City of Aurora v. Scott , 410 P.3d 720 ( 2017 )

COLORADO COURT OF APPEALS 2017COA24
Court of Appeals No. 16CA0393
Arapahoe County District Court No. 15CV31613
Honorable Charles M. Pratt, Judge
City of Aurora, Colorado, a municipal corporation; and Aurora Urban Renewal
Authority, a Colorado urban renewal authority
Plaintiffs-Appellants,
v.
Marc Scott, in his official capacity as Arapahoe County Assessor,
Defendant-Appellee.
ORDER AND JUDGMENT AFFIRMED
Division I
Opinion by JUDGE GRAHAM
Taubman and Navarro, JJ., concur
Announced February 23, 2017
Michael J. Hyman, City Attorney, Christine A. McKenney, Assistant City
Attorney, Aurora, Colorado; Hamre, Rodriguez, Ostrander & Dingess, P.C.,
Richard F. Rodriguez, Joel M. Spector, Denver, Colorado, for Plaintiffs-
Appellants
Ronald A. Carl, Arapahoe County Attorney, John R. Christofferson, Deputy
County Attorney, Benjamin P. Swartzendruber, Assistant County Attorney,
Littleton, Colorado, for Defendant-Appellee
Hall Evans, LLC, Thomas J. Lyons, Brian Molzahn, Denver, Colorado, for
Amicus Curiae Colorado Counties, Inc.
Murray Dahl Kuechenmeister & Renaud, LLP, Geoffrey T. Wilson, Denver,
Colorado, for Amicus Curiae Colorado Municipal League
Cynthia H. Coffman, Attorney General, Frederick R. Yarger, Solicitor General,
Robert H. Dodd, Senior Assistant Attorney General, Denver, Colorado, for
Amicus Curiae Colorado Property Tax Administrator
George Rosenberg, Littleton, Colorado for Amicus Curiae Colorado Assessors
Association
¶1 In this case we must decide whether Colorado’s Urban
Renewal Law (URL), sections 31-25-101 to -116, C.R.S. 2014,1
permits a municipality to delay the start date of a tax increment
financing period used to fund a redevelopment project by writing
such a delay into an urban renewal plan. We conclude that it does
not and therefore affirm the district court’s order and judgment.
I. Background
¶2 Under Colorado’s Urban Renewal Law, a city can establish an
urban renewal authority, which in cooperation with the city creates
an urban renewal plan to redevelop blighted or slum areas.
§ 31-25-104, C.R.S. 2014. The URL authorizes the use of tax
increment financing (TIF) to fund renewal projects. TIF uses
recently assessed property values in an urban renewal area to
establish a base tax value. § 31-25-107(9)(a), C.R.S. 2014. As
property values increase above the base value, increased tax
revenues are allocated to the financing of the renewal project.
Those revenues are applied to the renewal fund and are used to pay
1 We cite the 2014 statute throughout this opinion because it varies
in some respects from the current version of the URL, due to
amendments made in 2015. See Ch. 261, secs. 1-4, §§ 31-25-104,
-107, -115, 2015 Colo. Sess. Laws 984-89; see also §§ 31-25-101 to
-116, C.R.S. 2016.
1
down the debt against the project. Id. The statute places a
twenty-five year limit on TIF allocations to a renewal fund that runs
from “the effective date of adoption of such a [TIF] provision.” Id.
¶3 The URL provides that a county be provided notice of the
proposed plan, expected impacts on county revenues and services,
and its right to submit disputes over the notice to arbitration.
§ 31-25-107(3.5), (12), C.R.S 2014.
¶4 In this case, the City of Aurora (the City) approved two urban
renewal plans (collectively, the Plans) with multiple phases of
redevelopment. The Fitzsimons Plan included four development
phases and the plan stated that TIF would begin immediately for
the first two phases but be delayed for the second two phases. The
Iliff Plan included two development phases and provided for TIF to
begin immediately for phase one and to be delayed for phase two.
¶5 After the City approved the Plans, the Arapahoe County
Assessor (the Assessor), who is tasked with calculating property
values for tax purposes, immediately calculated base tax values for
all development phases. The City and the Aurora Urban Renewal
Authority (collectively, Aurora) filed a complaint against the
Assessor asking the court to order him to delay allocating TIF. The
2
Assessor argued that he was complying with the URL, which does
not permit a city to delay the start of TIF allocations.
¶6 On cross-motions for determination of law, the district court
entered an order in favor of the Assessor, concluding that the URL
does not expressly permit the start of TIF allocations to be delayed.
Because this determination of law resolved all issues in the case,
the court then also entered judgment for the Assessor. Aurora then
filed this appeal.
¶7 Aurora argues that (1) the Assessor is barred from defending
himself based on his interpretation of the URL; (2) the district court
misinterpreted the relevant URL provisions; and (3) the Assessor
cannot rely on, and this court is not bound by, informal guidance
from the Colorado Property Tax Administrator (the Administrator).
We conclude that (1) the Assessor’s defense is not barred; (2) the
district court correctly interpreted the URL; and (3) we have not
relied on the Administrator’s informal guidance.
II. The Assessor Is Not Barred from Defending Himself Based on
His Interpretation of the URL
¶8 We first address the threshold question of whether the
Assessor’s defense is barred. Although the legal basis for Aurora’s
3
assertions is less than clear, we conclude that the doctrines of
waiver, preclusion, and estoppel do not bar the defense.
A. The Assessor Has Not Waived This Defense by Failure to Raise
the Issue Earlier
¶9 Aurora argues that the Assessor waived his right to defend
himself based on his own interpretation of the URL because he did
not submit the issue to arbitration or appeal the Plans’ approval via
a C.R.C.P. 106(a)(4) action. We conclude that none of these
contentions is correct.
¶ 10 Where the facts are undisputed, waiver is a question of law
that we review de novo. Duran v. Housing Auth. of City & Cty. of
Denver, 761 P.2d 180, 183 (Colo. 1988).
¶ 11 Waiver is the intentional relinquishment of a known right,
which may be accomplished by words or conduct that clearly
manifests an intent to give up that right. Id.
1. The URL’s Arbitration Procedure Does Not Apply to This
Dispute
¶ 12 The Assessor has not waived his right to assert this defense by
his own or Arapahoe County’s (the County’s) failure to arbitrate
because the statutory arbitration procedure applies only to certain
challenges not raised here.
4
¶ 13 Aurora argues that, under section 31-25-107(12), the County’s
exclusive remedy for challenging any aspect of an urban renewal
plan is arbitration. Aurora further asserts that the Assessor, as an
officer of the County, is also bound by this exclusive remedy.
Therefore, Aurora contends, the County’s failure to submit this
question to arbitration amounts to a waiver by the Assessor of the
right to defend. We disagree that arbitration is a county’s exclusive
remedy for all challenges to an urban renewal plan.2
¶ 14 Statutory interpretation is a question of law that we review de
novo. Bd. of Cty. Comm’rs v. ExxonMobile Oil Corp., 192 P.3d 582,
585 (Colo. App. 2008). We interpret a statute as a whole giving
words their plain and ordinary meanings, with the goal of effecting
the legislature’s intent. Id.
¶ 15 Aurora’s argument is based on the language of section
31-25-107(12)(f), which provides that “the arbitration process
established in this subsection (12) shall be the exclusive remedy
available to a county for contesting the sufficiency of compliance by
2 Because we conclude that arbitration is not a county’s exclusive
remedy for all disputes related to an urban renewal plan, we do not
address whether a county assessor is bound by a county’s actions
or inactions.
5
a governing body or an authority with the requirements of this
section.” § 31-25-107(12)(f), C.R.S. 2014.
¶ 16 However, Aurora takes the language of paragraph (f) out of
context from the rest of subsection (12). Subsection (12)(a) states
that “the county may enforce the requirements of subparagraphs
[(3.5)(a)(III), (IV), and (4)(h)] by means of the arbitration process
established by this subsection (12) . . . .” § 31-25-107(12)(a). Other
parts of subsection (12) also specifically discuss noncompliance
with subsections (3.5)(a)(III), (IV), and (4)(h). See
§ 31-25-107(12)(b)(I), C.R.S. 2014 (county must state how the
municipality has not complied with subsections (3.5)(a)(III), (IV), or
(4)(h)); § 31-25-107(12)(c), C.R.S. 2014 (municipality has burden of
proving compliance with subsections (3.5)(a)(III), (IV), and (4)(h)).
Reading subsection (12) as a whole, we conclude that the
arbitration process is a county’s exclusive remedy only with respect
to challenges related to subsections (3.5)(a)(III), (IV), and (4)(h).
¶ 17 We also note that in 2015 the General Assembly amended
section 31-25-107 to add subsection (9.5), which sets forth a
mediation procedure to be used when cities and counties cannot
agree on TIF allocations. Ch. 261, sec. 2, § 31-25-107, 2015 Colo.
6
 Sess. Laws 986-89; see also § 31-25-107(9.5). If arbitration was
intended to be a county’s exclusive remedy for all disputes related
to an urban renewal plan, we would expect some sort of
harmonization of these conflicting provisions. In the absence of any
such reconciliation, and in light of the specific statutory references
to subsections (3.5)(a)(III), (IV), and (4)(h), we conclude that the
arbitration procedure is applicable only to challenges related to
subsections (3.5)(a)(III), (IV), and (4)(h).
¶ 18 Because the Assessor’s interpretation of subsection (9)(a) is
unrelated to compliance with subsections (3.5)(a)(III), (IV), and
(4)(h), the County’s failure to arbitrate the TIF issue does not bar
the Assessor’s defense.
2. Aurora Has Not Preserved Its Rule 106(a)(4) Argument
¶ 19 We do not address Aurora’s argument that the Assessor
waived his right to this defense by failing to file a Rule 106(a)(4)
action challenging the Plans’ approval, because this issue was not
raised in the trial court. See McGihon v. Cave, 2016 COA 78, ¶ 10
n.1 (“We do not consider arguments that were not raised in the
district court.”).
7
B. The Preclusion Doctrines Do Not Apply to This Case
¶ 20 Aurora also argues that the Assessor is precluded from
defending this action because he should have litigated the issue in
public hearings regarding the projects. To the extent that this
argument suggests estoppel by issue preclusion, we reject it. The
doctrines of claim preclusion and issue preclusion are inapplicable
on these facts.
1. An Undecided Issue Cannot Be Precluded
¶ 21 First, the Assessor’s defense is not barred by issue preclusion
(collateral estoppel) because the meaning of the statute and the
question of whether the City had the power to delay the start of the
TIF clock was not decided during the public hearings. See City &
Cty. of Denver v. Block 173 Assocs., 814 P.2d 824, 831 (Colo. 1991)
(“Collateral estoppel [issue preclusion] . . . only applies to issues
actually litigated.”). Since the City did not interpret section
31-25-107(9)(a) or decide whether the Plans complied with statutory
TIF limits, there is no determination that can be deemed conclusive
in this action.
8
2. The Assessor’s Claim Is Not Precluded Because He Was Not a
Party to the Public Hearings Regarding These Plans
¶ 22 Nor is the Assessor’s defense barred by claim preclusion (res
judicata) because he was not party to or in privity with a party to
the public hearings in which these Plans were approved.
¶ 23 Where the facts are undisputed, claim preclusion is a question
of law that we review de novo. McGillis Inv. Co., LLP v. First
Interstate Fin. Utah LLC, 2015 COA 116, ¶ 67.
¶ 24 “Claim preclusion serves the dual purposes of protecting
litigants from the burden of relitigating the same issue with the
same party or his or her privy and of promoting judicial economy by
preventing needless litigation.” McLane W., Inc. v. Dep’t of Revenue,
199 P.3d 752, 756 (Colo. App. 2008). Claim preclusion “bars not
only the claims actually litigated in the first proceeding, but also
those that could have been litigated.” Id. The doctrine applies
when “there is (1) finality of the first judgment; (2) identity of
subject matter; (3) identity of claims for relief; and (4) identity of or
privity between parties to the actions.” Id.
¶ 25 Claim preclusion is inapplicable here because neither the
County nor the Assessor was a party to the public hearings on
9
these Plans. Neither the Assessor nor the County had any role in
adopting or rejecting the Plans. See Bd. of Cty. Comm’rs v. City of
Broomfield, 7 P.3d 1033, 1037 (Colo. App. 1999) (holding that URL
does not grant board of county commissioners any role in the
approval process other than to receive notice of an urban renewal
plan).
¶ 26 We also reject the assertion that because the County and
Assessor had notice of the public hearings they were “parties” for
the purpose of claim preclusion. The cases cited in support of this
contention deal with issue preclusion, not claim preclusion. It is
true that parties with notice, standing, and an opportunity to be
heard may be barred from relitigating an issue that was actually
decided even if they did not appear in an earlier case. K9Shrink,
LLC v. Ridgewood Meadows Water & Homeowners Ass’n, 278 P.3d
372, 375 (Colo. App. 2011). However, we find no support for
extending that rule to claim preclusion. This would result in the
preclusion of claims that were never decided against individuals
and entities that were never party to an earlier action. Such an
application would not further the purposes of claim preclusion to
10
prevent relitigation of the same issues between the same parties
and to promote judicial economy.
¶ 27 Since the Assessor was neither party to nor in privity with a
party to the public hearings, claim preclusion cannot bar his
defense now.
C. The Defense is Not Equitably Estopped
¶ 28 Finally, the Assessor’s defense is not barred by equitable
estoppel because Aurora could not have reasonably relied on the
Assessor’s or the County’s inaction in a public hearing where the
law grants them no role. Equitable estoppel may be applied to
prevent fundamental injustice when one party detrimentally
changed its position in justifiable reliance on the words or conduct
of the other party. City of Sheridan v. Keen, 34 Colo. App. 228,
232-33, 524 P.2d 1390, 1393 (1974). As we have explained,
however, neither the Assessor nor the County played any part in
the public approval process. Therefore, we cannot conclude that
the trial court erred in implicitly finding that Aurora did not
detrimentally rely upon the Assessor’s or County’s failure to raise
the issue earlier.
11
¶ 29 Having concluded that the Assessor’s defense is not barred, we
turn to the merits of the appeal.
III. The Tax Increment Financing Provisions in These Plans Violate
the Time Limit Imposed by the URL
A. Standard of Review and Applicable Law
¶ 30 Statutory interpretation is a question of law that we review de
novo. ExxonMobile, 192 P.3d at 585. We interpret a statute as a
whole with the goal of effecting the General Assembly’s intent. Id.
We look to the plain statutory language and give words their
commonly understood and accepted meanings. Northglenn Urban
Renewal Auth. v. Reyes, 2013 COA 24, ¶ 17. We avoid
interpretations that would lead to an absurd or unreasonable
result. ExxonMobile, 192 P.3d at 586.
B. Analysis
1. The Plain Statutory Language Does Not Permit a Municipality
to Extend the Twenty-Five Year Limit on Tax Increment
Financing Provisions
¶ 31 The URL does not permit a municipality to alter or evade the
twenty-five year time limit on TIF provisions by denominating parts
of a plan “effective” after the plan is approved. The language Aurora
cites only allows a TIF period to start running after the original plan
12
is approved when the city later approves a plan modification that
includes a new TIF provision.
¶ 32 The relevant section provides that
any urban renewal plan, as originally approved
or as later modified . . . , may contain a
provision that taxes . . . levied after the
effective date of the approval of such urban
renewal plan upon taxable property in an
urban renewal area each year . . . by or for the
benefit of any public body shall be divided for a
period not to exceed twenty-five years after the
effective date of adoption of such a provision.
§ 31-25-107(9)(a), C.R.S. 2014.
¶ 33 The parties disagree as to the meaning of “the effective date of
adoption of such a provision.” Aurora argues that the “effective
date of adoption of such a provision” is different from the “effective
date of the approval of such urban renewal plan,” and allows a city
to delay the “effective date of adoption of such a provision” by
writing a delay into the urban renewal plan.
¶ 34 The Assessor argues that the “effective date of adoption of
such a provision” is synonymous with the “effective date of the
approval of such urban renewal plan,” and that a city cannot delay
the “effective date of adoption of such a provision” by writing a delay
into the urban renewal plan.
13
¶ 35 Although we disagree that the “effective date of adoption of
such a provision” and the “effective date of approval of such urban
renewal plan” are synonymous, we conclude that in this case there
was no practical difference between when the Plans were approved
and when the TIF provisions were adopted.
¶ 36 First, we agree with the Assessor that “approval” and
“adoption” as used in the URL are synonymous. The law does not
define these terms, so we look to their commonly understood and
accepted meanings. Reyes, ¶ 17. Black’s Law Dictionary provides
the following definitions:
adoption, n. (14c) . . . . 5. Parliamentary law.
A deliberative assembly’s act of agreeing to a
motion or the text of a resolution, order, rule,
or other paper or proposal, or of endorsing as
its own statement the complete contents of a
report.
....
approve, vb. (14c) 1. To give formal sanction to;
to confirm authoritatively. 2. Parliamentary
law. To adopt.
Black’s Law Dictionary 58, 123 (10th ed. 2014). Thus, the ordinary
meanings of “approval” and “adoption” are comparable when used
in reference to the actions of a deliberative body, such as a
14
municipal government, to refer to acts of formal acceptance or
endorsement.
¶ 37 Furthermore, the URL provides no basis for distinguishing
between “adoption” and “approval.” Section 31-25-107 uses the
phrases “effective date of the approval” and “effective date of
adoption” interchangeably to express an act of agreement or
endorsement. Therefore, we conclude that there is no meaningful
difference between the phrases “effective date of the approval” and
“effective date of adoption” as used in the URL.
¶ 38 However, this does not end our inquiry. The difference
between the relevant passages goes beyond the use of “adoption”
versus “approval.” Part of the statute refers to the date of approval
“of such urban renewal plan,” while the section at issue uses the
date of adoption “of such a provision.”
¶ 39 There is a difference between an urban renewal plan and a TIF
provision. An urban renewal plan is a “plan . . . for an urban
renewal project” that conforms to the general municipal plan and
contains details for accomplishing the urban renewal project.
§ 31-25-103(9), C.R.S. 2014. A TIF provision is “a provision that
taxes . . . shall be divided” and those taxes attributable to the urban
15
renewal project will be allocated to the urban renewal fund to pay
project debts. § 31-25-107(9)(a)(I), (II), C.R.S. 2014. In essence, a
TIF provision is an optional component of an urban renewal plan,
while the plan itself is a mandatory, comprehensive document
regarding how the area will be redeveloped.
¶ 40 We agree with Aurora that these phrases have different
meanings, but that difference does not have the result Aurora
urges. Instead, this language contemplates the effect of plan
modifications that include TIF provisions.
¶ 41 Subsection (9)(a) provides that “any urban renewal plan, as
originally approved or as later modified . . . , may contain a
provision that taxes . . . shall be divided for a period not to exceed
twenty-five years after the effective date of adoption of such a
provision.” § 31-25-107(9)(a), C.R.S. 2014 (emphasis added).
Reading the subsection as a whole, we conclude:
(1) that a plan modification can include a TIF provision — as
demonstrated by the language “any urban renewal plan
. . . as later modified . . . may contain a provision that
taxes . . . shall be divided”;
16
(2) that the TIF period is limited to twenty-five years — as
shown by the language “shall be divided for a period not
to exceed twenty-five years”;
(3) that the twenty-five year period begins running when the
TIF provision is adopted — as shown by the language
“after the effective date of adoption of such a provision”;
and
(4) that a TIF provision is adopted on the date the plan or
modification containing that provision was approved —
based on the ordinary meaning of the term “adoption,”
which is the act of agreeing to or endorsing the relevant
provision. See Black’s Law Dictionary at 58, 123.
¶ 42 This conclusion is bolstered by considering the consequence of
alternate wording. If the legislature had written “any urban renewal
plan, as originally approved or as later modified, may contain a
provision that taxes shall be divided for a period not to exceed
twenty-five years after the effective date of adoption of the urban
renewal plan,” any TIF provisions added to a plan by a subsequent
modification would necessarily be effective on the date the original
plan was approved. Instead, by tying the TIF period to the provision
17
rather than the plan, the legislature has allowed for TIF provisions
to run from the date a provision was approved, even if it was added
to a plan later. But it is important to note that modifying an urban
renewal plan involves another public approval process. See
§ 31-25-107(7), C.R.S. 2014. This language does not allow a
municipality to evade the twenty-five-year time limit simply by
writing an urban renewal plan that deems parts of the plan
“effective” on a date years after the plan was actually approved.
¶ 43 Our interpretation is also consistent with Reyes. In that case,
another division of this court considered when the TIF clock began
running on land that was subsequently added to an urban renewal
plan. Reyes, ¶ 24. The original plan was approved in 1992 and
land was added in 2004. Id. at ¶¶ 2, 4. The division concluded
that the city could have altered TIF timing for the newly added land
because “the statutory language allows the modification to contain
a TIF provision.” Id. at ¶ 29. But because the modification did not
include new TIF provisions, the newly added land was subject to the
original time limits. Id. at ¶ 30.
¶ 44 Thus, Reyes similarly interpreted the “effective date of
adoption of such a provision” as contemplating either the date an
18
original plan with a TIF provision or a modification containing a TIF
provision was approved. Where there is no subsequent modification
(as here) or a modification does not include a new TIF provision (as
in Reyes), the TIF provision is “adopted” when the original plan was
approved.
¶ 45 We reject Aurora’s assertion that, under Reyes, a
municipality’s power to control the timing of an urban renewal plan
under section 31-25-107(8) encompasses the power to write its own
TIF timeline. Subsection (8) provides that “[u]pon the approval . . .
of an urban renewal plan or a substantial modification thereof, the
provisions of said plan with respect to the land area, land use,
design, building requirements, timing, or procedure applicable to
the property covered by said plan shall be controlling . . . .”
§ 31-25-107(8), C.R.S. 2014.
¶ 46 However, the authority granted by subsection (8) to control
timing does not extend to setting a TIF timeline. Instead, this
subsection refers to other aspects of the urban renewal plan timing,
such as the timing of construction and development.
¶ 47 This interpretation is consistent with Reyes. Although the
Reyes division noted that “the City Council could have altered the
19
timing of the TIF provision,” this statement was made in the specific
context of an urban renewal plan modification. Reyes, ¶ 29.
Indeed, the division’s full statement was that “the City Council
could have altered the timing of the TIF provision for the newly
added properties.” Id. (emphasis added). The division cited the
statute’s modification language to support its conclusion. Id.
¶ 48 The Reyes division did not suggest that a city has the power to
overrule the statutory timeline. It only concluded that, because the
modification contained no new TIF provision, the newly added land
was subject to the original TIF termination date, “twenty-five years
from the effective date of the original TIF provision.” Id. at ¶ 32.
Thus, Reyes is consistent with our interpretation that the “effective
date of adoption of [a TIF] provision” contemplates the date a plan
or modification containing the relevant TIF provision was approved,
not a date determined by the municipality.
¶ 49 Section 31-25-107(9)(a)(II) also supports the conclusion that a
municipality’s powers under subsection (8) do not extend to setting
a TIF timeline. Subsection (9)(a)(II) requires TIF allocations to begin
immediately after the effective date of approval of the urban renewal
plan or modification containing the TIF provision. Under
20
subsection (9)(a)(I), “the taxes which are produced . . . each year by
or for each such public body upon the valuation for assessment of
taxable property in the urban renewal area last certified prior to the
effective date of approval of the urban renewal plan [or modification]
. . . shall be paid into the funds of each such public body . . . .”
§ 31-25-107(9)(a)(I), C.R.S. 2014 (emphasis added). And under
subsection (9)(a)(II), “[t]hat portion of said property taxes . . . in
excess of the amount of property taxes . . . paid into the funds of
each such public body [under paragraph (I)] shall be allocated to
and . . . paid into a special fund of the authority . . . .”
§ 31-25-107(9)(a)(II), C.R.S. 2014 (emphasis added). Since
paragraph (I) sets the date for the base valuation (“the effective date
of approval of [the] plan [or modification]”) and paragraph (II)
requires taxes in excess of the base valuation to be allocated to the
urban renewal fund, when read together, the provisions of
subsection (9)(a) require that TIF allocations begin on the effective
date of approval of the urban renewal plan or modification
containing the TIF provision.
¶ 50 Aurora places great weight on the words “effective date,”
arguing that because the General Assembly did not define the
21
“effective date of approval of [an] urban renewal plan” and the
“effective date of adoption of [a TIF] provision,” municipalities are
empowered to define the “effective date” of such actions. However,
this is contrary to well-settled rules of statutory interpretation,
which require us to give words their commonly understood and
accepted meanings. See Reyes, ¶ 17. Black’s Law Dictionary
defines “effective” in the context of “a statute, order, contract, etc.”
as “in operation at a given time.” Black’s Law Dictionary at 628. It
defines “effective date” as “[t]he date on which a statute, contract,
insurance policy, or other such instrument becomes enforceable or
otherwise takes effect.” Id. at 478. Although “[t]his date sometimes
differs from the date on which the instrument was enacted or
signed,” id. (emphasis added), we find no support for applying a
later effective date of adoption or approval here. The common
understanding of the phrase “effective date of adoption of such a
provision” is the date on which a provision becomes enforceable or
operational through a municipality’s act of formally sanctioning or
agreeing to the provision. See id. at 58, 123, 478, 628.3
3Indeed, the City’s own actions comport with the common
understanding. The resolutions “approv[ing] and adopt[ing]” the
22
¶ 51 Moreover, to hold otherwise would nullify the URL’s
twenty-five year time limit on TIF allocations by allowing
municipalities to divorce the TIF timeline from the date a TIF
provision was adopted. In an analogous case, another division of
this court concluded that a town could not avoid making the
findings required by section 31-25-107 by submitting an urban
renewal plan to the voters for approval. E. Grand Cty. Sch. Dist. No.
2 v. Town of Winter Park, 739 P.2d 862, 865-66 (Colo. App. 1987).
The court explained that “[t]o hold [that voters implicitly made the
necessary findings by approving the plan] would circumvent the
legislative intent underlying the statutory requirement for the
specified findings.” Id. at 866.
¶ 52 Similarly, here, to permit a city to define the “effective date of
adoption of [a TIF] provision” would effectively allow the city to
circumvent statutory time limits. The URL says that TIF cannot
“exceed twenty-five years after the effective date of adoption of such
a provision.” § 31-25-107(9)(a), C.R.S. 2014 (emphasis added). It
does not say that “TIF allocations cannot exceed twenty-five years.”
Plans are stamped with the “EFFECTIVE DATE[S]” on which the
resolutions were passed: February 10 and April 28, 2014.
23
But this would be the result of Aurora’s urged interpretation.
Allowing a city to define the “effective date of adoption” as any
convenient date, regardless of when the provision was actually
approved, would divorce the TIF timeline from the date of adoption
and create a TIF limit of twenty-five years from any date chosen by
the municipality. The statutory language does not support such a
result.
¶ 53 These Plans violate the URL requirement that TIF runs from
the date of adoption because the areas where TIF is delayed are not
modifications but are written into the original plans. The City
formally “approv[ed] and adopt[ed]” the Plans, including the TIF
provisions, on February 10 and April 28, 2014, yet the plans or
resolutions state that certain provisions will not be “deemed
established” until a later unspecified date.4 This is beyond what the
4 The resolution approving the Iliff Station Plan stated that “Tax
Increment Area No. 1 . . . shall be deemed established upon the
date of approval of [this plan],” while “Tax Increment Area No. 2 . . .
shall be deemed established upon the date on which the City
approves the initial site plan for the redevelopment of property
located within such Tax Increment Area.” The resolution approving
the Fitzsimons Plan does not expressly note the TIF delay, but the
plan provides that “Tax Increment Areas 1 and 2 shall be deemed
established on the date of approval of this plan. With respect to Tax
Increment Areas 3 and 4, the allocation of the Tax Increment shall
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statute allows. Nothing in the URL authorizes a municipality or an
urban renewal authority to extend the twenty-five year limit simply
by deeming parts of the plan “approved” on a later date.
¶ 54 Aurora could have accomplished the results it desires by
approving only the first phases of each project and later modifying
the plans to include additional land subject to new TIF provisions.
However, the URL does not permit Aurora to evade the twenty-five
year limit by drafting its own TIF timeline. The statute is clear that
TIF cannot exceed twenty-five years from the date the provision is
adopted, and a city cannot extend that time limit by denominating
certain provisions “effective” on a date after they are actually
approved.
2. Aurora’s Other Arguments
¶ 55 We also reject each of Aurora’s remaining contentions.
a. Approving the Plans Was Beyond Aurora’s Legislative Powers
¶ 56 Aurora argues that adopting these urban renewal plans
involved legislative acts within the City’s powers as a home-rule
commence on the Effective Date of Allocation,” which is defined as
“the date upon which the City approves the initial site plan for the
redevelopment of property located within such Tax Increment
Area . . . .”
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city. We disagree. Adopting an urban renewal plan is not a
legislative act, but, even if it was, approving these Plans would be
outside of the City’s powers because the URL must be interpreted to
require the TIF period to begin running immediately upon approval
of the plan or modification containing the TIF provision.
¶ 57 First, we are not persuaded that approving an urban renewal
plan is a legislative act. The public approval process includes
notice and an opportunity to be heard for interested individuals,
involves the application of existing standards to facts developed at a
hearing, and affects specific individuals (as opposed to being
generally applicable public policy). These are all factors that
suggest a quasi-judicial decision. See Cherry Hills Resort Dev. Co. v.
City of Cherry Hills Vill., 757 P.2d 622, 625-27 (Colo. 1988).
¶ 58 However, even if approving an urban renewal plan could be
characterized as legislative, approving these Plans would be beyond
the City’s powers because the Plans conflict with the URL’s TIF
timeline. If a local ordinance conflicts with a state law in a matter
of mixed state and local concern, the ordinance is superseded by
state statute. Webb v. City of Black Hawk, 2013 CO 9, ¶ 16.
Aurora acknowledges that urban renewal is a matter of mixed state
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and local concern, see Denver Urban Renewal Auth. v. Byrne, 618
P.2d 1374, 1385 (Colo. 1980), and, as we have explained, the Plans’
TIF provisions conflict with URL time limits. Therefore, even if the
City’s acts were legislative, they would nevertheless be invalid.
b. We Have Not Relied on Guidance from the Colorado
Administrator
¶ 59 Finally, guidance from the Administrator is only entitled to
persuasive weight, and we do not consider it in this case. Although
guidance from the Administrator is binding on assessors, it is not
binding on a reviewing court. Huddleston v. Grand Cty. Bd. of
Equalization, 913 P.2d 15, 17 (Colo. 1996) (“[I]t is for the courts to
decide issues of law and . . . reviewing courts are not bound to
follow the statutory interpretations reflected in the manuals.”). In
this case we do not give the Administrator’s guidance even
persuasive weight because the statute is not subject to multiple
reasonable interpretations, and, in any event, the reference manual
does not offer any insight into this issue.
IV. Conclusion
¶ 60 Order and judgment affirmed.
JUDGE TAUBMAN and JUDGE NAVARRO concur.
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