O'Connell v. City and County of Denver — , 2019 COA 65 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 2, 2019
2019COA65
No. 18CA0418, O’Connell v. City and County of Denver —
Municipal Law — City and County of Denver — Charter of the
City and County of Denver — Zoning; Denver Municipal Code —
Landmark Preservation
A division of the court of appeals considers whether the
Denver City Council’s designation of a historic preservation district
under the landmark preservation code is an exercise of the
Council’s City Charter Section 3.2.9 authority. The division
concludes that it is.
The district court concluded otherwise and consequently
dismissed plaintiffs’ claims. The division reverses the district
court’s order dismissing plaintiffs’ claims and remands for further
proceedings.
COLORADO COURT OF APPEALS 2019COA65
Court of Appeals No. 18CA0418
City and County of Denver District Court No. 17CV33923
Honorable Robert L. McGahey, Jr., Judge
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.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE ASHBY
Dailey and Vogt*, JJ., concur
Prior Opinion Announced December 13, 2018, WITHDRAWN
Petition for Rehearing GRANTED
Announced May 2, 2019
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
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶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.
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¶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 grounds relied on by the district court and conclude that the
court erred by dismissing plaintiffs’ claims.
II. Charter Section 3.2.9 Applies to Historic District Designations
¶6 We review de novo a district court’s ruling granting a motion to
dismiss for failure to state a claim under C.R.C.P. 12(b)(5). Andres
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Trucking Co. v. United Fire & Cas. Co., 2018 COA 144, ¶ 15. In
doing so, we accept the factual allegations in the complaint as true
and view them in the light most favorable to the plaintiff. Id. at
¶ 14. Based on those facts, we then determine whether the
complaint states a plausible claim for relief. Id.
¶7 Plaintiffs argue that the district court erred by ruling that
historic district designations are not an exercise of the City
Council’s Charter section 3.2.9 powers (3.2.9 powers). According to
plaintiffs, a historic district designation is an exercise of that
authority and the designation must therefore comply with section
3.2.9, including section 3.2.9(E)’s ten-vote requirement. We agree
with plaintiffs and therefore reverse the district court’s order
dismissing plaintiffs’ claims with prejudice.
A. Governing Law
¶8 We review interpretations of a city charter and municipal code
de novo, applying ordinary rules of statutory construction. See
Marshall v. Civil Serv. Comm’n, 2016 COA 156, ¶ 9 (interpreting city
charter); Alpenhof, LLC v. City of Ouray, 2013 COA 9, ¶ 10
(interpreting city code). Under those rules of statutory
construction, we aim to give effect to the legislative intent. See MDC
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Holdings, Inc. v. Town of Parker, 223 P.3d 710, 717 (Colo. 2010). To
determine legislative intent, we look first to the language of the
charter or code provisions. City of Colorado Springs v. Securcare
Self Storage, Inc., 10 P.3d 1244, 1249 (Colo. 2000). If we can give
effect to the ordinary meaning of the words in the provision, we will
construe the provision as written. Id.
¶9 The interpretation of a provision by an agency charged with its
administration is entitled to deference. See Marshall, ¶ 9. But
courts are “not bound by an agency interpretation that is
inconsistent with the clear language of the [provision].” Barnes v.
Dep’t of Revenue, 23 P.3d 1235, 1236 (Colo. App. 2000).
¶ 10 With these principles in mind, we turn to the Charter and code
provisions at issue in this case.
B. Charter Section 3.2.9 and Landmark Preservation Code
¶ 11 Denver is a home rule city, and its Charter is effectively the
City’s constitution. See Glenwood Post v. City of Glenwood Springs,
731 P.2d 761, 762 (Colo. App. 1986). Charter section 3.2.9(B) gives
the City Council the authority to create “Districts of such manner,
shape and area as may be deemed best suited to carry out the
purposes of this Charter; and within such districts it may regulate
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and restrict the erection, construction, reconstruction, alteration,
repair or use of buildings, structures or land.”
¶ 12 Charter section 3.2.9(E) provides that those “regulations,
restrictions and boundaries may from time to time be amended,
supplemented, changed, modified or repealed.” If a proposal to
make such a change is opposed by the owners of at least twenty
percent of the area included in the proposal, it requires at least ten
votes on the City Council to pass. Id.
¶ 13 Chapter 30 of the Denver Revised Municipal Code (DRMC)
contains the ordinances governing historic districts. It establishes
the criteria and procedure for creating historic districts. DRMC 30-
3. Once a historic district is created, DRMC 30-6 provides that the
landmark preservation commission must approve the demolition,
alteration, reconstruction, construction, or erection of buildings
within the district.
¶ 14 By its clear language, the landmark preservation code
regulates the same activity that Charter section 3.2.9(B) authorizes
the City Council to regulate. The description of the regulations
contemplated by Charter section 3.2.9 and DRMC 30 are nearly
identical. Charter section 3.2.9(B) empowers the City Council to
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regulate or restrict the “erection, construction, reconstruction,
alteration, repair or use of buildings, structures or land.” And
DRMC 30-6(3) requires a landmark preservation commission permit
for “[a]lteration of, reconstruction of, or addition to the exterior of
any structure” designated for preservation, DRMC 30-6(3)(a);
“[d]emolition of any structure” designated for preservation, DRMC
30-6(3)(b); or “[c]onstruction of, erection of, or any addition to any
structure upon any land” designated for preservation, DRMC 30-
6(3)(c). Therefore, by creating a historic district under the
landmark preservation code, the City Council is exercising its 3.2.9
powers.
¶ 15 We are not persuaded otherwise by any of defendants’
arguments. Defendants point out that the City Council, pursuant
to its 3.2.9 powers, has enacted the zoning code, which is in a
separate section of the municipal code than the landmark
preservation code. They further point out that the zoning code
prescribes a regulatory scheme distinct from that of the landmark
preservation code. This is true, but irrelevant.
¶ 16 Nothing about Charter section 3.2.9 requires that all
ordinances enacted pursuant to it reside in the same place in the
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city’s municipal code. And the activity regulated and restricted
under the landmark preservation code falls within the general
description of regulations authorized by Charter section 3.2.9. We
therefore see no reason why the zoning code and the landmark
preservation code cannot be separate exercises of the City Council’s
3.2.9 powers.
¶ 17 Next, defendants argue that designating a historic district
under the landmark preservation code cannot be an exercise of the
City Council’s 3.2.9 powers because it is instead an exercise of the
City Council’s police power. Their support for this argument relies
entirely on similarities in the purposes of the police power and the
landmark preservation code; the Charter gives the City Council the
police power to preserve the “general welfare” of the city and its
inhabitants,1 and the landmark preservation code’s policy
declaration states that one of its purposes is promoting the “general
1 Our appellate review extends only to municipal provisions that are
included in the record. See Alpenhof, LLC v. City of Ouray, 2013
COA 9, ¶ 10. And defendants failed to include the Charter police
power section in the record on appeal. We nevertheless reject
defendants’ police power argument on its merits by assuming that
defendants accurately represented the substance of the Charter’s
police power section in their answer brief.
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welfare of the people,” DRMC 30-1(1). But this common purpose
does not distinguish the landmark preservation powers from the
3.2.9 powers. Indeed, the City Council’s 3.2.9 powers also exist for
the “purpose of promoting . . . the general welfare of the
community.” Charter § 3.2.9(A). Moreover, defendants do not
explain, and we cannot discern, why such overlapping purposes
would be problematic.
¶ 18 Finally, defendants argue that historic districts are distinct
from the districts referred to in Charter section 3.2.9. But Charter
section 3.2.9 does not define “district.” It states only that the City
Council “may divide the City and County of Denver into Districts of
such manner, shape and area as may be deemed best suited to
carry out the purposes of this Charter.” Charter § 3.2.9(B).
Historic districts designated under the landmark preservation code
certainly fit this description.
¶ 19 It is true that we would ordinarily defer to a city’s
interpretation of its own charter and ordinances. But we owe no
deference to interpretations that are contrary to the provisions’
clear language. See Barnes, 23 P.3d at 1236. Charter section 3.2.9
clearly authorizes the City Council to draw districts and regulate
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and restrict what can be done to buildings, structures, and land
within those districts. Creating a historic district pursuant to the
landmark preservation code also does just that; it establishes a new
district and imposes regulations and restrictions on the activity
described by Charter section 3.2.9.
¶ 20 For all of these reasons, we conclude that establishing historic
districts under the landmark preservation code is an exercise of the
City Council’s 3.2.9 powers. The district court therefore erred by
ruling otherwise and dismissing plaintiffs’ complaint as a result.
¶ 21 Based on our determination that Charter section 3.2.9 applies
to historic district designations, we need not address plaintiffs’
argument that defendants’ failure to apply Charter section 3.2.9 to
the PHHD designation violated due process.
III. Other Issues
¶ 22 We conclude above that, in general, Charter section 3.2.9
applies to historic district designations. But plaintiffs’ complaint is
based on a more specific allegation: that the proposed creation of
the PHHD triggered the ten-vote requirement of Charter section
3.2.9(E). This ten-vote requirement is triggered when there is a
proposal to amend, supplement, change, modify, or repeal a
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regulation, restriction, or boundary and that proposal has sufficient
opposition. Charter § 3.2.9(E). Importantly, plaintiffs’ complaint
did not allege facts establishing that the creation of the PHHD
triggered the ten-vote requirement of Charter section 3.2.9(E)
because the complaint did not allege that the PHHD designation
had any effect on existing regulations, restrictions, or boundaries.
¶ 23 Defendants did not raise this issue in their motion to dismiss,
and the district court did not address it. Ordinarily, we would not
comment on this issue because it is unnecessary to our resolution
of the appeal. However, our previous now-withdrawn opinion
identified this factual shortcoming in the complaint. We therefore
note that because we reverse the dismissal of plaintiffs’ complaint
on the grounds articulated above, plaintiffs should now have an
opportunity to cure the deficiency in their complaint, if they can, on
remand. C.R.C.P. 15(a) allows a party to amend a pleading “once as
a matter of course at any time before a responsive pleading is filed.”
And because defendants have yet to file a responsive pleading,
plaintiffs should be entitled to amend their complaint. See Davis v.
Paolino, 21 P.3d 870, 873 (Colo. App. 2001) (motion to dismiss is
not a responsive pleading for purposes of C.R.C.P. 15(a)).
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IV. Conclusion
¶ 24 The district court’s judgment dismissing plaintiffs’ complaint
with prejudice is reversed. The case is remanded to the district
court with directions to conduct further proceedings consistent with
this opinion.
JUDGE DAILEY and JUDGE VOGT concur.
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