Save Cheyenne, a Colorado non-profit corporation, Plaintiff-Appellant,
The City of Colorado Springs, Colorado; the City Council of the City of Colorado Springs; John W. Suthers, in his official capacity as the Mayor of the City of Colorado Springs; and Ronn Carlentine, in his official capacity as the Real Estate Services Manager of the City of Colorado Springs, Defendants-Appellees, and Manitou and Pike's Peak Railway Company; COG Land & Development Company; PF, LLC; and Broadmoor Hotel, Inc., Intervenors-Appellees.
County District Court No. 16CV32101 Honorable Michael P.
& Smith, P.C., Charles E. Norton, Kristin N. Cisowski,
Denver, Colorado, for Plaintiff-Appellant
Wynetta P. Massey, City Attorney, Thomas J. Florczak,
Assistant City Attorney, Anne H. Turner, Assistant City
Attorney, Colorado Springs, Colorado, for
Lovells U.S. LLP, John W. Cook, Colorado Springs, Colorado;
Hogan Lovells U.S. LLP, Mark D. Gibson, Denver, Colorado;
Hogan Lovells U.S. LLP, Catherine E. Stetson, Washington,
D.C., for Intervenors-Appellees
Dahl Kuechenmeister & Renaud LLP, Gerald E. Dahl,
Lakewood, Colorado, for Amicus Curiae Colorado Municipal
1 Does the City of Colorado Springs have the power to convey
away a portion of a public park that was purchased by the
City and has been used as a park for more than a century?
Under the circumstances of this case, we conclude that the
answer to this question is "yes." The original
ordinance creating the park permitted its conveyance and did
not effect a statutory dedication of the park for public use.
Any dedication of the park at common law was abrogated by the
ordinance. And, as a home rule municipality, the City had no
obligation to hold an election under a state statute before
conveying the land. We also reject challenges to the
conveyance under sections 10-10 and 10-60 of the Charter of
the City of Colorado Springs, and conclude that the zoning
challenge of plaintiff, Save Cheyenne, is unripe. We
therefore affirm the district court's judgment dismissing
the complaint against the above-captioned defendants and
2 The parties' dispute concerns a Colorado Springs City
Council resolution approving a land exchange between the
City, on the one hand, and the Broadmoor Hotel, Inc.; the
Manitou and Pike's Peak Railway Company; the COG Land
& Development Company; and PF, LLC (collectively, the
Broadmoor), on the other hand. The most notable feature of
the land exchange concerns a 189.5-acre parcel within
Cheyenne Park. The parcel, known locally as "Strawberry
Fields, " was transferred to the Broadmoor for the
construction of a private equestrian center on an 8.5-acre
building envelope within the parcel. As a condition of the
transfer, the Broadmoor is required to allow continued public
access to Strawberry Fields, with the exception of land
within the building envelope.
3 In exchange for the City's conveyance of Strawberry
Fields and a City-owned parking lot, the Broadmoor
transferred to the City more than 300 acres of land and trail
easements, which are to be added to the City's park
4 Plaintiff, a local non-profit corporation, filed suit,
seeking (1) a declaration that the resolution authorizing the
exchange is null and void and (2) injunctive relief
preventing the land exchange. It also alleged a zoning
violation. The City and the Broadmoor moved to dismiss the
complaint under C.R.C.P. 12(b)(5), asserting that plaintiff
had failed to state any claims, and under C.R.C.P. 12(b)(1),
arguing that the court lacked jurisdiction over the zoning
challenge because it was unripe. In a lengthy, thorough, and
well-reasoned order, the district court granted the motion
and entered judgment against plaintiff.
5 We begin by rejecting defendants' motion to dismiss
plaintiff's appeal based on mootness. Defendants contend
that the case is moot because the land exchange closed
shortly after the district court entered judgment, and
plaintiff failed to seek a temporary restraining order,
preliminary injunction, or stay of the district court's
judgment. We disagree.
6 A court will generally not render an opinion on the merits
of an appeal when issues presented in the litigation become
moot because of subsequent events. United Air Lines, Inc.
v. City & Cty. of Denver, 973 P.2d 647, 652
(Colo.App. 1998), aff'd, 992 P.2d 41 (Colo.
2000). "A case is moot when a judgment would have no
practical effect upon an existing controversy, or would not
put an end to any uncertainty." Id.
7 A judgment against defendants would have a practical effect
on the parties' controversy. If the City Council did not
have the power to authorize the land exchange, our ruling
would result in a declaration that the resolution and
subsequent exchange are null and void, and thus the
transaction could be unwound. See Centennial Props., Inc.
v. City of Littleton, 154 Colo. 191, 205-06, 390 P.2d
471, 478 (1964) (voiding a property transfer where a city
lacked the power to enter into such an agreement); cf.
Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d
800, 815 (9th Cir. 1999) (A property transaction may be
voided where necessary, and "[w]here the actions
involved in a title transfer can be undone, [a] court will
not find meritorious the defense of mootness.").
8 We are not persuaded by the City's argument that,
because plaintiff did not seek a temporary restraining order,
preliminary injunction, or stay of the district court's
judgment, plaintiff is precluded from obtaining the relief it
seeks in this action. See, e.g., Zoning Bd. of
Adjustment v. DeVilbiss, 729 P.2d 353, 359 (Colo. 1986)
(the fact that the plaintiff failed to seek preliminary
injunctive relief or a stay of the court's judgment
factored into an analysis of whether a zoning variance
challenge was moot); Putnam v. Fortenberry, 589
N.W.2d 838, 844 (Neb. 1999) (case was moot because a
declaratory judgment could not undo the already-completed
sale of a hospital).
9 Plaintiff filed a notice of lis pendens in accordance with
section 38-35-110, C.R.S. 2017. That filing is, as the
statute provides, sufficient to give "notice to any
person thereafter acquiring, by, through, or under any party
named in such notice, [that] an interest in the real property
described in the notice . . . [might] be affected by the
action described in the notice." § 38-35-110(1);
see Top Rail Ranch Estates, LLC v. Walker, 2014 COA
9, ¶ 76 (notice of lis pendens remains in effect while
an appeal affecting interests in the described property is
pending). Therefore, the filing of the lis pendens is
sufficient to preserve plaintiff's rights while the
appeal is pending.
10 Defendants' reliance on the mootness analysis in
DeVilbiss, 729 P.2d at 358-60, is unavailing. The
supreme court specifically limited its holding to "the
particular facts of [that] case, " id. at 360,
and the facts here are dissimilar from those that drove the
supreme court's ruling. There, an appellate ruling in
favor of the plaintiff would have required the destruction of
a fifty-five-foot-tall, $7.7 million coal loading facility
that already employed 250 people. Id. at 354-55,
360. The prospect of such destruction was an important factor
in the supreme court's mootness analysis. Id. at
358-60. No such concerns are present here. We therefore
proceed to consider the merits of the appeal.
C.R.C.P. 12(b)(5) Dismissal of Claims
Standard of Review
11 A C.R.C.P. 12(b)(5) motion to dismiss tests the
sufficiency of the complaint. In assessing a motion under
that rule, a court must accept all matters of material fact
in the complaint as true and view the allegations in the
light most favorable to the plaintiff. BRW, Inc. v.
Dufficy & Sons, Inc., 99 P.3d 66, 71 (Colo. 2004).
Such a motion should only be granted when the plaintiff's
factual allegations cannot support a claim as a matter of
12 We review de novo the district court's order
dismissing under C.R.C.P. 12(b)(5) plaintiff's claims for
violation of a dedication of the land for park use, violation
of the city charter, violation of a state statute, and
violation of the Colorado Constitution. State Farm Fire
& Cas. Co. v. Weiss, 194 P.3d 1063, 1065 (Colo.App.
Statutory or Common Law Dedication
13 Plaintiff first contends that the resolution authorizing
the land exchange was an ultra vires act of the City Council
because Cheyenne Park had previously been dedicated as a
public park. According to plaintiff, the dedication was
effectuated either by statute or by operation of the common
law. Plaintiff argues that, as a consequence of the alleged
dedication, the City holds the park in trust for the public
and cannot convey the land within the park. We are not
14 Once a common law or statutory dedication occurs, title
vests in the government body "in its governmental
capacity in trust for the use of the public." City
& Cty. of Denver v. Publix Cab Co., 135 Colo. 132,
139, 308 P.2d 1016, 1020 (1957); Denver & S.F.R. Co.
v. Domke, 11 Colo. 247, 250, 17 P. 777, 778 (1888).
15 Though the complaint alleges that "Strawberry Fields
cannot be alienated in any fashion, " it is unclear
based on the law of Colorado whether a common law or
statutory dedication could theoretically bar a municipality
from conveying the land so dedicated. Compare Publix Cab
Co., 135 Colo. at 139, 308 P.2d at 1020 (holding that
"[o]nce [a] common law dedication occurred[, ] the title
to the [airport's] concourse vested in the City in its
governmental capacity in trust for the use of the public,
" but not discussing rights to alienate such property),
and McIntyre v. Bd. of Comm'rs, 15 Colo.App. 78,
84, 61 P. 237, 239 (1900) (stating that, where a parcel was
dedicated to public use, the City of Colorado Springs could
not "alienate the ground"), with §
31-15-713(1)(a), C.R.S. 2017 (providing that municipalities
have power to "sell and dispose of . . . real property
used or held for park purposes" after approval in an
election), and City of Longmont v. Colo. Oil & Gas
Ass'n, 2016 CO 29, ¶ 62 (rejecting a claim that
the state must hold natural resources in trust for the people
because "we [have not] seen . . . any applicable
Colorado case law adopting the public trust doctrine in this
16 Even assuming that such a bar on alienation might exist,
we conclude that no valid statutory dedication of Cheyenne
Park occurred, and ...