City of Aurora v. Scott

• Decision Date: 23 February 2017
• Docket Number: Court of Appeals No. 16CA0393
• Citation: 410 P.3d 720
• Parties: CITY OF AURORA, Colorado, a municipal corporation; and Aurora Urban Renewal Authority, a Colorado urban renewal authority, Plaintiffs-Appellants, v. Marc SCOTT, in his official capacity as Arapahoe County Assessor, Defendant-Appellee.
• Court: Colorado Court of Appeals

410 P.3d 720

CITY OF AURORA, Colorado, a municipal corporation; and Aurora Urban Renewal Authority, a Colorado urban renewal authority, Plaintiffs-Appellants,

v.Marc SCOTT, in his official capacity as Arapahoe County Assessor, Defendant-Appellee.

Court of Appeals No. 16CA0393

Colorado Court of Appeals, Div. I.

Announced February 23, 2017

Michael J. Hyman, City Attorney, Christine A. McKenney, Assistant City Attorney, Aurora, Colorado; Hamre, Rodriguez, Ostrander & Dingess, P.C., Richard F. Rodriguez, Joel M. Spector, Denver, Colorado, for Plaintiffs-Appellants

Ronald A. Carl, Arapahoe County Attorney, John R. Christofferson, Deputy County Attorney, Benjamin P. Swartzendruber, Assistant County Attorney, Littleton, Colorado, for Defendant-Appellee

Hall Evans, LLC, Thomas J. Lyons, Brian Molzahn, Denver, Colorado, for Amicus Curiae Colorado Counties, Inc.

Murray Dahl Kuechenmeister & Renaud, LLP, Geoffrey T. Wilson, Denver, Colorado, for Amicus Curiae Colorado Municipal League

Cynthia H. Coffman, Attorney General, Frederick R. Yarger, Solicitor General, Robert H. Dodd, Senior Assistant Attorney General, Denver, Colorado, for Amicus Curiae Colorado Property Tax Administrator

George Rosenberg, Littleton, Colorado for Amicus Curiae Colorado Assessors Association

Opinion by JUDGE GRAHAM

¶ 1 In this case we must decide whether Colorado's Urban Renewal Law (URL), sections 31-25-101 to - 116, C.R.S. 2014,¹ permits a municipality to delay the start date of a tax increment financing period used to fund a redevelopment project by writing such a delay into an urban renewal plan. We conclude that it does not and therefore affirm the district court's order and judgment.

I. Background

¶ 2 Under Colorado's Urban Renewal Law, a city can establish an urban renewal authority, which in cooperation with the city creates an urban renewal plan to redevelop blighted or slum areas. § 31-25-104, C.R.S. 2014. The URL authorizes the use of tax increment financing (TIF) to fund renewal projects. TIF uses recently assessed property values in an urban renewal area to establish a base tax value. § 31-25-107(9)(a), C.R.S. 2014. As property values increase above the base value, increased tax revenues are allocated to the financing of the renewal project. Those revenues are applied to the renewal fund and are used to pay down the debt against the project. Id. The statute places a twenty-five year limit on TIF allocations to a renewal fund that runs from "the effective date of adoption of such a [TIF] provision." Id.

¶ 3 The URL provides that a county be provided notice of the proposed plan, expected impacts on county revenues and services, and its right to submit disputes over the notice to arbitration. § 31-25-107(3.5), (12), C.R.S 2014.

¶ 4 In this case, the City of Aurora (the City) approved two urban renewal plans (collectively, the Plans) with multiple phases of redevelopment. The Fitzsimons Plan included four development phases and the plan stated that TIF would begin immediately for the first two phases but be delayed for the second two phases. The Iliff Plan included two development phases and provided for TIF to begin immediately for phase one and to be delayed for phase two.

¶ 5 After the City approved the Plans, the Arapahoe County Assessor (the Assessor), who is tasked with calculating property values for tax purposes, immediately calculated base tax values for all development phases. The City and the Aurora Urban Renewal Authority (collectively, Aurora) filed a complaint against the Assessor asking the court to order him to delay allocating TIF. The Assessor argued that he was complying with the URL, which does not permit a city to delay the start of TIF allocations.

¶ 6 On cross-motions for determination of law, the district court entered an order in favor of the Assessor, concluding that the URL does not expressly permit the start of TIF allocations to be delayed. Because this determination of law resolved all issues in the case, the court then also entered judgment for the Assessor. Aurora then filed this appeal.

¶ 7 Aurora argues that (1) the Assessor is barred from defending himself based on his interpretation of the URL; (2) the district court misinterpreted the relevant URL provisions; and (3) the Assessor cannot rely on, and this court is not bound by, informal guidance from the Colorado Property Tax Administrator (the Administrator). We conclude that (1) the Assessor's defense is not barred; (2) the district court correctly interpreted the URL; and (3) we have not relied on the Administrator's informal guidance.

II. The Assessor Is Not Barred from Defending Himself Based on His Interpretation of the URL

¶ 8 We first address the threshold question of whether the Assessor's defense is barred. Although the legal basis for Aurora's assertions is less than clear, we conclude that the doctrines of waiver, preclusion, and estoppel do not bar the defense.

A. The Assessor Has Not Waived This Defense by Failure to Raise the Issue Earlier

¶ 9 Aurora argues that the Assessor waived his right to defend himself based on his own interpretation of the URL because he did not submit the issue to arbitration or appeal the Plans' approval via a C.R.C.P. 106(a)(4) action. We conclude that none of these contentions is correct.

¶ 10 Where the facts are undisputed, waiver is a question of law that we review de novo. Duran v. Housing Auth. of City & Cty. of Denver , 761 P.2d 180, 183 (Colo. 1988).

¶ 11 Waiver is the intentional relinquishment of a known right, which may be accomplished by words or conduct that clearly manifests an intent to give up that right. Id.

1. The URL's Arbitration Procedure Does Not Apply to This Dispute

¶ 12 The Assessor has not waived his right to assert this defense by his own or Arapahoe County's (the County's) failure to arbitrate because the statutory arbitration procedure applies only to certain challenges not raised here.

¶ 13 Aurora argues that, under section 31-25-107(12), the County's exclusive remedy for challenging any aspect of an urban renewal plan is arbitration. Aurora further asserts that the Assessor, as an officer of the County, is also bound by this exclusive remedy. Therefore, Aurora contends, the County's failure to submit this question to arbitration amounts to a waiver by the Assessor of the right to defend. We disagree that arbitration is a county's exclusive remedy for all challenges to an urban renewal plan.²

¶ 14 Statutory interpretation is a question of law that we review de novo. Bd. of Cty. Comm'rs v. ExxonMobil Oil Corp. , 192 P.3d 582, 585 (Colo. App. 2008). We interpret a statute as a whole giving words their plain and ordinary meanings, with the goal of effecting the legislature's intent. Id.

¶ 15 Aurora's argument is based on the language of section 31-25-107(12)(f), which provides that "the arbitration process established in this subsection (12) shall be the exclusive remedy available to a county for contesting the sufficiency of compliance by a governing body or an authority with the requirements of this section." § 31-25-107(12)(f), C.R.S. 2014.

¶ 16 However, Aurora takes the language of paragraph (f) out of context from the rest of subsection (12). Subsection (12)(a) states that "the county may enforce the requirements of subparagraphs [ (3.5)(a)(III), (IV), and (4)(h) ] by means of the arbitration process established by this subsection (12)...." § 31-25-107(12)(a). Other parts of subsection (12) also specifically discuss noncompliance with subsections (3.5)(a)(III), (IV), and (4)(h). See § 31-25-107(12)(b)(I), C.R.S. 2014 (county must state how the municipality has not complied with subsections (3.5)(a)(III), (IV), or (4)(h)); § 31-25-107(12)(c), C.R.S. 2014 (municipality has burden of proving compliance with subsections (3.5)(a)(III), (IV), and (4)(h)). Reading subsection (12) as a whole, we conclude that the arbitration process is a county's exclusive remedy only with respect to challenges related to subsections (3.5)(a)(III), (IV), and (4)(h).

¶ 17 We also note that in 2015 the General Assembly amended section 31-25-107 to add subsection (9.5), which sets forth a mediation procedure to be used when cities and counties cannot agree on TIF allocations. Ch. 261, sec. 2, § 31-25-107, 2015 Colo. Sess. Laws 986-89; see also § 31-25-107(9.5). If arbitration was intended to be a county's exclusive remedy for all disputes related to an urban renewal plan, we would expect some sort of harmonization of these conflicting provisions. In the absence of any such reconciliation, and in light of the specific statutory references to subsections (3.5)(a)(III), (IV), and (4)(h), we conclude that the arbitration procedure is applicable only to challenges related to subsections (3.5)(a)(III), (IV), and (4)(h).

¶ 18 Because the Assessor's interpretation of subsection (9)(a) is unrelated to compliance with subsections (3.5)(a)(III), (IV), and (4)(h), the County's failure to arbitrate the TIF issue does not bar the Assessor's defense.

2. Aurora Has Not Preserved Its Rule 106(a)(4) Argument

¶ 19 We do not address Aurora's argument that the Assessor waived his right to this defense by failing to file a Rule 106(a)(4) action challenging the Plans' approval, because this issue was not raised in the trial court. See McGihon v. Cave , 2016 COA 78, ¶ 10 n.1, 410 P.3d 647 ("We do not consider arguments that were not raised in the district court.").

B. The Preclusion Doctrines Do Not Apply to This Case

¶ 20 Aurora also argues that the Assessor is precluded from defending this action because he should have litigated the issue in public hearings regarding the projects. To the extent that this argument suggests estoppel by issue preclusion, we reject it. The doctrines of claim preclusion and issue preclusion are inapplicable on these facts.

1. An Undecided Issue Cannot Be Precluded

¶ 21 First, the Assessor's defense is not barred by issue preclusion (collateral estoppel) because the meaning of the statute and the question of whether the City...