Carroll Partners LLC v. Bd. of Comm'rs

• Court: Colorado Court of Appeals
• Decided: April 30, 2026
• Docket: 25CA0186
• Status: Unpublished

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY April 30, 2026

2026COA34

No. 25CA0186, Carroll Partners LLC v. Bd. of Comm’rs — Government — Local Government Regulation of Land Use — Local Government Land Use Control Enabling Act of 1974 — Impact Fees

A division of the court of appeals considers the scope of a local

government’s authority to impose impact fees on new development

under the Local Government Land Use Control Enabling Act of

1974 (the Act). The division concludes that, under the Act, a local

government may impose impact fees as a condition of the issuance

of a development permit and that the imposition of said fees is not

limited to projects that develop a raw parcel of land or substantially

change the use of previously developed land. COLORADO COURT OF APPEALS 2026COA34

Court of Appeals No. 25CA0186 Pitkin County District Court No. 22CV30071 Honorable Anne K. Norrdin, Judge

Carroll Partners LLC, a Colorado limited liability company,

Plaintiff-Appellant,

v.

The Board of Commissioners of Pitkin County, Colorado,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division VI Opinion by JUDGE GROVE Yun and Taubman*, JJ., concur

Announced April 30, 2026

Peck Feigenbaum, P.C., Daniel J. Sullivan, Heather J. Manolakas, Basalt, Colorado, for Plaintiff-Appellant

Richard Y. Neiley III, County Attorney, Aspen, Colorado, for Defendant-Appellee

*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 Plaintiff, Carroll Partners LLC (Carroll), appeals the district

court’s summary judgment in favor of defendant, the Board of

Commissioners of Pitkin County (Pitkin County). We affirm.

I. Legal Framework

¶2 Under the Local Government Land Use Control Enabling Act of

1974 (the Act), local governments like Pitkin County are authorized

to regulate the use of land within their respective jurisdictions based

on “the impact of the use on the community or surrounding areas.”

§§ 29-20-101, -104(1)(g)(I), C.R.S. 2025. One way local governments

may exercise this authority is by charging fees to offset the projected

impacts of development on certain categories of infrastructure. See

§ 29-20-104.5(1), C.R.S. 2025 (the impact fee statute). As relevant

here, the impact fee statute provides that

[p]ursuant to the authority granted in section 29-20-104(1)(g) and as a condition of issuance of a development permit, a local government may impose an impact fee or other similar development charge to fund expenditures by such local government on capital facilities needed to serve new development.

§ 29-20-104.5(1).

1 ¶3 To ensure compliance with constitutional limitations, a local

government that chooses to assess impact fees must do so pursuant

to a schedule that is

(a) [l]egislatively adopted;

(b) [g]enerally applicable to a broad class of property; and

(c) [i]ntended to defray the projected impacts on capital facilities caused by proposed development.

§ 29-20-104.5(1)(a)-(c). Impact fees must be based on a

quantification of “the reasonable impacts of proposed development

on existing capital facilities.” § 29-20-104.5(2)(a). And a

government that chooses to impose such a fee on proposed

development must not charge more than is “necessary to defray

such impacts directly related to proposed development.” Id.

¶4 This case concerns an “employee housing impact fee” (EHIF)

imposed by Pitkin County on certain construction projects under its

land use code. Pitkin County Land Use Code §§ 8-30-10 to -90 (July

2006). As described in a 2020 Pitkin County ordinance, the EHIF is

designed “to generate funds to offset demand for employee housing

caused by employment generation from new development.” Pitkin

2 County, Colo., Ordinance No. 003-2020 (Feb. 12, 2020). The county

uses the impact fees that it collects “to create additional dwelling

units to be added to the employee housing inventory.” Id. While the

precise methodology for calculating the fee varies by project type, it

is generally determined by multiplying the cost of housing for an

employee for the duration of a particular project by the number of

employees generated by that project. Pitkin County Land Use Code

§§ 8-30-20 to -60.

¶5 Not all construction projects are subject to the EHIF. For

example, the EHIF can generally be assessed only once for a certain

piece of real estate — meaning that a project on a piece of land that

has already been subject to an EHIF will, under some

circumstances, be exempt from paying the fee. In addition, the land

use code exempts “[s]tructures of [5,750] square feet or less” from

the EHIF and provides further that impact fees will not apply to

3 certain remodels1 or to the construction of “deed restricted employee

housing.” Pitkin County Land Use Code § 8-30-80(a)(1)-(3). And, as

we discuss further below, because the impact fee statute links the

authority to impose impact fees to the issuance of a “development

permit,” it does not empower local governments to impose such fees

on many smaller projects — including those that might require only

a building permit or even no permit at all.

II. Factual and Procedural History

¶6 In October 2020, Carroll purchased a 6.5-acre lot in the

Starwood Seven subdivision. Located on the lot was a 14,807-

square-foot house built in 1983.

¶7 Carroll applied for a development permit to demolish the

existing structure and replace it with a new single-family residence

generally “within the same footprint.” Pitkin County’s development

1A “remodeling” project involves “the renovation of an existing

structure that does not change: (a) the original size or location of the footprint of the structure; (b) the use of the structure; or (c) the floor area of the structure.” Pitkin County Land Use Code § 11-10 (July 2006). In contrast, a “replacement” project completely removes “all or a portion of a structure and [substitutes] the original structure with a new structure” that may change the original size and location of the footprint of the structure. Id. It is undisputed that Carroll’s project is a replacement and not a remodel.

4 office conditionally approved Carroll’s application, characterizing it

as a “replacement” of the existing structure and stating that Carroll

would be required to “pay the applicable road and employee housing

impact fees” at the building permit stage.

¶8 After Carroll applied for a building permit, the development

office informed Carroll that it would need to pay an EHIF of

$948,544.18 before the permit could be issued. Carroll requested

an exemption, but the request was denied.

¶9 Carroll appealed Pitkin County’s decision to the district court.

As relevant to this appeal, Carroll sought a declaratory judgment

that Pitkin County could not assess an EHIF on the project and

requested a permanent injunction prohibiting the county “from

imposing the EHIF as a condition of issuing the [b]uilding [p]ermit.”2

While the lawsuit was pending, Pitkin County agreed to issue the

building permit once Carroll placed the EHIF in escrow. Carroll did

2 Carroll also raised a procedural due process claim, alleging that

Pitkin County adopted the ordinance in question without providing adequate public notice. The district court rejected this claim on procedural grounds, and Carroll does not challenge that ruling on appeal.

5 so and the EHIF remains in escrow pending the outcome of this

appeal.

¶ 10 Both parties moved for summary judgment. Carroll argued

that Pitkin County violated the Act by imposing an EHIF on its

proposed project. More specifically, it asserted that the Act only

permits counties to assess impact fees on “new development” and

that “remodel construction that does not increase the size of the

residential structure” is outside the scope of what the impact fee

statute authorizes.3

¶ 11 In the alternative, in what the district court interpreted as a

substantive due process argument, see Sundheim v. Bd. of Cnty.

Comm’rs, 904 P.2d 1337, 1347-48 (Colo. App. 1995), aff’d, 926 P.2d

545 (Colo. 1996), Carroll suggested that applying the EHIF to its

project amounted to an unconstitutional taking because it ran afoul

of the Fifth Amendment’s “essential nexus” and “rough

proportionality” requirements. See Nollan v. Cal. Coastal Comm’n,

483 U.S. 825, 837 (1987); Dolan v. City of Tigard, 512 U.S. 374, 391

3 Although Carroll described the project as “remodel construction,”

on appeal Carroll does not dispute that its land use application “was submitted, reviewed and approved” by Pitkin County as a “replacement” project for which it needed a development permit.

6 (1994); Sheetz v. County of El Dorado, 601 U.S. 267, 275-76 (2024)

(explaining that, under the Takings Clause of the Fifth Amendment

of the United States Constitution, just compensation is required

unless the government can show that conditions placed on a land

use permit have an essential nexus to the government’s land use

interest and are roughly proportional to the development’s impact on

the land use interest).4

¶ 12 The district court rejected both arguments and granted Pitkin

County’s motion for summary judgment. Carroll now appeals,

arguing that Pitkin County’s imposition of an EHIF on its project

(1) exceeds the authority granted to the county under the impact fee

statute and (2) violates its substantive due process rights.

III. Standard of Review

¶ 13 We review de novo a district court’s grant of summary

judgment. Westin Operator, LLC v. Groh, 2015 CO 25, ¶ 19. We also

4 We recognize that substantive due process and Fifth Amendment

takings jurisprudence require the application of two distinct analytical frameworks. See Town of Dillon v. Yacht Club Condo. Home Owners Ass’n, 2014 CO 37, ¶¶ 40-45. Because Carroll does not develop a takings argument on appeal, however, we only consider its contention that Pitkin County’s application of the EHIF violated its substantive due process rights.

7 review de novo questions of statutory interpretation. Colo. Oil & Gas

Conservation Comm’n v. Martinez, 2019 CO 3, ¶ 19.

IV. The Act

¶ 14 Carroll argues that the impact fee statute — which allows local

governments to impose fees “to fund expenditures by such local

government on capital facilities needed to serve new development,”

§ 29-20-104.5(1)5 — does not authorize local governments to assess

an impact fee on anything other than the development “of a raw

parcel of land for a specific and/or different use.” According to

Carroll, because its project involves the demolition and

reconstruction of an existing house without a material change in use

5 When Carroll filed this lawsuit in 2022, section 29-20-104.5(1),

C.R.S. 2022, included language specifically permitting the imposition of impact fees “to fund expenditures by such local government or a fire and emergency services provider that provides fire protection, rescue, and emergency services in the new development.” The General Assembly removed that language in a 2024 amendment to section 29-20-104.5. Ch. 230, sec. 1, § 29-20- 104.5, 2024 Colo. Sess. Laws 1411 (effective Aug. 7, 2024). For reasons that the record does not reveal, the district court appears to have relied on the post-2024 version of the statute in its summary judgment order. We do the same because, in its opening brief on appeal, Carroll acknowledges the amendment but says that “the changes to the statute do not impact [its] arguments.”

8 or expected occupancy, Pitkin County’s imposition of the EHIF

contravenes state law. We are not persuaded.

A. Principles of Statutory Interpretation

¶ 15 When interpreting a statute, we first look to its plain language

and interpret that language according to its common meaning to

give effect to legislative intent. Carlson v. Ferris, 85 P.3d 504, 507

(Colo. 2003). In doing so, we look to the entire statutory scheme to

give consistent, harmonious, and sensible effect to all its parts, and

we apply words and phrases in accordance with their plain and

ordinary meanings. Krol v. CF & I Steel, 2013 COA 32, ¶ 15; see

Denv. Post Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo. 2011). If the

meaning of the statute is clear from the language alone, our analysis

is complete, and we apply the statute as written. OXY USA Inc. v.

Mesa Cnty. Bd. of Comm’rs, 2017 CO 104, ¶ 16. But if the plain

language of the statute is “reasonably susceptible of multiple

interpretations,” then it is ambiguous. Elder v. Williams, 2020 CO

88, ¶ 18.

¶ 16 If the statute is ambiguous, we may then look to interpretive

aids such as legislative history, rules of statutory construction, and

the consequences of a particular construction to determine the

9 intent of the legislature. Pringle v. Valdez, 171 P.3d 624, 627 (Colo.

2007); Broomfield Senior Living Owner, LLC v. R.G. Brinkmann Co.,

2017 COA 31, ¶ 17; see § 2-4-203, C.R.S. 2025. When we construe

a statute, “we read and consider the statute as a whole and interpret

it in a manner giving consistent, harmonious, and sensible effect to

all of its parts.” Devora v. Strodtman, 2012 COA 87, ¶ 9. In doing

so, we do not interpret the statute so as to render any part of it

either meaningless or absurd. Id.

B. Analysis

¶ 17 As discussed above, Pitkin County may account for “the impact

of the use on the community or surrounding areas” when adopting

local land use regulations. § 29-20-104(1)(g)(I). To that end, the

impact fee statute provides that the county may condition the

issuance of development permits on payment of “an impact fee or

other similar development charge” so long as the proceeds collected

are used “to fund expenditures . . . on capital facilities needed to

serve new development.” § 29-20-104.5(1).

¶ 18 Although the parties agree that this provision defines the scope

of a local government’s authority to impose impact fees, they

fundamentally differ on its purpose and limits.

10 ¶ 19 Focusing on the phrase “new development,” Carroll argues that

the impact fee statute “is tied to growth as opposed to pre-existing

development or the latter’s existing impact on the local government’s

capital infrastructure.” As Carroll sees it, demolishing a house and

building a new one of approximately the same size does not

substantially impact the county’s “capital facilities” because the new

house will presumably have more or less the same number of

residents as the old one did. Because such a project does not

increase the capacity of the county’s housing stock, it does not lead

to “growth” and thus does not appreciably increase the county’s

infrastructure needs. Considering that, in Carroll’s view, an impact

fee can only be assessed to offset the effects of “growth,” the only

projects for which the county is statutorily authorized to impose an

EHIF are therefore those that involve the development of raw land

where no one lived before.

¶ 20 To bolster this interpretation, Carroll relies in part on

dictionary definitions of “new” and “development,” some of which

could be read as suggesting that “new development” involves the

construction of buildings on raw land. Carroll also looks to the

broader goals of the Act identified in its legislative declaration,

11 which, among other things, emphasize the necessity of balancing the

needs of “a changing population with legitimate environmental

concerns,” § 29-20-102(1), C.R.S. 2025, “properly plan[ning] for

growth and serv[ing] new residents,” and “encourag[ing] proper

growth management,” § 29-20-102(2). And, as further support for

its position, Carroll points out that local governments may not use

impact fees to remedy any existing “deficiency in capital facilities

that exists without regard to the proposed development.” § 29-20-

104.5(2)(a).

¶ 21 Based on these interpretive aids, Carroll urges us to hold that

“new development,” as that phrase is used in the impact fee statute,

§ 29-20-104.5(1), does not occur when — as is the case here — an

existing house is demolished and replaced with a new one of the

same size. To the contrary, Pitkin County cannot charge an EHIF

for its project, Carroll insists, because “[i]mpact fees are not

authorized when there is no ‘growth’ component and no new

residents.”

¶ 22 Pitkin County views the impact fee statute from a different

perspective. According to the county, a local government’s authority

to impose impact fees is linked to the statute’s reference to a

12 “development permit.” If a project is extensive enough to require a

development permit — meaning that it involves “preliminary or final

approval of an application for rezoning, planned unit development,

conditional or special use permit, subdivision, development or site

plan, or similar application for new construction,” § 29-20-103(1),

C.R.S. 2025 — then the local government responsible for approving

the project may charge an impact fee as a condition of issuing a

development permit. As for the statutory focus on “growth,” the

county adopts a broader view, pointing out that any project

significant enough to require a development permit requires workers

to build and maintain it, and that such “employee generation”

increases the need for workforce housing.

¶ 23 For several reasons, we agree with the county’s understanding

of section 29-20-104.5(1). By specifically acknowledging the link

between development permits and a local government’s authority to

impose impact fees, the county’s interpretation takes into account

all the words and phrases in the impact fee statute. See Slack v.

Farmers Ins. Exch., 5 P.3d 280, 284 (Colo. 2000) (“We construe a

statute so as to give effect to every word, and we do not adopt a

construction that renders any term superfluous.”). Carroll’s

13 proposed interpretation does not. Indeed, while Carroll concedes

that “the issuance of a development permit may be conditioned on

the payment of an impact fee,” it immediately argues just the

opposite — asserting that a local government may not condition the

issuance of a development permit on payment of an impact fee

unless the project in question involves “new development.” We

perceive no such limitation in the plain language of the impact fee

statute, which unambiguously authorizes the imposition of impact

fees on any project significant enough to require a development

permit.

¶ 24 In the same vein, Pitkin County’s interpretation of the impact

fee statute properly accounts for the phrase “new development.” The

General Assembly has empowered local governments to impose

impact fees to plan for “growth,” “serve new residents,” promote

“orderly development,” and balance the “basic human needs of a

changing population with legitimate environmental concerns.” § 29-

20-102(1)-(2). Pitkin County’s EHIF does just that — not by

comparing the occupancy of a new house to the one it replaces but

by ensuring that the people who build and maintain it can afford to

live in the local community. Workers, too, are a source of “growth,”

14 and Pitkin County’s effort to ensure that its capital facilities

continue to provide services to its entire population is consistent

with the General Assembly’s purpose.

¶ 25 After considering the legislature’s reference to “new

development” in the context of the Act as a whole, we conclude that

the phrase encompasses more than the development of a raw parcel

of land for a specific use or the expansion of development on an

already developed property. Nothing in the impact fee statute or

anywhere else in the Act suggests that a reconstruction project that

is extensive enough to require a development permit — such as the

one at issue here — falls outside the scope of a local government’s

authority to impose an impact fee. Therefore, as long as Pitkin

County’s assessment of the fee accords with the remaining

requirements of the Act, it is not prohibited. We turn to that

question next.

C. Application

¶ 26 Having decided that the demolition and reconstruction of a

house may be subject to an impact fee — provided that the project is

substantial enough to require a development permit — our

resolution of Carroll’s statutory argument is straightforward. Pitkin

15 County properly imposed the EHIF as a condition of issuing the

project’s development permit and later assessed the EHIF

consistently with the legislatively adopted fee schedule. See §§ 29-

20-103(1), -104.5(1). That fee schedule broadly applies to projects

that require a development permit unless an exemption applies, and

it employs a transparent methodology for determining the impact of

a proposed development on employee housing in the county. Pitkin

County Land Use Code § 8-30-10; § 29-20-104.5(1)(b), (c). Carroll

does not challenge the amount of the impact fee — only its

applicability to the project. Accordingly, we agree with the district

court that Carroll’s project falls within the scope of the impact fee

statute and that Pitkin County did not exceed its statutory authority

by assessing the EHIF here.

V. Substantive Due Process

¶ 27 Although its argument is not well developed, Carroll also

appears to contend that if Pitkin County acted within the scope of its

authority under the Act, then it violated Carroll’s substantive due

process rights by imposing the EHIF. We disagree.

16 A. Applicable Law

¶ 28 The Fourteenth Amendment prohibits states from depriving

any person of life, liberty, or property without due process of law.

Substantive due process forbids the government from engaging in

conduct that shocks the conscience or interferes with rights implicit

in the concept of ordered liberty. People v. Strean, 74 P.3d 387, 394

(Colo. App. 2002). The government may not infringe on a

fundamental liberty interest, no matter what process is afforded,

unless the infringement is narrowly tailored to serve a compelling

state interest. See Jones v. Samora, 2016 COA 191, ¶ 72.

¶ 29 “While the right to use one’s own real property as one sees fit is

a property right fully protected by the due process clause of the

federal and state constitutions, this use is subject to the proper

exercise of local police powers.” Sundheim, 904 P.2d at 1346.

Moreover, “[t]here is no constitutionally protected right to the most

profitable[] or desirable use of real property.” Id.

¶ 30 When, as here, the government action does not affect a

fundamental constitutional right, “then the applicable test for

reviewing a substantive due process challenge is the rational basis

test.” City & Cnty. of Broomfield v. Farmers Reservoir & Irrigation

17 Co., 239 P.3d 1270, 1277 (Colo. 2010). “Due process . . . requires

only that a municipal ordinance enacted under the police power

shall not be unreasonable, arbitrary or capricious, and that it bear a

rational relation to a proper legislative object sought to be attained.”

Town of Dillon v. Yacht Club Condos. Home Owners Ass’n, 2014 CO

37, ¶ 26 (quoting U.S. Disposal Sys., Inc. v. City of Northglenn, 567

P.2d 365, 367 (Colo. 1977)).

¶ 31 Pitkin County’s assessment of the EHIF on Carroll’s project

easily satisfies the rational basis test. As the district court stated,

“Employee generation happens whether the construction occurs on

a raw piece of land or on a piece of land with an existing residence

on it.” And Pitkin County’s land use code is reasonably tailored to

quantify the impacts associated with that activity. To that end, it

relies on a formula that assesses a fee based on the projected

construction impacts and the use and maintenance impacts

resulting from the proposed development.

¶ 32 We recognize that Carroll questions some aspects of the

county’s formula. For example, Carroll argues that it makes little

sense to charge an EHIF for the housing of construction employees

18 “without consideration of the scope of the project . . . or the fact that

these employees may already reside in the area or may be housed by

their employers.” Likewise, Carroll suggests that it is irrational to

only impose “an EHIF on a remodel [sic] if no impact fee was

previously paid.” None of Carroll’s arguments, however, persuade

us that there is no essential nexus between the EHIF and Pitkin

County’s legitimate purpose of ensuring the availability of affordable

employee housing. See Krupp v. Breckenridge Sanitation Dist., 19

P.3d 687, 695 (Colo. 2001). Nor do Carroll’s arguments suggest a

lack of rough proportionality “between the governmental interest and

the required [fee].” Id. Mathematical precision is not required. Id.

Moreover, because the EHIF charged for a given project varies

depending on the project’s size and scope, the formula that Pitkin

County uses to calculate the EHIF leads to an “individualized

determination that the required [fee] is related both in nature and

extent to the impact of the proposed development.” Id. (citation

omitted).

VI. Disposition

¶ 33 We affirm the judgment.

JUDGE YUN and JUDGE TAUBMAN concur.