O'Connell v. City and County of Denver —
2019 COA 65
| Colo. Ct. App. | 2019Background
- Plaintiffs are owners of property within a Denver neighborhood designated by Denver City Council as the Packard’s Hill Historic District (PHHD) by an 8–5 vote in September 2017.
- Plaintiffs alleged the designation violated Denver City Charter § 3.2.9(E), which requires at least ten City Council votes to change regulations/restrictions/boundaries when owners of ≥20% of the affected area oppose the proposal.
- Plaintiffs sued the City Council and City and County of Denver seeking declaratory relief and relief under C.R.C.P. 106(a)(2) and 106(a)(4); defendants moved to dismiss for failure to state a claim, arguing § 3.2.9 did not apply to landmark/historic-district designations.
- The district court granted the motion and dismissed the complaint with prejudice; the Court of Appeals reviewed de novo and reversed, holding historic-district designations are an exercise of Charter § 3.2.9 powers.
- The court concluded the Landmark Preservation Code (DRMC ch. 30) regulates erection, alteration, demolition, and construction in designated districts—activities identical in scope to the regulatory authority described in § 3.2.9(B).
- The court remanded for further proceedings and noted plaintiffs may amend the complaint because they had not pleaded facts showing whether the PHHD designation actually amended existing regulations/restrictions/boundaries to trigger the ten-vote rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether historic-district designations under the Landmark Preservation Code are an exercise of City Council powers under Charter § 3.2.9 | Designating a historic district regulates/restricts erection, alteration, demolition, and use of buildings/land and thus is an exercise of § 3.2.9 powers | Landmark designations are not § 3.2.9 exercises but separate: either a different zoning scheme, or an exercise of the City’s police power | Held: Designating historic districts under DRMC ch. 30 is an exercise of § 3.2.9 powers because the code regulates the same activities § 3.2.9 authorizes the Council to regulate |
| Whether the § 3.2.9(E) ten-vote requirement applied to the PHHD designation as pleaded | The PHHD designation was opposed by owners of ≥20% of the area, triggering the ten-vote requirement | Defendants did not argue the ten-vote factual trigger in the motion to dismiss | Court: § 3.2.9(E) applies in general, but plaintiffs’ complaint failed to allege facts showing the PHHD affected existing regulations/restrictions/boundaries to invoke the ten-vote requirement; plaintiffs may amend |
Key Cases Cited
- MDC Holdings, Inc. v. Town of Parker, 223 P.3d 710 (Colo. 2010) (statutory construction: give effect to legislative intent and ordinary meaning)
- City of Colorado Springs v. Securcare Self Storage, Inc., 10 P.3d 1244 (Colo. 2000) (first look to text when determining legislative intent)
- Barnes v. Dep’t of Revenue, 23 P.3d 1235 (Colo. App. 2000) (no deference to administrative interpretation that conflicts with clear statutory language)
- Davis v. Paolino, 21 P.3d 870 (Colo. App. 2001) (motion to dismiss is not a responsive pleading for purposes of amending as of right)
- Glenwood Post v. City of Glenwood Springs, 731 P.2d 761 (Colo. App. 1986) (home rule charter treated as a municipality’s constitution)