2021 COA 108
Colo. Ct. App.2021Background:
- Vail designated Village Inn Plaza as Special Development District No. 6 (SDD No. 6) in 1976 and amended the ordinance in 1987 to permit Phase V development, including section 11(6) which conditions units that "would be condominiumized" on complying with Town Code §17.26.075 (now §13-7-8).
- Section 13-7-8 imposes residency and short-term rental requirements and fines specifically on condominium conversions recorded before Feb. 7, 1995.
- The Phase V condominium declaration recorded in 1988 adopted those restrictions as section 21(i); the Association amended its rules in 2013–2014 to stop enforcing section 21(i).
- The Town sued (cross-claimed) to enforce the ordinance; the Association moved for partial summary judgment arguing section 11(6) violates the CCIOA anti-discrimination clause (§38-33.3-106).
- The district court held (1) retroactive application of the CCIOA anti-discrimination provision was triggered by the Town’s present-day attempt to enforce the ordinance; (2) section 11(6) is facially discriminatory against condominiums; and (3) the CCIOA preempts the Town ordinance. The Association was awarded attorney fees; the Court of Appeals affirmed and remanded for a fee determination.
Issues:
| Issue | Plaintiff's Argument (Town) | Defendant's Argument (Association) | Held |
|---|---|---|---|
| Whether the CCIOA anti-discrimination clause retroactively applies to the 1987 ordinance | CCIOA does not apply retroactively to pre-1992 ordinances and Phase V (created 1988) | CCIOA §38-33.3-117(1) applies to "events and circumstances" after July 1, 1992, and the Town’s present enforcement is such an event | Held: Retroactive application triggered by the Town’s present-day enforcement; CCIOA applies to this dispute |
| Whether section 11(6) facially discriminates against condominiums in violation of §38-33.3-106 | Ordinance is not facially discriminatory and factual proof of discrimination is required | Section 11(6) by its plain terms imposes restrictions only on units "which would be condominiumized," singling out condominiums | Held: Section 11(6) is facially discriminatory as a matter of law and violates CCIOA |
| Whether the CCIOA is inapplicable because Vail is a home-rule municipality and the ordinance concerns purely local matters | Enforcement of local development/zoning is a purely local matter reserved to home-rule municipalities, precluding state intrusion | Regulation of common-interest communities is a matter of mixed state and local concern; state law (CCIOA) governs where it conflicts | Held: Regulation of common-interest communities is mixed concern; CCIOA preempts the conflicting ordinance |
| Whether the Association is entitled to attorney fees on appeal | Town argued CCIOA does not apply so fees under CCIOA are not available | Prevailing party under CCIOA §38-33.3-123(1)(c) is entitled to reasonable fees for enforcing or defending CCIOA rights | Held: Association is prevailing party and entitled to fees; trial court to determine amount on remand |
Key Cases Cited
- Giguere v. SJS Fam. Enters., Ltd., 155 P.3d 462 (Colo. App. 2006) (retroactive application of CCIOA provisions to events occurring after July 1, 1992)
- Pagosa Lakes Prop. Owners Ass’n v. Caywood, 973 P.2d 698 (Colo. App. 1998) (association actions can trigger CCIOA retroactivity)
- Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30 (Colo. 2000) (analysis of extra-territorial impact and classification of matters as local, statewide, or mixed)
- City of Commerce City v. State, 40 P.3d 1273 (Colo. 2002) (legislative declarations may inform the uniformity factor in home-rule preemption analysis)
- City of Northglenn v. Ibarra, 62 P.3d 151 (Colo. 2003) (framework for determining home-rule preemption: local vs. statewide vs. mixed concerns)
- Town of Westerly v. Waldo, 524 A.2d 1117 (R.I. 1987) (holding that singling out condominiums in land-use rules can violate statutes prohibiting condominium discrimination)