L. Sager; Alan Singer; and Rita Singer, Plaintiffs-Appellants,
Denver City Council, including the individual Council members in their official capacity, Albus Brooks, Charlie Brown, Jeanne Faatz, Christopher Herndon, Robin Kniech, Peggy Lehmann, Paul López, Judy H. Montero, Chris Nevitt, Debbie Ortega, Jeanne Robb, Susan Shepherd, and Mary Beth Susman; Manager of Community Planning and Development, Brad Buchanan, in his official capacity; Denver Planning Board, including the individual Board members in their official capacity, Andy Baldyga, Jim Bershof, Shannon Gifford, Renee Martinez-Stone, Brittney Morris Saunders, Joel Noble, Susan Pearce, Arleen Taniwaki, Julie Underdahl, Frank Schultz, and Chris Smith; City and County of Denver; and Cedar Metropolitan LLC, Defendants-Appellees.
and County of Denver District Court No. 15CV32427 Honorable
Shelley I. Gilman, Judge
Gibson, Dunn & Crutcher LLP, Gregory J. Kerwin, Denver,
Colorado, for Plaintiffs-Appellants
Kristin M. Bronson, Denver City Attorney, Nathan J. Lucero,
Assistant City Attorney, Tracy A. Davis, Assistant City
Attorney, Denver, Colorado, for Defendants-Appellees Denver
City Council, including the individual Council members in
their official capacity, Albus Brooks, Charlie Brown, Jeanne
Faatz, Christopher Herndon, Robin Kniech, Peggy Lehmann, Paul
López, Judy H. Montero, Chris Nevitt, Debbie Ortega,
Jeanne Robb, Susan Shepherd, and Mary Beth Susman; Manager of
Community Planning and Development, Brad Buchanan, in his
official capacity; Denver Planning Board, including the
individual Board members in their official capacity, Andy
Baldyga, Jim Bershof, Shannon Gifford, Renee Martinez-Stone,
Brittney Morris Saunders, Joel Noble, Susan Pearce, Arleen
Taniwaki, Julie Underdahl, Frank Schultz, and Chris Smith;
and City and County of Denver
Graham Milstein & Calisher, LLP, Chip G. Schoneberger,
Katherine Roush, Denver, Colorado, for Defendant-Appellee
Cedar Metropolitan LLC
1 In this C.R.C.P. 106(a)(4) action, plaintiffs, Arthur Keith
Whitelaw, III; John DeRungs; Katherine K. McCrimmon; Laura
Pitmon; Denise Sigon, formerly known as Denise L. Sager; Alan
Singer; and Rita Singer (the neighbors), seek judicial review
of the rezoning decision of defendant Denver City
Council. We affirm.
2 Defendant Cedar Metropolitan LLC (Cedar) applied to rezone
the 2.3-acre "Mt. Gilead Parcel" located at 195 S.
Monaco Parkway, on the southeast corner of Crestmoor Park in
east Denver (the parcel). To build an
age-targeted apartment complex on the site, Cedar
sought to tear down a blighted church on the site and rezone
the parcel from E-SU-DX (single-family home) to S-MU-3
(allowing three-story apartment buildings).
3 The neighbors are property owners who live in the Crestmoor
Park neighborhood located near the parcel. They challenged
efforts by Cedar to rezone the parcel. They asserted that
rezoning would harm their property values, create traffic and
parking problems, cause hazards to pedestrians, and degrade
the character of the surrounding neighborhood. In June 2015,
after an eight-hour hearing where the City Council heard
comments from the public both in support of and against the
rezoning, the City Council changed the zoning designation to
4 The neighbors then challenged the rezoning in district
court. Their complaint asserted a claim for judicial review
under C.R.C.P. 106(a)(4) of the decisions of the City
Council, the Denver Planning Board, and the Community
Planning and Development Department (CPD) relating to the
rezoning of the parcel. The neighbors also asserted a claim
for declaratory relief concerning (a) the City's policy
and practice of not considering traffic and parking impacts
in the rezoning process; (b) the City's implementation of
the Protest Procedure in the Denver City Charter and Denver
Zoning Code (DZC); (c) the conflicts created by campaign
contributions to Council members from Cedar's lobbyist
seeking Council approval of Cedar's proposed zoning
change; and (d) whether the rezoning constituted unlawful
spot zoning. The district court rejected all of the
5 On appeal, the neighbors challenge the City Council's
approval of Cedar's requested rezoning under C.R.C.P.
106(a)(4). They assert various claims, including violation of
their right to due process. While the neighbors mention in
their briefs an appeal of the court's denial of their
claim for declaratory relief, we do not address it, since the
neighbors have only raised such a claim in a cursory manner;
indeed they did not cite C.R.C.P. 57 in their appellate
briefs. See People v. Gingles, 2014 COA 163, ¶
29, 350 P.3d 968, 973 (citing People v. Wallin, 167
P.3d 183, 187 (Colo.App. 2007)) (declining to address
arguments presented in a perfunctory or conclusory manner).
6 The neighbors contend that the City Council violated their
rights to due process in five ways. We disagree and address
each contention in turn.
Standard of Review and Preservation
7 In a Rule 106(a)(4) proceeding, our review is limited to
whether the governmental body's decision was an abuse of
discretion or was made in excess of its jurisdiction, based
on the evidence in the record before that body. C.R.C.P.
106(a)(4)(I); Verrier v. Colo. Dep't of Corr.,
77 P.3d 875, 879 (Colo.App. 2003); see also Alpenhof, LLC
v. City of Ouray, 2013 COA 9, ¶ 9, 297 P.3d 1052,
1055. An agency's misinterpretation or misapplication of
governing law may constitute an alternative ground for
finding an abuse of discretion under C.R.C.P. 106(a)(4).
See Roalstad v. City of Lafayette, 2015 COA ¶
13, 363 P.3d 790, 793.
8 Because an appellate court sits in the same position as the
district court when reviewing an agency's decision under
C.R.C.P. 106(a)(4), appellate review of the district
court's decision is de novo. Alward v. Golder,
148 P.3d 424, 428 (Colo.App. 2006) (citing Thomas v.
Colo. Dep't of Corr., 117 P.3d 7 (Colo.App. 2004)).
The rezoning of an individual parcel is a quasi-judicial
decision by the City Council. Cherry Hills Resort Dev.
Co. v. City of Cherry Hills Village, 757 P.2d 622,
625-26 (Colo. 1988). Quasi-judicial decision-making requires
notice and an opportunity to be heard as a matter of
"fundamental fairness to those persons whose protected
interests are likely to be affected by the governmental
decision." Id. at 626. We affirm a rezoning
decision unless the governmental entity exceeded its
jurisdiction or abused its discretion, which occurs if the
body misapplied the law or no competent evidence supports its
decision. Alpenhof, ¶ 9, 297 P.3d at 1055.
"No competent evidence" means that the decision is
"so devoid of evidentiary support that it can only be
explained as an arbitrary and capricious exercise of
authority." Canyon Area Residents v. Bd. of Cty.
Comm'rs, 172 P.3d 905, 907 (Colo.App. 2006) (quoting
Bd. of Cty. Comm'rs v. O'Dell, 920 P.2d 48,
50 (Colo. 1996)). While interpretation of a city code is
reviewed de novo, interpretations of the code by the
governmental entity charged with administering it deserve
deference if they are consistent with the drafters'
overall intent. Alpenhof, ¶ 10, 297 P.3d at
9 The neighbors preserved all of the issues below by raising
them in their Rule 106 petition.
10 The neighbors assert that Sean Maley, a lobbyist for
Cedar, communicated with Council member Mary Beth Susman, the
Council member in whose district the parcel lies, through her
private e-mail account and by phone prior to the public
hearing. They also suggest that Maley had similar
communications with other Council members. The neighbors
contend that the failure to disclose these communications to
the public prior to the hearing deprived them of their due
process rights since they did not receive notice and
opportunity to rebut the information on which the Council may
have impermissibly relied in making its
11 Acting as quasi-judicial decision-makers, city council
members are entitled to a "presumption of integrity,
honesty, and impartiality." Soon Yee Scott v. City
of Englewood, 672 P.2d 225, 227 (Colo.App. 1983). Thus,
while it is true that parties to an administrative hearing
should have the opportunity to be confronted with all facts
that influence the disposition of a case, there must be
substantial prejudice that is shown to invalidate an agency
action in order to rebut this presumption. L.G. Everist,
Inc. v. Water Quality Control Comm'n of Colo. Dep't
of Health, 714 P.2d 1349, 1352 (Colo.App. 1986) (citing
Mobile Pre-Mix Transit, Inc. v. Pub. Utils.
Comm'n, 618 P.2d 663 (Colo. 1980)).
12 Here, despite extensive evidence consisting of
approximately fifty pages of e-mails that form the basis of
their allegation of prejudice, the neighbors pointed to no
evidence of e-mails or telephone conversations that had a
substantial prejudicial impact on the outcome of the
proceeding. In fact, Council member Susman ultimately voted
against the rezoning. Nothing in the record suggests that she
disclosed any prejudicial communications to other Council
members who voted in favor of rezoning, either. Further, the
district court, in its detailed and thorough order, noted
that the record established that Council member Susman
reiterated in her e-mails to several people, including one to
former Council member Susan Barnes-Gelt, that she had a duty
to remain impartial. Thus, the record shows that, despite the
neighbors' claims that Susman encouraged others to vote
in favor of the rezoning while she voted against it,
neighbors have not rebutted the presumption that Susman acted
impartially. The neighbors' claims, based solely on the
hearsay e-mail from Barnes-Gelt, are insufficient to rebut
13 Therefore, we conclude that because the neighbors have not
overcome the presumption of integrity, honesty, and
impartiality, and have shown no prejudice from the
communications, the City Council did not violate their due
process rights. See Soon Yee Scott, 672 P.2d at 227.
Planning Board Conflict of Interest
14 The neighbors also assert that their due process rights
were violated due to the involvement of Jim Bershof,
Cedar's architect and a member of the City's Planning
Board, in the application process. The City's Planning
Board recommended that the City Council approve the rezoning
application. Bershof submitted the application to the Board,
but he did not attend or vote on the rezoning. The neighbors
claim that their due process rights were violated because
Bershof's connection to the Board imbued every member
with an inherent conflict of interest when they voted, as
quasi-judges, on their own colleague's rezoning request.
For the reasons discussed below, we do not address this
15 Denver Revised Municipal Code (D.R.M.C.) section 12-44
Any planning board member having a financial interest in any
measure before the board shall not participate in the
consideration of such measure as a board member nor vote on
such measure, but the board shall have authority to grant a
hearing to such member in the capacity of or as an applicant,
subject to the board's bylaws and rules and regulations
governing such hearings.
complied with this requirement by not attending the Planning
Board meeting or otherwise participating in the decision.
Regardless, whether section 12-44 creates or allows an
impermissible conflict of interest among the Planning Board
members is not subject to judicial review under Rule 106,
which limits our review to decisions of governmental bodies
or officers "exercising judicial or quasi-judicial
functions." C.R.C.P. 106(a)(4).
16 According to the zoning code, Planning Board members only
make recommendations to the City Council on rezoning
applications. See DZC § 18.104.22.168(E). A
division of this court considered a similar issue under the
Cherry Hills Municipal Code in Buck v. Park, 839
P.2d 498, 500 (Colo.App. 1992). The plaintiffs in that case
sought judicial review under C.R.C.P. 106(a)(4) of a
recommendation by the Cherry Hills Planning and Zoning
Commission to deny their rezoning application. Id.
at 499. The division held their claim unreviewable because
the Cherry Hills Municipal Code permitted the Commission only
to make a recommendation, while the final decision was
reserved for the City Council. Id. at 500.
17 Likewise, we conclude that the Planning Board's
recommendation on a proposed rezoning application is not
appealable because it is not a "final decision"
reviewable under C.R.C.P. 106(a)(4). According to the DZC, a
decision by the City Council on a rezoning decision may be
appealed to the district court. § 22.214.171.124. Nowhere
does the DZC refer to the Planning Board's recommendation
on a proposed rezoning amendment as a "decision."
Rather, the code refers to a "recommendation" by
the Planning Board and a "[f]inal [d]ecision" by
the City Council. § 126.96.36.199. The Planning Board's
recommendation is only an intermediate step in the review
process, which concludes with the City Council's decision
to approve or deny the proposed rezoning amendment. The DZC
explicitly states that only the City Council is responsible
for "final action" on a proposed rezoning
amendment. § 188.8.131.52. Therefore, Rule 106(a)(4) affords
no jurisdictional basis to review Planning Board
18 The neighbors contend that, regardless, the Planning
Board's recommendation is an essential step of the
process warranting review under Rule 106(a)(4). However, our
review is still limited to decisions of governmental bodies
or officers "exercising judicial or quasi-judicial
functions." C.R.C.P. 106(a)(4). While the neighbors
argue that the Planning Board could not function as a neutral
decision-maker due to Bershof's participation, we
conclude, by language of the DZC, that the Planning Board
does not sit as a quasi-judicial decision-maker, nor are its
recommendations an exercise of a ...