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Save Cheyenne v. City of Colorado Springs

Court of Appeals of Colorado, Third Division

February 8, 2018

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.

         El Paso County District Court No. 16CV32101 Honorable Michael P. McHenry, Judge

          Norton & 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 Defendants-Appellees

          Hogan 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

          Murray Dahl Kuechenmeister & Renaud LLP, Gerald E. Dahl, Lakewood, Colorado, for Amicus Curiae Colorado Municipal League


          TERRY JUDGE.

         ¶ 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 intervenors.

         I. Background

         ¶ 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 system.

         ¶ 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.

         II. Mootness

         ¶ 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.

         III. C.R.C.P. 12(b)(5) Dismissal of Claims

         A. 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 law. Id.

         ¶ 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. 2008).

         B. 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 persuaded.

         ¶ 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 state").

         ¶ 16 Even assuming that such a bar on alienation might exist, we conclude that no valid statutory dedication of Cheyenne Park occurred, and ...

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