Aurora Housing v. City of Aurora

• Court: Colorado Court of Appeals
• Decided: April 9, 2026
• Docket: 25CA0831
• Status: Unpublished

Opinion

25CA0831 Aurora Housing v City of Aurora 04-09-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0831 Arapahoe County District Court No. 24CV31404 Honorable Don J. Toussaint, Judge

Housing Authority of Aurora, Colorado, a body both corporate and politic,

Plaintiff-Appellee,

v.

The City of Aurora, Colorado, an incorporated home-rule municipality,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII Opinion by JUDGE GOMEZ Pawar and Graham*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 9, 2026

Garnett Powell Maximon Barlow & Farbes, Hubert A. Farbes, Jr., Stanley L. Garnett, Robert L. Barlow, Kristin L. Arthur, Denver, Colorado, for Plaintiff- Appellee

Peter A. Schulte, City Attorney, Hanosky Hernandez, Assistant City Attorney, Aurora, Colorado; Kutak Rock LLP, Thomas W. Snyder, Kathleen F. Guilfoyle, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 After the Aurora City Council passed an ordinance changing

the eligibility requirements and term lengths for commissioners of

the Housing Authority of Aurora (the Authority), the Authority filed

this action against the City, seeking a declaratory judgment that the

ordinance is unenforceable because it violates the state Housing

Authorities Law, §§ 29-4-201 to -232, C.R.S. 2025. The City argued

that the Authority lacks standing to challenge the ordinance. The

trial court disagreed and, after a bench trial, determined that the

ordinance is unenforceable and entered judgment for the Authority.

¶2 On appeal, the City challenges the trial court’s decisions on

standing and on the merits of the Authority’s declaratory judgment

claim. We reject both challenges and therefore affirm the judgment.

I. Background

¶3 In 1975, the City established the Authority pursuant to the

Housing Authorities Law to address the need for safe, sanitary, and

affordable housing within the City. Originally, the Authority’s seven

commissioners were appointed to serve five-year terms.

¶4 In 2024, the City Council passed an ordinance modifying the

Authority’s governance by establishing new eligibility requirements

for commissioners, shortening commissioner terms to three years,

1 and staggering commissioner terms. Under the ordinance, six of

the seven existing commissioners were to be removed from their

positions six months to a year and a half before their terms were

originally set to expire.1

¶5 After the ordinance was passed, the Authority sued the City,

seeking a declaratory judgment that the ordinance violates the

Housing Authorities Law by shortening existing commissioners’

terms. None of the commissioners is a party to the case.

¶6 The City filed a motion to dismiss, arguing, among other

things, that the Authority lacks standing to challenge the

ordinance. The trial court denied the motion, concluding that the

Authority has standing. The court also granted the Authority’s

request for a preliminary injunction preventing the ordinance from

being enforced while the case was pending.

¶7 Following a bench trial, the trial court entered its findings of

fact and conclusions of law. The court first reiterated its conclusion

1 Two commissioner terms that were set to expire on June 30, 2025

and June 30, 2026 instead would expire at the end of 2024. Two of the four commissioner terms that were set to expire on June 30, 2027 instead would expire at the end of 2025, and the other two would expire at the end of 2026.

2 that the Authority has standing. It then concluded that the

ordinance is invalid because it violates the constitutional ban on

retroactive legislation. See Colo. Const. art. II, § 11. As part of its

reasoning, the court concluded that the ordinance retroactively

shortens commissioners’ terms, effectively removing commissioners

from office without complying with the process set out in the

Housing Authorities Law. See § 29-4-208, C.R.S. 2025. The court

then entered a declaratory judgment in favor of the Authority,

ordering that the City can amend the method of appointment only

as to future commission appointments and that the existing

commissioners would serve the remainder of their original terms

unless they were removed for cause pursuant to the procedures set

out in the Housing Authorities Law.

¶8 We first consider the City’s challenge to the Authority’s

standing before turning to the merits.

II. Standing

A. Legal Standards

¶9 Standing is a threshold issue that must be satisfied before a

court may decide a case on its merits. HealthONE v. Rodriguez, 50

P.3d 879, 892 (Colo. 2002). Because it is a jurisdictional matter, we

3 review the trial court’s determination de novo. Friends of the Black

Forest Reg’l Park, Inc. v. Bd. of Cnty. Comm’rs, 80 P.3d 871, 876-77

(Colo. App. 2003). We may consider the allegations in a complaint,

as well as testimony and other documentary evidence, to determine

whether a party has standing. Rangeview, LLC v. City of Aurora,

2016 COA 108, ¶ 11. Whether a party has standing is determined

as of the time the action was filed. Am. Comp. Ins. Co. v. McBride,

107 P.3d 973, 976 (Colo. App. 2004).

¶ 10 “Colorado’s test for standing ‘has traditionally been relatively

easy to satisfy.’” Hickenlooper v. Freedom from Religion Found., Inc.,

2014 CO 77, ¶ 17 (quoting Ainscough v. Owens, 90 P.3d 851, 856

(Colo. 2004)). To establish standing in a declaratory judgment

action, as in any other action, a party must show that (1) they have

suffered an injury in fact and (2) the injury has affected a legally

protected interest. Am. Heritage Rys., Inc. v. Colo. Pub. Utils.

Comm’n, 2025 CO 27, ¶ 40; Hickenlooper, ¶ 8.

¶ 11 A party satisfies the injury in fact requirement if they show

that they have suffered “a concrete adverseness which sharpens the

presentation of issues that parties argue to the courts.” Ainscough,

90 P.3d at 856 (quoting City of Greenwood Village v. Petitioners for

4 Proposed City of Centennial, 3 P.3d 427, 437 (Colo. 2000)). Such an

injury may be tangible, such as physical damage or economic harm,

or intangible, such as a deprivation of a legally created right. Id.

However, the remote possibility of a future injury or an injury that

is overly indirect and incidental to the action won’t convey standing.

Id. Although the required showing is “somewhat relaxed in

declaratory judgment actions,” such that “one need not ‘risk the

imposition of fines or imprisonment or the loss of property or

profession in order to secure the adjudication of uncertain legal

rights,’” a party seeking declaratory relief must nevertheless

“demonstrate that the challenged [action] will likely cause . . .

detriment to conduct or activities that are presently occurring or are

likely to occur in the near future.” Mt. Emmons Mining Co. v. Town

of Crested Butte, 690 P.2d 231, 240 (Colo. 1984) (quoting Cmty.

Tele-Commc’ns, Inc. v. Heather Corp., 677 P.2d 330, 334 (Colo.

1984)).

¶ 12 A party satisfies the legally protected interest requirement if

they show that they have a claim for relief to redress their injury

under the constitution, the common law, a statute, or a rule or

regulation. Ainscough, 90 P.3d at 856; see also Bd. of Cnty.

5 Comm’rs v. Bowen/Edwards Assocs., Inc., 830 P.2d 1045, 1053

(Colo. 1992) (an interest is protected if it “emanates from a

constitutional, statutory, or judicially created rule of law that

entitles the plaintiff to some form of judicial relief”). Like an injury

in fact, a legally protected interest may be tangible, such as an

interest based on a contract or property rights, or intangible, such

as an interest in having a government that acts within legal

boundaries. Ainscough, 90 P.3d at 856. Although the Declaratory

Judgment Act and C.R.C.P. 57 provide procedural mechanisms to

recognize rights, they don’t confer or expand such rights. State v.

Hill, 2023 CO 31, ¶ 10.

B. Application

¶ 13 We agree with the trial court that the Authority has sufficiently

established its standing to bring its declaratory judgment claim.

¶ 14 First considering the second standing requirement — a legally

protected interest — we conclude that the Authority has a legally

protected interest in redressing any infringement of its powers and

obligations under the Housing Authorities Law.

¶ 15 Colorado courts have consistently recognized a governmental

body’s legally protected interest in preventing an encroachment of

6 authority conferred upon it by constitution or statute. See, e.g., Bd.

of Cnty. Comm’rs v. Colo. Dep’t of Pub. Health & Env’t, 218 P.3d 336,

342-44 (Colo. 2009) (recognizing a county’s legally protected

interest in its statutory right to issue or refuse to issue certificates

allowing waste disposal); Colo. Gen. Assembly v. Lamm, 700 P.2d

508, 516 (Colo. 1985) (recognizing the general assembly’s legally

protected interest in its appropriations power derived from various

constitutional and statutory provisions); Bd. of Cnty. Comm’rs v.

Colo. Oil & Gas Conservation Comm’n, 81 P.3d 1119, 1123 (Colo.

App. 2003) (recognizing the Colorado Oil and Gas Conservation

Commission’s legally protected interest in its statutory authority to

regulate the oil and gas industry).

¶ 16 In this case, the Authority cites various provisions of the

Housing Authorities Law that confer powers and obligations upon it

as a local housing authority. Section 29-4-202(1)(d) and (e), C.R.S.

2025, provide for the establishment of local housing authorities to

address “the clearance, replanning, and reconstruction of the areas

in which unsanitary or unsafe housing conditions exist” as well as

“the providing of safe and sanitary dwelling accommodations on

such financial terms that enable persons who now live in unsafe or

7 unsanitary dwelling accommodations or in overcrowded and

congested dwelling accommodations to afford to live in safe and

sanitary or uncongested dwelling accommodations.” And section

29-4-209(1), C.R.S. 2025, allows a local housing authority to

“exercis[e] public powers and hav[e] all the powers necessary or

convenient to carry out and effectuate the purposes and provisions

of [the Housing Authorities Law],” including various enumerated

powers, such as the powers to investigate housing conditions;

determine where unsafe, unsanitary, or substandard housing

conditions exist; purchase or lease housing projects; provide for the

construction, repair, or improvement of projects; grant or lend

funding for projects; operate projects; buy and sell property; rent

dwellings in projects; act as the federal government’s agent in

acquiring, constructing, operating, or managing federal projects;

and “do all things necessary or convenient to carry out” these

powers. Also among a local housing authority’s enumerated powers

is the power “[t]o sue and be sued.” § 29-4-209(1)(q).

¶ 17 To the extent that the City relies on Colorado State Board of

Education v. Adams County School District 14, 2023 CO 52, ¶ 52, to

argue that the Authority doesn’t have a legally protected interest

8 unless a statute either directly authorizes it to seek judicial review

or incorporates parts of the Administrative Procedures Act, section

29-4-209(1)(q) provides that authority. Although statutory

provisions allowing a political body to sue and be sued “do[] not

grant a general power to sue in any and all situations[]” and may be

insufficient on their own to establish standing, Romer v. Bd. of Cnty.

Comm’rs, 956 P.2d 566, 577 (Colo. 1998) (emphasis omitted)

(quoting Bd. of Cnty. Comm’rs v. Love, 470 P.2d 861, 863 (Colo.

1970)), they may “indicate[] an implicit legislative intent to allow”

particular kinds of suits, Bd. of Cnty. Comm’rs v. Denv. Bd. of Water

Comm’rs, 718 P.2d 235, 242 (Colo. 1986). Here, they indicate a

legislative intent to allow local housing authorities to bring suits to

redress infringements of their powers and obligations under the

Housing Authorities Law. See Colo. Dep’t of Pub. Health & Env’t,

218 P.3d at 342-44; Colo. Gen. Assembly, 700 P.2d at 516; Colo. Oil

& Gas Conservation Comm’n, 81 P.3d at 1123; see also Denv. Bd. of

Water Comm’rs, 718 P.2d at 242 (similar statutory language

indicated a legislative intent to allow counties to bring suits to

redress impairments to their statutory power to provide water

services).

9 ¶ 18 Now that we’ve identified a legally protected interest, we turn

to the first standing requirement and conclude that the Authority

has sufficiently alleged an injury in fact to that interest. We agree

with the trial court that the Authority has shown that the ordinance

“will curtail [its] statutory powers.” As the court explained,

[The ordinance’s] abrupt removal of the [c]ommissioners will undoubtedly erode confidence in the [Authority’s] role as an agent for the federal government in connection with the acquisition, construction, operation, or management of a project. In its role, the [Authority] provides financing for projects, pledges and encumbers its funds in support or in connection with projects, and executes contracts. The expected continuity of the commissioners, who were appointed to a five- year term pursuant to the [Housing Authorities Law] and [the previous ordinance], is essential by current and future business partners and investors.

¶ 19 Simply stated, the Authority — which necessarily acts through

its commissioners — has shown that the ordinance hinders its

ability to carry out its statutory mandate.

¶ 20 The City contends, however, that the Authority presented no

evidence that any injuries actually were occurring or were likely to

occur but simply speculated that they might occur in the future.

We disagree. The Authority’s affidavits allege sufficient actual and

10 threatened injury. For instance, the affidavits allege that “the

[o]rdinance creates underwriting uncertainty for potential funders,

making the Authority and its subsidiaries undesirable borrowing

entities for development purposes,” and that “[t]he Authority is

having trouble maintaining financing on prospective targets for

affordable housing.” They also describe various concerns relating to

“the Board’s continuing operations powers and [the] finality of its

forthcoming decisions”; “the authority of [the] Authority’s sitting

commissioners to independently conduct the mission of, and effect

the Bylaws adopted by[,] the Authority”; “the [Board’s] reputation

for effective installation and administration of th[e] Authority’s

statutory directives”; “the ability of sitting commissioners [to]

participate in or to maintain relationships with those entities that

the Authority partners with for the conduct of affordable housing

financing and development”; a loss of “existing and future

development partnerships and financing opportunities”; “the

Authority’s ability to plan for and engage in affordable housing

initiatives”; and “the ability of the Authority to generate

development fees and other fees from affordable housing

developments that allow [it] to further its mission of enhancing

11 affordable housing within the City.” Considering the “relatively

easy” test for establishing standing, Ainscough, 90 P.3d at 856, this

is sufficient to show an existing or likely detriment to the

Authority’s conduct and activities. See Mt. Emmons Mining Co., 690

P.2d at 240.

¶ 21 The City also contends that any harm that might result from

the ordinance would be indirect harm from third parties that isn’t

sufficient to establish standing. Again, we disagree. The City cites

a case where hotels alleged a potential future economic harm

caused by a new competitor being allowed to compete with them in

the marketplace, which in turn had nothing to do with the alleged

procedural irregularity raised in the lawsuit. See 1405 Hotel, LLC v.

Colo. Econ. Dev. Comm’n, 2015 COA 127, ¶ 49. Here, by contrast,

the Authority has established direct links between the complained-

of action — the abrupt shortening of commissioner terms — and the

alleged injury — the curtailment of the Board’s ability to carry out

its statutory mandate.

¶ 22 We therefore conclude that the Authority has established that

the injuries it claims to have suffered affect a legally protected

interest and, thus, that it has standing to bring this action.

12 III. Preemption

¶ 23 Having determined that the Authority has standing to

challenge the ordinance, we now turn to whether the ordinance is

preempted by state law. We conclude it is.

¶ 24 Where there is a conflict between legislation by a state and a

home-rule city like Aurora, resolution of the conflict depends on

whether the issue is a matter of statewide concern, local concern, or

mixed state and local concern. Ryals v. City of Englewood, 2016 CO

8, ¶ 12. If the issue is one of statewide concern, state law prevails,

and a home-rule city has no power to regulate at all unless it is

specifically authorized to do so by the constitution or state law. Id.

If the issue is one of local concern, both the state and home-rule

cities may regulate, but in the event of a conflict, the local provision

prevails over state law. Id. And if the issue is a matter of mixed

state and local concern, again both the state and home-rule cities

may regulate, but in the event of a conflict, state law preempts and

supersedes the local provision. Id.

¶ 25 Whether a particular matter is one of state, local, or mixed

concern is a legal issue requiring a court to consider the totality of

13 the circumstances. Webb v. City of Black Hawk, 2013 CO 9, ¶ 16.

We review such an issue de novo. Id.

¶ 26 The parties agree, as do we, that the issue of affordable, safe,

and sanitary housing is one of mixed state and local concern. See

Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30, 38

(Colo. 2000) (“[B]oth the municipality and the state have significant

interests in maintaining the quality and quantity of affordable

housing in the state.”).

¶ 27 Accordingly, if the ordinance at issue conflicts with state law,

then it is preempted and superseded by that state law. See Ryals,

¶ 12. Conversely, if there is no conflict, the two provisions can

coexist. See City of Northglenn v. Ibarra, 62 P.3d 151, 155 (Colo.

2003). To determine whether there is a conflict, “we [ask] ‘whether

the home-rule city’s ordinance authorizes what [a] state statute

forbids, or forbids what [a] state statute authorizes.’” Ryals, ¶ 41

(alterations in original) (quoting Webb, ¶ 43).

¶ 28 In line with the trial court’s conclusions, the Authority

contends that the ordinance conflicts with the appointment and

removal provisions of the Housing Authorities Law, as well as the

14 Housing Authorities Law’s overall statutory scheme, and violates

the constitutional ban on retroactive legislation. The City disputes

all of these contentions.

¶ 29 Because we agree with the Authority’s contention that the

ordinance conflicts with the removal provision of the Housing

Authorities Law, and because that conflict alone is sufficient to

affirm the judgment, we don’t consider the other challenges raised

by the Authority and resolved by the trial court. See Taylor v.

Taylor, 2016 COA 100, ¶ 31 (an appellate court may affirm a

judgment on any basis supported by the record).

¶ 30 The Housing Authorities Law’s removal provision sets forth the

only method by which housing authority commissioners may be

removed from office — by the mayor, for cause, and after notice and

an opportunity to be heard. Specifically, under the removal

provision, the mayor may remove a commissioner for “inefficiency or

neglect of duty or misconduct in office,” § 29-4-208(1), or for

“violating willfully any law of the state or any term, provision, or

covenant in any contract to which the [local housing] authority is a

party,” § 29-4-208(2). But before a commissioner may be removed,

they must be given a copy of the charges and must be afforded an

15 opportunity to be heard in person or by counsel on those charges.

§ 29-4-208(1)-(2). See also Roe v. Hous. Auth. of City of Boulder,

909 F. Supp. 814, 819 (D. Colo. 1995) (recognizing the

“independent nature of the relationship between a housing

authority and the city which created it,” due in part to “the limited

nature of the authority to appoint commissioners for fixed terms

and to remove them only for cause”).

¶ 31 Although the ordinance purports merely to shorten

commissioner terms and set forth new eligibility criteria, as applied,

it removes several existing commissioners months or as much as a

year and a half before their terms were set to end. It also does so

through the action of the City Council, not the mayor. And it

doesn’t identify any good cause for removal recognized under the

removal provision, nor does it provide a copy of any charges relating

to such cause or an opportunity to be heard on the charges. Thus,

the ordinance purports to permit that which the removal provision

prohibits — the removal of commissioners by someone other than

the mayor, without cause, and without any notice or opportunity to

be heard on any purported cause. See Ryals, ¶ 41.

16 ¶ 32 We reject the City’s arguments that the ordinance does not

violate the removal provision because the City Council didn’t

“invoke” the removal provision and because the ordinance shortens

the terms for all commissioners whereas the removal provision sets

forth the method for removing a single commissioner. First, just

because the City Council didn’t expressly invoke the removal

provision does not mean that provision isn’t implicated. Second,

the removal provision doesn’t merely set forth the method for

removing a single commissioner; section 29-4-208(2) also provides

that multiple commissioners may be removed if they are “found to

have acquiesced in” a willful violation of state law or a contract to

which the local housing authority is a party. Finally, “shortening”

the terms for all commissioners and, in so doing, removing six

sitting commissioners isn’t any more permissible than doing so for

just one. Rather, it violates the removal provision six times over.

Indeed, allowing a city to effectuate the removal of commissioners

simply by modifying their terms, on either an individual or a

collective basis, would eviscerate the protections of the removal

statute and would chip away at the independence the general

17 assembly established between housing authorities and the cities

that created them. See Roe, 909 F. Supp. at 819.

¶ 33 Because we conclude that the ordinance conflicts with the

removal provision of the Housing Authorities Law, the Housing

Authorities Law preempts and supersedes the ordinance. See

Ryals, ¶ 12. We therefore affirm the judgment on this basis.

IV. Disposition

¶ 34 The judgment is affirmed.

JUDGE PAWAR and JUDGE GRAHAM concur.