Alpenhof, LLC v. City of Ouray, 12CA0500.

• Decision Date: 17 January 2013
• Docket Number: No. 12CA0500.,12CA0500.
• Parties: ALPENHOF, LLC, a Colorado limited liability company, Plaintiff–Appellant, v. The CITY OF OURAY, a Colorado home rule city, Defendant–Appellee.
• Court: Colorado Court of Appeals

297 P.3d 1052

ALPENHOF, LLC, a Colorado limited liability company, Plaintiff–Appellant,

v.The CITY OF OURAY, a Colorado home rule city, Defendant–Appellee.

No. 12CA0500.

Colorado Court of Appeals, Div. I.

Jan. 17, 2013.

The Tisdel Law Firm, P.C., Michael D. Hockersmith, Andrew A. Mueller, Ouray, Colorado, for Plaintiff–Appellant.

The Masters Law Firm, P.C., David L. Masters, Kathryn M. Sellars, Montrose, Colorado, for Defendant–Appellee.

Opinion by Judge WEBB.

¶ 1 Plaintiff, Alpenhof, LLC, raises an unresolved question in Colorado: whether flooding risk from a diverted natural waterway channel involves either a “geologic condition” or a “natural hazard” within the meaning of a zoning code. Defendant, City of Ouray, denied Alpenhof's subdivision application, finding that flooding risk from a diverted creek required mitigation, for which the application did not provide. The district court rejected Alpenhof's C.R.C.P. 106(a)(4)challenge to this denial. Alpenhof now appeals.

¶ 2 We conclude that the city properly denied Alpenhof's application. The flooding risk to the property identified by the city potentially endangers public health, safety, and welfare. This risk remains intertwined with both the geologic features of the area and natural events, although the water would overflow from a diversionary structure built by the city. Therefore, we affirm.

I. Background

¶ 3 According to a site reconnaissance report in the record, the Skyrocket Creek basin “is characterized by steep slopes averaging approximately 80% [in grade],” descending from an elevation of 10,400 feet to the city approximately 2,800 feet below. In 1929, to protect against historically severe flooding from cloudbursts and rapid spring runoff, the city diverted the creek. It had previously drained south of what is now Alpenhof's property, and since the diversion has flowed north of this property. While various improvements have been made through the years, the city's basic diversionary plan remains unchanged.

¶ 4 In 1997, the city approved subdivision of most of the property, then owned by a predecessor in title, as the Ouray Vista Subdivision (“subdivision”). The subdivision is located in the alluvial fan of the creek.¹ Parcel C of the subdivision, adjacent to the north diversionary channel, was not subdivided at that time. However, the plat marked Parcel C for “future possible development” and contained a note saying that the parcel “may not be developed in any fashion until further approval” from the city.

¶ 5 In January 2011, Alpenhof submitted the preliminary plat application at issue to subdivide Parcel C. The Ouray Planning Commission reviewed the application and conditionally approved it, provided that Alpenhof would mitigate potential damage from future floodwater and debris.² The conditional approval was forwarded to the Ouray City Council for final action.

¶ 6 Alpenhof requested that the city council approve the plat without the mitigation requirements imposed by the planning commission. After a hearing, the city council determined that mitigation could be required under section 7–7–D–10 of the Ouray City Code (“code”),³ titled “Natural Hazard Mitigation,” and the “broad discretion” granted by the note on the original plat. It found that, as presented, Alpenhof's plan did not sufficiently mitigate the “geologic conditions” and “natural hazards” threatening Parcel C. For these reasons, Alpenhof's application was denied.

¶ 7 Alpenhof petitioned the district court for relief under C.R.C.P. 106(a)(4). It asserted that the city had exceeded its jurisdiction and abused its discretion in denying the application. Alpenhof argued that, because flooding would result from the city's diversion channel and other structures, such risk could not be considered either a “geologic condition” or “natural hazard” subject to mitigation under section 7–7–D–10. Alpenhof also argued that no record evidence supported the city council's decision, and that the note on the original plat does not grant the city regulatory authority beyond section 7–7–D–10. Alternatively, Alpenhof sought an award for inverse condemnation.

¶ 8 The district court denied Alpenhof's C.R.C.P. 106(a)(4) claim, certified its order under C.R.C.P. 54(b), and stayed proceedings on Alpenhof's inverse condemnation claim.

II. Standard of Review

¶ 9 “Review of a governmental body's decision pursuant to [C.R.C.P.] 106(a)(4) requires an appellate court to review the decision of the governmental body itself rather than the district court's determination regarding the governmental body's decision.” Board of County Commis. v. O'Dell, 920 P.2d 48, 50 (Colo.1996). In doing so, an appellate court applies the same standard of review to decisions of a governmental entity as would a district court. Prairie Dog Advocates v. City of Lakewood, 20 P.3d 1203, 1206 (Colo.App.2000). When reviewing a C.R.C.P. 106(a)(4) claim, a court must affirm unless the governmental entity abused its discretion or exceeded its jurisdiction. Id. Such an entity exceeds its jurisdiction or abuses its discretion only if it either misapplies the law or no competent record evidence supports its decision. Bd. of County Comm'rs v. Conder, 927 P.2d 1339, 1343 (Colo.1996).

¶ 10 Interpretation of a city code is reviewed de novo, applying ordinary rules of statutory construction. Leggett & Platt, Inc. v. Ostrom, 251 P.3d 1135, 1140 (Colo.App.2010). However, appellate review extends only to those code provisions included in the record. See City of Pueblo v. Murphy, 189 Colo. 559, 561, 542 P.2d 1288, 1289 (1975) (“[C]ourts of general jurisdiction may not take judicial notice of the ordinances of municipal corporations in civil or criminal cases. Similarly, in reviewing appellate issues, we have also declined to take judicial notice of municipal ordinances.”) (internal citations omitted). And interpretations by the governmental entity charged with administering a code deserve deference, provided they are consistent with the drafters' overall intent. Waste Mgmt. of Colorado, Inc. v. City of Commerce City, 250 P.3d 722, 725 (Colo.App.2010).

III. Discussion

A. The City Council Correctly Interpreted Section 7–7–D–10

¶ 11 Section 7–7–D–10 requires developers to mitigate hazards when “geologic conditions and/or natural hazards are identified in the Engineering Geology Report that could adversely affect the development.” Alpenhof agrees that this section governs risks to Parcel C resulting from “the natural flow of Skyrocket Creek.” Yet, it argues that because the city's diversion channel altered the flow of the creek, the current erosion and flood risk to Parcel C cannot be considered “natural” under section 7–7–D–10.

¶ 12 The city did not cause the creek's rapid descent from its headwaters or the debris arising from the resulting erosion. These features reflect the area's “geologic conditions.” See§ 24–65.1–103(8)(a), C.R.S.2012 (including “landslides, rock falls, [and] mudflows” as examples of “geologic conditions”). Thus, the hazard to Parcel C is necessarily intertwined with the natural features and geologic conditions of the area.

¶ 13 Neither party included in the record before the city council code provisions addressing whether erosion and flood are “natural hazards.” ⁴ However, the word “flood” does not distinguish between overflows of man-made structures and overflows of natural waterways. See Kane v. Royal Ins. Co. of Am., 768 P.2d 678, 681 (Colo.1989) (holding that an “inundation of water” resulting from a failed dam is still a “flood,” even though caused by the failure of a man-made structure); Bartlett v. Cont'l Divide Ins. Co., 697 P.2d 412, 413 (Colo.App.1984) (holding that damage caused by a failure of a dam “falls well within the ordinary use of the term [‘flood’]”), aff'd,730 P.2d 308 (Colo.1986); cf. Water Conservation Bd. Rules for Regulatory Floodplains Definitions, 2 Colo.Code Regs. § 408–1:4 (2012) (defining “flood” and “flooding” as “[a] general and temporary condition of partial or complete inundation of normally dry land areas from ... [t]he overflow of water from channels and reservoir spillways ”) (emphasis added).

¶ 14 Further, Alpenhof's narrow interpretation of section 7–7–D–10 runs afoul of the “broad authority [granted] to local governments to plan for and regulate the use of land within their respective jurisdictions.” Colorado State Bd. of Land Commis. v. Colorado Mined Land Reclamation Bd., 809 P.2d 974, 983 (Colo.1991) (quoting § 29–20–102, C.R.S.2012); accord Colorado Manufactured Hous. Ass'n v. Bd. of County Commis., 946 F.Supp. 1539, 1554 (D.Colo.1996) (“It is well-settled that [m]unicipalities may zone land to pursue any number of legitimate objectives related to the health, safety, morals, or general welfare of the community. The police power of a municipality is very broad and the objectives of zoning ordinances can be many and varied.”) (internal citations omitted). Thus, zoning ordinances generally represent “valid exercises of the police power to regulate public health, safety, and welfare.” City of Colorado Springs v. Securcare Self Storage, Inc., 10 P.3d 1244, 1254 (Colo.2000); see§ 31–23–303(1) C.R.S.2012 (“Such [zoning] regulations shall be made in accordance with a comprehensive plan and designed to ... secure safety from fire, panic, floodwaters, and other dangers; to promote health and general welfare.”); General Ins. Co. of America v. City of Colorado Springs, 638 P.2d 752, 757 (Colo.1981) (“The reason for requiring the subdivider to install street improvements is directly related to the public health, safety and welfare.”).

¶ 15 Here, the city council made specific findings about the public safety risks associated with building on Parcel C: that the property “is identified as a hazard area ... and is adjacent to areas that have been subject to significant events within the past twenty years,” and that multiple reports “describe hazards that could adversely affect the...