No Laporte Gravel Corp. v. Bd. of Cnty. Comm'rs of Larimer Cnty.

• Decision Date: 06 January 2022
• Docket Number: Court of Appeals No. 20CA1207
• Parties: NO LAPORTE GRAVEL CORP., Robert Havis, and Peter Waack, Plaintiffs-Appellants and Cross-Appellees, v. BOARD OF COUNTY COMMISSIONERS OF LARIMER COUNTY, Colorado; and Loveland Ready-Mix Concrete, Inc., Defendants-Appellants and Cross-Appellees.
• Court: Colorado Court of Appeals

507 P.3d 1053

2022 COA 6 M

NO LAPORTE GRAVEL CORP., Robert Havis, and Peter Waack, Plaintiffs-Appellants and Cross-Appellees,

v.BOARD OF COUNTY COMMISSIONERS OF LARIMER COUNTY, Colorado; and Loveland Ready-Mix Concrete, Inc., Defendants-Appellants and Cross-Appellees.

Court of Appeals No. 20CA1207

Colorado Court of Appeals, Division VI.

Announced January 6, 2022

As Modified January 20, 2022

John M. Barth, Hygiene, Colorado, for Plaintiffs-Appellants and Cross-Appellees

William G. Ressue, County Attorney, Jeannine S. Haag, Assistant County Attorney, Fort Collins, Colorado, for Defendant-Appellee and Cross-Appellant Board of County Commissioners of Larimer County, Colorado

Hamre, Rodriguez, Ostrander & Dingess, P.C., Donald M. Ostrander, Joel M. Spector, Denver, Colorado, for Defendant-Appellee and Cross-Appellant Loveland Ready-Mix Concrete, Inc.

Foster Graham Milstein & Calisher, LLP, Chip G. Schoneberger, Denver, Colorado, for Amicus Curiae Colorado Stone, Sand & Gravel Association

David W. Broadwell, Laurel Witt, Denver, Colorado, for Amicus Curiae Colorado Municipal League

Opinion by JUDGE FOX

¶ 1 We are asked to decide, as a matter of first impression in Colorado, whether campaign contributions can disqualify elected officials from serving as decision-makers in quasi-judicial proceedings under the Due Process Clause.

¶ 2 In Caperton v. A.T. Massey Coal Co. , 556 U.S. 868, 884, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009), the United States Supreme Court held that, "when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent," the Due Process Clause requires the judge's recusal. In so holding, the Supreme Court noted that the Due Process Clause provides only the outer limits for judicial disqualifications and that most disputes over disqualifications should be resolved by application of statutes, ordinances, or codes of conduct. Id. at 889-90, 129 S.Ct. 2252. The Caperton Court emphasized that recusal was required in that case because the facts were "rare," "exceptional," and "extreme." Id. at 884, 887, 890, 129 S.Ct. 2252.

¶ 3 In this case, several of Loveland Ready-Mix Concrete, Inc.’s (Ready-Mix) stockholders contributed to the campaign committee to reelect incumbent Larimer County Commissioner Tom Donnelly in the 2016 election. Their combined $4,100 contribution made up only 7.65% of the total amount his campaign raised and only 5.44% of the total spent in the election. Commissioner Donnelly's campaign accepted contributions between March and October 2016, before Ready-Mix's application to operate a gravel-pit mine and a concrete batch plant came before the Larimer County Board of Commissioners (Board). Commissioner Donnelly ultimately won reelection and, ignoring suggestions that he recuse, later voted, as part of a 2-1 majority, to approve Ready-Mix's application in November of 2018. We do not view the facts of this case as so rare, exceptional, or extreme as to rise to the level of a constitutional violation.

¶ 4 We therefore affirm the judgment of the district court granting summary judgment in favor of the Board and Ready-Mix and against No Laporte Gravel Corporation,¹ Robert Havis, and Peter Waack (collectively, NLGC) on their claim that Larimer County's conflict-of-interest rule, Larimer County Code § 2-67(10) (2018),² violated due process as applied to Commissioner Donnelly's participation in the Board's review of Ready-Mix's application.

¶ 5 The Board and Ready-Mix cross-appeal the court's order reversing the Board's decision approving Ready-Mix's application pursuant to NLGC's C.R.C.P. 106(a)(4) claim for judicial review. Though we agree with the district court that the Board misapplied a provision of the Larimer County Land Use Code (Land Use Code), we conclude that the Board's error does not warrant reversal. Thus, we reverse that portion of the district court's judgment and remand the case for further proceedings.

I. Background

A. Factual Background

¶ 6 In December 2016, Ready-Mix filed a special review application with the Larimer County Planning Department (Department) seeking a permit to construct and operate a sand and gravel mine near Laporte, Colorado. It also sought approval for a batch plant that would process the mined materials into concrete. The project would be located on four parcels of land zoned "Open" under the Land Use Code — zoning that permits mining, but not a concrete batch plant, as a "principal use" of property. Larimer County Land Use Code § 4.1.5 (2018). To engage in the proposed activities, Ready-Mix needed Board approval for "use by special review." See Land Use Code § 4.5.3.

¶ 7 Ready-Mix's application included a document entitled "sketch plan project description," which outlined its initial vision of the operation as follows:

• during the life of the mine, sand and gravel would be delivered by conveyor or truck from the mining pit to a crusher, where the material would be washed and "sorted into sand stockpile and multiple gravel stockpiles";

• next, "aggregate from the gravel stockpiles w[ould] be hauled to a hopper to be conveyed to the batch plant";

• at the concrete batch plant itself, "aggregates [would be] mixed with cement and additives" imported from off-site; and

• the product from the concrete batch plant would be "combined with water at the concrete mixer truck load out facility adjacent to the batch plant" and the trucks would deliver the concrete product to customers.

¶ 8 On June 19, 2018, the Laporte Area Planning Advisory Committee (Committee) held a hearing to consider a recommendation for the Board. It voted 4-2 to recommend denying Ready-Mix's application because the proposed project was "not consistent with [the] overall Laporte Area Plan." The Committee's decision was grounded, in part, on the following: that the project "doesn't belong in the middle of Laporte"; environmental, traffic, water, air, and noise concerns; and potential negative effects on local businesses.

¶ 9 The Larimer County Planning Commission (Commission) considered the application next. After hearings on August 15, 2018, and August 22, 2018, the Commission unanimously voted 6-0 to recommend that the Board approve the project subject to forty-one conditions addressing various concerns of Laporte community members.

¶ 10 On September 18, 2018, a local resident informed the Larimer County Community Planning Division and Commissioner Donnelly, who was reelected in 2016, that the campaign contributions Commissioner Donnelly received from individuals affiliated with Ready-Mix required his recusal.

¶ 11 Two provisions of the Larimer County Code are relevant here.³ Larimer County Code section 2-67(10) (2018) — the conflict-of-interest rule — states,

A member of the board of county commissioners who, in their sole opinion, believe[s] they have a conflict of interest or for any other reason believes that they cannot make a fair and impartial decision in a legislative or quasi-judicial decision, will recuse themselves from the discussion and decision. Any recusal will be made prior to any board discussion of the issue and the board member will leave the room for the remainder of the discussion of the issue.

¶ 12 Section 2-71, in turn, is titled "Board members’ code of conduct." As pertinent here, it requires members of the Board to "represent unconflicted loyalty to the interests of the citizens of the entire county" and states that "[t]his accountability supersedes any conflicting loyalty such as that to any advocacy or interest groups, or membership on other boards or staffs" and "the personal interest of any board member acting as an individual consumer of the county government's services." Larimer County Code § 2-71(1).

¶ 13 Ready-Mix's application was presented to the Board's three commissioners: Donnelly, Sean Dougherty, and Steve Johnson. The Board held public hearings on the application on September 24, 2018, and November 18, 2018. Representatives of NLGC — including people who own and reside in homes near the proposed gravel mine and batch plant — and Ready-Mix appeared before the Board and extensively debated whether the project would comply with the Land Use Code. The parties also sent competing letters to the Board addressing the project's compliance. Of particular concern was whether the concrete batch plant could be considered an allowable "accessory use" to the mining operation under the Land Use Code. See Land Use Code §§ 4.3.7(E), 4.3.10.

¶ 14 At the conclusion of the second hearing, the Board approved Ready-Mix's application, with Commissioners Donnelly and Dougherty voting in favor and Commissioner Johnson voting against. Consistent with the vote, on January 15, 2019, the Board issued its written "Findings and Resolution" (Findings) formally approving the project for a term of twelve years subject to forty-one enumerated conditions.⁴ As required by the Land Use Code, the Board found that each of the six special review criteria in section 4.5.3 — the criteria by which the Board reviews and evaluates a requested special review use — had been met or were inapplicable. In assessing one such criteria, it generally concluded that Ready-Mix "has demonstrated that this project can and will comply with all applicable requirements of the [Land Use Code]."

B. Procedural History

¶ 15 NLGC later timely filed a complaint against the Board and Ready-Mix in district court seeking judicial review of the Board's Findings. An amended complaint followed, raising two claims.

¶ 16 NLGC's first claim sought declaratory relief under C.R.C.P. 57. It challenged, in part, the constitutionality of Larimer County Code section 2-67(10), which entrusts members of the Board with the sole discretion to determine whether a possible conflict of interest warrants their recusal. NLGC argued that the provision, as applied, violated its due process rights. They...