Whitelaw v. Denver City Council, Court of Appeals No. 16CA0920

• Decision Date: 06 April 2017
• Docket Number: Court of Appeals No. 16CA0920
• Parties: Arthur Keith WHITELAW, III; John DeRungs; Katherine K. McCrimmon; Laura Pitmon; Denise Sigon, f/k/a Denise L. Sager; Alan Singer; and Rita Singer, Plaintiffs-Appellants, v. DENVER CITY COUNCIL, including the individual Council members in their official capacity, Albus Brooks, Charlie Brown, Jeanne Faatz, Christopher Herndon, Robin Kniech, Peggy Lehmann, Paul López, Judy H. Montero, Chris Nevitt, Debbie Ortega, Jeanne Robb, Susan Shepherd, and Mary Beth Susman; Manager of Community Planning and Development, Brad Buchanan, in his official capacity; Denver Planning Board, including the individual Board members in their official capacity, Andy Baldyga, Jim Bershof, Shannon Gifford, Renee Martinez-Stone, Brittney Morris Saunders, Joel Noble, Susan Pearce, Arleen Taniwaki, Julie Underdahl, Frank Schultz, and Chris Smith; City and County of Denver; and Cedar Metropolitan LLC, Defendants-Appellees.
• Court: Colorado Court of Appeals

405 P.3d 433

Arthur Keith WHITELAW, III; John DeRungs; Katherine K. McCrimmon; Laura Pitmon; Denise Sigon, f/k/a Denise L. Sager; Alan Singer; and Rita Singer, Plaintiffs-Appellants,

v.DENVER CITY COUNCIL, including the individual Council members in their official capacity, Albus Brooks, Charlie Brown, Jeanne Faatz, Christopher Herndon, Robin Kniech, Peggy Lehmann, Paul López, Judy H. Montero, Chris Nevitt, Debbie Ortega, Jeanne Robb, Susan Shepherd, and Mary Beth Susman; Manager of Community Planning and Development, Brad Buchanan, in his official capacity; Denver Planning Board, including the individual Board members in their official capacity, Andy Baldyga, Jim Bershof, Shannon Gifford, Renee Martinez-Stone, Brittney Morris Saunders, Joel Noble, Susan Pearce, Arleen Taniwaki, Julie Underdahl, Frank Schultz, and Chris Smith; City and County of Denver; and Cedar Metropolitan LLC, Defendants-Appellees.

Court of Appeals No. 16CA0920

Colorado Court of Appeals, Div. I.

Announced April 6, 2017

Rehearing Denied May 4, 2017

Gibson, Dunn & Crutcher LLP, Gregory J. Kerwin, Denver, Colorado, for Plaintiffs-Appellants

Kristin M. Bronson, Denver City Attorney, Nathan J. Lucero, Assistant City Attorney, Tracy A. Davis, Assistant City Attorney, Denver, Colorado, for Defendants-Appellees Denver City Council, including the individual Council members in their official capacity, Albus Brooks, Charlie Brown, Jeanne Faatz, Christopher Herndon, Robin Kniech, Peggy Lehmann, Paul López, Judy H. Montero, Chris Nevitt, Debbie Ortega, Jeanne Robb, Susan Shepherd, and Mary Beth Susman; Manager of Community Planning and Development, Brad Buchanan, in his official capacity; Denver Planning Board, including the individual Board members in their official capacity, Andy Baldyga, Jim Bershof, Shannon Gifford, Renee Martinez-Stone, Brittney Morris Saunders, Joel Noble, Susan Pearce, Arleen Taniwaki, Julie Underdahl, Frank Schultz, and Chris Smith ; and City and County of Denver

Foster Graham Milstein & Calisher, LLP, Chip G. Schoneberger, Katherine Roush, Denver, Colorado, for Defendant-Appellee Cedar Metropolitan LLC

Opinion by JUDGE TAUBMAN

¶ 1 In this C.R.C.P. 106(a)(4) action, plaintiffs, Arthur Keith Whitelaw, III; John DeRungs; Katherine K. McCrimmon; Laura Pitmon; Denise Sigon, formerly known as Denise L. Sager; Alan Singer; and Rita Singer (the neighbors), seek judicial review of the rezoning decision of defendant Denver City Council.¹ We affirm.

I. Background

¶ 2 Defendant Cedar Metropolitan LLC (Cedar) applied to rezone the 2.3-acre "Mt. Gilead Parcel" located at 195 S. Monaco Parkway, on the southeast corner of Crestmoor Park in east Denver (the parcel). To build an age-targeted² apartment complex on the site, Cedar sought to tear down a blighted church on the site and rezone the parcel from E-SU-DX (single-family home) to S-MU-3 (allowing three-story apartment buildings).

¶ 3 The neighbors are property owners who live in the Crestmoor Park neighborhood located near the parcel. They challenged efforts by Cedar to rezone the parcel. They asserted that rezoning would harm their property values, create traffic and parking problems, cause hazards to pedestrians, and degrade the character of the surrounding neighborhood. In June 2015, after an eight-hour hearing where the City Council heard comments from the public both in support of and against the rezoning, the City Council changed the zoning designation to S-MU-3.

¶ 4 The neighbors then challenged the rezoning in district court. Their complaint asserted a claim for judicial review under C.R.C.P. 106(a)(4) of the decisions of the City Council, the Denver Planning Board, and the Community Planning and Development Department (CPD) relating to the rezoning of the parcel. The neighbors also asserted a claim for declaratory relief concerning (a) the City's policy and practice of not considering traffic and parking impacts in the rezoning process; (b) the City's implementation of the Protest Procedure in the Denver City Charter and Denver Zoning Code (DZC); (c) the conflicts created by campaign contributions to Council members from Cedar's lobbyist seeking Council approval of Cedar's proposed zoning change; and (d) whether the rezoning constituted unlawful spot zoning. The district court rejected all of the neighbors' claims.

¶ 5 On appeal, the neighbors challenge the City Council's approval of Cedar's requested rezoning under C.R.C.P. 106(a)(4). They assert various claims, including violation of their right to due process. While the neighbors mention in their briefs an appeal of the court's denial of their claim for declaratory relief, we do not address it, since the neighbors have only raised such a claim in a cursory manner; indeed they did not cite C.R.C.P. 57 in their appellate briefs. See People v. Gingles, 2014 COA 163, ¶ 29, 350 P.3d 968, 973 (citing People v. Wallin, 167 P.3d 183, 187 (Colo.App.2007) ) (declining to address arguments presented in a perfunctory or conclusory manner).

II. Due Process Violation

¶ 6 The neighbors contend that the City Council violated their rights to due process in five ways. We disagree and address each contention in turn.

A. Standard of Review and Preservation

¶ 7 In a Rule 106(a)(4) proceeding, our review is limited to whether the governmental body's decision was an abuse of discretion or was made in excess of its jurisdiction, based on the evidence in the record before that body. C.R.C.P. 106(a)(4)(I) ; Verrier v. Colo. Dep't of Corr., 77 P.3d 875, 879 (Colo.App.2003) ; see also Alpenhof, LLC v. City of Ouray, 2013 COA 9, ¶ 9, 297 P.3d 1052, 1055. An agency's misinterpretation or misapplication of governing law may constitute an alternative ground for finding an abuse of discretion under C.R.C.P. 106(a)(4). See Roalstad v. City of Lafayette, 2015 COA 146, ¶ 13, 363 P.3d 790, 793.

¶ 8 Because an appellate court sits in the same position as the district court when reviewing an agency's decision under C.R.C.P. 106(a)(4), appellate review of the district court's decision is de novo. Alward v. Golder, 148 P.3d 424, 428 (Colo.App.2006) (citing Thomas v. Colo. Dep't of Corr., 117 P.3d 7 (Colo.App.2004) ). The rezoning of an individual parcel is a quasi-judicial decision by the City Council. Cherry Hills Resort Dev. Co. v. City of Cherry Hills Village, 757 P.2d 622, 625-26 (Colo.1988). Quasi-judicial decision-making requires notice and an opportunity to be heard as a matter of "fundamental fairness to those persons whose protected interests are likely to be affected by the governmental decision." Id. at 626. We affirm a rezoning decision unless the governmental entity exceeded its jurisdiction or abused its discretion, which occurs if the body misapplied the law or no competent evidence supports its decision. Alpenhof, ¶ 9, 297 P.3d at 1055. "No competent evidence" means that the decision is "so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority." Canyon Area Residents for the Environment v. Bd. of Cty. Comm'rs, 172 P.3d 905, 907 (Colo.App.2006) (quoting Bd. of Cty. Comm'rs v. O'Dell, 920 P.2d 48, 50 (Colo.1996) ). While interpretation of a city code is reviewed de novo, interpretations of the code by the governmental entity charged with administering it deserve deference if they are consistent with the drafters' overall intent. Alpenhof, ¶ 10, 297 P.3d at 1055.

¶ 9 The neighbors preserved all of the issues below by raising them in their Rule 106 petition.

B. Ex Parte Communications

¶ 10 The neighbors assert that Sean Maley, a lobbyist for Cedar, communicated with Council member Mary Beth Susman, the Council member in whose district the parcel lies, through her private e-mail account and by phone prior to the public hearing. They also suggest that Maley had similar communications with other Council members. The neighbors contend that the failure to disclose these communications to the public prior to the hearing deprived them of their due process rights since they did not receive notice and opportunity to rebut the information on which the Council may have impermissibly relied in making its determination.³

¶ 11 Acting as quasi-judicial decision-makers, city council members are entitled to a "presumption of integrity, honesty, and impartiality." Soon Yee Scott v. City of Englewood, 672 P.2d 225, 227 (Colo.App.1983). Thus, while it is true that parties to an administrative hearing should have the opportunity to be confronted with all facts that influence the disposition of a case, there must be substantial prejudice that is shown to invalidate an agency action in order to rebut this presumption. L.G. Everist, Inc. v. Water Quality Control Comm'n of Colo. Dep't of Health, 714 P.2d 1349, 1352 (Colo.App.1986) (citing Mobile Pre-Mix Transit, Inc. v. Pub. Utils. Comm'n, 618 P.2d 663 (Colo.1980) ).

¶ 12 Here, despite extensive evidence consisting of approximately fifty pages of e-mails that form the basis of their allegation of prejudice, the neighbors pointed to no evidence of e-mails or telephone conversations that had a substantial prejudicial impact on the outcome of the proceeding. In fact, Council member Susman ultimately voted against the rezoning. Nothing in the record suggests that she disclosed any prejudicial communications to other Council members who voted in favor of rezoning, either. Further, the district court, in its detailed and thorough order, noted that the record established that Council member Susman reiterated in her e-mails to several people, including one to former Council member Susan Barnes-Gelt, that she had a duty to remain impartial. Thus, the record shows that, despite the neighbors' claims that Susman encouraged others to vote in favor of the rezoning while she voted against it,⁴ the neighbors have not rebutted the presumption that Susman acted impartially. The neighbors' claims, based solely on the hearsay e-mail from Barnes-Gelt, are insufficient to rebut the presumption.

¶ 13 The...