Byers Peak v. BOCC

• Court: Colorado Court of Appeals
• Decided: November 26, 2025
• Docket: 25CA0272
• Status: Unpublished

Opinion

25CA0272 Byers Peak v BOCC 11-26-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0272 Grand County District Court No. 23CV30100 Honorable Mary C. Hoak, Judge

Byers Peak Properties, LLC, a Colorado limited liability company,

Plaintiff-Appellant,

v.

Board of County Commissioners of Grand County, Colorado; Board of Adjustment of Grand County, Colorado; and Grand County, Colorado,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division IV Opinion by JUDGE SCHOCK Harris and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 26, 2025

Holley, Albertson & Polk, P.C., Scott D. Albertson, Eric E. Torgersen, Lakewood, Colorado, for Plaintiff-Appellant

Maxine LaBarre-Krostue, County Attorney, Shira Cohen, Assistant County Attorney, Hot Sulphur Springs, Colorado, for Defendants-Appellees ¶1 Plaintiff, Byers Peak Properties, LLC (Byers Peak), appeals the

district court’s C.R.C.P. 106(a)(4) judgment affirming the denial by

the Board of Adjustment of Grand County (BOA) of Byers Peak’s

request for variances for its proposed development. We affirm.

I. Background

¶2 In 2018, Byers Peak submitted an application and sketch plan

for the development of a “micro cottage” community outside the

town of Fraser. The proposed development consisted of eighty-

seven single-family homes on a ten-acre parcel of property.

¶3 The proposed development is subject to the Grand County

Subdivision Regulations. Those regulations outline three stages in

the subdivision approval process: (1) the sketch plan; (2) the

preliminary plat; and (3) the final plat. Grand Cnty. Subdivision

Regs. (GCSR) §§ 4.1-4.3. At each stage, the Grand County Planning

Commission first reviews the submission and approves,

conditionally approves, or disapproves it. GCSR §§ 4.1(2)(b),

4.2(3)(d), 4.3(3)(b). The submission then advances to the Board of

County Commissioners of Grand County (BOCC), which makes the

final approval decision. GCSR §§ 4.1(2)(c), 4.2(3)(e), 4.3(3)(c).

1 ¶4 The Subdivision Regulations provide that “[l]ot dimensions and

sizes shall conform to applicable zoning or other land use

requirements.” GCSR § 2.4(1). But they also authorize the

Planning Commission to grant variances from the Subdivision

Regulations. See GCSR § 8.1. Additionally, the Grand County

Zoning Regulations authorize the BOA to grant certain zoning

variances. Grand Cnty. Zoning Regs. (GCZR) § 16.2(2).

A. Sketch Plan

¶5 As set out in the sketch plan, the proposed development did

not comply with lot size and setback requirements in the Zoning

Regulations. The lots were far smaller than the zoned minimum lot

size and the setbacks were less than the minimum setback

requirements. Byers Peak acknowledged these issues and proposed

two potential solutions: (1) it could request zoning variances, or

(2) the development could be classified as a multifamily project.

¶6 In their recommendation to the Planning Commission, county

staff explained that it preferred the first option — setback and lot

size variances. County staff therefore recommended approval of the

sketch plan with the following condition (among others) to be

addressed in the preliminary plat: “[d]etermination of how to

2 proceed regarding smaller lots and building setbacks that are

proposed that may not conform to the zoning code, and will likely

require variances from the [BOA].” The Planning Commission

approved the sketch plan with the recommended conditions.

¶7 The BOCC then held a hearing on the sketch plan. Addressing

the Planning Commission’s condition, Byers Peak acknowledged

that “variances obviously from the [BOA] . . . will be required,”

including “smaller lots” and “setback variances.” The BOCC

conditionally approved the sketch plan, adopting the Planning

Commission’s condition regarding lot size and setback variances

and adding the following: “Applicant shall make formal application

in a timely manner for proposed variances to the [BOA], preferably

before hearing of the Preliminary Plat by the Planning Commission.”

B. Preliminary Plat

¶8 In February 2019, Byers Peak submitted its preliminary plat.

The preliminary plat increased the number of units and acreage,

now proposing 123 single-family homes on approximately 12.7

acres within a 25.5-acre area that also included three adjacent

undeveloped lots intended for future multifamily developments.

3 ¶9 Byers Peak had not applied for variances from the BOA as the

BOCC had directed. Instead, it requested variances for lot size and

setback requirements from the Planning Commission. Because the

Planning Commission’s variance authority was limited to plans

covering an area of at least 20 acres, some members questioned

whether the Planning Commission could grant a variance for the

12.7-acre micro cottage development alone. See GCSR § 8.1(2)(a).

But after some discussion, the Planning Commission conditionally

approved the requested variances and the preliminary plat with the

condition that the variances applied only to the 12.7-acre micro

cottage development. In doing so, the Planning Commission

clarified that “[f]inal approval of variances happens at final plat.”

¶ 10 Byers Peak presented the preliminary plat to the BOCC in

January 2022, almost three years later. In advance of the hearing,

county staff explained that the Planning Commission had granted

“[s]ignificant variances” from the lot size and setback requirements.

Again, one commissioner questioned whether the Planning

Commission had authority to grant variances from zoning

requirements concerning lot sizes and setbacks. So the BOCC

4 directed Byers Peak to obtain approval of the variances from the

BOA. The BOCC then conditionally approved the preliminary plat.

C. First BOA Variance Request

¶ 11 Byers Peak presented its variance request to the BOA about a

month later. The memorandum from county staff explained that

the BOCC preferred to have the BOA, rather than the Planning

Commission, decide on the requested variances. It further noted

that, in making those determinations, the BOA should not take into

account the Planning Commission’s prior approvals.

¶ 12 The BOA approved the requested variances with the condition

that “all variance permits shall be issued within one (1) year . . .

after which time, if the variance permit has not been obtained, the

applicant can request a one (1) year extension from the [BOA], or it

shall become null and void.” The BOA and county staff clarified

that Byers Peak had “one year to follow through with this,” or it

could request an extension “on or before the one year mark.”

D. Final Plat

¶ 13 Byers Peak presented its final plat to the Planning

Commission in February 2023, two weeks shy of the BOA’s one-

year deadline for obtaining a permit. The Planning Commission

5 approved the final plat with several conditions, including that a plat

note refer to the BOA’s approval of the setbacks by variance.

¶ 14 Byers Peak requested a final plat hearing before the BOCC in

September 2023. By that time, the BOA variances had expired. So

the county community development director, Kristen Manguso, told

Byers Peak it would need to request new variances from the BOA.

¶ 15 Manguso had previously served as a county commissioner and

was the one who had questioned the Planning Commission’s

authority to grant variances at the preliminary plat hearing.

E. Second BOA Variance Request

¶ 16 Byers Peak then submitted a new variance request to the BOA,

noting that the variances had previously been approved but had

expired. As justification for the variances, Byers Peak cited its

reliance on prior approvals and the housing needs of the area.

¶ 17 In a written memorandum, county staff explained that the

BOA was “tasked with reviewing this specific request for these

variances based upon this request alone” and that “[p]revious

applications of decisions . . . should not be considered in the

decision on whether or not this specific variance request complies

with the Zoning Regulations.” The memorandum further explained

6 that approval of the variance requests would require a written

finding by the BOA “stating specifically the exceptional conditions,

practical difficulties, or unnecessary hardships involved.”

¶ 18 At the hearing, Manguso, in her role as county community

development director, reiterated that the variance requests needed

to be considered on their own merits and not based on prior

approvals. She also told the BOA that the only permissible

justification for a variance under the Zoning Regulations was the

“exceptional shape, size or topography or other exceptional

situation . . . of the building or land.”

¶ 19 The BOA denied all the variance requests, citing the lack of

any demonstrated hardship or exceptional situation.

F. C.R.C.P. 106(a)(4) Review

¶ 20 Byers Peak filed a complaint for judicial review of the BOA’s

denial of the variances under C.R.C.P. 106(a)(4). It alleged that the

BOA had exceeded its jurisdiction and abused its discretion by

denying the variances after they had been approved by the Planning

Commission and “ratified” by the BOCC. Byers Peak also asserted

claims for (1) declaratory judgment that the variances were

7 approved and that it was entitled to a final plat hearing with the

BOCC and (2) promissory estoppel against the BOA and the BOCC.

¶ 21 After the parties briefed the C.R.C.P. 106(a)(4) claim, the

district court issued an order affirming the BOA’s denial of the

variances. It then certified its order as a final judgment under

C.R.C.P. 54(b). The certification order specified that Byers Peak

asserted three separate claims for relief, and it directed the entry of

judgment on the first — the C.R.C.P. 106(a)(4) claim.

II. Scope of Appeal

¶ 22 Given the nature of the parties’ arguments on appeal, we first

clarify what this appeal is about — and what it is not about.

Specifically, we are reviewing only the BOA’s decision to deny Byers

Peak’s application for a variance from the BOA. We are not

reviewing the BOCC’s imposition of the BOA-variance requirement

as a condition of its final approval of the project. Nor are we

reviewing the BOCC’s resolution of the competing variance rulings

by the BOA and the Planning Commission. Not only are the

BOCC’s decisions beyond the scope of the judgment on appeal, but

Byers Peak has not sought review of them under C.R.C.P. 106(a)(4).

8 ¶ 23 Ordinarily, our jurisdiction is limited to the review of final

judgments. L.H.M. Corp., TCD v. Martinez, 2021 CO 78, ¶ 14; see

§ 13-4-102(1), C.R.S. 2025. A judgment is final if it “ends the

particular action in which it is entered, leaving nothing further for

the court pronouncing it to do in order to completely determine the

rights of the parties involved in the proceeding.” Schaden v. DIA

Brewing Co., 2021 CO 4M, ¶ 46 (citation omitted). Thus, “[a]

judgment is typically not ‘final’ until the court has ruled on all

outstanding claims.” Wolf v. Brenneman, 2024 CO 31, ¶ 10.

¶ 24 C.R.C.P. 54(b) provides an exception to this general rule,

allowing a district court to direct the entry of final judgment as to a

portion of the claims in a civil action when it expressly determines

that there is no just reason for delay. Musick v. Woznicki, 136 P.3d

244, 249-50 (Colo. 2006). But this exception is “quite limited.”

Galindo v. Valley View Ass’n, 2017 COA 78, ¶ 7. When a district

court properly directs entry of judgment on fewer than all of the

claims in an action, our jurisdiction is confined to review of the

rulings on those claims. McDonald v. Zions First Nat’l Bank, N.A.,

2015 COA 29, ¶ 39. We may not review rulings on claims for which

no final judgment has been entered. See id. at ¶¶ 38, 41.

9 ¶ 25 Here, Byers Peak asserted three claims for relief: (1) C.R.C.P.

106(a)(4) review of the BOA’s denial of its variance requests;

(2) declaratory judgment; and (3) promissory estoppel. The district

court ruled on the C.R.C.P. 106(a)(4) claim, and it directed entry of

judgment on that claim only.1 See Brown v. Walker Com., Inc., 2022

CO 57, ¶ 31 (“Rule 106(a)(4) review . . . is a standalone suit.”). That

claim does not seek review of any decision by the BOCC. Thus,

because the claim on which final judgment has been entered

concerns only the BOA’s denial of the variances, our jurisdiction is

limited to a review of that decision. We thus do not consider the

1 The district court’s order affirming the BOA’s denial of the

variances arguably went beyond the C.R.C.P. 106(a)(4) claim and addressed issues raised in Byers Peak’s other two claims. But the court did not enter judgment on those claims. See C.R.C.P. 58(a) (requiring entry of judgment); McDonald v. Zions First Nat’l Bank, N.A., 2015 COA 29, ¶ 38 (“[T]he trial court retains jurisdiction to rule on matters that have not been certified as final . . . .”).

10 parties’ arguments about whether the BOCC properly conditioned

its approval of the project on the BOA’s approval of the variances.2

III. BOA’s Denial of Variances

¶ 26 The thrust of Byers Peak’s argument is that the BOA could not

deny its request for variances once those variances had been

approved by the Planning Commission. It advances three primary

theories to support this claim: (1) the BOA lacked jurisdiction to

deny the variances after the Planning Commission had approved

them; (2) the Planning Commission’s approval was binding on the

BOA; and (3) the BOA was estopped from denying the validity of the

variances. Byers Peak also argues that Manguso’s involvement in

2 Not only did Byers Peak not seek review of the BOCC’s decision

under C.R.C.P. 106(a)(4), but it is not clear that it could have. To the extent the BOCC’s decision to require BOA approval of the variances was a final decision, Byers Peak did not seek review of that decision within the twenty-eight-day limitations period. See C.R.C.P. 106(b); Brown v. Walker Com., Inc., 2022 CO 57, ¶¶ 46, 49 (holding that the twenty-eight-day filing deadline “is a strict jurisdictional limitation on Rule 106(a)(4) actions”). And to the extent the relevant decision is the approval or denial of the project, the record does not reflect any final decision by the BOCC after the BOA’s denial of the variances. See Buck v. Park, 839 P.2d 498, 500 (Colo. App. 1992) (“[A] complaint seeking judicial review may be filed only after a governmental body has issued a final decision.”).

11 the second BOA hearing violated its due process right to an

impartial decision-maker. We are not persuaded.

A. Standard of Review

¶ 27 In an action under C.R.C.P. 106(a)(4), we “review the decision

of the governmental body itself rather than the district court’s

determination regarding the governmental body’s decision.” Bd. of

Cnty. Comm’rs v. O’Dell, 920 P.2d 48, 50 (Colo. 1996). We do so

from the same position as the district court. Save Our Saint Vrain

Valley, Inc. v. Boulder Cnty. Bd. of Adjustment, 2021 COA 44, ¶ 26.

¶ 28 Our review is limited to determining whether the governmental

body exceeded its jurisdiction or abused its discretion, based on the

evidence before it. C.R.C.P. 106(a)(4)(I). A body abuses its

discretion when its decision is not supported by any competent

evidence or when it misapplies the law. Save Our Saint Vrain

Valley, ¶ 28. We will generally defer to a governmental entity’s

reasonable interpretation of a code that it is charged with

administering. Whitelaw v. Denv. City Council, 2017 COA 47, ¶ 8.

¶ 29 In reviewing zoning decisions, we do not sit as a “zoning board

of appeals” and substitute our judgment for that of the zoning

authorities. O’Dell, 920 P.2d at 50 (citation omitted). Instead, we

12 accept the governmental body’s assessment of the evidence. Stor-N-

Lock Partners #15, LLC v. City of Thornton, 2018 COA 65, ¶ 33. And

we will not “interfere with the decision of zoning authorities absent

a clear abuse of discretion.” O’Dell, 920 P.2d at 50.

¶ 30 Moreover, in conducting our review, we presume the validity

and regularity of the governmental body’s proceedings and resolve

all reasonable doubts as to the correctness of the governmental

body’s rulings in favor of the governmental body. City & County of

Denver v. Bd. of Adjustment, 55 P.3d 252, 254 (Colo. App. 2002).

The burden is on the party challenging a governmental body’s

action to overcome the presumption that the action was proper. Id.

B. BOA’s Jurisdiction

¶ 31 We first reject Byers Peak’s contention that the BOA lacked

jurisdiction even to consider Byers Peak’s request for variances

after the Planning Commission had granted its own variances.

¶ 32 By statute, the BOA has the authority to “make special

exceptions to the terms of the zoning regulations in harmony with

their general purpose and intent.” § 30-28-117(3), C.R.S. 2025. It

is also authorized to grant a variance from the “strict application” of

any zoning regulation that would “result in peculiar and exceptional

13 practical difficulties to, or exceptional and undue hardship upon,

the owner of such property.” § 30-28-118(2)(c), C.R.S. 2025.

¶ 33 This statutory authority is incorporated into section 16.2(2) of

the Zoning Regulations, which authorizes the BOA to grant

variances to the minimum lot size and yard size “where, by reason

of exceptional shape, size or topography of lot, or other exceptional

situation or condition of the building or land, practical difficulty or

unnecessary hardship would result to the owners of said property

from a strict enforcement of these regulations.” GCZR § 16.2(2).

¶ 34 Thus, the applicable statutes and the Zoning Regulations

unmistakably vest the BOA with jurisdiction over the issuance of

zoning variances. See Bd. of Cnty. Comm’rs v. Moga, 947 P.2d

1385, 1389 (Colo. 1997) (holding that county board of adjustments

had statutory jurisdiction to resolve variance-related dispute).

¶ 35 Indeed, both the Planning Commission and the BOCC told

Byers Peak the proposed variances were within the BOA’s purview,

and at least initially, Byers Peak agreed. The Planning Commission

conditioned its approval of the sketch plan on the resolution of the

zoning issues that would “likely require variances” from the BOA.

The Planning Commission also required the final plat to refer to the

14 BOA’s approval of the variances. The BOCC twice conditioned its

approvals on variances from the BOA. And consistent with that

direction, Byers Peak asked the BOA to approve its variances. The

BOA did not exceed its jurisdiction by ruling on that request.

¶ 36 Byers Peak argues that the Planning Commission has

exclusive authority to grant variances with respect to subdivisions.

As reflected in the record, there was some question as to whether

the Planning Commission had authority to grant the requested

variances at all. The Subdivision Regulations limit the Planning

Commission’s variance authority to areas of at least 20 acres, and

Byers Peak’s proposed variance applied only to the 12.7-acre micro

cottage development. See GCSR § 8.1(2)(a). Moreover, the

Subdivision Regulations only authorize the Planning Commission to

grant variances from those regulations — one of which requires

compliance with zoning requirements — not from the Zoning

Regulations themselves. See GCSR §§ 2.4(1), 8.1.

¶ 37 But in any event, we are not reviewing the Planning

Commission’s authority. Like the BOCC’s decision, the Planning

Commission’s decision is beyond the scope of the Rule 106(a)(4)

action that is before us on appeal. The only issue in this appeal is

15 whether, based on this record, the BOA has authority to consider

requests for zoning variances. By statute and regulation, it does.

¶ 38 In arguing otherwise, Byers Peak asserts that the Subdivision

Regulations should control over the Zoning Regulations because

they are more specific. See Nieto v. Clark’s Mkt., Inc., 2021 CO 48,

¶ 23 (noting that specific provision controls over general one in the

case of an “irreconcilable conflict”). But it is not a matter of which

regulations are more specific or which control. The BOCC required

Byers Peak to seek variances from the BOA — a decision Byers Peak

did not appeal — and Byers Peak did so. The BOA’s authority to

grant variances is defined by the Zoning Regulations (and statute).

¶ 39 Byers Peak also invokes the doctrine of priority of jurisdiction,

under which “the court first acquiring jurisdiction [over] the parties

and the subject matter has exclusive jurisdiction.” Town of Minturn

v. Sensible Hous. Co., 2012 CO 23, ¶ 2 (citation omitted). But this

rule applies only “as between competing judicial proceedings.” Id.

at ¶ 3. Even assuming it could be extended to Byers Peak’s

variance requests, it would not deprive the BOA of jurisdiction to

proceed after the Planning Commission proceedings had

concluded — particularly when Byers Peak subsequently invoked

16 the BOA’s jurisdiction by asking it for a variance. See id. at ¶ 2 n.2

(clarifying that “the rule connotes not ‘exclusive’ jurisdiction, but

rather a priority of jurisdiction” (citation omitted)); Wiltgen v. Berg,

435 P.2d 378, 381 (Colo. 1967) (noting that rule does not “deprive

the court of jurisdiction in the second matter ab initio, but . . .

permit[s] the first action to proceed to final judgment before the

court may proceed in the second matter”).

C. Binding Effect of Planning Commission Variances

¶ 40 For similar reasons, the BOA was not bound by the Planning

Commission’s decision to grant the variances.

¶ 41 The Planning Commission and the BOA are separate

governmental bodies with different standards for granting

variances. The Planning Commission granted the variances based

on its determination that the development satisfied the conditions

of the Subdivision Regulations. That determination was distinct

from the question before the BOA under the Zoning Regulations —

whether Byers Peak would suffer “practical difficulty or

unnecessary hardship” due to the “exceptional shape, size or

topography of [the] lot, or other exceptional situation or condition of

the . . . land.” GCZR § 16.2(2). The BOA was obligated to apply the

17 standard in the Zoning Regulations, regardless of whether another

entity believed a variance may be warranted under a different set of

regulations.

¶ 42 Byers Peak asserts that the Planning Commission variances

were “final” and did not require the BOA’s “approval.” But the BOA

was not asked to approve or disapprove the Planning Commission’s

variances. It was asked to grant (or deny) its own variances. Even

assuming the Planning Commission’s decision was final, the BOCC

required Byers Peak to get variances from the BOA — a requirement

that would have been meaningless if the BOA could do nothing

more than adhere to the Planning Commission’s decision.

¶ 43 In short, we see no basis for Byers Peak’s position that the

BOA had to follow the Planning Commission’s decision. To the

contrary, as a separate entity applying a different standard, the

BOA could reasonably reach a different conclusion, as it did.3

3 Byers Peak does not argue that the BOA was bound by its own

prior approval of the requested variances more than a year earlier. In approving those variances, the BOA made clear that they would expire in a year unless Byers Peak requested an extension.

18 D. Estoppel

¶ 44 Byers Peaks next argues that “the county” was estopped from

denying the validity of the Planning Commission variances because

Byers Peak reasonably relied on those variances. To the extent this

is a challenge to the BOCC’s condition of approval or an argument

regarding Byers Peak’s promissory estoppel claim, we do not have

jurisdiction to consider it because it is outside the scope of the

district court’s Rule 54(b) certification. See McDonald, ¶ 39. To the

extent it could be construed as an argument that the BOA was

estopped from denying the requested variances, we disagree.

¶ 45 Equitable estoppel is “founded on principles of fair dealing and

is designed to aid the law in the administration of justice where,

without its aid, injustice might result.” Colo. Health Consultants v.

City & County of Denver, 2018 COA 135, ¶ 37. A party alleging

equitable estoppel must show a detrimental change in their position

in reasonable and justifiable reliance on the other party’s conduct

or misrepresentation. Id. at ¶ 40. The other party “must have

intended that its representation be acted on,” and the party

asserting estoppel “must be ignorant of the actual facts.” Id.

19 ¶ 46 Promissory estoppel, on the other hand, is a quasi-contractual

claim that requires (1) a promise; (2) that the promisor should have

reasonably expected would induce action or forbearance by the

promisee; (3) that the promisee reasonably relied on to their

detriment; and (4) that must be enforced to prevent injustice.

Cherokee Metro. Dist. v. Simpson, 148 P.3d 142, 151 (Colo. 2006);

Bd. of Cnty. Comm’rs v. DeLozier, 917 P.2d 714, 716 (Colo. 1996).

¶ 47 Whether under a theory of equitable estoppel or promissory

estoppel, Byers Peak’s argument fails because the record does not

reflect any representation or promise that the BOA would approve

the requested variances. At each stage of the process, each county

entity made clear that variances from the BOA would be required.

¶ 48 At the sketch plan stage, before the Planning Commission had

granted the variances, both the Planning Commission and the

BOCC indicated that Byers Peak should seek variances from the

BOA. At the preliminary plat stage, when the Planning Commission

approved the variances, it cautioned that final approval would not

happen until the final plat. The BOCC then clarified that,

notwithstanding the Planning Commission variances, Byers Peak

would need variances from the BOA. When the BOA initially

20 granted the variances, it made clear that those variances were only

good for one year. And at the final plat phase, the Planning

Commission required the plat to refer to the BOA approval. This

consistent inclusion of the BOA-approval requirement belies any

assertion that such approval was a foregone conclusion or that any

county entity intended or expected Byers Peak to act as if it was.

¶ 49 For the same reasons, Byers Peak cannot show that it

reasonably and justifiably relied on a belief that the BOA would

grant the variances or that the Planning Commission variances

would be enough. The BOCC expressly told it otherwise. To the

extent Byers Peak expended resources based on the assumption

that the BOA would grant the variances, it did so advised of the

risks. See Colo. Health Consultants, ¶ 40 (explaining that the party

asserting estoppel “must be ignorant of the actual facts”).

E. Procedural Due Process

¶ 50 Byers Peak also asserts that Manguso’s involvement in its

second BOA variance request as county staff — after she had

introduced the BOA variance condition as a county commissioner at

the preliminary plat stage — violated its right to procedural due

process. See No Laporte Gravel Corp. v. Bd. of Cnty. Comm’rs, 2022

21 COA 6M, ¶ 31 (holding that alleged due process violations “can be

read as a basis to establish that the Board abused its discretion”).

¶ 51 Byers Peak did not raise this issue before the BOA. Because

we are reviewing the BOA’s decision and not the district court’s, see

O’Dell, 920 P.2d at 50, we would not ordinarily address an

argument raised for the first time in a C.R.C.P. 106(a)(4) action, see

Abromeit v. Denv. Career Serv. Bd., 140 P.3d 44, 53 (Colo. App.

2005). But we may review unpreserved claims of judicial bias to the

extent they support a claim of actual bias. Bocian v. Owners Ins.

Co., 2020 COA 98, ¶ 52. We will assume that we may do the same

for a quasi-judicial decision-maker under C.R.C.P. 106(a)(4).

¶ 52 Quasi-judicial proceedings are “subject to the basic

requirements of due process,” including that of an impartial

decision-maker. No Laporte Gravel Corp., ¶¶ 41, 44. But quasi-

judicial decision-makers are not “held to the more rigorous

disqualification standards applicable to judicial officers.” Id. at

¶ 44. Thus, to establish a due process violation in a quasi-judicial

proceeding based on the partiality of the decision-maker, a party

must show that “actual bias or a risk of actual bias exist[ed] so as

to compromise the neutrality of the quasi-judicial actor.” Id.

22 ¶ 53 Byers Peak cannot make that showing for the fundamental

reason that Manguso was not a “quasi-judicial actor” at the second

BOA variance hearing. She was not a member of the BOA and did

not vote on the variance request. Her sole role was to advise the

BOA on behalf of the county community development department.

Even if Manguso exerted some influence in that role, Byers Peak

does not point to anything in the record to indicate that her

involvement resulted in any “actual bias” on the part of the

decision-makers that would “compromise [their] neutrality.” Id.

¶ 54 Moreover, Byers Peak’s contention that Manguso was biased

against it is based entirely on her expressed position — as a county

commissioner — that BOA approval of the variances was required.

But without more, an adverse position does not demonstrate bias.

Cf. Bocian, ¶ 57 (“Unless accompanied by an attitude of hostility or

ill will toward a party, a ruling by a judge on a legal issue is

insufficient to show bias . . . .”); People in Interest of A.P., 2022 CO

24, ¶ 32 (“[A]dverse legal rulings . . . are unlikely to provide grounds

for a bias claim . . . .”). Notably, as a commissioner, Manguso

expressed no position on whether the variances should be approved

by the BOA and, far from expressing hostility toward Byers Peak,

23 suggested waiving the application fee to ease the way to approval.

She then voted to conditionally approve the proposed development.

¶ 55 At most, the record indicates that Manguso believed, based on

her interpretation of the pertinent regulations, that the requested

variances (1) required approval from the BOA and (2) did not meet

the standard for such approval. Byers Peak disagrees with both

points. But it has not shown that BOA’s ultimate agreement with

Manguso, and its resulting adverse decision, were somehow

indicative of actual bias on the part of the BOA. Without such a

showing, Byers Peak’s procedural due process argument fails.

IV. County’s Failure to Hold a BOCC Hearing

¶ 56 Finally, characterizing its declaratory judgment claim as one

for mandamus, Byers Peak argues that the district court abused its

discretion by refusing to order the BOCC to conduct a hearing on

its final plat. It argues that once the Planning Commission had

approved the final plat, the BOCC had a ministerial duty to

schedule a final hearing, which it violated by conditioning that

hearing on the BOA’s approval of Byers Peak’s requested variances.

¶ 57 For the reasons above, this argument is outside the scope of

the Rule 54(b) judgment on appeal. Although the district court

24 rejected Byers Peak’s ostensible mandamus claim, it did not certify

a final judgment on that claim. To the contrary, any such claim

appears to arise from Byers Peak’s claim for declaratory judgment,

which the district court expressly did not certify. See McDonald,

¶ 37 (explaining that the C.R.C.P. 54(b) certification “signals to the

parties and the appellate court that the [district] court ‘considers its

order as finally deciding a particular claim’” (emphasis added)

(citation omitted)); cf. E. Cherry Creek Valley Water & Sanitation

Dist. v. Greely Irrigation Co., 2015 CO 30M, ¶ 12 (“An appellate

court’s jurisdiction to entertain the appeal of a judgment certified

pursuant to Rule 54(b) depends upon a correct certification.”). We

therefore lack jurisdiction to review it. See McDonald, ¶¶ 39, 41.

V. Disposition

¶ 58 The judgment is affirmed.4

JUDGE HARRIS and JUDGE JOHNSON concur.

4 Because the judgment is affirmed, Byers Peak’s request for

appellate costs is denied. See C.A.R. 39(a)(2).