Alpenhof, LLC v. City of Ouray
2013 COA 9
| Colo. Ct. App. | 2013Background
- Alpenhof, LLC seeks subdivision of Parcel C in Ouray, Colorado, but the city found flood risk from a diverted Skyrocket Creek channel required mitigation.
- Parcel C sits on an alluvial fan; the city diverted the creek in 1929 and has since maintained the diversion with ongoing improvements.
- The Ouray Planning Commission conditionally approved the plat with mitigation; the city council denied after concluding Section 7-7-D-10 allows mitigation of geologic conditions and natural hazards.
- Alpenhof challenged via a C.R.C.P. 106(a)(4) petition arguing the flood risk from diversion isn’t a geologic condition or natural hazard and that the plat note grants no extra authority.
- The district court denied Alpenhof’s challenge, and Alpenhof appealed seeking inverse condemnation or relief from the denial.
- The court affirms the city’s decision, finding the flood risk is intertwined with geologic conditions and natural hazards and that mitigation is appropriate under the code.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 7-7-D-10 applies to flood risk from a diverted channel | Alpenhof contends the risk stems from the diversion, not geologic or natural-hazard factors. | City reasonably interpreted 7-7-D-10 to address hazards arising from geologic/natural conditions, including diversion effects. | Yes; city properly applied 7-7-D-10 to require mitigation. |
| Whether flooding risk qualifies as a geologic condition or natural hazard | Flooding from the diverted creek is not a natural hazard or geologic condition. | Flood risk is intertwined with regional geologic features and qualifies as natural hazard/geologic condition. | Yes; flooding/mudflow risks fall within geologic condition and natural hazard. |
| Whether the record supports the city council’s mitigation decision | Record evidence does not support the council’s denial. | Record contains numerous probative items showing flood/debris risks and need for mitigation. | Yes; record supports mitigation and denial. |
| Whether the plat note is necessary to uphold the city’s action | Plat note does not grant additional authority beyond Section 7-7-D-10. | Plat note could bolster authority but is not necessary to sustain the decision given 7-7-D-10. | Not necessary to decide; city’s action upheld without relying on plat note. |
Key Cases Cited
- Kane v. Royal Ins. Co. of Am., 768 P.2d 678 (Colo. 1989) (flooding includes overflows whether natural or man-made in defining 'flood')
- Bartlett v. Cont'l Divide Ins. Co., 697 P.2d 412 (Colo.App. 1984) (flood damages from dam failure fall within ordinary use of term 'flood')
- Ross v. Fire & Police Pension Ass'n, 713 P.2d 1304 (Colo. 1986) (appellate court may not reweigh evidence; defer to agency weighing)
- Sundance Hills Homeowners Ass'n v. Bd. of County Commis., 188 Colo. 321, 534 P.2d 1212 (Colo. 1975) (courts do not function as zoning boards of appeals on appeal)
- O'Dell v. Board of County Commissioners, 920 P.2d 48 (Colo. 1996) (review of government decisions under 106(a)(d) is of the agency decision itself)
- Prairie Dog Advocates v. City of Lakewood, 20 P.3d 1203 (Colo. 2000) (apply standard of review to governmental decisions not de novo reweighing evidence)
- Francis v. City & County of Denver, 160 Colo. 440, 418 P.2d 45 (Colo. 1966) (addressing when to decide issues not necessary to disposition)