Jjr 1, LLC v. Mt. Crested Butte

• Citation: 160 P.3d 365
• Decision Date: 22 March 2007
• Docket Number: No. 05CA2553.,05CA2553.
• Parties: JJR 1, LLC; John H. Davis and Cheryl Phillips, Plaintiffs-Appellants, v. MT. CRESTED BUTTE, a municipal corporation, and Lagniappe Development, LLC, Defendants-Appellees.
• Court: Court of Appeals of Colorado

160 P.3d 365

JJR 1, LLC; John H. Davis and Cheryl Phillips, Plaintiffs-Appellants, v. MT. CRESTED BUTTE, a municipal corporation, and Lagniappe Development, LLC, Defendants-Appellees.

No. 05CA2553.

Colorado Court of Appeals, Div. III.

March 22, 2007.

Scott Armitage, P.C., Scott Armitage, Westminster, Colorado, for Plaintiffs-Appellants.

Doehling & Driscoll, P.C., Gary L. Doehling, Jeffrey L. Driscoll, Grand Junction, Colorado, for Defendant-Appellee Mt. Crested Butte.

Nancy Bentson Essex, P.C., Nancy Bentson Essex, Crested Butte, Colorado, for Defendant-Appellee Lagniappe Development, LLC.

Opinion by Chief Judge DAVIDSON.

In this action concerning obstruction of views of Crested Butte mountain from their property, plaintiffs, JJR 1, LLC, John H. Davis, and Cheryl Phillips, appeal from the judgment of the trial court dismissing their C.R.C.P. 57 and 106(a)(4) and 42 U.S.C. § 1983 claims against defendants, Mt. Crested Butte, a municipal corporation (Town), and Lagniappe Development, LLC. We affirm.

Plaintiffs are absentee owners of a plot of real property in the Town containing three townhouses that currently have unobstructed views of Crested Butte mountain. Prior to June 2, 2005, Lagniappe filed an application with the Town Planning Commission to develop a parcel of land adjacent to plaintiffs' property. The Planning Commission scheduled June 8, 2005 as the date for a public meeting to review Lagniappe's permit request. According to an affidavit of the Town Community Development Coordinator, notice of the meeting was posted on the property itself on June 3, 2005 and published in the Crested Butte News on June 2, 2005.

The Planning Commission convened on June 8, 2005 to consider Lagniappe's application, and ultimately issued the requested building permit. Plaintiffs did not attend the meeting and allege that they did not become aware of the permit request until July 1, 2005.

On August 23, 2005, plaintiffs filed a complaint against defendants seeking (1) review under C.R.C.P. 106(a)(4) of the Planning Commission's issuance of the building permit to Lagniappe; (2) a declaration under C.R.C.P. 57 that the notice provisions of the Town Zoning Code (Code) violated their state and federal due process rights; and (3) injunctive and declaratory relief pursuant to § 1983 against the Town for the alleged violations of their constitutional rights.

Defendants filed motions to dismiss asserting lack of subject matter jurisdiction under C.R.C.P. 12(b)(1); failure to state a claim under C.R.C.P. 12(b)(5); and summary judgment under C.R.C.P. 56. Plaintiffs then filed an amended complaint, which included a request for monetary relief pursuant to § 1983, and they moved to add a state law claim for injunctive relief pursuant to the Code.

The trial court granted defendants' motions and dismissed plaintiffs' claims. The court determined that it lacked jurisdiction to hear plaintiffs' state law claims seeking review of the Planning Commission's decision because plaintiffs had not filed their complaint within the thirty-day filing deadline provided by C.R.C.P. 106(b). With respect to plaintiffs' facial constitutional challenge and their federal claim brought under § 1983, the court determined that plaintiffs did not have a protected property interest that would entitle them to due process. Thus, the court dismissed those claims as well, and also denied plaintiffs' motion to add an additional claim for injunctive relief under the Code.

I. Claims Brought Under C.R.C.P. 57 and 106(a)(4)

As a threshold matter, we agree with the trial court's determination that other than plaintiffs' claim for monetary relief under § 1983 and their challenge to the facial constitutionality of the Code under C.R.C.P. 57, it lacked jurisdiction to hear plaintiffs' claims seeking review of the Planning Commission's decision to issue Lagniappe a building permit.

C.R.C.P. 106(a)(4) provides for district court review of final, quasi-judicial decisions of a governmental entity. However, such claims must be filed within thirty days after the challenged decision was rendered. If the claims are not timely filed, the district court lacks jurisdiction to hear them. See C.R.C.P. 106(b); Danielson v. Zoning Bd. of Adjustment, 807 P.2d 541, 543 (Colo.1990).

Here, pursuant to C.R.C.P. 106(a)(4), plaintiffs sought district court review of the Planning Commission's June 8, 2005 final decision to issue Lagniappe a building permit. However, because plaintiffs did not file their complaint until August 23, 2005, they exceeded the thirty-day filing deadline. See C.R.C.P. 106(b). Accordingly, the trial court properly determined that it lacked jurisdiction to hear those claims. See Danielson v. Zoning Bd. of Adjustment, supra, 807 P.2d at 543.

Similarly, because C.R.C.P. 106(a)(4) is the exclusive remedy for reviewing quasi-judicial decisions, all claims that effectively seek such review (whether framed as claims under C.R.C.P. 106(a)(4) or not) are subject to the thirty-day filing deadline of C.R.C.P. 106(b). See Bd. of County Comm'rs v. Sundheim, 926 P.2d 545, 548 (Colo.1996). Thus, claims for declaratory relief under C.R.C.P. 57 that seek review of quasi-judicial decisions must be filed within thirty days. See Tri-State Generation & Transmission Co. v. City of Thornton, 647 P.2d 670, 676-77 (Colo.1982) (a party may not seek review of quasi-judicial decisions indirectly through a declaratory judgment if it was not entitled to the review directly under C.R.C.P. 106(a)(4)). Accordingly, plaintiffs' claim for declaratory relief asserting that the Planning Commission did not provide sufficient notice to them of Lagniappe's permit review meeting was also properly dismissed.

However, although plaintiffs' claim against the Town for monetary damages under § 1983 seeks review of quasi-judicial decisions, it also requests a "uniquely federal remedy" and, therefore, is not subject to the filing deadline of C.R.C.P. 106(b). See Bd. of County Comm'rs v. Sundheim, supra, 926 P.2d at 548-49. And because facial challenges seek review of quasi-legislative actions rather than quasi-judicial actions, they are also not subject to the filing deadline of C.R.C.P. 106(b). See Tri-State Generation & Transmission Co. v. City of Thornton, supra, 647 P.2d at 676-77. Thus, the district court properly exercised its jurisdiction over those claims.

II. Claim Under § 1983

Plaintiffs contend that the trial court erred by dismissing their § 1983 federal due process claim. Plaintiffs argue that the Town Code confers upon Town property owners a constitutionally protected property interest in the retention of scenic views and that, by permitting new construction on lots adjacent to their homes which blocked their views, the Town deprived them of this property interest without due process. We agree with the trial court that the Code does not create a protected property interest in the retention of scenic views.

A. Standard of Review

Because the Town attached to its motion to dismiss an affidavit from the Town Clerk, which the trial court did not exclude, we review the court's dismissal of plaintiffs' § 1983 claim under the standards set forth for summary judgment. See C.R.C.P. 12(b), 56; McGee v. Hardina, 140 P.3d 165, 166 (Colo.App.2005). Summary judgment is proper when the pleadings and supporting documents show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c).

Our review of the grant of summary judgment is de novo. See A.C. Excavating v. Yacht Club II Homeowners Ass'n, 114 P.3d 862, 865 (Colo.2005).

B. Section 1983

Section 1983 provides a private cause of action against anyone who, acting under color of state law, deprives a person of "any rights, privileges, or immunities secured by the Constitution and laws." See Monez v. Reinertson, 140 P.3d 242, 244 (Colo.App. 2006). When the basis for a § 1983 claim is, as here, an alleged deprivation of procedural due process, the claimant must show that (1) he or she has a constitutionally protected property right; (2) governmental action deprived him or her of that right; and (3) the deprivation occurred without due process of law. See Hillside Cmty. Church v. Olson, 58 P.3d 1021, 1025 (Colo.2002). Because we conclude that plaintiffs have no protected property right, we address only the first requirement.

1. Protected Property Right

A constitutionally protected property right is not limited to tangible physical property, but also includes a legitimate claim of entitlement to other circumscribed benefits. What falls within those parameters, however, is not set forth by constitution, but is largely a matter of state or municipal legislative enactment. See Hillside Cmty. Church v. Olson, supra, 58 P.3d at 1026; cf. Whiteside v. Smith, 67 P.3d 1240, 1247 (Colo. 2003) (Workers' Compensation Act clearly created and defined protected property interests for injured workers).

Whether a protected property right exists in the outcome of a municipal land use decision depends entirely on the degree of discretion legislatively vested in the decision-maker. If the ordinance or code grants a broad range of discretion, then neither the applicant nor affected third parties have a property interest in a particular outcome. See Hillside Cmty. Church v. Olson, supra, 58 P.3d at 1027-28 (adjacent property owners had no right to denial of neighbor's building permit where municipal code vested significant discretion in planning commission to approve or deny permit); Weston v. Cassata, 37 P.3d 469, 476 (Colo.App.2001) (discussing discretion of decision-maker test in the context of determining whether welfare benefits are protected property interests); see also Cain v. Larson, 879 F.2d 1424, 1426 (7th Cir.1989) ("In order to give rise to a constitutionally protected property interest, a statute or ordinance must go beyond mere procedural guarantees to provide some substantive criteria...