Olson v. City of Golden

• Decision Date: 14 February 2002
• Docket Number: No. 01CA0470.,01CA0470.
• Citation: 53 P.3d 747
• Parties: Marian L. OLSON, Plaintiff-Appellant, v. CITY OF GOLDEN, City Council of the City of Golden, Golden Urban Renewal Authority, Defendants-Appellees.
• Court: Colorado Court of Appeals

53 P.3d 747

Marian L. OLSON, Plaintiff-Appellant, v. CITY OF GOLDEN, City Council of the City of Golden, Golden Urban Renewal Authority, Defendants-Appellees.

No. 01CA0470.

Colorado Court of Appeals, Div. V.

February 14, 2002.

Certiorari Denied September 3, 2002.

Victor F. Boog & Associates, P.C., Victor F. Boog, Linda A. Battalora, Lakewood, Colorado, for Plaintiff-Appellant.

Windholz & Associates, James A. Windholz, Boulder, Colorado; Hall & Evans L.L.C., Josh A. Marks, Denver, Colorado, for Defendants-Appellees City of Golden and City Counsel of the City of Golden.

Paul C. Benedetti, Boulder, Colorado, for Defendant-Appellee Golden Urban Renewal Authority.

Opinion by Judge NIETO.

Plaintiff, Marian L. Olson, appeals a judgment dismissing her claims against defendants, City of Golden, City Council of Golden, Golden Urban Renewal Authority (GURA), and Clear Creek Square, LLC (Clear Creek). We affirm.

In 1989, the city approved the Golden Urban Renewal Plan (the plan). In 1995, as part of the plan, GURA purchased property in Golden within the plan area. GURA also entered into an agreement with the city. According to an amended version of this agreement, the city was to provide support to GURA, and GURA was to repay the city from future tax increments derived from the property and improvements on the property. In 1998, GURA entered into an agreement with a developer, under which the developer acquired the property and was to redevelop it according to GURA's development plan. The developer later assigned its interest under the agreement to Clear Creek.

In 2000, plaintiff brought an action against defendants seeking an injunction and a declaratory judgment that the agreements between the city and GURA and between GURA and Clear Creek violated the Urban Renewal Law, § 31-25-101, et seq., C.R.S. 2001, and article X, section 20 of the Colorado Constitution (TABOR).

Plaintiff also alleged in her amended complaint that defendants' agreements violated article XI, section 2 of the Colorado Constitution. However, plaintiff made no argument to the trial court based on this constitutional provision, and she has made none here. Arguments not presented to the trial court in connection with a summary judgment motion will not be considered on appeal. Mohr v. Kelley, 8 P.3d 543 (Colo.App. 2000). Therefore, we will not consider that aspect of the complaint.

Defendants filed motions for summary judgment. After a hearing, the trial court concluded that plaintiff lacked standing to bring an action pursuant to the Urban Renewal Law and that GURA is not subject to the provisions of TABOR. The court granted the motions for summary judgment and dismissed all of plaintiff's claims. Plaintiff now appeals that judgment.

I.

Plaintiff contends that the trial court erred in concluding that she lacked standing to bring an action based on the Urban Renewal Law. Specifically, plaintiff argues that her status as a taxpayer provides her with standing to bring an action alleging that defendants failed to comply with § 31-25-106(1), C.R.S.2001, which provides that real property transferred as part of an urban renewal project "shall be sold, leased, or otherwise transferred at not less than its fair value (as determined by the authority)." We disagree.

An order granting summary judgment is reviewed de novo. Summary judgment is a drastic remedy and should be granted only when the pleadings, affidavits, depositions, or admissions establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Hyden v. Farmers Insurance Exchange, 20 P.3d 1222 (Colo.App. 2000).

"A plaintiff has standing if he or she (1) incurred an injury-in-fact (2) to a legally protected interest, as contemplated by statutory or constitutional provisions." Brotman v. East Lake Creek Ranch, L.L.P., 31 P.3d 886, 890 (Colo.2001); see also Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977). When considering standing, a court determines whether the plaintiff has asserted a legal basis upon which a claim for relief may be predicated. In doing so, a court must accept as true all allegations of material fact as presented in the complaint. Board of Commissioners v. City of Broomfield, 7 P.3d 1033 (Colo.App.1999).

In this action, plaintiff attempted to vindicate rights shared equally by all citizens and taxpayers in Golden. No injury or cognizable legal interest personal to plaintiff is apparent from the allegations challenging the actions of GURA. Here, plaintiff claims standing based solely on her status as a taxpayer. However, such standing is problematic.

Suits such as these highlight the tension between the judiciary's limited powers and its role as a check on the co-ordinate branches of government. They tempt the courts to overlook prudential limitations on standing, rooted in the separation of powers, in order to redress otherwise nonjusticiable wrongs.

Dodge v. Department of Social Services, 198 Colo. 379, 384, 600 P.2d 70, 73 (1979)(Dubofsky, J., specially concurring).

The judicial branch of government is prohibited from assuming the powers of another branch. Thus, the standing doctrine has constitutional significance. See Colo. Const. art. III; Wimberly v. Ettenberg, supra.

"[T]his power of judicial determination is delicate in character, one to be exercised with caution and care, for it may result in disapproval of acts of the legislative department or of actions of the executive department, both co-ordinate branches of government. This care, this caution has been proverbially observed by the courts, lest in their zeal to prevent what they deem unjust, they exceed their judicial authority, assert an unwarranted superiority over their co-ordinate governmental branches and invade the fields of policy preserved to the legislative arm or the realm of administrative discretion lodged in the executive branch. Obviously such determination may not be had at the suit of any and all members of the public or in an ex parte proceeding. It can be secured only at the suit of one directly and not remotely interested."

Wimberly v. Ettenberg, supra, 194 Colo. at 167, 570 P.2d at 538 (quoting Ex-Cell-O Corp. v. City of Chicago, 115 F.2d 627, 629 (7th Cir.1940)).

A.

Plaintiff argues that GURA has conveyed the property to Clear Creek for less than fair value, resulting in a reduction of GURA's revenue in connection with the renewal project. As a result of such reduced revenue, plaintiff argues that GURA will spend a greater amount of tax revenue to pay its obligations, which amount would otherwise go to various public bodies. She argues that this reduction in GURA's revenue causes her an injury in fact because she and other taxpayers will be deprived of such tax revenue. We are not persuaded.

Plaintiff's argument is based on the allocation of tax revenues generated in the plan area. The allocation was authorized by § 31-25-107(9), C.R.S.2001. The plan established a base year for property and city sales taxes. Such taxes collected in the plan area after the base year, subject to certain adjustments not at issue here, would be divided into two funds.

The first fund would receive the amount of property tax collected on the base year valuation and the city sales taxes equal to the tax collected in the base year. This fund would be paid to the public entities levying the taxes.

The second fund would receive the property tax collected on valuations above the base year valuations and city sales tax revenues in excess of the base year amounts. This tax increment revenue fund would be used by GURA to pay certain expenses, including the debt owed to the city. Any amounts remaining in the tax increment revenue fund after the debts of GURA are paid and the plan is completed will be returned to public entities levying the taxes. See § 31-25-107(9).

This tax allocation plan does not result in the creation of any new taxes. Denver Urban Renewal Authority v. Byrne, 618 P.2d 1374 (Colo.1980). In compliance with § 31-25-113, C.R.S.2001, the plan did not authorize GURA to levy, assess, or collect any form of tax. Therefore, the amount received from the sale of the property had no direct impact on tax revenues.

Under the statutorily authorized allocation of tax revenues, the flow of revenue at pre-plan levels is not affected by the proceeds GURA received from the sale of the property to Clear Creek. The sale of the property can only affect the tax revenues flowing to the tax levying public entities at some future time when the plan is completed and excess revenues in the tax increment revenue fund, if any, are paid to these entities.

To determine whether the sale price of the property will have the adverse affect on future tax revenues claimed by plaintiff, we must examine how the sale of the property interacts with the urban renewal plan. We must also examine how the plan may affect the generation of tax revenues.

GURA was authorized to sell real property acquired by it.

Such real property or interest shall be sold, leased, or otherwise transferred at not less than its fair value (as determined by the authority) for uses in accordance with the urban renewal plan. In determining the fair value of real property for uses in accordance with the urban renewal plan, an authority shall take into account and give consideration to the uses provided in such plan; the restrictions upon and the covenants, conditions, and obligations assumed by the purchaser or lessee; and the objectives of such plan for the prevention of the recurrence of slum or blighted areas.

Section 31-25-106(1).

The agreement between Clear Creek and GURA was not a simple buy and sell agreement. It contained a detailed plan for development of the property. It specified what development could occur on the property and set a timetable for that development. Thus, the determination of "fair value" must take into account these restrictions on the use of the...