FILED
United States Court of Appeals
Tenth Circuit
February 8, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
JORDAN-ARAPAHOE, LLP., a
Colorado limited liability partnership;
JACOB MAZIN COMPANY, INC., a
Colorado corporation,
Plaintiffs-Appellants,
v. No. 09-1501
BOARD OF COUNTY
COMMISSIONERS OF THE
COUNTY OF ARAPAHOE,
COLORADO,
Defendant-Appellee.
_____________
COLORADO COUNTIES, INC.;
BOARD OF COUNTY
COMMISSIONERS OF THE
COUNTY OF BOULDER,
COLORADO,
Amici Curiae.
.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. Nos. 1:08-CV-02790-PAB-MJW and 1:08-CV-02794-PAB-MJW)
Wayne B. Schroeder, Grimshaw & Harring, P.C., (Jamie N. Cotter, Grimshaw &
Harring, P.C., and John W. Madden III, The Madden Law Firm, with him on the
briefs) Denver, Colorado, for Appellants.
Ronald A. Carl, Assistant County Attorney, (Kathryn L. Schroeder, County
Attorney, with him on the brief) Arapahoe County Attorney’s Office, Littleton,
Colorado, for Appellee.
Beth A. Dickhaus, Hall & Evans, L.L.C., Denver, Colorado, and David Hughes,
Deputy County Attorney, Boulder County Attorney’s Office, Boulder, Colorado,
on brief for Amici Curiae.
Before MURPHY, McKAY, and TYMKOVICH, Circuit Judges.
TYMKOVICH, Circuit Judge.
Jordan-Arapahoe, LLP, and Jacob Mazin Company, Inc. (together Jordan-
Arapahoe) own land in Arapahoe County, Colorado that they intended to develop
for use as a car dealership and sell to CarMax, Inc. Learning of the planned
development, the Arapahoe County Board of County Commissioners rezoned the
land, thwarting the sale.
Jordan-Arapahoe sued under 42 U.S.C. § 1983, claiming Arapahoe
County’s zoning decision deprived it of a protected property interest without due
process in violation of the Fourteenth Amendment of the United States
Constitution. The district court dismissed the case, reasoning Jordan-Arapahoe
had failed to show a protected property interest under Colorado law since its
development proposal had not yet become sufficiently final, or vested.
We agree. Under Colorado law a property owner does not obtain a vested
property right absent (1) the approval of a site specific development plan, or (2)
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the landowner’s substantial and detrimental reliance on representations and
affirmative actions by the local government. Neither condition was met here.
Having jurisdiction pursuant to 28 U.S.C. § 1291, we therefore AFFIRM
the district court’s decision.
I. Facts
Some time prior to 1998, Jordan-Arapahoe, LLP, purchased land in
Arapahoe County, Colorado. In 1998 Arapahoe County approved a preliminary
development plan (1998 PDP) that rezoned Jordan-Arapahoe’s land from
agricultural to Mixed Used-Planned Unit Development (MU-PUD). Arapahoe
County amended the PDP in 1999 (1999 PDP). Both the 1998 PDP and the 1999
PDP noted “Automotive Sales and Repair” as an allowable use under the MU-
PUD zoning.
In September 2002, Jacob Mazin Company, Inc. purchased some of Jordan-
Arapahoe’s land with the intent to develop an automobile dealership. It never
developed the dealership, but Jordan-Arapahoe, relying on both PDPs’ provision
of “Automotive Sales and Repair” as an allowed use, paid approximately $2.6
million in capital development costs on both its and Jacob Mazin’s property for
(a) street construction, (b) site preparation and grading, (c) water channel
drainage improvements, and (d) sanitary sewer installation in preparation for
selling the land to a buyer interested in using it for an automotive dealership.
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In April 2006, Jordan-Arapahoe and Mazin agreed to sell their land to
CarMax, which intended to operate a dealership. The contract was contingent
upon confirmation that CarMax’s intended use of the property was permitted
under the zoning regulations.
In May 2006, the city of Centennial asked the County to suspend all
applications for development approval of automobile-sales uses at and around the
Jordan-Arapahoe property. Arapahoe County complied and imposed a four-week
moratorium on all development proposals, prompting a meeting at which the City
Manager for Centennial, Jordan-Arapahoe, and CarMax appeared to state their
various interests. CarMax advised Arapahoe County it had expended $100,000 to
prepare its Final Development Plan. After the meeting, Arapahoe County
extended the moratorium to January 2007.
During that moratorium period, in late 2006, against the unanimous
recommendation of the Arapahoe County Planning Commission and over Jordan-
Arapahoe’s objections, Arapahoe County altered the zoning for an area that
included Jordan-Arapahoe’s property. The rezoning added to the existing zoning
regulations an “Overlay District” that superseded portions of the MU-PUD and
replaced the PDPs’ original 30-foot setback with a 1,500-foot setback for all
public rights of way surrounding Jordan-Arapahoe’s property. The 1,500-foot
setback only applies to automobile or vehicle sales uses and makes it impossible
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to build a car dealership on the property, effectively negating Jordan-Arapahoe’s
contract with CarMax.
Frustrated at not being able to sell its property after developing it for a
specific use, Jordan-Arapahoe brought a claim under 42 U.S.C. § 1983 for
deprivation of a protected property interest without due process in violation of the
Fourteenth Amendment of the United States Constitution. The district court
dismissed for failure to state a claim upon which relief can be granted, concluding
Jordan-Arapahoe had failed to allege facts sufficient to show they had a protected
property interest in the original zoning.
II. Discussion
Jordan-Arapahoe argues the district court erred in concluding it has no
protected property interest under Colorado law. It contends Arapahoe County’s
zoning classification and conduct created a protected property interest in two
ways: (1) Colorado’s Vested Property Rights Act (VPRA), C OLO . R EV . S TAT .
§ 28-68-101, et seq. establishes a property right by virtue of Arapahoe County’s
zoning scheme combined with the County’s approval of the preliminary
development plan; and (2) Colorado common law establishes vested property
rights because Jordan-Arapahoe reasonably relied on Arapahoe County’s zoning
classification in expending substantial sums developing its property for a car
dealership.
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The district court rejected both theories. The court concluded neither
Colorado statutory nor common law created a vested property right protected
under the United States Constitution. We agree with the district court.
We review de novo a district court’s dismissal of a complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6), applying the same legal standard as the
district court. Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir. 2007). We
accept all well-pleaded facts as true and view them in the light most favorable to
the plaintiff. Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005). To survive
a 12(b)(6) motion to dismiss, a plaintiff must allege that “enough factual matter,
taken as true, [makes] his ‘claim to relief . . . plausible on its face.’” Bryson v.
Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
[pleaded] factual content [] allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1940 (2009); see also Gee v. Pacheco, No. 08-8057, 2010 WL 4909644, at
*2–3 (10th Cir. Oct. 26, 2010). As applied here, to state a claim for the
deprivation of property without due process, Jordan-Arapahoe must allege facts
plausibly suggesting (1) Arapahoe County deprived it of a protected property
interest, and (2) such deprivation was arbitrary. Hyde Park Co. v. Santa Fe City
Council, 226 F.3d 1207, 1210 (10th Cir. 2000).
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Property rights are protected by the due process clause of the Fourteenth
Amendment, which provides, “[N]or shall any State deprive any person of life,
liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.
Property rights we recognize under the Fourteenth Amendment “are created and
their dimensions are defined by existing rules or understandings that stem from an
independent source such as state law—rules or understandings that secure certain
benefits and that support claims of entitlement to those benefits.” Bd. of Regents
v. Roth, 408 U.S. 564, 577 (1972); see also Federal Lands Legal Consortium ex
rel. Robart Estate v. United States, 195 F.3d 1190, 1196 (10th Cir. 1999). And,
the “identification of those benefits and the ‘legitimate claim of entitlement’ to
them is determined not by the Constitution, but largely by state law.” Eason v.
Bd. of Cnty. Comm’rs, 70 P.3d 600, 604–05 (Colo. App. 2003) (citing Hillside
Cmty. Church v. Olson, 58 P.3d 1021, 1025 (Colo. 2002)).
We thus must turn to state law in understanding the scope of property rights
in land ownership. This is not always a simple task. The modern understanding
of the bundle of sticks of land ownership is overlain with myriad competing land
use, zoning, and environmental regulations. A landowner faces numerous
restrictions on the full use and alienability of land depending on the interplay of
local, state, and federal law. “[T]he right to use property is fully protected by the
Due Process Clauses of the federal and state constitutions, but is subject to a
proper exercise of the police power.” Id. at 605.
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Zoning is the most prominent police power restriction on land use. Of
course, the “economic and social benefits of zoning in crowded modern cities
hardly need elaboration” and zoning is considered “essential to the public health,
safety and welfare” of communities. 8 E UGENE M C Q UILLIN , T HE L AW OF
M UNICIPAL C ORPORATIONS , § 25:2 (3d ed. 2010). Nevertheless, a municipality’s
power to zone must be balanced against landowners’ rights, and in “the municipal
land use context . . . the entitlement analysis presents a question of law.” Nichols
v. Bd. of Cnty. Comm’rs, 506 F.3d 962, 970 (10th Cir. 2007).
We have explained generally that a landowner’s protected interest in a
particular zoning decision depends on “whether there is discretion in the [local
zoning authority] to deny a zoning or other application.” Norton v. Vill. of
Corrales, 103 F.3d 928, 931–32 (10th Cir. 1996). “A property interest exists if
discretion is limited by the procedures in question, that is, whether the
procedures, if followed, require a particular outcome.” Nichols, 506 F.3d at 970.
Accordingly, “where the governing body retains discretion and the outcome of the
proceeding is not determined by the particular procedure at issue, no property
interest is implicated.” Crown Point I, LLC v. Intermountain Rural Elec. Ass’n,
319 F.3d 1211, 1217 (10th Cir. 2003). We answer these questions by applying
state and local law to the property interest for which protection is claimed.
Jordan-Arapahoe must show, therefore, that under Colorado law Arapahoe
County had limited discretion to change the zoning and to disapprove Jordan-
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Arapahoe’s final development plan. Like the district court, we conclude Jordan-
Arapahoe failed to make this showing and thus has not demonstrated a vested
property interest protected by federal law.
We address both the statutory and common law theories in reaching this
conclusion, which we turn to next.
A. Vested Property Rights Act
Jordan-Arapahoe first contends it has a vested property right under the
Vested Property Rights Act. C OLO . R EV . S TAT . § 28-68-101, et seq. Specifically,
it alleges the VPRA prevents Arapahoe County from changing zoning once it has
already approved a preliminary development plan. We find that argument
unpersuasive.
Prior to the enactment of the VPRA, Colorado law relied primarily on the
common law doctrine of vested rights to determine property owners’ rights. But
“the uncertainties and complexities of the estoppel and due process analyses of
vested rights” often failed to “provide a date certain for the vesting of rights,”
leaving both landowners and municipalities unsure of their rights. Michael M.
Schultz, Vested Property Rights in Colorado: The Legislature Rushes in Where
. . . ., 66 D EN . U. L. R EV . 31, 43 (1988–89) (analyzing the history and reasoning
behind the VPRA).
Addressing this uncertainty that left many landowners and potential
developers unsure as to when their property rights vested, in 1987 Colorado
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enacted the VPRA as a means to provide for a more explicit regulatory
framework:
It is necessary and desirable, as a matter of public policy, to provide
for the establishment of vested property rights in order to ensure
reasonable certainty, stability, and fairness in the land use planning
process and in order to stimulate economic growth, secure the
reasonable investment-backed expectations of landowners, and foster
cooperation between the public and private sectors in the area of land
use planning.
C OLO . R EV . S TAT . § 24-68-101(1)(a). To achieve that goal, the VPRA provides,
“A vested property right shall be deemed established with respect to any property
upon the approval, or conditional approval, of a site specific development plan,
following notice and public hearing, by the local government in which the
property is situated.” C OLO . R EV . S TAT . § 24-68-103(1)(b). Regarding what
qualifies as “approval, or conditional approval, of a site specific development
plan,” the VPRA places an obligation on local governments to decide: “Each
local government” must “specifically identify, by ordinance or resolution, the
types of site specific development plan approvals within the local government’s
jurisdiction that will cause property rights to vest.” Id. at § 24-68-103(1)(a).
To apply the VPRA, we thus turn to Arapahoe County’s definition of a
protected site specific development plan. In the Arapahoe County Land
Development Code, the County, specifically referencing its VPRA obligation,
provides, “[A]n applicant may seek approval of a ‘vested property right’ either [1]
by approval of a ‘site specific development plan’ or [2] by approval of a
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‘development agreement’ 1 relating to the proposed development.” Aplt. App. at
89 (Code, § 1-4912.01).
The Code then explains the “following approvals shall be eligible for
vesting as ‘site specific development plans’: [1] Final Development Plans on
property that has received final plat approval by the Board of County
Commissioners, [2] qualifying Master Development Plans . . . , [3] Administrative
Site Plans, or [4] such other plans as the Board may designate in an agreement
entered into by the County and the landowner.” 2 Id.
Under this provision, Arapahoe County’s approval of a final development
plan would establish a vested property right pursuant to the VPRA. To be
eligible, a final development plan receives approval through the following
procedure:
In a standard [Planned Unit Development], the development
standards are established after the completion of two steps: the
Preliminary and Final Development Plans. The final document must
achieve the County’s nine stated goals for P.U.D. zoning, and must
comply with all other applicable restrictions of the Regulations. The
preliminary development plan (“PDP”) establishes general land uses
and siting restrictions, including proposed site development criteria.
1
Jordan-Arapahoe does not assert a development agreement existed, so our
analysis depends only on whether Arapahoe County approved a site specific
development plan.
2
Neither Master Development Plans nor Administrative Site Plans are at
issue in this case. Our analysis hinges on whether Arapahoe County approved a
final development plan.
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Aplt. App. at 54 (Code, § 1-4901.09). The Code thus makes clear there is a two-
step process before a final development plan receives approval. Subsection 1-
4903.01 further clarifies that a preliminary development plan is “the first step in
establishing land uses and siting restrictions for a parcel of land,” while the “uses,
minimums, and maximums provided in the PDP will be reviewed at the Final
Development stage to further determine the appropriateness for the particular
site and neighborhood.” Aplt. App. at 58 (Code, § 1-4903.01).
The same subsection then provides, “Once a PDP has been approved, [a
final development plan] which complies with the terms, conditions and
requirements of the approved PDP must be submitted and approved prior to the
issuance of building permits for improvements to any site or sites within the
project covered by the PDP.” Id. Under these provisions, Arapahoe County
retains discretion to approve or reject zoning uses until it gives final approval of a
final development plan. The Code emphasizes that Arapahoe County makes its
final decision regarding zoning uses only during its review of a final development
plan, and the plan “must achieve the County’s nine stated goals for P.U.D.
zoning, and must comply with all other applicable restrictions of the
Regulations.” Id.
Jordan-Arapahoe did not receive approval of a final development plan, and
it does not argue otherwise. Confronting this, it contends the Code does not give
Arapahoe County discretion to reject a final development plan if the plan is
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consistent with the already-approved PDP. See Reply Br. at 15–17. It bases this
argument on § 1-4903.02 of the Code, which provides that if a final development
plan proposes substantial criteria changes from a PDP, then applicants may need
to amend the PDP before submitting a final development plan for approval. 3 Aplt.
App. at 58. Jordan-Arapahoe contends § 1-4903.02 limits Arapahoe County’s
discretion to reject a final development plan if that plan is substantially in
compliance with the already-approved PDP.
But Jordan-Arapahoe misreads the Code. In no way does it limit Arapahoe
County’s discretion to reject a final development plan, even if that plan is
identical to the already approved PDP and even if Arapahoe County has already
approved a final plat. As explained above, a plain reading of the Code shows it
does just the opposite: The Code explicitly and repeatedly requires that Arapahoe
3
Section 1-4903.02 of the Code provides,
A Final Development Plan, as defined in the Definitions section of
these regulations, is the second step in establishing approval of land
uses and siting restrictions for a development. This document
provides specific information on the uses to be permitted and the
manner in which they may be situated on the property.
If the submitted Final Development Plan proposes substantial criteria
changes from those approved on the Preliminary Development Plan,
the applicant may be required to amend the PDP prior to submitting
the Final Development Plan. The thresholds for determining whether
an Amendment to an approved Preliminary and/or Final Development
Plan can be processed administratively can be found in the
Administrative Amendment section of these regulations.
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County must approve the final development plan as the “second step in
establishing approval of land uses and siting restrictions for a development.”
Aplt. App. at 58 (Code, § 1-1903.02). The Code cannot reasonably be construed
to strip the County of its second-step authority to approve or reject a final
development plan. Nor does the Code contain any limiting criteria flowing from
the planning commission’s preliminary approval that would undermine the
County’s discretion at step two. In short, Arapahoe County has discretion under
its zoning code to reject or modify proposed developments until it approves a
final development plan. At that time, the uses embodied in the plan are vested as
contemplated by the VPRA.
Accordingly, the district court did not err in concluding the VPRA, in
conjunction with the Code, does not provide Jordan-Arapahoe a vested property
right.
B. Colorado Common Law
Although the VPRA does not provide relief to Jordan-Arapahoe, it is not
the only way to obtain a vested property right under Colorado law.
Colorado enacted the VPRA to provide for reasonable “certainty, stability,
and fairness” in the land use planning process, but it was not intended to replace
existing common law rights. By its own terms the VPRA provides, “Nothing in
this article shall preclude judicial determination, based on common law
principles, that a vested property right exists in a particular case or that a
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compensable taking has occurred.” C OLO . R EV . S TAT . § 24-68-106(3). In other
words, the VPRA expands and clarifies the means by which property owners may
gain vested property rights. It does not eliminate or restrict existing methods, and
any property right created under Colorado common law may satisfy the vesting
requirement. Because Jordan-Arapahoe does not have a vested property right
under the VPRA, the only question is whether it has one under Colorado common
law. We conclude it does not.
To answer this question, a brief review of Colorado property law is helpful.
Most commonly, property rights vest in a particular land use after a building
permit has been issued and the landowner acts in reliance on it. “A city permit
can provide the foundation for a vested right, and thus be constitutionally
protected from impairment by subsequent legislation, if the permit holder takes
steps in reliance upon the permit.” P-W Investments, Inc. v. City of Westminster,
655 P.2d 1365, 1371 (Colo. 1982). Indeed, the “general rule . . . provides that a
common law right to develop does not vest until the party has taken substantial
steps in reliance on a building permit.” Villa at Greeley, Inc. v. Hopper, 917 P.2d
350, 356 (Colo. App. 1996); see also Cline v. City of Boulder, 450 P.2d 335, 338
(Colo. 1969) (reiterating the rule that a building permit by itself, without reliance,
is not enough to create a vested property right). Thus, “generally speaking, no
preliminary proceedings to the obtaining of a [building] permit give rise to any
vested right to pursue a use in a zoned district. Thus, no vested right to a
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particular use in a zoned district is acquired by approval of [a] plan for it.” City
of Aspen v. Marshall, 912 P.2d 56, 60–61 (Colo. 1996). 4
Without a building permit, therefore, developers who rely only on zoning
or approved uses are facing an uphill battle. For many years, Colorado law
simply held that developers without a building permit had no “vested common-
law development rights as a matter of law.” SK Fin. v. La Plata County. Bd. of
Cnty. Comm’rs, 126 F.3d 1272, 1278 (10th Cir. 1997); see also P-W Invs, Inc.,
655 P.2d at 1371; Crawford v. McLaughlin, 473 P.2d 725 (Colo. 1970). These
cases present a large obstacle to Jordan-Arapahoe since it had yet to obtain a
building permit for a car dealership at the time the zoning use was modified.
To overcome this obstacle, Jordan-Arapahoe points to a decision by the
Colorado Court of Appeals, claiming Colorado law allows property rights to vest
by virtue of a zoning classification and detrimental reliance. Eason v. Bd. of
Cnty. Comm’rs, 70 P.3d 600 (Colo. App. 2003). In Eason, the plaintiff received
approval to operate a self-storage business using semi-trailers on his property. Id.
at 603. After the initial zoning, the county then wrote a letter to the plaintiff
saying he could operate his storage business because the land was properly zoned
4
See also Christopher Serkin, Existing Uses and the Limits of Land Use
Regulations, 84 NYU L. R EV . 1222, 1238–39 (2009) (“The doctrinal details
determining when a right vests are the subject of frequent commentary. . . . Under
the vested rights doctrine, then, property rights are subject to a kind of tipping
point. Before a right vests, property receives one level of protection. But as soon
as an owner has done enough to establish a particular use, the property becomes
entitled to much greater protection.”).
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for such use. Id. at 603. The landowner, relying on the county’s representations,
obtained a building permit (although it is unclear why a permit was necessary)
and moved over 100 semi-trailers onto his property. Id. After he commenced
operations and after his building permit expired, the county changed the zoning
and ordered him to remove the semi-trailers. Id.
When Eason sued, the Colorado Court of Appeals found he had a vested
property right in the use allowed under the prior zoning code. The court
explained that Colorado common law allowed a vested property right in two
ways. The first way was through a duly issued building permit, as established by
cases such as City of Aspen and Cline. But the court concluded the common law
also allowed vesting to occur in a second limited circumstance. If a zoning
classification permitted a particular use, and the property owner reasonably and
detrimentally relied on an affirmative act or representation by the county about
permitted uses in that classification, the property owner obtained a vested
property right. Id. at 605. “Colorado law recognizes a protected property interest
in a zoning classification when a specifically permitted use becomes securely
vested by the landowner’s substantial actions taken in reliance, to his or her
detriment, on representations and affirmative actions by the government.” Id. at
605–06. The court not surprisingly found this principle had been violated where
the landowner relied on (1) final zoning allowing the intended use; (2) an
affirmative written representation by the county confirming the intended use; (3)
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the issuance of a building permit; and (4) operation of his business for two years.
“Eason was told by the government that his use was permitted under its
interpretation of the zoning ordinance, and he relied, to his detriment, on that
assertion.” Id. at 606
Relying on Eason, Jordan-Arapahoe contends it detrimentally relied on the
representations or affirmative actions of Arapahoe County when it developed its
property for sale to CarMax. Addressing this argument requires us to determine
(1) whether Jordan-Arapahoe pleaded enough facts to show they took substantial
action in reliance to their detriment on (2) representations or affirmative actions
by Arapahoe County.
Jordan-Arapahoe pleaded in its Complaint enough facts to show detrimental
reliance, and Arapahoe County does not argue otherwise. We thus must resolve
whether Jordan-Arapahoe relied on a representation or affirmative action by
Arapahoe County. Jordan-Arapahoe contends Arapahoe County’s approval of the
PDP is enough of a representation or affirmative action for rights to vest under
Eason. But as explained above, the Code makes clear no vested right exists until
Arapahoe County approves a final development plan. Thus, approval of the PDP
alone cannot qualify as an affirmative action or representation because Jordan-
Arapahoe could not have reasonably relied on the PDP approval as creating a
vested right absent the second-step final approval. Arapahoe County, on the other
hand, argues the only affirmative act or representation that will satisfy Eason is
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approval of a final development plan pursuant to the procedure set forth in the
Code. That position does not follow from Eason either, however, because it
improperly conflates VPRA requirements with the common law.
As is often the case, we are left with the middle ground. Eason plainly
requires some affirmative action or representation beyond preliminary approval of
a development plan or the mere fact a use is permitted in the zoning
classification. Rather, affirmative action or representation may come in the form
of a letter, as it did in Eason, or some other act or conduct by the relevant
authority. But Eason does not establish a vested common law property right
where zoning is followed by some detrimental reliance only on the zoning
classification. If it did, developers could expend money on land for an intended
use and lock municipalities into zoning before the municipalities were certain
such zoning was in the public’s interest.
Eason does, however, stand for the principle that once a planned
development in a zoning classification is backed by affirmative actions or
representations by county officials—such as active acquiescence by word or deed
or through some other unequivocal confirmation—then parties who rely on those
affirmations will have vested property rights under the common law. But the
analysis will be case-by-case and factually intensive. This framework allows
counties to issue initial land use regulations that will alert developers of potential
investments, see what proposals come forward under those regulations, then
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decide whether they wish to approve those proposals. In other words, Eason’s
holding keeps discretion with local governments while simultaneously
encouraging developers, landowners, and potential purchasers to seek additional
approvals of permitted uses before expending substantial development funds.
Here we see no affirmative representation or other action by the County of
the specificity required by Eason other than its approval of the preliminary
development plan. That alone is not enough.
We might be at the end of the discussion but for the recent decision in
Moreland Properties, LLC v. City of Thornton, 559 F. Supp. 2d 1133 (D. Colo.
2008). In that case, a municipality had published an ordinance listing allowable
uses for a property owner’s land, among them, the sales of cars and other
vehicles. The property owner’s agent confirmed the permitted use with a
representative of the local municipality. Id. at 1136–37. When the property
owner attempted to sell his property to CarMax, the local municipality imposed
new requirements on the land that made the sale impractical. Id. at 1138–39. The
district court found a vested property right had been established under Eason. Id.
at 1147–48. First, the court found the local municipality had provided an
affirmative representation beyond the preliminary development plan. Id. In the
alternative, the court reasoned a “published ordinance listing permitted uses”
constituted an affirmative act or representation. Id. at 1147.
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Whether the facts in Moreland align with ours is not entirely clear, but in
any event we disagree the holding is persuasive here. In Moreland, for instance,
the zoning appears much more akin to approval of a final development plan than
to approval of a preliminary plan, leading the court to conclude the county lacked
the discretion to deny final approval. 5 Additionally and most critically under
Eason, the property owner in Moreland relied not only on the permitted uses
under the zoning classification but also on the local government’s confirmation of
permitted uses. To the extent the Moreland court relied on those facts to reach its
conclusion a vested property right had been established, we agree with that
outcome. But to the extent Moreland concludes a published zoning classification
alone is sufficient alone to establish vested property rights, we find the holding
conflicts with Eason. Moreland thus does not alter our conclusion that the zoning
scheme here and Arapahoe County’s conduct did not create a vested property
right to develop a car dealership.
5
Jordan-Arapahoe also points us to Albuquerque Commons P’ship v. City
Council, 212 P.3d 1122 (N.M. Ct. App. 2009), which found a protected property
right under New Mexico common law when a municipality attempted to change
an already final zoning scheme. Setting aside the usefulness of New Mexico law
to the facts here, Albuquerque Commons, combined final zoning with a local
government that lacked discretion to change that zoning. Id. at 1127, 1130. In
another case relied on by Jordan-Arapahoe, Nasierowski Bros. Inv. Co. v. City of
Sterling Heights, 949 F.2d 890 (6th Cir. 1991), the landowner obtained
affirmative representations from the city that he could go forward with a proposed
development “as of right.” Id. at 897.
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In sum, Jordan-Arapahoe cannot establish a protected property right under
Colorado common law and has thus not stated a claim upon which relief can be
granted.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s decision to
dismiss the Complaint for failure to state a claim upon which relief can be
granted.
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