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O'Connell v. City Council of Denver

Court of Appeals of Colorado, Second Division

May 2, 2019

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         Prior Opinion Announced December 13, 2018, WITHDRAWN Petition for Rehearing GRANTED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 ...


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