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LLC v. City of Thornton

Court of Appeals of Colorado, First Division

May 3, 2018

Stor-N-Lock Partners # 15, LLC, a Utah limited liability company, Plaintiff-Appellant and Cross-Appellee,
v.
City of Thornton, Colorado; and City Council of the City of Thornton, Colorado, Defendants-Appellees, and Resolute Investments, Inc., a Colorado corporation; and Qwest Corporation, a Colorado corporation, Defendants-Appellees and Cross-Appellants.

          Adams County District Court No. 16CV30215 Honorable Emily E. Anderson, Judge

          Lorenzo Ekker Dallner LLC, James E. Dallner, Denver, Colorado, for Plaintiff-Appellant and Cross-Appellee

          Luis A. Corchado, City Attorney, Sarah L. Geiger, Assistant City Attorney, Thornton, Colorado, for Defendants-Appellees City of Thornton and City Council of the City of Thornton

          Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Brian J. Connolly, Bill E. Kyriagis, Denver, Colorado, for Defendants-Appellees and Cross-Appellants Resolute Investments, Inc., and Qwest Corporation

          OPINION

          HARRIS, JUDGE.

         ¶ 1 Plaintiff, Stor-N-Lock Partners #15, LLC, owns a self-storage facility located in the City of Thornton. The Stor-N-Lock facility is located next to vacant property. Defendant, [1] Resolute Investments, Inc. (Resolute), contracted to buy the vacant property, then sought a specific use permit from the City to operate a self-storage facility there. The City granted the permit.

         ¶ 2 Stor-N-Lock appealed the City's decision to the district court under C.R.C.P. 106, and the district court affirmed.

         ¶ 3 As it did in the district court, Stor-N-Lock argues here that the City failed to understand that, in accordance with its own zoning regulations, the permit could not be granted unless the City found that Resolute's use of the property as a self-storage facility actually enhanced Stor-N-Lock's property. And, its argument continues, there was no evidence in the record to support such a finding.

         ¶ 4 We conclude that the record supports a finding that Resolute's use of the property would benefit Stor-N-Lock, and so we need not delve into the City's alleged misunderstanding of its zoning regulations.

          ¶ 5 On cross-appeal, Resolute raises the novel argument that, although Stor-N-Lock did not seek a preliminary injunction, and the district court did not enjoin Resolute's use of the property in any way, Stor-N-Lock should nonetheless have been ordered to post a bond when it initiated its Rule 106 action in the district court. According to Resolute, the mere filing of the action increased the financial risk associated with the project, thereby creating an "effective stay" of its development plan. We reject that argument as inconsistent with C.R.C.P. 106 and 65 and unsupported by any authority.

         ¶ 6 Accordingly, we affirm the judgment of the district court.

         I. Background

         ¶ 7 Since 1998, Stor-N-Lock has operated its 616-unit self-storage facility in an area of the City zoned for industrial uses. Stor-N-Lock's immediate neighbors include a school, an office building, and a manufacturing facility.

         ¶ 8 Directly to the south of Stor-N-Lock's facility is a five-acre parcel of undeveloped, vacant land. In 2015, after contracting to buy the property, Resolute submitted an application for a development permit and a specific use permit, seeking approval to develop the vacant land into a 1000-unit self-storage facility. (Though an industrial zone is the only area in which a self-storage facility may be located, a specific use permit is required.)

         ¶ 9 Under the City's zoning regulations, a specific use permit may be issued if the proposed use will

(a) Complement or be compatible with the surrounding uses and community facilities;
(b) Contribute to, enhance, or promote the welfare of the area of request and adjacent properties;
(c) Not be detrimental to the public health, safety, or general welfare;
(d) Conform in all other respects to all applicable zoning regulations and standards; and
(e) Be in conformance with the [City's] Comprehensive Plan.

         Thornton City Code § 18-52(a)(4).

         ¶ 10 The City's planning staff submitted a report and recommendation regarding Resolute's application to the Development Permits and Appeals Board (Board), the entity that issues development and specific use permits. The planning staff's report recommended that the Board issue the specific use permit because, among other reasons, "[t]he proposed self-storage mini- warehouse use will complement and be compatible with the surrounding land uses such as another self-storage mini-warehouse, an office building, and a manufacturer."

         ¶ 11 After holding a public hearing, the Board unanimously approved Resolute's request for the specific use permit, [2] finding that "[t]he proposed use will contribute to, enhance, and promote the welfare of the area of the request and adjacent properties by developing a vacant infill parcel, " which would benefit "adjacent properties by presenting a robust and fully developed commercial area."

         ¶ 12 Stor-N-Lock then appealed the Board's decision to the City Council. In anticipation of a second public hearing, the City's planning staff prepared another report and recommended that the City Council uphold the Board's decision. In that second report, the planning staff noted Stor-N-Lock's concern that Resolute's proposed use would hurt Stor-N-Lock's business by creating an "over-supply [of storage units] in the market, " but advised the City Council that "[p]otential competition is not a basis on which to deny a Specific Use Permit."

         ¶ 13 At the City Council's public hearing, the City's planning manager testified that Resolute's proposed use would "foster the development of the area" and benefit adjacent properties "by presenting a robust and fully developed commercial center." The City Council also received testimony ...


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