RYAN RANCH COMMUNITY ASSOCIATION, INC., Petitioner, v. John E. KELLEY, Kelly D. Kelley, Rick Zimmerman, and Lora Zimmerman, Respondents.
Supreme Court Case No. 14SC431
Supreme Court of Colorado.
September 26, 2016
2016 CO 65
¶23 To violate the speeding statute, the defendant must “drive a vehicle on a highway at a speed greater than is reason-able and prudent under the conditions then existing.”
¶24 Viewing the evidence in the light most favorable to the People and drawing every reasonable inference in favor of the People, we determine that the county court reason-ably concluded that Mr. Hoskin violated the speeding statute. We note that appellate courts “defer to the trial court‘s credibility determinations and will disturb its findings of fact only if they are clearly erroneous and are not supported by the record.” Amos v. Aspen Alps 123, LLC, 2012 CO 46, ¶ 25, 280 P.3d 1256, 1262. The county court deter-mined that there was crеdible evidence in the record that Mr. Hoskin was driving seventy-eight miles per hour in a sixty mile-per-hour zone and the record supports this finding. The county court also made a credibility determination that Mr. Hoskin‘s testimony was “self-serving” and insufficient to satisfy his burden to rebut the People‘s evidence. We defer to the county court‘s determina-tions regarding Mr. Hoskin‘s speed and its conclusion that Mr. Hoskin did not rebut the presumption and, thus, violated the speeding statute. See id. Therefore, we conclude that there is sufficient evidence in the record to support the judgment against Mr. Hoskin for speeding.
III. Conclusion
¶25 For the foregoing reasons, we hold that the plain language of Colorado‘s speed-ing statute creates a mandatory rebuttable presumption that does not violate due pro-cess. Furthermore, we determine that there is sufficient evidence in the record to support the judgment against Mr. Hoskin for speed-ing. Accordingly, we reverse the judgment of the district court and remand the case to that court with instruсtions to return the case to the county court to reinstate the judgment against Mr. Hoskin for speeding.
Attorneys for Respondents John E. Kelley and Kelly D. Kelley: Gordon & Rees LLP, John R. Mann, Denver, Colorado, James G. Gaspich P.L.L.C., James G. Gaspich, Engle-wood, Colorado
Attorneys for Respondents Rick Zimmer-man and Lora Zimmerman: Frie, Arndt & Danborn P.C., Paul R. Danborn, Arvada, Colorado
Attorneys for Amicus Curiae The Commu-nity Associations Institute: Orten Cavanagh & Holmes, LLC, Aaron Goodlock, Denver, Colorado
JUSTICE HOOD delivered the Opinion of the Court.
¶1 In this case, we must decide whether a developer inadvertently, but inescapably, an-nexed several individual lots into a statutory common interest community, such that the owners of those lots must pay assessments levied by the community‘s homeowners asso-ciation. Ultimately, the answer to this ques-tion depends on how the Colorado Common Interest Ownership Act (“CCIOA” or “the Act“),
¶2 Ryan Ranch is a residential common interest community located in Jefferson County, Cоlorado. In 2011, the homeowners association for Ryan Ranch filed a complaint against the owners of several lots abutting Ryan Ranch, seeking more than $75,000 in past-due assessments, penalties, and fees for maintenance services provided by the associ-ation. The owners are liable if their lots were validly annexed to Ryan Ranch under CCIOA and the community‘s governing in-struments.
¶3 In a split decision, the court of appeals determined that the lots were not validly annexed because the purported annexation failed to comply with CCIOA. We agree and therefore affirm the judgment of the court of appeals.
I. Facts and Procedural History
¶4 Before 2000, the land that now consti-tutes Ryan Ranch was owned by the Estate of Robert L. Ryan (“the Estate“) and John Kelley. In 2001, plans to develop the land commenced, and an Official Development Plan (“ODP“) was recorded with the Jeffer-son County Clerk and Recorder. The ODP listed Kelley and the Estate as owners and Ryan Ranch, LLC—an entity owned by Charles Ochsner1—as the develoрer. The ODP was signed by Ochsner and Kelley and contemplated that a homeowners association would be formed to maintain the develop-ment‘s common areas and facilities. Ochsner later purchased from Kelley and the Estate all of the land that would become Ryan Ranch.
¶5 In early 2003, Ochsner verbally agreed to sell John and Kelly Kelley (“the Kel-leys“)2 nine lots out of the Ryan Ranch land at a later date, after the development was platted. Seven of these lots (“the Kelley Lots“) are the subject of this case. In the summer of 2003, the Kelleys learned that Ochsner planned to sell most of the Ryan Ranch land to The Ryland Group, Inc. (“Ry-land“). Ochsner and Ryland assured the Kel-leys that the Kelley Lots would be excluded from the land sold to Ryland and from the homeowners association Ryland intended to form.
¶6 In September 2003, Ochsner and Ry-land signed a contract providing for the sale of the Ryan Ranch land to occur in two phases. This agreement specifically excluded the Kelley Lots. Thе land to be conveyed in each of the two phases would later be platted as Ryan Ranch Filing 1 (“the Filing 1 Plat“) and Ryan Ranch Filing 2 (“the Filing 2 Plat“), respectively.
¶8 Phase one of the Ochsner–Ryland sale culminated on October 29, 2003, when the deed conveying the property in the Filing 1 Plat—fifty-four platted lots and associated common areas—was recorded. The Filing 1 Plat was recorded on November 13, 2003.
¶9 But phase two of the sale faltered when Ochsner failed to obtain approval of the Fil-ing 2 Plat by the October 15, 2004, closing deadline. As a result, the Ochsner–Kelleys sale did not close either. The closing dates for both of these transactions were then ex-tended to June 2005.
¶10 Meanwhile, also in October 2004, Ry-land incorporated Ryan Ranch Community Association, Inc. (“the Association“) as the homeowners association for Ryan Ranch. In March 2005, Ryland recorded the Declara-tion of Covenants, Conditions and Restric-tions of Ryan Ranch Community Association (“CCR“). Ryland is the “Declarant” of the CCR. The CCR encumbered “the real prop-erty described on the attached Exhibit A” with various “covenants, conditions, restric-tions, [and] obligations,” including a duty to pay assessments levied by the Association. The CCR defined the “Community” as “real property described in Exhibit A ... or which becomes subject to this [CCR].” Exhibit A listed the land included in the community as Tracts A, B, C, E, F, and G of the Filing 1 Plat—none of which contained the Kelley Lots—and stated that additional property would be annexed into the community pursu-ant to article XII, section 5 of the CCR.
¶11 Article XII, section 5 detailed the pro-cess by which property described in Exhibit D of the CCR could be annexed into Ryan Ranch.3 Specifically, Ryland had to (1) record a plat or map of the property to be annexed, unless one had been recorded already, and (2) record either a deed conveying that prop-erty to a third party or an “Annexation of Additional Land” form. Among the annexable property listed on Exhibit D was a metes and bounds description of a further subdivision of Tract H of the Filing 1 Plat, which would be divided into lots by, and become the land in, the Filing 2 Plat. The Kelley Lots were included in this description.
¶12 As June 2005 approached, Ochsner still had not recorded the Filing 2 Plat. The Kelleys agreed to postpone their June 10 closing date. On June 15, 2005, Ryland agreed to waive its right to condition closing phase two of the Ochsner–Ryland sale on final approval of the Filing 2 Plat and record-ed a written instrument stating its intent to purchase all of the land to be included in the Filing 2 Plat except for the Kelley Lots. However, Ochsner and Ryland then changed their agreement such that Ryland would pur-chase the Kelley Lots as well. The plan was for Ryland to record the Filing 2 Plat and then reconvey the Kelley Lots back to Ochs-ner, who would sell them to the Kelleys as arranged initially. The Kelleys were not told of this change of plans.
¶13 On June 16, 2005, Ochsner recorded a deed conveying the remaining Ryan Ranch land, including the Kelley Lots, to Ryland (“the phase-two Ochsner–Ryland deed“), thus completing phase two of the Ochsner–Ryland sale. That same day, Ryland signed a deed reconveying the Kelley Lots to Ochsner (“the Ryland–Ochsner deed“) but did not record it. About one week later, Ochsner signed a deed conveying the Kelley Lots to the Kelleys but did not record it.
¶15 In June 2006, the Kelleys sold one of the Kelley Lots to a builder who constructed a home on the lot and then sold the lot to Rick and Lora Zimmerman (“the Zimmer-mans“).
¶16 In September 2010, the Association asserted for the first time that the Kelley Lots had been automatically annexed to Ryan Ranch in December 2005, when Ryland recorded the Ryland–Ochsner deed. The As-sociation demanded that the Kelleys and the Zimmermans (collectively, “Respondents“) pay more than $75,000 in past-due assess-ments, penalties, and fees for certain mainte-nance services provided by the Association since December 2005. When Respondents re-fused to pay, the Association sued them.
¶17 The Association pleaded claims for un-paid assessments, breach of contract, unjust enrichment, and foreclosure of liens it had recorded on the Kelley Lots. Respondents counterclaimed for a declaratory judgment that the Kelley Lots were never annexed to Ryan Ranch. They asserted three reasons for why this was so: (1) Ryland failed to annex the Kelley Lots in compliance with CCIOA, (2) Ryland failed to annex the Kelley Lots in compliance with the CCR, and (3) principles of equitable conversion precluded the trans-fer of the Kelley Lots in phase two of the Ochsner–Ryland sale, rendering any subse-quent annexation invalid.
¶18 After discovery, both sides moved for summary judgment, disputing whether, as a matter of law, the Kelley Lots were annexed to Ryan Ranch. If they were annexed, then they were subject to the CCR and the at-tendant obligation to pay assessments to the Association; if they were not annexed, Re-spondents owed the Association nothing. The trial court ruled in the Association‘s favor, finding that the Kelley Lots were properly annexed and rejecting each of Respondents’ three arguments to the contrary. Respon-dents appealed.
¶19 A division of the court of appeals re-versed, with a majority of the judges embrac-ing Respondents’ argument4 that the Kelley Lots were not annexed in compliance with CCIOA. Ryan Ranch Cmty. Ass‘n v. Kelley, 2014 COA 37M, ¶¶ 1, 28, 37, — P.3d —. Like the trial court, the majority concluded that the right to annex property to a common interest community is a “development right” and that, as such, annexation must be accom-plished in compliance with the Act‘s provi-sions governing the exercise of development rights. See id. at ¶¶ 34–37. To exercise such rights under those provisions, a declarant must comply with certain plat or map re-quirements and record an “amendment to the declaration” that includes several statuto-rily enumerated components and that is properly recorded and indexed. See id. at ¶¶ 35–36.
¶20 The majority found no CCIOA-compli-ant amendment for the Kelley Lots, rejecting the trial court‘s conclusion that the ODP, CCR, Filing 2 Plat, and phase-two Ochsner–Ryland deed, taken together, qualified as such. In the majority‘s view, the ODP and CCR could not be considered amendments as a categorical matter, id. at ¶ 42, and the Filing 2 Plat and phase-two Ochsner–Ryland deed neither amended the declaration nor satisfied the applicable statutory require-ments, id. at ¶¶ 45–49. The majority there-fore concluded that the purported annexation of the Kelley Lots was invalid for failure to comply with CCIOA and resolved the Associ-ation‘s breach of contract, unpaid assess-ments, and lien foreclosure claims in Respon-dents’ favor.5
¶22 The Association petitioned for certiora-ri, and we granted the petition.7
II. Standard of Review
¶23 We review a ruling on a motion for summary judgment de novo. P.W. v. Children‘s Hosp. Colo., 2016 CO 6, ¶ 11, 364 P.3d 891, 895. Where the material facts are undis-puted, summary judgment is appropriate if the moving party is entitled to judgment as a matter of law. Id.
¶24 We also review de novo a lower court‘s interpretation of covenants, Buick v. Highland Meadow Estates at Castle Peak Ranch, Inc., 21 P.3d 860, 862 (Colo. 2001), and other recorded instruments, Bolinger v. Neal, 259 P.3d 1259, 1263 (Colo. App. 2010); see also Meier v. Denver U.S. Nat‘l Bank, 164 Colo. 25, 431 P.2d 1019, 1021 (1967) (“The construction of a written instrument [is] a question of law....“). When their meaning is clear, we enforce such documents as written. See Buick, 21 P.3d at 862.
¶25 However, documents concerning CCIOA common interest communities must comply with that statute‘s provisions; to the extent they conflict, the statute prevails. See
III. Analysis
¶26 The issue in this case is whether the Kelley Lots were annexed to Ryan Ranch in compliance with CCIOA. To resolve this question, we must for the first time deter-mine what conditions the Act imposes on the annexation of land into a common interest community and how those conditions may be satisfied. We therefore begin by analyzing annexation under the Act. We then apply that analysis to the facts of this case in order to determine whether the Kelley Lots were annexed to Ryan Ranch in compliance with that statute.
A. Annexation Under CCIOA
1. Annexation Is a “Development Right”
¶27 The General Assembly enacted CCIOA to, among other things, “establish a clear, comprehensive, and uniform framework for the creation and operation of common inter-est communities.”
¶28 A “declaration,” in turn, “means any recorded instruments, however denominated, that create a common interest community, including any amendments to those instru-ments and also including, but not limited to, plats and maps.”
“Development rights” means any right or combination of rights reserved by a declar-ant in the declaration to:
(a) Add real estate to a common inter-est community;
(b) Create units, common elements, or limited common elements within a com-mon interest community;
(c) Subdivide units or convert units into common elements; or
(d) Withdraw real estate from a com-mon interest community.
¶29 Here, the court of appeals unani-mously determined that the right to annex the Kelley Lots into Ryan Ranch is a “devel-opment right.” See Ryan Ranch, ¶¶ 55–56; id. at ¶ 82 (Terry, J., dissenting). Both parties agree with this determination, and so do we.
¶30 At its inception, Ryan Ranch consisted only of the real estate described in Exhibit A of the CCR, which included Tracts A, B, C, E, F, and G of the Filing 1 Plat. Tract H of the Filing 1 Plat—which contained the Kelley Lots—was not described in Exhibit A and therefore was not initially a part of Ryan Ranch. Rather, Tract H was described in Exhibit D as “Annexable Property.”
¶31 However, the CCR contemplated that Ryan Ranch could grow to include the annex-able property described in Exhibit D if cer-tain procedures were followеd. Article XII, section 5 of the CCR spells out these proce-dures. When any of the property described in Exhibit D is annexed in accordance with article XII, section 5, that property is imme-diately made subject to the CCR. See CCR, art. XII, § 5(a) (“All provisions of this [CCR] ... shall apply to annexed property immedi-ately....“). Property that becomes subject to the CCR, in turn, becomes a part of Ryan Ranch. See CCR, art. I, § 11 (defining the community as “real property described in Exhibit A ... or which becomes subject to this [CCR]” (emphasis added)). Thus, be-cause Tract H—including the Kelley Lots—was not initially a part of Ryan Ranch, to annex that property under article XII, sec-tion 5 is to add that property to Ryan Ranch—i.e., to “[a]dd real estate to a com-mon interest community.” See
¶32 The right to annex the Kelley Lots to Ryan Ranch therefore qualifies as a develop-ment right under CCIOA. It also qualifies as a development right under the CCR itself,9
2. Exercising Development Rights Under CCIOA
¶33 Because annexation is a develop-ment right, any annexation of the Kelley Lots must have complied with the CCIOA provisions that govern the exercise of such rights. See
To exercise any development right re-served under
section 38-33.3-205(1)(h) , the declarant shall prepare, execute, and rec-ord an amendment to the declaration and, in a ... planned community, comply with the provisions ofsection 38-33.3-209 . The declarant is the unit owner of any units thereby created. The amendment to the declaration must assign an identifying number to each new unit created and ... reallocate the allocated interests among all units. The amendment must describe any common elements and any limited common elements thereby created....10
Thus, to have properly annexed the Kelley Lots, Ryland must have recorded an “amend-ment to the declaration” that (1) assigned identifying numbers to each of the Kelley Lots, (2) reallocated the allocated interests among all units in Ryan Ranch, and (3) de-scribed any common elements and limited common elements created.
¶34 In addition, because the CCR states that Ryan Ranch is a planned community under CCIOA, Ryland also needed to comply with
Upon exercising any development right, the declarant shall record an amendment to the declaration with respect to that real estate reflecting change as a result of such exercise necessary to conform to the re-quirements of subsections (1) [and] (2) ... of this section....
A plat or map is a part of the declaration and is required for all common interest communities except cooperatives.... The requirements of [
section 38-33.3-209 ] shall be deemed satisfied so long as all of the information required by [section 38-33.3-209 ] is contained in the declaration, a map or a plat, or some combination of any two or all of the three. Each plat or map must be clear and legible.
And subsection (2) lists several items that each map must include, “except to the extent such information is сontained in the declara-tion or on a plat.”
¶35 Finally, the amendment necessary to annex the Kelley Lots also must have com-plied with
Every amendment to the declaration must be recorded in every county in which any portion of the common interest community is located and is effective only upon recor-dation. An amendment must be indexed in the grantee‘s index in the name of the common interest community and the asso-ciation and in the grantor‘s index in the name of each person executing the amend-ment.
So, to have complied with this provision, the requisite amendment must have been (1) re-corded in Jefferson County, (2) indexed in the grantee‘s index in the name of Ryan Ranch and the Association, and (3) indexed in the grantor‘s index in Ryland‘s name.
¶36 We now consider whether all these requirements were satisfied for the annex-ation at issue here.
¶37 The court of appeals majority deter-mined that the Kelley Lots were not annexed to Ryan Ranch—and never became subject to the CCR—because Ryland did not record an amendment to the declaration that com-plied with
¶38 We note as a threshold matter that, although the Association devotes significant attention to arguing (1) that either or both of these documents “amended” the “declara-tion” and therefore properly may be deemed an “amendment to the declaration,” and (2) that a declarant may use more than one document to satisfy the amendment require-ment, we need not resolve either of these points. For purposes of this case, we will assume, without deciding, that the Ryland–Ochsner deed and Filing 2 Plat, taken to-gether, qualified as an “amendment to the declaration” under the Act. Even so, we find that amendment invalid for failure to satisfy the specific requirements of
1. Compliance with Section 38-33.3-210(1)
¶39 To comply with
¶40 The Ryland–Ochsner deed and Filing 2 Plat arguably satisfied the first and last of these requirements. The deed states that it conveyed “Lots 1 through 7, Block 13, as shown on the final plat of Ryan Ranch Filing 2” from Ryland to Ochsner, and the Filing 2 Plat depicts and labels each of the lots ac-cordingly. If units had been created, it thus seems that each of them would have been assigned an identifying number. See
¶41 However, neither of the documents satisfied the second requirement: reallocating the allocated interests among all units. The Association argues that the declaration amendment did not need to reallocate the allocated interests because the CCR specifi-cally provides for such reallocation to occur automatically whenever land is annexed by deed.13 Thus, according to the Association, it
¶42
¶43 Because “[w]e must avoid con-structions thаt would render any words or phrases superfluous,” Doubleday v. People, 2016 CO 3, ¶ 20, 364 P.3d 193, 196, we reject the Association‘s argument that the CCR‘s formula obviated the need for the amend-ment to reallocate the allocated interests it-self. It is for the legislature, not this court, to determine what “purpose” may or may not be served by this aspect of
2. Compliance with Section 38-33.3-217(3)
¶44 To satisfy
¶45 Nonetheless, the Association argues this noncompliance is immaterial. According to the Association, any improper indexing was a clerical error that did not prejudice Respondents because Respondents had no-tice of the various documents that, in the Association‘s view, effectuated the annexation of the Kelley Lots. Specifically, the Associa-tion contends that, because grantee indices are alphabetical, a search for “Ryan Ranch Community Association” would find the Fil-ing 2 Plat under the name of “Ryan Ranch Filing 2,” and, in any event, Respondents’ deeds to the Kelley Lots referenced the Fil-ing 2 Plat directly. Moreover, John Kelley signed the ODP, which stated that the com-
¶46 Initially, we need not resolve the Asso-ciation‘s “clerical error” argument. Although the Association asserts that clerical error explains why all “amendment documents” were improperly indexed, it offers a support-ing rationale for this assertion with respect to the Filing 2 Plat alone. Noticeably absent from the Association‘s argument is any ex-planation for why, or even a direct assertion that, the defective indexing of the Ryland–Ochsner deed was a clerical error. Because the Filing 2 Plat could not have subjected the Kelley Lots to the CCR without the Ryland–Ochsner deed, see CCR, art. XII, § 5(a); CCR, Exs. A, D, any excuse for the defective indexing of the former document is irrelevant without a parallel excuse for the latter docu-ment. We find no such parallel excuse here.
¶47 Even assuming Respondents had аctu-al notice of the Filing 2 Plat and the CCR, such notice would have been meaningless without additional notice of the Ryland–Ochs-ner deed. While Exhibit D of the CCR would have informed Respondents that the Kelley Lots were annexable, article XII, section 5 of the CCR would have assured them that those lots could not be annexed without recordation of a plat and either a deed from Ryland to a third party or an annexation form. And no-tice of the Filing 2 Plat would have told Respondents only that the first of these re-quirements had been satisfied. Because no annexation form was recorded for the Kelley Lots, only the Ryland–Ochsner deed could have annexed those lots under the CCR. Thus, without notice of that deed, even actual notice of the CCR and Filing 2 Plat could not have informed Respondents that the Kelley Lots had been annexed.
¶48 The Association does not assert that Respondents had actual notice of the Ry-land–Ochsner deed. Nor, due to noncompli-ance with
¶49 Nor, finally, did Respondents have in-quiry notice of the Ryland–Ochsner deed. The long history of agreements among the Kelleys, Ochsner, and Ryland established (1) that the Kelleys would purchase the Kelley Lots from Ochsner after the Filing 2 Plat was recorded, (2) that the lots would be shown on the Filing 2 Plat, and (3) that the rest of the Filing 2 Plat, but not the Kelley Lots, would be a part of Ryan Ranch. Conse-quently, nothing about the Filing 2 Plat or the CCR would have appeared abnormal to Respondents or reasonably caused them to suspect Ochsner and Ryland had privately conveyed the Kelley Lots between them-selves before Ochsner sold the lots to the Kelleys. See Monaghan Farms, Inc. v. City & Cty. of Denver, 807 P.2d 9, 15 (Colo. 1991) (“Inquiry notice requires sufficient facts to attract the attention of interested persons and prompt a reasonable person to inquire further.“).
¶50 Thus, contrary to the Association‘s contentions, no notice or clerical error ame-liorates the fact that the amendment—again, assuming without deciding that the Filing 2 Plat and Ryland–Ochsner deed constituted an amendment—failed to comply with
***
¶51 In the end, even assuming the Filing 2 Plat and Ryland–Ochsner deed, taken to-gether, constituted an “amendment to the declaration” for purposes of CCIOA, that amendment failed to comply with the specific requirements of
IV. Conclusion
¶52 We hold that the right to annex prop-erty into a common interest community is a development right, the exercise of which must comply with CCIOA. In this case, the purported annexation of the Kelley Lots to Ryan Ranch failed to comply with the Act and therefore was invalid. Accordingly, we affirm the judgment of the court of appeals and remand for further proceedings consis-tent with this opinion. On remand, the court of appeals should consider the parties’ re-spective entitlements to attorneys’ fees and costs. See C.A.R. 39.5.
JUSTICE COATS joins in the majority and specially concurs, and JUSTICE EID and JUSTICE MÁRQUEZ join in the majority and the special concurrence.
JUSTICE BOATRIGHT does not participate.
JUSTICE COATS, specially concurring.
¶53 In this and one other case released today, see Pulte Home Corp. v. Countryside Cmty. Ass‘n, 2016 CO 64, — P.3d —, the court addresses slightly different aspects of the question whether a particular property is included in a common interest community: in this case, whether the property in question was added to an existing common interest community and, in the other case, whether the properties in question were included in the community at its creation. Phrased dif-ferently, these cases involve the fundamental questions how and when, under the Colorado Common Interest Ownership Act,
¶54 The specific matter at issue in this lawsuit is whether the so-called Kelley Lots were automatically added to a common inter-est community called Ryan Ranch at the time they were first conveyed by the declarant to a purchaser, notwithstanding the expressed intent of both the declarant and purchaser that they not be so added, and therefore whether the current owners of those lots owe the Community Association past-due assess-ments, penalties, and fees. The first and pri-mary question upon which we granted review was therefore whether the “annexation by deed” method of adding units to the commu-nity, as described in the Declarations of Cov-enants, Conditions, and Restrictions filed by declarant Ryland (referred to throughout the court‘s opinion as the “CCR“), in fact com-ported with statutory requirements. While the opinion of the court never directly states, in so many words, that the annexation-by-deed method of the CCR is incompatible with the statute and therefore fails, in and of itself, to successfully add units to the commu-nity, I consider that to be the clear and necessary import of its holding, a holding with which I fully agree.
¶55 I understand the heart of the court‘s rationale to be its conclusion that units can be added to an existing community by the declarant only by amending the declaration as statutorily required for the exercise of
¶56 Without expressly disputing the broad-er reasoning of the court of appeals, the majority more narrowly finds that a formula for reallocating already allocated interests, specified in an existing declaration, cannot be sufficiеnt to meet the statutory requirement under
¶57 The statutory requirement upon which the court‘s opinion relies, that in order to exercise development rights reserved to it, a declarant must record an amendment to the declaration actually reallocating the already allocated interests among all units, is merely one aspect of the “clear, comprehensive, and uniform framework” provided by the Act for balancing developer flexibility with maintain-ing certainty and predictability concerning the various interests implicated in both the creation and operation of the community.
¶58 While I accept the rule of construction relied on by the court, I would in any event find that the language of
¶59 Beyond the requirement of recording an amendment, however,
¶60 The subtext to this action for past-due fees and penalties is and has always been the question whether by including the addition of the Kelley Lots among the development rights reserved to the declarant, that declar-ant necessarily gave up any right to sell those lots without their being included as part of the Ryan Ranch. That consequence was clearly not intended by the declarant in this case when it drew up the CCR and created the community, and such a conse-quence would undoubtedly come as a shock to other developers doing likewise. As this case amply demonstrates, the construction sought by the Community Association would amount to nothing less than a trap for the unwary, in direct contravention of the fundа-mental purpose the Act was intended to serve.
¶61 Because I believe the primary merit of undertaking a further review by this court has always been our articulation of the limi-tations imposed on the exercise of develop-ment rights by
¶62 I therefore specially concur in the opinion of the court.
I am authorized to state that JUSTICE EID and JUSTICE MÁRQUEZ join in this special concurrence in the opinion of the court.
2016 CO 67
In re the Marriage of William Michael JOHNSON, Petitioner, and Carolyn S. JOHNSON, Respondent.
Supreme Court Case No. 14SC756
Supreme Court of Colorado.
September 26, 2016
Notes
- Whether the process of “annexation by deed” to form units within common interest communities is void under the Colorado Common Interest Ownership Act (CCIOA).
- Whether a plat map that subdivides prop-erty identified in an earlier declaration constitutes an amendment to said declara-tion.
- Whether a homeowner who has actual knowledge of a declaration amendment can avoid paying community assessments based on a clerical error in the recorder‘s index.
[E]ach such lot in the Property ... shall consti-tute a Lot, and the Allocated Interests shall thereupon automatically be reallocated to be a fraction, the numerator of which shall be one (1) and the denominator of which shall be the total number of Lots within the Community upon recording of such deed....