Kevin O'Connell, Paul Hudgens, Carol Purdy, and Dee Hayes, Plaintiffs-Appellants,
v.
City Council of Denver and City and County of Denver, Colorado, Defendants-Appellees.
Announced May 2, 2019
Court
of Appeals No. 18CA0418 City and County of Denver District
Court No. 17CV33923 Honorable Robert L. McGahey, Jr., Judge
Prior
Opinion Announced December 13, 2018, WITHDRAWN Petition for
Rehearing GRANTED
J.D.
Porter, LLC, Jordan Porter, Denver, Colorado, for
Plaintiffs-Appellants
Kristin M. Bronson, City Attorney, Tracy A. Davis, Assistant
City Attorney, Adam C. Hernandez, Assistant City Attorney,
Joshua Roberts, Assistant City Attorney, Denver, Colorado,
for Defendants-Appellees
Dailey
and Vogt [*] ,
JJ., concur
OPINION
ASHBY
JUDGE
¶
1 Plaintiffs, Kevin O'Connell, Paul Hudgens, Carol Purdy,
and Dee Hayes, appeal the district court's order
dismissing their claims against defendants, the City Council
of Denver and the City and County of Denver, for failure to
state a claim. We reverse and remand with directions.
I.
Background
¶
2 Plaintiffs are property owners in a Denver neighborhood
that defendants recently designated as a historic district
called the Packard's Hill Historic District (PHHD). The
designation process culminated in September 2017, when the
Denver City Council voted eight to five in favor of the
designation.
¶
3 Plaintiffs opposed the designation throughout the process
and sued defendants after the final vote. Plaintiffs'
complaint alleged that the designation violated Denver City
Charter section 3.2.9(E). That provision requires a vote of
at least ten City Council members to change certain
regulations, restrictions, or boundaries when owners of at
least twenty percent of the area included in the change
oppose it. According to the complaint, owners of at least
twenty percent of the PHHD opposed its designation, therefore
triggering the ten-vote requirement.
¶
4 Plaintiffs' complaint contained three claims based on
this alleged violation: one claim for a declaratory judgment
under C.R.C.P. 57; one claim to compel defendants to adhere
to the Charter provision under C.R.C.P. 106(a)(2); and one
claim that defendants violated the Charter provision under
C.R.C.P. 106(a)(4). Defendants moved to dismiss all three
claims under C.R.C.P. 12(b)(5), arguing that plaintiffs had
failed to state a plausible claim for relief because the
Charter provision did not apply to historic district
designations. In a written order, the district court agreed
with defendants and dismissed all of plaintiffs' claims.
¶
5 Plaintiffs appeal that order. In our initial opinion, we
did not address the district court's determination that
the Charter provision did not apply to historic district
designations because we concluded that the claims were
subject to dismissal on other grounds. After considering
plaintiffs' petition for rehearing, we decide to address
the ...