2015 COA 127
Colo. Ct. App.2015Background
- In 2011 Aurora applied under Colorado's Regional Tourism Act (RTA) for tax-increment financing to support a large Gaylord hotel/conference center; CEDC conditionally approved $81 million in May 2012 subject to conditions and a formal resolution.
- Gaylord withdrew; RIDA/Marriott later agreed to develop a similar project. Aurora did not submit a new RTA application for that change.
- A group of eleven Front Range hotels (the Hotels) petitioned the CEDC (July 2013) arguing material changes required a new application; the Attorney General denied the petition as untimely in August 2013.
- The CEDC adopted a final resolution approving Aurora’s RTA award for the RIDA/Marriott Project in October 2013; the Hotels filed suit in September 2013 (amended later) asserting APA and mandamus claims and a constitutional challenge.
- The trial court dismissed the Hotels’ claims for lack of standing; the Court of Appeals affirmed, holding the Hotels lacked standing to pursue claims premised on alleged economic injury from the subsidized competitor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did final agency action occur for purposes of judicial-review deadlines? | Final action occurred when the AG denied the Hotels’ petition in Aug 2013. | Final action occurred at the CEDC’s May 2012 conditional approval. | Final action occurred in Oct 2013 when CEDC adopted the required written resolution memorializing the award; Hotels’ premature Sept 2013 filing did not deprive court of jurisdiction. |
| Were the Hotels’ APA and mandamus claims timely? | Their Sept 2013 filing was timely or should not be dismissed as premature. | The claims were untimely because deadlines ran from May 2012 approval. | The premature filing was not jurisdictionally fatal; court acquired jurisdiction when the Oct 2013 resolution issued, so the suit was not untimely. |
| Do the Hotels have standing to challenge CEDC/Aurora for allegedly failing to follow the RTA (claims 1,2,4)? | They alleged direct economic injury from competition and therefore have competitor standing. | The Hotels’ alleged injury is indirect—harm results from the competitor’s lawful market activity—so no standing. | Hotels lack standing: their economic harm is indirect and results from the competitor’s actions, not direct agency wrongdoing. |
| Is the constitutional challenge to §24-46-309 properly before the court? | It was presented as an as-applied challenge tied to May 2012 action. | CEDC/Aurora argued it was misconstrued and untimely. | The court declined to reach the constitutional claim because it concluded final action was in Oct 2013 and Hotels did not press an as-applied challenge to the statute post-resolution. |
Key Cases Cited
- 3 Bar J Homeowners Ass'n, Inc. v. McMurry, 967 P.2d 633 (Colo. App. 1998) (discusses administrative finality when later written resolution exists)
- Wilson v. Bd. of Cnty. Comm'rs, 992 P.2d 668 (Colo. App. 1999) (later written resolution can show earlier vote was not final)
- Luck v. Bd. of Cnty. Comm'rs, 789 P.2d 475 (Colo. App. 1990) (conditional approvals are not final agency action)
- Cloverleaf Kennel Club, Inc. v. Colorado Racing Comm'n, 620 P.2d 1051 (Colo. 1980) (competitor standing limits where harm flows from lawful market competition)
- Wimberly v. Ettenberg, 570 P.2d 535 (Colo. 1977) (economic injury indirect where caused by third-party choices)
- Brotman v. E. Lake Creek Ranch, L.L.P., 31 P.3d 886 (Colo. 2001) (distinguishes direct agency-caused injury from indirect injury caused by third-party exercise of rights)
- Colorado Medical Soc. v. Hickenlooper, 349 P.3d 1133 (Colo. 2015) (standing where agency action restructured regulatory framework and directly affected plaintiffs)