Kruse v. Town of Castle Rock

• Decision Date: 24 July 2008
• Docket Number: No. 07CA1111.,07CA1111.
• Citation: 192 P.3d 591
• Parties: Carolyn J. KRUSE, Plaintiff-Appellant, v. TOWN OF CASTLE ROCK, a municipal corporation; Town Council consisting of Ray Waterman, Jack Hurd, Jay Richards, Randy A. Reed, Ryan Reilly, Ed Rusch, and Mitch Dulleck; and Castle Rock Historic Preservation Board, Defendants-Appellees.
• Court: Colorado Court of Appeals

192 P.3d 591

Carolyn J. KRUSE, Plaintiff-Appellant, v. TOWN OF CASTLE ROCK, a municipal corporation; Town Council consisting of Ray Waterman, Jack Hurd, Jay Richards, Randy A. Reed, Ryan Reilly, Ed Rusch, and Mitch Dulleck; and Castle Rock Historic Preservation Board, Defendants-Appellees.

No. 07CA1111.

Colorado Court of Appeals, Div. II.

July 24, 2008.

Dill Dill Carr Stonbraker & Hutchings, PC, Adam P. Stapen, Denver, Colorado, for Plaintiff-Appellant.

Senter Goldfarb & Rice, L.L.C., Thomas S. Rice, Elliot J. Scott, Denver, Colorado, for Defendants-Appellees.

Opinion by Judge TAUBMAN.

Plaintiff, Carolyn J. Kruse, appeals the district court's judgment affirming the decision of defendant, the Town of Castle Rock, acting through its Town Council and individual council members, adopting an involuntary historic designation ordinance designating a house built in 1875 as a local historic landmark. Kruse also named the Castle Rock Historic Preservation Board as a defendant.

The principal issue in this case is whether the provisions of the Town's historic preservation ordinance (HPO) pertaining to the involuntary designation of property as historic are unconstitutionally vague. Because we conclude they are not and reject Kruse's other challenges to the involuntary historic designation of the house on her property, we affirm.

I. Background

In 1875, Samuel Dyer built a house at what is now 207 Perry Street in old town Castle Rock. It was one of the first homes built in the Town, and it is one of the last remaining structures from the Town's founding era. The house has a vernacular wood frame, which is representative of the houses built during the late 1800s. The 200 block of Perry Street is the last remaining intact historic block in Castle Rock, and it includes such historic buildings as the Owens House, built in 1879; the Canyon Pines Presbyterian Church, built in 1922; and the Masonic Lodge, built in 1887.

Kruse purchased the property on which the house is located in June 1998. Soon thereafter, she inquired of the Town's development director and one of the Town's planners whether the Town would be interested in including the property on a walking tour of historic houses in the downtown area. She also asked whether the Town would help pay for improvements to make the house look more like it did when it was first built. The Town employees declined to include the house on the walking tour, and one employee responded that "there is not one splinter of wood in that house that has any historical significance to the Town of Castle Rock."

In 1999, Kruse applied for a partial demolition permit, which was granted. The partial demolition permit did not include the original house structure but applied only to outbuildings and additions to the original house, such as the porch. Because of the presence of tenants, Kruse did not use the partial demolition permit within the allotted time and, thus, was granted a renewal of the permit in 2001.

From the date of purchase until 2005, when Kruse first applied for a full demolition permit, she spent approximately $100,000 to renovate the house, including making it suitable as a commercial property, painting, carpeting, installing wood floors, and electrical rewiring.

When Kruse applied for a full demolition permit, the Historic Preservation Board intervened. The Preservation Board sought to designate the house a historic landmark, and the Town's employees researched its history, and drafted a report for the Town Council recommending historic designation.

The Town Council held its first public hearing on the property on November 8, 2005. Kruse, her attorney, Town employees, and various Castle Rock residents testified. At the conclusion of the hearing, the Town Council voted 7-0 to approve an ordinance designating 207 Perry Street as a local historic landmark. Many council members, however, explained that their decision was difficult because it limited Kruse's right to use her property.

On January 10, 2006, a second public hearing was held. Again, Kruse, her attorney, Town employees, and several residents testified. This time, the Town Council voted 6-1 to approve the ordinance designating the property a historic landmark. The council made written findings and conclusions under the Town's historic preservation code in support of its decision.

Subsequently, Kruse filed suit asserting claims under C.R.C.P. 106(a)(4) for review of a governmental body's decision and C.R.C.P. 57 for declaratory relief. She also brought a promissory estoppel claim. The district court concluded that the Town's historic preservation code, with respect to involuntary historic designations, was not unconstitutionally vague. The court further concluded that the Town Council did not abuse its discretion in adopting the historic designation ordinance, the Preservation Board did not exceed the scope of its authority, and Kruse did not establish a prima facie case for equitable estoppel.

This appeal followed.

II. Scope of Authority

Initially, we consider and reject Kruse's contention that, because the Town employees' actions exceeded the scope of their authority, the Town Council's designation of the property as a historic landmark is void.

Kruse contends that the Town Council exceeded its jurisdiction by allowing its staff to usurp the Preservation Board's authority by researching the history of the property, submitting a report favoring historic designation, advocating the adoption of a historic designation ordinance, and making recommendations to the Town Council. We disagree.

A municipality, like an administrative agency, must comply strictly with its enabling legislation, such as a charter or code. See Martinez v. Colorado Dep't of Human Servs., 97 P.3d 152, 157 (Colo.App. 2003). If a municipality's officers or agents act outside the scope of their authority, their actions are void and can be collaterally attacked at any time. See Flavell v. Dep't of Welfare, 144 Colo. 203, 206, 355 P.2d 941, 943 (1960).

Pursuant to the Town's municipal code, the Town Council may, by ordinance, designate as a landmark a structure which has special historic or architectural value. See Castle Rock Mun.Code § 2.18.050 (1991). The Town's municipal code also establishes a Historic Preservation Board, "which shall have principal responsibility for matters of historic preservation as set forth in subsection G." Id. § 2.18.030. Subsection G outlines the Preservation Board's powers and duties, including the ability to adopt criteria for historic designations, "[r]eview properties nominated for designation as a historic landmark and recommend that the Town Council designate by ordinance those properties qualifying for such designation," and "[a]dvise the Planning Commission and Town Council on matters related to preserving the historic character of the Town." Id. § 2.18.030(G)(1), (2), (9).

Additionally, the Town's charter gives the Town Council authority to appoint a Town Manager. See Castle Rock Charter art. III, § 3-1 (1987). "The Town Manager shall be responsible to the Council for the proper administration of the matters placed in the Town Manager's charge." Id. § 3-3(a). The Town Manager is also empowered to hire Town employees, advise and make recommendations to the Town Council, and perform other duties as required by the charter or Town Council. See id.

Because the Town Manager is responsible for hiring employees, it logically follows that the employees may assist the Town Manager in exercising his or her duties. See Castle Rock Mun.Code § 2.04.010 ("As authorized by the Town's Home Rule Charter, there shall be recognized as offices of the Town the office of Town Manager, Town Clerk, Police Chief and Fire Chief. These offices shall have the powers and duties prescribed by the Charter, as well as any provisions of the Castle Rock Municipal Code not inconsistent therewith."). Accordingly, because the Town Manager may advise and make recommendations to the Town Council, so too may the Town Manager's employees. See Castle Rock Charter art. III, § 3-3(a); see cf. IBC Denver II v. City of Wheat Ridge, 183 P.3d 714, 718-19 (Colo.App.2008).

Although Kruse argues that the Town Council exceeded its jurisdiction by allowing the Town employees to participate in the historic designation process, the Town's charter and municipal code suggest otherwise. First, the Preservation Board is not exclusively responsible for historic designations. The municipal code states that the Preservation Board "shall have principal responsibility" for historic preservation matters, thereby permitting other Town officials to provide advice and recommendations regarding historic preservation to the Town Council. See Castle Rock Mun.Code § 2.18.030.

Second, the Town Council, as the Town's governing body, is the only body with the authority to designate properties as historic landmarks. See id. § 2.18.050. The Town Manager is generally charged with advising and making recommendations to the Town Council, as the council deems necessary. See Castle Rock Charter art. III, § 3-3(a). The Town employees, who are agents of the Town Manager, therefore, may also advise and make recommendations to the Town Council on behalf of the Town Manager. See Castle Rock Mun.Code § 2.04.010.

Here, although the Preservation Board had primary authority to research the history of the house and recommend its historic designation, the Town employees were not precluded from sharing such authority with the Preservation Board. Accordingly, the Town employees did not usurp the Preservation Board's authority by researching the history of the house, recommending its historic designation, advocating the adoption of a historic designation ordinance, or making recommendations to the Town Council. Because the Town employees' actions did not exceed the scope of their authority, their actions are not void, and, consequently, the Town Council's decision to adopt the historic...