24CA1593 Brown v Chaffee County 08-28-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1593 Chaffee County District Court No. 18CV30016 Honorable Amanda Hunter, Judge
Alison Brown,
Plaintiff-Appellee,
v.
Chaffee County Board of Review; Miles Cotton, in His Official Capacity as Chaffee County Planning Manager; and Board of County Commissioners of Chaffee County,
Defendants-Appellants.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division IV Opinion by JUDGE MEIRINK Freyre and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 28, 2025
Cain & Skarnulis PLLC, Charles J. Cain, Matthew K. Hobbs, Bradley A. Kloewer, Salida, Colorado, for Plaintiff-Appellee
Sullivan Green Seavy Jarvis LLC, Barbara J.B. Green, Jo Lauren Seavy, Victoria L. Jarvis, Boulder, Colorado; Lynda J. Knowles, Deputy County Attorney, Salida, Colorado for Defendants-Appellants ¶1 Chaffee County (the County)1 appeals the district court’s order
that the County abused its discretion under C.R.C.P. 106(a)(4) by
denying Alison Brown’s application for a Limited Impact Review
(LIR) permit to operate a dog kennel after construing Brown’s two
properties as one contiguous parcel and determining that Brown
failed to meet the applicable standards under the Chaffee County
Land Use Code (CCLUC). The County also appeals the district
court’s order granting Brown’s motion for summary judgment after
the court concluded that Brown did not engage in breeding
activities as part of the kennel’s operation and that there were no
disputed issues of material fact to resolve. We reverse both orders
and remand the case with directions.
I. Factual Background
¶2 Brown purchased her first property (Property A) in Chaffee
County in May 2014. She purchased the property “with the intent
of maintaining horses and foxhounds to use for foxhunting on
1 Although Chaffee County Board of Review; Jon Roorda, in His
Official Capacity as Chaffee County Planning Manager; and the Board of County Commissioners of Chaffee County are nominally distinct defendants, they are represented by the same counsel, filed a single brief, and essentially stand as a unified party. Thus, we will hereinafter refer to these parties collectively as the County.
1 public and private lands . . . [and] constructed agricultural
buildings to board and maintain horses and foxhounds on the
property.” Brown also formed a foxhunting club, which she
registered with the Masters of Foxhounds Association of America
(MFAA).
¶3 When Brown purchased Property A, the CCLUC’s definition of
a kennel focused on the purpose of having animals on a property:
[A kennel is] [a]n establishment other than a pet shop or veterinary clinic or hospital, in which dogs, cats and other animals are boarded for compensation or are bred or raised for sale purposes. Dogs used as part of an agricultural activity are not included in this definition.
¶4 In 2016, Brown submitted a building permit application to
construct a residence on Property A. As part of the application
process, Brown met with Chaffee County Planning Manager, Jon
Roorda,2 to discuss her application, her plans, and her intended
land use. Following their meetings, Brown sent Roorda a summary
of their discussions, a site plan, a description of current and
2 Jon Roorda no longer holds this position, but for the purposes of
this appeal, when we reference Roorda, we reference him in his former capacity as the Chaffee County Planning Manager.
2 intended land use, and an explanation that the construction of the
structure on the property was related to her land use. In her
summary, Brown specified that the kennel was not used “for any
commercial purpose such as boarding or breeding dogs for sale.”
¶5 The County issued Brown’s building permit in November 2016.
In March 2017, Roorda sent Brown a letter indicating, in relevant
part, that she kept a “large number” of dogs for recreational use;
the MFAA and the Pet Animal Care and Facilities (PACFA)
acknowledged her as a small-scale breeder; and she was operating
a kennel under the CCLUC, which required her to apply for an LIR
permit. Roorda asked Brown to prepare and submit application
materials for an LIR permit to the Chaffee County Planning
Commission.3
¶6 In late May 2017, Brown appealed Roorda’s classification of
her land use as a kennel. She argued that, at the time, she had not
bred any foxhounds on the property, but she intended to breed
foxhounds for her personal use as her hounds aged and retired
3 Roorda sent Brown a second letter in May 2017, which included
the same information and urged Brown to submit an application for an LIR.
3 from hunting. In response, the Planning Manager’s staff prepared a
report supporting Roorda’s classification of Brown’s land use as a
kennel. The County’s Board of Adjustment (BOA) ultimately
affirmed Roorda’s classification of Brown’s land use as a kennel in
June 2017.
¶7 In July 2017, Brown purchased another property (Property B),
which was adjacent to Property A. Shortly thereafter, Brown
changed her license category with PACFA from a small-scale
breeder to a pet sanctuary, with such a change prohibiting dog
breeding on her property.
¶8 Then, in November 2017, the CCLUC amended the definition
of a kennel. Rather than focusing on the purpose of having animals
on a property, the new definition focused on the number of dogs on
a property:
[A kennel is] [a]ny lot, parcel, or tract or structure in which more than seven dogs, six months old or older are bred, or are kept, raised, trained, housed or boarded for longer than two weeks. This definition shall not apply to a properly permitted pet shops [sic] or veterinary hospital.
¶9 Around the same time, Brown’s residence on Property A was
nearing construction, but the County denied her certificate of
4 occupancy based on her violations of the CCLUC for operating a
kennel without a permit.
¶ 10 Brown subsequently applied for a temporary camping permit
on Property A, which was denied. Brown also applied for a
temporary camping permit on Property B. The County also denied
this application after determining that Property A and Property B
were one “parcel” for purposes of the temporary camping permit
and the outstanding violations.
¶ 11 In February 2018, the Board of County Commissioners
(BOCC) notified Brown that her contiguous parcel violated the
CLUCC’s amended definition of a kennel, and that, pursuant to
Table 2.2 of the then-current CCLUC, she was required to obtain a
kennel permit following an LIR. In September 2018, Brown applied
for an LIR permit that would authorize her to kennel twenty-five
foxhounds. After reviewing the application and holding a public
hearing, the Planning Commission remained concerned that Brown
failed to address several impacts, including noise. The Planning
Commission thus denied the application. Brown appealed to the
BOCC. After reviewing the evidence and holding a public hearing in
5 May 2019, the BOCC agreed with the Planning Commission’s
decision to deny the permit.
II. Procedural History
¶ 12 The procedural posture of this case is complex. In 2017,
Brown first filed an appeal under C.R.C.P. 106(a)(4) of the BOA’s
classification of her land use as a kennel. While the case was
pending, the County amended the CCLUC’s definition of a kennel,
which rendered Brown’s appeal moot.
¶ 13 After the 2017 amendment, the County filed a motion for a
preliminary injunction to enjoin Brown’s land use under both
kennel definitions as well as the CCLUC’s definition of an outfitting
facility.4 The court ultimately issued an injunction pertaining to
outfitting, but it clarified that it did not address the constitutional
issues with the outfitting ordinance.
¶ 14 In 2018, Brown sought C.R.C.P. 106(a)(4) review of her
temporary camping permit application denials. The court granted
Brown’s motion and compelled the BOA’s administrative review.
4 Article 15 of the Chaffee County Land Use Code (CCLUC) defines
outfitting facilities as “[t]he improved structures and facilities related to guiding services for outdoor expeditions, including fishing, camping, biking, motorized recreation and similar.”
6 After its review, the BOA denied Brown’s appeal and upheld
Roorda’s interpretation of the amended definition of a kennel as
applying to contiguous, commonly owned real property. Brown
appealed this determination to the district court in 2019.
¶ 15 Brown was also denied a limited use permit under the
amended definition of kennel, which denial she appealed and for
which denial she sought declaratory relief under C.R.C.P. 57.
¶ 16 The district court consolidated the cases in April 2020. In
March 2023, the court entered its decision on Brown’s C.R.C.P.
106(a)(4) motion, holding that the BOA abused its discretion when
it determined that Brown’s properties were one parcel for the
purpose of applying the kennel regulation. The court further held
that the BOCC’s basis for denying Brown’s camping permit was
arbitrary and that the BOCC violated Colorado’s merger statute, §
30-28-139, C.R.S. 2025. The court also held that the County
abused its discretion when it denied Brown’s kennel permit for not
complying with CCLUC standards and for being inconsistent or
incompatible with agricultural land uses.
¶ 17 In August 2024, the district court entered its order on Brown’s
motion for summary judgment in the declaratory judgment
7 proceeding, concluding that Brown possessed more than seven dogs
prior to the November 2017 amendment of the CCLUC and that
Brown had a prior nonconforming use prohibiting the County from
enforcing its November 2017 kennel definition against Brown.
III. Analysis
¶ 18 On appeal, the County makes three arguments: (1) that the
district court improperly granted summary judgment on Brown’s
C.R.C.P. 57 declaratory judgment claim because C.R.C.P. 106(a)(4)
was Brown’s exclusive remedy, and, alternatively, there were
outstanding issues of material fact yet to be resolved; (2) that the
BOA’s interpretation of the term “parcel” was reasonable as applied
to the CCLUC’s definition of a kennel; and (3) that there was
sufficient evidence supporting the BOCC’s decision to deny Brown’s
LIR permit to operate a dog kennel.
¶ 19 Issue one pertains to Brown’s claim for declaratory judgment
under C.R.C.P. 57. Issues two and three pertain to the district
court’s order finding that the decision to deny Brown’s LIR permit
was arbitrary and capricious under C.R.C.P. 106(a)(4). We address
each argument in turn.
8 A. Brown’s Claims Were Cognizable Under C.R.C.P. 106(a)(4) and C.R.C.P. 57
¶ 20 The County argues that the district court erred by granting
summary judgment on Brown’s motion for declaratory judgment
under C.R.C.P. 57 because C.R.C.P. 106(a)(4) was her exclusive
remedy for a quasi-judicial review. We disagree. Brown was free to
initiate a proceeding under C.R.C.P. 106(a)(4) or C.R.C.P. 57, as
they each have distinct functions.
¶ 21 The purpose of a C.R.C.P. 106(a)(4) motion is to ensure that an
administrative body exercising a judicial or quasi-judicial function
— like a town board or commission — has not exceeded its
jurisdiction or abused its discretion by misapplying existing laws to
regulations or specific situations. C.R.C.P. 106(a)(4); see Friends of
the Black Forest Pres. Plan, Inc. v. Bd. of Cnty. Comm’rs, 2016 COA
54, ¶ 12; Fire House Car Wash, Inc. v. Bd. of Adjustment for Zoning
Appeals, 30 P.3d 762, 766 (Colo. App. 2001).
¶ 22 In contrast, C.R.C.P. 57 allows courts to declare rights, status,
and other legal relations, and is applicable to legislative actions
such as municipal ordinances. C.R.C.P. 57(b). Unlike C.R.C.P.
106(a)(4), which is interpreted narrowly, Brown v. Walker Com., Inc.,
9 2022 CO 57, ¶ 1, C.R.C.P. 57 is remedial and should be liberally
construed to settle and afford relief from uncertainty and insecurity
with respect to legal rights. Freed v. Bonfire Ent. LLC, 2024 COA
65, ¶ 11. Although C.R.C.P. 106(a)(4) is the sole remedy for review
of a quasi-judicial action, a party may request a declaratory
judgment of the same matter if, “in the context of a particular
controversy, the remedy afforded by [the C.R.C.P. 106(a)(4)] review
would be inadequate.” Collopy v. Wildlife Comm’n, 625 P.2d 994,
1004 (Colo. 1981).
¶ 23 Here, Brown sought two distinct remedies. First, Brown
sought judicial review under C.R.C.P. 106(a)(4) to determine
whether the BOCC exceeded its authority or abused its discretion
by denying her LIR permit. The district court concluded that the
County abused its discretion when it (1) considered Brown’s
properties as one parcel instead of two in violation of Colorado’s
merger statute, § 30-28-139, and (2) determined that Brown’s
kennel was incompatible with the CCLUC’s standards for
agricultural land uses.
¶ 24 Second, after the County amended the CCLUC’s definition of a
kennel, Brown filed a declaratory action for prospective relief under
10 C.R.C.P. 57 to determine whether the County could enforce the
CCLUC’s amended definition of kennel against her when — as
Brown contends — her kennel was a pre-existing, nonconforming
land use under the CCLUC’s prior definition of a kennel. In the
alternative, Brown argued, even if the County could enforce the
amended definition against her, her kennel was not subject to the
amended definition.
¶ 25 Given the distinct relief Brown sought under C.R.C.P. 106(a)(4)
and C.R.C.P. 57 and each proceeding’s unique function, we
conclude that both were proper. Accordingly, the district court was
correct to entertain an action for judicial review under C.R.C.P.
106(a)(4) and one for declaratory judgment under C.R.C.P. 57.
B. The District Court Erred by Granting Summary Judgment in the C.R.C.P. 57 Proceeding
¶ 26 The County contends — and we agree — that there are
genuine issues of material fact that preclude entry of summary
judgment in Brown’s favor on the issue of whether she had a pre-
existing, lawful nonconforming use of her property.
11 1. Standard of Review and Applicable Law
¶ 27 We review the district court’s summary judgment ruling on a
declaratory judgment claim under C.R.C.P. 57 de novo. Ragan v.
Ragan, 2021 COA 75, ¶ 14. Because we apply the same standard
as the district court in our review, we must “determine whether a
genuine issue of material fact existed and whether the district court
correctly applied the law.” City of Fort Collins v. Colo. Oil & Gas
Ass’n, 2016 CO 28, ¶ 9. Summary judgment is a drastic remedy
that should be granted only when it is clear that the applicable
standards have been met. Poudre Sch. Dist. R-1 v. Stanczyk, 2021
CO 57, ¶ 12. C.R.C.P. 56(c) allows courts to consider pleadings,
depositions, answers to interrogatories, admissions, and affidavits
when determining whether a genuine issue of material fact exists.
¶ 28 Section 38-1-101(3), C.R.S. 2025, prohibits local governments
from enacting or enforcing ordinances, resolutions, or regulations
that require a nonconforming property use, lawful at the time of its
inception, to be terminated or eliminated by amortization. Section
12 15 of the CCLUC5 defines a nonconforming use as a “use of land
legally existing at the time of enactment of this land use code or
lawful amendments to this Code and which does not conform to the
regulations of the zoning district in which it is situated or used.”
¶ 29 As previously mentioned, the CCLUC’s 2014 definition of a
kennel did not specify the number of dogs allowed on a parcel. It
simply defined a kennel as “[a]n establishment other than a pet
shop or veterinary clinic or hospital, in which dogs, cats and other
animals are boarded for compensation or are bred or raised for sale
purposes.”
2. Discussion
¶ 30 The County argues that summary judgment was inappropriate
because it was unclear (1) whether Brown had engaged in breeding
activities that violated the former CCLUC definition of a kennel and
(2) whether Brown’s kennel operation was an existing legal land use
under the CCLUC’s prior definition of a kennel. We agree with the
5 Except as otherwise stated, all references to the Chaffee County
Land Use Code (CCLUC) herein are to the CCLUC version in effect on and before May 7, 2019, the date of the final BOCC denial of Brown’s permit applications.
13 County that both factual issues were never resolved and that the
district court erred by granting summary judgment.
¶ 31 In her motion for summary judgment, Brown highlighted that
the 2014 definition of kennel did not hinge on the number of dogs,
but instead on whether dogs were boarded for compensation or
bred or raised for sale purposes. While Brown asserted that she did
not engage in breeding activities on her properties, the County
concluded that Brown violated the CCLUC’s definition of a kennel
based on the acknowledgment from the MFAA designating Brown as
a “breeder of foxhounds” and a letter from Brown’s attorney stating
that Brown “breeds, raises, and trains hounds on her property.”
¶ 32 Based on the parties’ conflicting claims regarding Brown’s
breeding practices, there is a genuine dispute of material fact
regarding whether Brown was breeding foxhounds in violation of
the CCLUC’s 2014 definition of a kennel.
¶ 33 Breeding issue aside, the central concern is whether Brown’s
kennel operation was lawful under the CCLUC’s 2014 kennel
definition. To trigger protections under section 38-1-101 and
CCLUC section 4.2, Brown had to establish that her kennel
operation was lawful before the 2017 amendment of the CCLUC.
14 See Giuliani v. Jefferson Cnty. Bd. of Cnty. Comm’rs, 2012 COA 190
¶ 23 (“[Section 38-1-101(3)] protects only nonconforming uses that
were lawful at the inception or enforcement of a local government’s
ordinance or regulation.”); Anderson v. Bd. of Adjustment for Zoning
Appeals, 931 P.2d 517, 519 (Colo. App. 1996).
¶ 34 This issue was never resolved. As evidenced in a hearing
before the BOA, the County and Brown disagreed over whether her
land use was lawful under the 2014 definition of a kennel:
And then in terms of ex post facto, it, it has to be a legal use at the time for — so to be grandfathered or, or for this particular — for it to be an illegal sort of change [to] the position — for a Government to change a position of somebody’s use of their land, their use of land had to have been previously legal. And[] so the County and Dr. Brown disagree over the legality of the prior use.
....
This Board took the position a few years ago that . . . there was a, a violation of the requirement to obtain a Kennel Permit under the old definition. . . . So, the County is taking a position that her prior land use was . . . not . . . in conformance with the [CCLUC].
It remains disputed whether Brown had an existing legal land use.
15 ¶ 35 The parties’ disagreements over whether Brown bred
foxhounds on her property in violation of the 2014 CCLUC and the
County’s position that Brown did not possess a lawful
nonconforming use both present genuine issues of material fact.
Accordingly, the district court erred by granting Brown’s request for
summary judgment.
C. The District Court Erred by Granting Brown’s C.R.C.P. 106(a)(4) Motion
¶ 36 The County contends that the district court erred by reversing
the County’s decision to deny Brown’s LIR permit for two reasons.
First, the County asserts that the BOA’s interpretation of the term
“parcel” in the context of the CCLUC’s definition of a kennel was
reasonable. Second, the County argues that the district court
ignored evidence that Brown failed to meet and comply with the
CCLUC’s standards and restrictions for agricultural use. We agree
with both contentions.
1. Standard of Review and Applicable Law
¶ 37 In an appeal of a C.R.C.P. 106(a)(4) proceeding, the appellate
court is in the same position as the district court concerning review
of an administrative board’s decision. Ad Two, Inc. v. City & County
16 of Denver, 9 P.3d 373, 376 (Colo. 2000); Sierra Club v. Billingsley,
166 P.3d 309, 311 (Colo. App. 2007). Our review is limited to
deciding whether the governmental body’s decision was an abuse of
discretion, based on the evidence in the record before it, or was
made in excess of its jurisdiction. C.R.C.P. 106(a)(4)(I); Whitelaw v.
Denv. City Council, 2017 COA 47, ¶ 7.
¶ 38 In conducting our review, we apply a deferential standard, and
“we may not disturb the governmental body’s decision absent a
clear abuse of discretion.” Langer v. Bd. of Comm’rs, 2020 CO 31,
¶ 13. “A governmental entity abuses its discretion only when it
applies an erroneous legal standard or when no competent evidence
in the record supports its ultimate decision.” Id. We will only reach
this conclusion if the decision was “so devoid of evidentiary
support” that the decision was arbitrary and capricious. Freedom
Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dep’t, 196 P.3d 892, 900
(Colo. 2008).
¶ 39 Land use codes and ordinances “are subject to the general
canons of statutory interpretation.” Shupe v. Boulder County, 230
P.3d 1269, 1272 (Colo. App. 2010) (quoting City of Colorado Springs
v. Securcare Self Storage, Inc., 10 P.3d 1244, 1248-49 (Colo. 2000)).
17 When construing a land use code, we first look to the plain
language, being mindful of the principle that we presume that the
governing body enacting the code meant what it clearly said.
Shupe, 230 P.3d at 1272. If the code’s language is ambiguous, “we
give deference to the board’s interpretation of the code it is charged
with enforcing, and its interpretation will stand if it has a
reasonable basis in law and is warranted by the record.” Id.
However, if the board’s interpretation is inconsistent with the
relevant governing articles, then that interpretation is not entitled to
deference. Id.
¶ 40 In her C.R.C.P. 106(a)(4) action, Brown argued that the
County abused its discretion by construing the terms “lot, parcel or
tract,” as used in the CCLUC’s amended definition of a kennel, as
one contiguous property as opposed to two distinct lots. We
disagree.
a. The County’s Interpretation of “Lot, Parcel or Tract” Was Reasonable
¶ 41 Before the County amended the CCLUC definition of a kennel
in 2017, Brown maintained more than seven foxhounds on Property
18 A, which she claims was legal under the prior definition. Brown
argues that the amendment was intended to target her kennel
operation by limiting the number of dogs she could have. Brown
contends that the County abused its discretion by combining her
properties into one singular parcel to fit the CCLUC’s amended
definition of a kennel’s description of “[a]ny lot, parcel, or tract,”
rather than counting her properties separately. Brown asserts that
by merging her properties to fit the amended definition of a kennel,
the County arbitrarily and capriciously reduced the number of dogs
she could have on her properties (without obtaining an LIR permit)
from fourteen to seven. She also claims that combining her
properties violated her due process rights under the merger statute,
§ 30-28-139(1), which sets forth the notification and consent
process the County must follow when merging “two or more parcels
of land for the purpose of eliminating interior lot lines, obsolete
subdivisions, or otherwise.”
¶ 42 The County interpreted “lot, parcel, or tract” to mean the
contiguous tract of land under common ownership rather than
focusing on lot lines and boundaries attached to two separate legal
tracts. The County claims its interpretation tracks the ordinary
19 meaning of the terms, and, to the extent the terms are ambiguous,
its interpretation was reasonable.
¶ 43 Though the terms “parcel,” “lot,” and “tract” are used
throughout the CCLUC, they are not specifically defined in the
CCLUC. Turning to their ordinary meanings, a parcel is defined, in
relevant part, as “a tract or plot of land.” Merriam-Webster
Dictionary, https://perma.cc/68ZZ-6M5G. A lot is defined both as
“a portion of land” and “a measured parcel of land having fixed
boundaries and designated on a plot or survey.” Merriam-Webster
Dictionary, https://perma.cc/WRC6-RR6Z. A tract is defined as
“an infinite stretch of land” or “a defined area of land.” Merriam-
Webster Dictionary, https://perma.cc/G39N-H5X7.
¶ 44 Giving “parcel, lot, and tract” their ordinary meanings,
Brown’s interpretation of Property A and Property B as two
properties having distinct boundaries or defined areas of land is
logical and reasonable. Likewise, the County’s interpretation of
both properties as a single plot of land, portion of land, or infinite
stretch of land under common ownership is also rational and
reasonable. Because the terms are susceptible to more than one
interpretation, we look to extraneous evidence and give deference to
20 how the County interprets the code it is responsible for enforcing.
See Shupe, 230 P.3d at 1272.
¶ 45 As evidenced in the hearing transcripts, the BOA discussed at
length what parcel meant in the context of the CCLUC in general
and with respect to the CCLUC’s definition of a kennel. The BOA
acknowledged that parcel could refer to a distinct lot, but it
maintained that, in many instances, “adjacent lots are treated as a
unified, though not merged, property.” In these instances, the
County focused on either common ownership of properties or the
concept that the impacts of the proposed use could not be
contained within lot lines. The BOA used the example of a special
event to illustrate. Even though the special event might occur on
multiple adjoining properties, for purposes of issuing a permit, the
County would treat the land as one parcel — not multiple properties
— because the impacts of the event, i.e., traffic, safety, noise, and
creation of waste, could not be contained to one property but would
spread to all the adjoining properties regardless of lot lines or
boundaries. Similarly, if multiple properties were owned by the
same person or entity, the County treated the properties as one
parcel when it applied the rubbish, debris, and weed provisions of
21 the CCLUC because having “junk on a property ha[s] . . . the
potential to have negative effects on adjoining property” regardless
of property lines.
¶ 46 The BOA’s interpretation of a parcel as “contiguous properties
having common ownership or control such as those owned by
[Brown]” was reasonable and consistent with these other examples
the BOA cited wherein it interpreted parcel to mean land under
common ownership. By interpreting parcel in this manner, the
BOA ensured that Brown would be responsible for mitigating
adverse impacts from noise, waste, traffic, and safety that could not
be contained within the lot lines of Property A and Property B.
¶ 47 The BOA also looked to other counties for guidance, including
Pueblo County and Lake County, because their land use codes are
similar to the CCLUC. At a hearing, Roorda testified that the
Pueblo County Planning and Development Department “would have
interpreted contiguous properties under a common ownership in
the same manner that [he] did in their interpretation of their
definition of a kennel.” While some counties may have interpreted
parcel differently, similar and neighboring counties interpreted
parcel the same way as Chaffee County, and thus the BOA
22 recognized: “[O]ur interpretation is reasonable. It’s not out of
bounds of what is traditionally accepted by other counties.”
¶ 48 As required by the case law, we give deference to the BOA’s
interpretation of the CCLUC and conclude that it properly
construed Brown’s properties as one parcel when it applied the
CCLUC’s definition of a kennel.
¶ 49 Brown also asserts that the County’s interpretation of the
word parcel was contrary to section 30-28-139(1), which sets forth
a formal process a county must follow when a “county ordinance,
regulation, or resolution provides for the merger of two or more
parcels of land for the purpose of eliminating interior lot lines,
obsolete subdivisions, or otherwise.” As one commissioner
explained during a hearing,
[T]he [m]erger [s]tatute deals with what is essentially a lot line combination. . . . [I]t results in two separate parcels being legally treated as one parcel. . . . The County isn’t attempting to do that. The County still is treating those two parcels or properties as separate lots for purposes of being able to sell. It’s only being treated as a single parcel or tract for purposes of applying the definition of kennel.
23 [H]istorically[,] there were times before that Statute came into effect that counties were trying to legally combine lots into one lot. And the law that was — is being cited was an attempt to sort of curb that so that a government wouldn’t — couldn’t do that without consent of the property owners.
The statute requires consent from the property owners because
merging two separate properties results in the creation of one legal
property. § 30-28-139(2)(a). It further requires counties to file a
record with the county clerk and recorder and to assess the merged
parcels as one parcel of real property for purposes of levying and
collecting property tax. See § 30-28-139(3).
¶ 50 The merger statute does not apply because Brown’s properties
were not legally merged. Instead, Brown’s properties were being
treated as a unified parcel for the purpose of considering the
adverse effects of Brown’s proposed kennel and to ensure she
mitigated any negative effects consistent with the CCLUC’s LIR
process. Further, the BOA was clear in its notice of decision that
Brown’s properties remained separate legal lots.
24 b. The BOCC’s Decision to Deny Brown’s LIR Permit Was Appropriate Because Brown Failed to Comply with the CCLUC’s Requirements
¶ 51 Under the CCLUC, any kennel operating in a rural zone must
have an LIR permit. The CCLUC defines an LIR as
[a] shortened land use change permit application and review process, described in Article 4, Section 4.2.2. of [the CCLUC],[6] by which the Planning Commission approve permits for uses being allowed on the basis of their limited impact with regard to compatibility with the site and surrounding land and uses, and the adequacy of required services.
“The burden of proof is on the applicant to demonstrate that the
proposed land use change satisfies the applicable standards.”
CCLUC § 1.3.5.B.3.c. The applicant must submit a narrative,
vicinity map, site plan, impact analysis, and suitability analysis, as
well as a traffic study. Id. § 4.2.3.A.1. The CCLUC defines the
impact analysis, section 4.6.2.E, as follows:
The Impact Analysis shall provide a description of the impacts that the proposed land use change may cause, based upon the
6 Article 4 sets forth the administrative process for reviewing a land-
use change application. Once the application is submitted, the staff evaluates and reviews the application, then the Planning Commission holds a public hearing and makes a decision, which may be appealed to the BOCC. CCLUC § 4.1.1.
25 standards that the proposed use must satisfy. The Impact Analysis shall include a complete description of how the applicant will ensure that impacts will be mitigated and standards will be satisfied. The analysis shall consider at a minimum the potential impacts to nearby properties resulting from the project, including but not limited to: safety, water pollution, noise, vibration, smoke, dust, odor, heat, glare; wildfire, flood, or geologic hazard; and visual impact; and propose mitigations to minimize such impacts.
Further, an applicant seeking to operate a kennel must
demonstrate compliance with Article 2 and Article 7.
¶ 52 Article 2 of the CCLUC discusses the County’s zoning district
and use regulations. Applicable here are the rural zoning
requirements, which are intended “to allow agricultural uses of any
kind and to promote development that enhances the agrarian and
rural character of the County.” Id. § 2.2.3.A. Any development
within the rural zone district “should maintain agricultural
resources; . . . protect wildlife habitat and corridors; . . . and allow
for the continuance of the rural lifestyle.” Id. CCLUC section
2.2.3.C states, “New non-residential uses in the Rural zone may be
required to restrict operating hours, develop landscaping, increase
setbacks, or similar mitigation in order to minimize potential
26 impacts on nearby residential uses and to meet the intent and
purpose of the Rural zone.”
¶ 53 Article 7 of the CCLUC discusses basic preservation standards
for all land use permits and requires the proposed land use change
to consider the natural environment and mitigate environmental
impacts. CCLUC section 7.8.17 provides the County’s specific
standards for kennels and includes a requirement that all kennels
“prevent any sounds in excess of the maximum permissible noise
levels for residential zone districts, set forth in C.R.S. 25-12-103 as
amended.” Id. § 7.8.17.A. In addition to noise restrictions, kennels
must have an adequate waste disposal system, id. § 7.8.17.B.1; and
measures in place to protect health and safety and to minimize
“vermin infestation, odors, disease hazards and nuisances.” Id. §
7.8.17.B.2.
¶ 54 Brown applied for an LIR permit to maintain a kennel to
“raise, train, and keep twenty-five (25) hound dogs on her Property
in five (5) fenced-in kennel areas and a fenced dog park located
adjacent to the dog kennels[,] which is used for exercising, training
and giving the dogs playtime in a controlled area.” Brown
represented the following in her application:
27 (1) Sound/noise abatement and mitigation efforts were done
prior to the application by the placement of the kennel
facilities and other structures.
(2) No additional sound/noise mitigation was proposed in
the current application on Brown’s property for the
kennel facilities.
(3) The kennels and fencing were not constructed with any
sound/noise barriers or materials.
(4) It is not an option to kennel the hound dogs in indoor
(5) It is not an option to kennel or limit the hound dogs’
outdoor access at night.
(6) The hound dogs made the most noise/sound during
times of feeding and exercising.
(7) There are no set hours for exercising the hound dogs.
¶ 55 Several neighboring property owners made nuisance
complaints about the noise coming from Brown’s dogs and noticed
changes in wildlife behavior and patterns after Brown started using
her property as a kennel. Community members submitted a sound
monitoring report to the BOCC, which noted “several events” that
28 exceeded the sound limits on multiple occasions. Brown submitted
her own report indicating that sound levels never exceeded the
sound limits. The County considered both reports.
¶ 56 The County Planning Commission held three public hearings.
After these hearings, the County Planning Commission voted 6-0 to
deny Brown’s LIR application for the following reasons:
(1) Brown failed to show or propose any sound/noise
mitigation to minimize the impacts of the kennel facilities
to nearby properties as required by CCLUC §§ 4.6.2 and
7.8.17.A.
(2) The proposed kennel facilities are inconsistent with the
historical and current uses of the nearby properties and
would not enhance the agrarian and rural character of
the County as contemplated by CCLUC § 2.2.3.
(3) Brown failed to show or propose any sound/noise
mitigation or buffering to mitigate impacts the kennel
facilities would have on wildlife habitat areas, such as
several nearby properties that have perpetual wildlife
conservation easements as contemplated by CCLUC §
7.1.6.
29 ¶ 57 Brown appealed the Planning Commission’s decision to the
BOCC, which held another public hearing. Brown testified as to
her sound/noise abatement efforts, the noise measurement report
she commissioned, the credibility of her neighbors’ noise
complaints, and the impact of the proposed kennel on neighboring
properties and wildlife. The BOCC also heard testimony from
others regarding the kennel’s impact on noise, lack of mitigating
sound barriers, depreciation of land values, adverse impact on
wildlife, the veracity of Brown’s noise measurement report, and that
the kennel was not consistent with the historical use of the
neighborhood. The testimony further described Brown’s reluctance
to address her neighbors’ concerns. For instance, multiple
neighbors complained about “near constant barking” and the
inadequacy of Brown’s noise mitigation measures. However, Brown
rejected the sound and noise mitigation suggestions provided by the
BOCC and claimed that they were unacceptable for her foxhounds.
¶ 58 At the hearing, the BOCC discussed how the CCLUC was
developed “in a general way that encourages or produces
compatibility” throughout the community and “allows for the
continuance of the rural lifestyle.” Specifically, a new
30 nonresidential use may be required to engage in mitigation to
minimize potential impacts on nearby residential uses to meet the
intent and purpose of the rural zone. The BOCC noted that while
the kennel’s noise and sound propagation were within acceptable
limits, the noise remained a high concern for many neighbors who
predated the kennel.
¶ 59 Before issuing its decision, the BOCC held a final meeting.
During the meeting, the BOCC noted that the proposed facilities
were not compatible with the historical and current uses of the
nearby properties, and that the proposed kennel would not enhance
or promote the agrarian or rural character of the County as
contemplated by CCLUC section 2.2.3. The BOCC also expressed
concern that Brown did not address, show, or propose adequate
noise mitigation to minimize the impact of the proposed kennel
facilities.
¶ 60 In a 3-0 vote, the BOCC denied Brown’s application for an LIR
permit and issued Resolution 2019-42. The BOCC determined that
Brown failed to meet CCLUC section 2.2.3.C and section 7.2.3
standards to “minimize potential impacts on nearby residential
uses,” to “not result in a significant adverse impact to adjacent
31 land,” and to “be compatible with adjacent land uses.” The BOCC
also concluded that the application did not have a section 4.6.2
impact analysis that demonstrated that adverse noise impacts had
been addressed.
¶ 61 Unless there is no competent evidence in the record to support
it, we are required to uphold a governmental body’s decision in a
C.R.C.P. 106(a)(4) action. Bd. of Cnty. Comm’rs v. O’Dell, 920 P.2d
48, 50 (Colo. 1996). Here, the BOCC carefully considered Brown’s
application, analyzed it under the CCLUC’s standards, held
multiple public hearings, heard from Brown and community
members — who both supported and opposed the kennel — and
considered two studies conducted on Brown’s sound levels. The
BOCC’s decision is not “so devoid of evidentiary support that it can
only be explained as an arbitrary and capricious exercise of
authority.” Id. (quoting Ross v. Fire and Police Pension Ass’n, 713
P.2d 1304, 1309 (Colo.1986)). Instead, the record supports the
County’s decision to deny Brown’s LIR permit application based on
its conclusion that Brown failed to comply with the CCLUC’s LIR
permitting standards. Accordingly, the district court erred by
32 holding that the County abused its discretion when it denied
Brown’s permit.
D. Appellate Attorney Fees
¶ 62 Brown requests an award of appellate attorney fees and costs
under C.A.R. 38(b), which permits an award of attorney fees on
appeal if we determine that an appeal is frivolous. Glover v.
Serratoga Falls LLC, 2021 CO 77, ¶ 70.
¶ 63 We decline Brown’s request. She provides no argument
supporting her claim for attorney fees under C.A.R. 38(b), and the
claims pursued by the County on appeal were not frivolous.
IV. Disposition
¶ 64 We reverse the district court’s orders granting Brown’s
C.R.C.P. 106(a)(4) motion and granting Brown summary judgment
in the C.R.C.P. 57 proceeding. We remand the case with
instructions to (1) reinstate the final decisions of the BOCC and the
BOA with respect to the C.R.C.P. 106(a)(4) proceeding, and (2)
resume the C.R.C.P. 57 action, the outcome of which may be
dispositive of the C.R.C.P. 106(a)(4) proceeding.
JUDGE FREYRE and JUDGE GOMEZ concur.