Wibby v. Boulder County Board of County Commissioners

COLORADO COURT OF APPEALS 2016COA104
Court of Appeals No. 15CA0849
Boulder County District Court No. 14CV31182
Honorable Dave Williams, Judge
Charles Wibby, Janix Hogle, Maureen Crook, Richard Eggers, Peter Dente,
Steve Miller, Barbara Knollenberg, Don Sherwood, Irving Armstrong, Gloria
Armstrong, Wayne Bailey, Harriet Bailey, Mike Baum, Carol Baum, Fe Barran,
Mark Briggs, William Brown, Jane Brown, James Burow, Shirley Burow,
Russell Jay Buster, Robert W. Callis, Nancy L. Callis, Dave Briggs, Renee
Chavira, Benjamin Brussell, Elizabeth Brussell, Gregory Bruening, Brenda
Bruening, James Calano, Craig Colley, Pam Colley, Don Cooke, Lynn Cooke,
Avinder Dhaliwal, Kristy Dhaliwal, Robert Dean, Natalie Dean, Tyler
Delaplaine, Shirley Delaplaine, Bryan Devine, Kirsten Devine, Cory F. Dickson,
Laura Dickson, Robert R. Dugan, Ernest Eason, Laurie Eason, James Eyster,
Katharine Eyster, James Fay, Thomas Finan, Karen Fukuma, Dan Fogelberg,
Robyn Fogelberg, Rich Frankenheimer, Demry Frankenheimer, Ted Frazier,
Carol Fruth, John Fruth, Richard Gates, Darlene Gates, Jay Gengelbach,
David Gerding, Shelly Gerding, Robert Hicks, Suzanne Hicks, Richard Granger,
Susan Granger, Douglas Harper, Kelly Harper, Lynn Herklotz, James Herklotz,
Vince Hirsch, Laurence Hirshland, Christine Hirshland, William Hoagland,
Susan D. Leach, James G. Hohenstein, Jerry Hopf, Charlotte Hopf, J. Mack
Hopping, Jeannine E. Hopping, Mike Hupka, Jean Hupka, Yvonne Iden, David
Kabal, Cassie Kabal, William Kaewert, Julie Kaewert, Gregory Keene, Jamiee
Keene, Edward Klimkowsky, Dolores Klimkowsky, Kenneth Laughery, Scott
Leslie, Julie Leslie, Russ Lindemann, Lori Lindemann, Deborah Maduff, Sharon
M. Malcolm, Milton Marasch, Nancy Marasch, Michael Mayfield, Madeline
Mayfield, Mark McCoy, Lois McCoy, Robert McCraith, Donna McCraith, Paul
McCrosson, Herbert McPherson, Shaila McPherson, Quentin McKenna, Eileen
McKenna, Steve Merager, John Michalakes, Grace Michalakes, Keith Miller,
Janice Miller, Clifford Monette, Patricia Monette, Peter Moore, Rochelle Moore,
Joseph Owen, Sharene Owen, Lee Papania, Jerome Papania, Jay Palmer,
Shaylin Palmer, David Patton, Kathy Foster-Patton, Dreu Patterson, Mark
Ponsor, Susan Ponsor, Dave Rahn, Mark Ringelmann, Nicole Ringelmann,
Mark Rothney, Leonard Rozek, Diane Rozek, Ronald Sandgrund, Cheryl Barr,
Elaine Scheiman, Robert Searls, Sandra Searls, Rama Gia Speakman, Alan
Zalewa, Charles Springer, Deborah Springer, John Stephens, Patricia
Stephens, Jim Strouse, Mark Schufman, Jillian Stuart, Rich Summers, Robert
Tanner, Hugh Tanner, Edward Theiss, Mary Theiss, Anthony Tome, Jr., Joe
Tonahill, Sandra Vanderveer, Will Vanderveer, David Van Deusen, Lisa Haley,
Gregory Volan, Wendy Volan, David Walker, Donna Waters, Francis Herb
Wiedemann, Josephine Wiedemann, Timothy Wilfong, Anne Wilfong, Gregory
Wilson, Christine Wilson, Robin Abb, George Alexander, Lynn Alexander, Jon
Allen Lailberte, April Laliberte, Stan Arnold, Jennifer Arnold, Diane Ashley,
Glade Bagnell, Marilyn Bagnell, Douglas Barakat, Mary Barakat, Gary
Baughman, Jean Baughman, Bonnie Bitter, Phil Bostley, III, Allen Brunke,
Janice Brunke, Jennifer Budacz, Jon Burkepile, Steve Carano, Karen K.
Christopher, Daniel Conser, Molly K. Brown, Timothy Cunningham, Christine
C. Cunningham, Michael Davison, Michael Driver, Dorrel Edstand, Stephen
Nepi, Daniel Foley, Judy Foley, Jesse Foote, Paul Gagner, Victoria Gagner,
Gordon Gates, Jan Gates, Damon Ginnow, Nancy Ginnow, Josh Ginsberg,
Lauren Ginsberg, Robert Grau, Diane Deyo, Ronald Grush, Lisabeth Hall,
Clinton Blackwood, Andrew Halperin, Brenda Burnell, James Hammack, Mary
Hammack, James Hayes, Jodie Hayes, Donald Hobbs, Joan Hobbs, Susan
Hofer, William Hollander, Margaret A. Hollander, Christopher Hume, Tara
Hefty, John Jacob, Edwin Kase, Barbara Ellwanger Kase, Terry Kelly, Diane
Kelly, David Kerridge, Barbara Kerridge, Robert Franssen, Deborah Keyek
Franssen, Eric J. Kramer, Robin Laurel, Ron Leever, Cindy Leever, Stephen
Leichty, Julie Melchior, Karen Lin, Melvin Lyon, Patricia Lyon, Robert Marriner,
Cynthia Marriner, Mary Elizabeth McClellan, Kay McCormick, Valery McNally,
Gregory Mecca, Kristen Mecca, Tom Miers, Donna Miers, Mark Milliman,
Elizabeth Mirowski, Brian Coffey, Robert Murphy, Leann Murphy, Stephanie
O’Connor, Dennis Ogden, Danean Ogden, Michael Persinger, Lori Persinger,
Pamela Pierce, Edward Podrasky, Rita Podrasky, Steven Preitauer, Marie
Preitauer, Allen Price, Janet Price, Kerry Richardson, David Rowan, Shelly
Rowan, Peter Schild, Paula Schild, Seward Dean Schooler, Jr., Mark
Severance, Pamela Severance, Jim Shapiro, Martha Shapiro, Terrence Smith,
Kent Somers, Analisa Somers, Andrew Spiegel, John Steiner, Robert Stoddard,
Harriett Stoddard, Dave Strand, Ann Strand, William Stawser, Kristopher
Pirtle, James Telischak, Christopher Tennis, Timothy Triggs, Penelope Triggs,
Leon Tupy, Judy Tupy, Cliff Watts, Craig Werner, Anita M. Wilks, Bob Worley,
Dorothy Worley, Ronald D. Young, and Fannie C. Young,
Plaintiffs-Appellants,
v.
Boulder County Board of County Commissioners,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE DUNN
J. Jones and Lichtenstein, JJ., concur
Announced June 30, 2016
Halpern Meacham, Madeline J. Meacham, Boulder, Colorado, for
Plaintiffs-Appellants
Ben Pearlman, County Attorney, David Hughes, Deputy County Attorney, Leslie
Wright Lacy, Assistant County Attorney, Boulder, Colorado, for
Defendant-Appellee
¶1 Unhappy that the roads in their subdivision have fallen into
disrepair, property owners in unincorporated Boulder County
(collectively, the Owners) filed an action to force the Boulder County
Board of County Commissioners (the County) to maintain their
subdivision roads. We conclude the Owners do not have standing
to bring their claims against the County. We therefore affirm the
dismissal of their claims.
I. Background
¶2 The Owners alleged the following facts and conclusions in
their complaints.1 The County “accepted road dedications from over
100 subdivisions in the unincorporated county over a period of
many decades.” The subdivisions dedicated the roads to the
County during the subdivision approval process. Once accepted,
the subdivision roads became part of the county road system and,
by statute, are assigned to the County for maintenance.
¶3 The County maintained the subdivision roads until the
mid-1990s. Since that time, the County has reduced its road
funding. As a result, the Owners claimed that the County has
1 The Owners filed three complaints. At issue here are the amended
and second amended complaints. The underlying allegations in
these two complaints are largely the same.
1
neglected to maintain the subdivision roads, resulting in “severe
deterioration.”
¶4 In their amended complaint, the Owners sought class
certification and asserted claims for breach of contract, declaratory
judgment, “mandatory injunction,” mandamus, and “breach of
contract damages.”2 They requested a court order requiring the
County to restore the subdivision roads to “[g]ood condition, within
five years” and to maintain the roads in “[g]ood condition.” The
County moved to dismiss the amended complaint under C.R.C.P.
12(b)(1) and C.R.C.P. 12(b)(5).
¶5 The district court granted the motion, ruling that the Owners
failed to state a claim for relief. The court concluded that the
pleading did not establish the existence of a valid contract or
sufficient certainty as to the essential contractual terms, and
because the court held that each of the claims “requires that . . . a
contractual relationship exist,” it dismissed the amended complaint.
2 Though pleaded as claims for relief, the requested injunction and
contract damages are remedies, not substantive claims for relief.
See, e.g., Cherokee Metro. Dist. v. Upper Black Squirrel Creek
Designated Ground Water Mgmt. Dist., 247 P.3d 567, 574 (Colo.
2011) (damages considered to be a contract remedy); Rathke v.
MacFarlane, 648 P.2d 648, 653-54 (Colo. 1982) (characterizing
injunction as a remedy).
2
¶6 The court, however, granted the Owners leave to amend their
complaint to assert “one or more claims” alleging that the County
abused its discretion or acted arbitrarily in not maintaining the
subdivision roads.
¶7 The Owners’ second amended complaint asserted claims for
“abuse of discretion,” mandatory injunctive relief, and damages.
The County moved to dismiss this complaint, arguing that the
Owners lacked standing. The district court agreed and dismissed
the second amended complaint.
¶8 The Owners appeal the dismissal of the amended and second
amended complaints.
II. Standing
¶9 Although the district court did not address the Owners’
standing as to the amended complaint, standing is a threshold
jurisdictional issue that may be raised at any time. Ainscough v.
Owens, 90 P.3d 851, 855 (Colo. 2004). Without standing, we
cannot consider the merits of the Owners’ claims. Hickenlooper v.
Freedom from Religion Found., Inc., 2014 CO 77, ¶ 7. Thus, we
must first determine whether the Owners have standing to assert
3
each of their claims for relief — the contract claim, statutory claims,
and “abuse of discretion” claim. We conclude they do not.
A. Governing Standards
¶ 10 To establish standing, a plaintiff must demonstrate that (1) he
suffered an injury in fact and (2) the injury was to a legally
protected interest. Wimberly v. Ettenberg, 194 Colo. 163, 168, 570
P.2d 535, 539 (1977); accord Ainscough, 90 P.3d at 855. If the
plaintiff cannot establish both, “no relief can be afforded, and the
case should be dismissed for lack of standing.” Wimberly, 194 Colo.
at 168, 570 P.2d at 539.
¶ 11 The first prong maintains the separation of powers doctrine
and prevents a court from invading the legislative and executive
spheres. Hickenlooper, ¶ 9. This prong requires a concrete
adverseness that sharpens the presentation of issues before the
courts. City of Greenwood Vill. v. Petitioners for Proposed City of
Centennial, 3 P.3d 427, 437 (Colo. 2000).
¶ 12 The second prong requires that the plaintiff demonstrate a
“legal interest protecting against the alleged injury.” Ainscough, 90
P.3d at 856; see also City of Greenwood Vill., 3 P.3d at 437. A
legally protected interest “may rest in property, arise out of
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contract, lie in tort, or be conferred by statute.” Barber v. Ritter,
196 P.3d 238, 246 (Colo. 2008). Thus, a court should consider
whether the plaintiff has asserted “a claim for relief under the
constitution, the common law, a statute, or a rule or regulation.”
Ainscough, 90 P.3d at 856.
¶ 13 Whether standing exists is a question of law that we review de
novo. Barber, 196 P.3d at 245.
B. Contract Claim
1. The Alleged Contract
¶ 14 The Owners did not claim that they entered into an express
contract with the County in which the County agreed to maintain
the subdivision roads. Rather, they alleged that “[b]y accepting the
roads in each subdivision, [the] County entered into a contract with
the developer of each subdivision[.]” And the Owners contended
that “the developer constructed the roads to county standards and
dedicated the roads to public use, in exchange for [the] County
agreeing to maintain the roads in the future at public expense.” In
other words, they claimed that an express maintenance contract
was created when the County approved the subdivision plan and
accepted the roads for the public.
5
2. Subdivision Approval
¶ 15 A subdivision developer must submit documentation to the
county regarding the development, layout, and infrastructure for a
planned subdivision. § 30-28-133(3), C.R.S. 2015. The county
evaluates the plan to determine whether the proposed subdivision
satisfies the county’s regulatory requirements.3 §§ 30-28-133(5),
(6), -133.5, C.R.S. 2015. As part of the approval process, the
county may require the developer to construct the subdivision roads
to the county’s standards. See §§ 30-28-110(3)(a), -137, C.R.S.
2015. Once constructed, the developer can request that the county
accept the subdivision roads for the public’s use. See
§ 30-28-110(3)(a). And the county may accept the proposed roads
“by legislative act, or by the public entity’s possession,
improvement, or use of the land as a public road.” Bd. of Cty.
Comm’rs v. Sherrill, 757 P.2d 1085, 1088 (Colo. App. 1987); see also
§ 30-28-110(3)(b). If accepted, the roads become part of the county
3 Every county has subdivision regulations. § 30-28-133(1), C.R.S.
2015. Boulder County’s subdivision regulations are not part of the
record and the amended complaint did not allege a violation of any
Boulder County subdivision regulations.
6
road system and are assigned to the county for maintenance.
§§ 43-2-111(1), -201, C.R.S. 2015.
3. The Owners Lack Standing
¶ 16 Whether the Owners have standing to assert their contract
claim depends upon whether they have a legally protected interest.
See Barber, 196 P.3d at 246. That is, whether a contract has been
created through the statutory subdivision approval process that
may be enforced by the Owners.
¶ 17 “When analyzing whether the government contracted by
statute, it is presumed that the legislature did not intend to bind
itself contractually and that the legislation was not intended to
create a contractual right unless there is a clear indication of the
legislature’s intent to be bound.” Justus v. State, 2014 CO 75, ¶ 20;
accord Colorado Springs Fire Fighters Ass’n v. City of Colorado
Springs, 784 P.2d 766, 773 (Colo. 1989). This presumption is
grounded on the unremarkable principle that the function of a
legislature is to make laws that establish policy, not contracts. E.g.,
Nat’l R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co.,
470 U.S. 451, 466 (1985). Statutory enactments, without more, do
not “create a contract relationship with those whom the statute
7
benefits.” Justus, ¶ 21. Thus, a party alleging the existence of a
contract based upon a statute “must overcome this well-founded
presumption.” Nat’l R.R., 470 U.S. at 466; accord Justus, ¶ 20.
¶ 18 The Owners did not allege any facts to overcome this
presumption. Nowhere did the amended complaint allege that the
legislature intended the subdivision statutes to create a contract
between the County and subdivision developers. And the complaint
did not identify — nor can we find — any contract-creating
language in the subdivision statutes that suggests a legislative
intent to create a contract between subdivision developers and
county commissioners for road maintenance. See Colorado Springs
Fire Fighters Ass’n, 784 P.2d at 773 (city ordinance “contained no
words of contract” to support an intent to create a contract); cf. U.S.
Tr. Co. of N.Y. v. New Jersey, 431 U.S. 1, 18 (1977) (deriving clear
intent to contract from the statutory phrase “covenant and agree”).
¶ 19 In an attempt to overcome this deficiency, the Owners contend
that their contract claim is not just based on the subdivision
statutes but is also based on documents they believe exist that will
establish a road maintenance contract with the County. And they
ask us to “infer that the County entered into road maintenance
8
agreements in connection with the approval process” and to
“assume[] that . . . the record of the subdivision approval [process]
would contain the information necessary to establish a contract.”
¶ 20 This argument is unavailing for two reasons. First, it is not
alleged in the complaint. Second, we are not at liberty to infer the
existence of a contract or its terms. It is for the Owners to plead the
existence of a legally protected interest — here a contract — and
they did not do so. See generally Denver Parents Ass’n v. Denver
Bd. of Educ., 10 P.3d 662, 665 (Colo. App. 2000) (stating parents
failed to plead the creation of a valid contract against a public
school district based on the school district’s legislative decision
regarding its education system). They therefore do not have
standing to sue the County for breach of contract.
9
C. Statutory Claims
¶ 21 The Owners also asserted claims for declaratory relief and
mandamus, alleging that the County violated its “statutory duty” to
maintain subdivision roads under the county highway statutes.4
1. The County Road Statutes
¶ 22 The amended complaint does not identify any particular
statute that creates the County’s alleged legal duty to maintain the
subdivision roads. Still, on appeal, the Owners point to a statute
that provides, as relevant here, that “both primary and secondary
[county] roads, shall be assigned to the county for construction and
maintenance.” § 43-2-111(1). They also appear to rely on statutory
provisions that (1) establish a fund in each county for construction
and maintenance of roads and bridges, § 43-2-202, C.R.S. 2015;
and (2) require counties to report construction and maintenance
expenditures, § 43-2-120, C.R.S. 2015. These provisions, they
4In its order dismissing the Owners’ amended complaint, the
district court dismissed all of the claims based on the lack of a
contract. However, the parties agree, as do we, that the mandamus
and declaratory judgment claims also alleged a “statutory duty” to
maintain the subdivision roads.
10
contend, create “the statutory duty to maintain county roads” and,
thus, require the County to maintain the subdivision roads.5
¶ 23 We therefore must determine whether the Owners have
standing to enforce the county road provisions.6
2. The Owners Lack Standing
¶ 24 Whether a plaintiff has standing to bring a statutory claim
depends on the rights conferred by the statute. Taxpayers for Pub.
Educ. v. Douglas Cty. Sch. Dist., 2015 CO 50, ¶ 15. Because the
Owners do not claim an express statutory private right of action, we
look to the statutory language to determine whether an implied
right exists. See id. at ¶ 17.
¶ 25 A private civil remedy may be implied where (1) the plaintiff is
part of the class of persons the statute is intended to benefit; (2) the
statute indicates an implicit intent to create a private right of
action; and (3) an implied right of action is consistent with the
purposes of the statute. See id. at ¶ 15; Allstate Ins. Co. v. Parfrey,
830 P.2d 905, 910 (Colo. 1992).
5 Because the matter is not before us, we express no opinion on
whether the statutory provisions impose a legal duty on the County
to maintain the subdivision roads or the extent of any such duty.
6 For ease of reference, we will refer to the identified statutory
provisions as the “county road provisions.”
11
¶ 26 Because the parties do not contest whether the Owners are
within the class of persons intended to be benefitted by the county
road provisions, we will assume the first factor is satisfied.
¶ 27 But the Owners cannot establish the second factor. Nothing
in the county road provisions suggests that the General Assembly
intended for private citizens — such as the Owners — to be able to
enforce those provisions. See Gerrity Oil & Gas Corp. v. Magness,
946 P.2d 913, 923 (Colo. 1997) (“[W]e will not infer a private right of
action based on a statutory violation unless we discern a clear
legislative intent to create such a cause of action.”); see also Bd. of
Cty. Comm’rs v. Moreland, 764 P.2d 812, 817-18 (Colo. 1988)
(explaining that a clear expression of legislative intent must be
present to allow a private civil remedy based on a governmental
entity’s breach of a legislatively imposed obligation).
¶ 28 Instead, the General Assembly conferred express authority on
the board of county commissioners to “determine the general
policies of the county as to county highway matters.”
§ 43-2-111(1).7 It further decreed that the policies of the board of
7 County highway systems include primary and secondary county
roads. § 43-2-108, C.R.S. 2015.
12
county commissioners “shall be carried out and administered by
the county road supervisors.” Id. Road supervisors are appointed
by the board of county commissioners and make recommendations
“for road repair and for construction of roads” which “shall be
subject to the approval of the board of county commissioners.”
§ 43-2-111(1), (5). The General Assembly thus imposed the
obligation of developing county road policies — and the oversight of
those policies — on the board of county commissioners. In doing
so, it entrusted county road issues to the board of county
commissioners — not private citizens. See Taxpayers, ¶ 20 (finding
no private right of action implied where the Public School Finance
Act instructed the state board of education to “make reasonable
rules and regulations” to enforce the Act’s provisions (quoting
§ 22-54-120(1), C.R.S. 2015)). The county road provisions therefore
do not indicate a legislative intent to allow a private right of action.
¶ 29 Nor does the third factor — whether a private right of action is
consistent with the purpose of the statute — support a private right
of action. The County is entrusted with developing and overseeing
county road policies. § 43-2-111. How it allocates funds for that
purpose is within its discretion. See Tihonovich v. Williams, 196
13
Colo. 144, 148, 582 P.2d 1051, 1053 (1978) (explaining that
budgetary decisions of the board of county commissioners is a
discretionary power). At bottom, the Owners disagree with the
County’s allocation of funds to road maintenance. But it is to be
expected that many citizens disagree with how a county allocates its
budget. That alone does not create a private judicial remedy.
¶ 30 To conclude otherwise would improperly intrude on the
County’s budgetary discretion. Worse, allowing a private right of
action could subject the County to endless litigation, which would
interfere with the County’s ability to “determine the general policies
of the county as to county highway matters.” § 43-2-111(1); cf.
Taxpayers, ¶ 21 (allowing private parties to sue state agencies “for
every perceived violation” of the Public School Finance Act would
“paralyze[]” the agencies and “cripple[] their effectiveness”). An
implied civil remedy is therefore not consistent with the purposes of
the county road provisions.
¶ 31 Because the Owners do not have standing to enforce the
county road provisions, we affirm the dismissal of the Owners’
mandamus and declaratory judgment claims.
14
D. “Abuse of Discretion” Claim
¶ 32 Finally, at the district court’s invitation, the Owners asserted a
claim for “abuse of discretion.” We are aware of no cognizable
cause of action for “abuse of discretion.” The claim, however,
appears to request a declaratory judgment that the County abused
its discretion in failing to “fulfill its duty” to maintain the
subdivision roads and “allocate funds for that purpose.”
Construing the claim as one for declaratory judgment, we conclude
the Owners do not have standing to maintain this claim.
¶ 33 “To have standing to bring a declaratory judgment action, a
plaintiff must assert a legal basis on which a claim for relief can be
grounded. The plaintiff must allege an injury in fact to a legally
protected or cognizable interest.” Farmers Ins. Exch. v. Dist. Court,
862 P.2d 944, 947 (Colo. 1993); accord GF Gaming Corp. v. Hyatt
Gaming Mgmt., Inc., 77 P.3d 894, 896 (Colo. App. 2003); see also
Colo. Chiropractic Ass’n v. Heuser, 177 Colo. 434, 438, 494 P.2d
833, 834 (1972) (dismissing declaratory judgment action because
the plaintiff lacked standing to challenge statute absent a showing
“that it [wa]s an aggrieved party or that it [wa]s a party whose
interest the statute was designed to protect”); Associated Master
15
Barbers of Am., Local No. 115 v. Journeyman Barbers, Hairdressers,
Cosmetologists & Proprietors Int’l Union of Am., Local No. 205, 132
Colo. 52, 55, 285 P.2d 599, 600-01 (1955) (holding that persons not
parties to a contract did not have standing to seek declaratory
judgment on contract’s validity).
¶ 34 But the Owners have not asserted any “legal basis” on which
their claim that the County had a duty to maintain the subdivision
roads “can be grounded.” Farmers, 862 P.2d at 947. As previously
explained, the Owners have neither a contractual nor a statutory
claim. Nor did they plead that the County has a common law duty
to maintain the subdivision roads or assert any common law claims
for relief. See Colo. Manufactured Hous. Ass’n v. Pueblo Cty., 857
P.2d 507, 511 (Colo. App. 1993) (explaining that standing is
determined “in the context of [the plaintiff’s] claims for relief”).8 The
district court therefore correctly dismissed the declaratory judgment
claim for lack of standing.
¶ 35 To the extent the “abuse of discretion” claim seeks to challenge
the County’s budgetary decisions, the Owners fare no better. They
8 Although the Owners argue that they have a common law property
interest, they do not explain how this interest relates to their claims
for relief.
16
cite no legal authority that would allow them to challenge the
County’s budgetary decisions. In the absence of some statutory,
constitutional, or other legal basis to challenge the County’s
discretionary budgeting decisions, the Owners lack standing to do
so.
¶ 36 Tihonovich does not provide otherwise. There, the court
allowed one constitutional officer — the sheriff — to maintain a
legal action against another constitutional officer — the board of
county commissioners — to compel the board to approve the
sheriff’s budget requests. Tihonovich, 196 Colo. at 147, 582 P.2d at
1053. In light of each party’s statutory duties, the supreme court
concluded that the sheriff had a right to pursue the action. Id. at
148, 582 P.2d at 1054. But because the board’s approval of budget
requests was within its broad discretion, the sheriff could not
compel the board to approve his requested budget. Id. at 148, 582
P.2d at 1053-54; see also Beacom v. Bd. of Cty. Comm’rs, 657 P.2d
440, 446 (Colo. 1983) (allowing district attorney to challenge board
of county commissioners’ disapproval of certain budget items, but
concluding evidence supported board’s budgetary allocations).
17
¶ 37 Tihonovich does not hold that members of the general public
have standing to challenge a county’s budgetary decisions. No
doubt members of the public have an interest in the budget
allocations of their county. But — in the absence of a recognized
legal basis to do so — that does not mean that every citizen has a
right to challenge a county’s budgetary decisions and its
discretionary allocation of finite funds. Tihonovich does not say
otherwise.
¶ 38 Accordingly, the district court did not err in dismissing the
“abuse of discretion” claim.
III. Remaining Contentions
¶ 39 Because we conclude that the Owners lack standing to assert
their claims, we do not reach the parties’ remaining contentions.
IV. Conclusion
¶ 40 The judgment is affirmed.
¶ 41 JUDGE J. JONES and JUDGE LICHTENSTEIN concur.
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