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Whitelaw v. Denver City Council

Court of Appeals of Colorado, Division I

April 6, 2017

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,
v.
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.

         City 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

          Foster Graham Milstein & Calisher, LLP, Chip G. Schoneberger, Katherine Roush, Denver, Colorado, for Defendant-Appellee Cedar Metropolitan LLC

          OPINION

          TAUBMAN JUDGE.

         ¶ 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.[1] We affirm.

         I. Background

         ¶ 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[2] 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 S-MU-3.

         ¶ 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 neighbors' claims.

         ¶ 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).

         II. Due Process Violation

         ¶ 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.

         A. 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 1055.

         ¶ 9 The neighbors preserved all of the issues below by raising them in their Rule 106 petition.

         B. Ex Parte Communications

         ¶ 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 determination.[3]

         ¶ 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, [4] the 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 the presumption.

         ¶ 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.

         C. The 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 claim.

         ¶ 15 Denver Revised Municipal Code (D.R.M.C.) section 12-44 specifically provides:

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.

         Bershof 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 § 12.4.10.4(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. § 12.4.11.5. 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. § 12.4.11.3. 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. § 12.2.1.2. Therefore, Rule 106(a)(4) affords no jurisdictional basis to review Planning Board recommendations.

         ¶ 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 ...


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