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 January 29, 2026
2026COA5
No. 24CA2203, Keep Airport v. BOCC Boulder — Jurisdiction of Courts — Standing; Real Property — Conservation Easements — Termination
A division of the court of appeals considers, as a matter of first
impression, whether adjacent property owners and other interested
residents (the neighbors) have standing to challenge a board of
county commissioners’ decision to terminate a conservation
easement that burdens private land. The division concludes that
the neighbors lack standing to challenge the termination of the
conservation easement because they do not have a legally protected
interest recognized by common law or by the applicable land use
code. COLORADO COURT OF APPEALS 2026COA5
Court of Appeals No. 24CA2203 Boulder County District Court No. 23CV30652 Honorable Michael Kotlarczyk, Judge
Keep Airport Road Environmental & Safe; Eric Scherer; Gwen Scherer; Greg Petrosky; and Michelle Romeo,
Plaintiffs-Appellants,
v.
Boulder County Board of Commissioners,
Defendant-Appellee.
APPEAL DISMISSED AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE MOULTRIE J. Jones and Kuhn, JJ., concur
Announced January 29, 2026
Progressive Law LLC, Karen R. Breslin, Elizabeth, Colorado, for Plaintiffs-Appellants
Ben Pearlman, County Attorney, David Hughes, Deputy County Attorney, Erica Rogers, Assistant County Attorney, Boulder, Colorado, for Defendant-Appellee ¶1 In this action seeking judicial review of a decision by
defendant, the Boulder County Board of County Commissioners
(BOCC), to terminate a conservation easement, plaintiffs, Keep
Airport Road Environmental & Safe, Eric Scherer, Gwen Scherer,
Greg Petrosky, and Michelle Romeo (collectively, the neighbors),
appeal the district court’s order upholding the BOCC’s decision. We
dismiss the appeal for lack of standing and remand with directions.
I. Background
¶2 In 1982, the BOCC approved the Kanemoto Estates
Subdivision (Kanemoto Estates). Kanemoto Estates consists of
three parcels: two residential parcels and an agricultural parcel,
“Outlot A.” When the subdivision was created, the original owners
of Kanemoto Estates executed an agreement granting Boulder
County (the county) a conservation easement1 encumbering Outlot
A.
¶3 The purpose of the conservation easement was to “preserve[]
open land for agricultural purposes.” Under the terms of the
1 A conservation easement is a restriction that runs with land for
the purpose of maintaining the land in a predominantly natural, scenic, or open condition. Kowalchik v. Brohl, 2012 COA 25, ¶ 2.
1 conservation easement, the owners and their successors were
prohibited from constructing any structures (including pavement)
on Outlot A that were residential or “not necessary to an existing
principal agricultural use,” occupied over ten acres, or occupied
over ten percent of the land. They were also required to manage
Outlot A as a single agricultural unit. The easement was specified
to run with the land and remain “until terminated or transferred”
by the county. As now relevant, the easement permitted the county
to terminate the easement if the Boulder County Planning
Commission (Planning Commission) and the BOCC determined that
a proposed development or land use was “consistent with the
current Boulder County Comprehensive Plan and Boulder County
Land Use Regulations.”
¶4 After the easement was created, the BOCC executed a series of
intergovernmental agreements with the City of Longmont (the city)
to coordinate land annexation and property development activities
within the city and the county. One such agreement created a
mechanism for authorizing the development rights for a property to
be transferred to a different property that the city and the county
2 deemed appropriate for additional development, consistent with the
county’s comprehensive plan.
¶5 In February 2023, Lefthand Ranch, LLC, the current owner of
Kanemoto Estates, requested termination of the easement so that
the area encompassing the subdivision could be annexed into the
city for proposed development as a mixed residential housing
community. The Planning Commission requested public comment
concerning termination of the easement and held a public hearing
in March 2023. The BOCC likewise requested public comment and
held a public hearing in July 2023.
¶6 The neighbors — a coalition of individuals who own property
adjacent to Outlot A and a community conservation entity they
created — as well as other county residents submitted public
comments and testified in opposition to termination of the
easement. A staff member of the county’s Community Planning and
Permitting Department prepared a memorandum for both hearings
that included the public comments. The memorandum
recommended granting Lefthand Ranch’s request to terminate the
easement.
3 ¶7 The Planning Commission unanimously voted to terminate the
easement at the March 2023 hearing, concluding that termination
of the easement was consistent with the Boulder County Land Use
Code (BCLUC) and the county’s comprehensive plan. The BOCC
likewise voted to terminate the easement at the conclusion of its
July 2023 hearing.
¶8 The neighbors sought judicial review of the BOCC’s decision
under C.R.C.P. 106(a)(4).2 The BOCC filed a motion to dismiss the
neighbors’ complaint, contending that (1) the neighbors lacked
standing because they hadn’t suffered an injury in fact to a legally
protected interest and (2) the BOCC’s decision was an
administrative decision not subject to review under Rule 106(a)(4).
¶9 The district court disagreed with both contentions. In a
written order denying the motion to dismiss, the court determined
that the neighbors had satisfied both prongs of the standing inquiry
because they (1) have a legally protected interest under common
2 The neighbors also asserted claims for declaratory judgment,
conflict of interest, and judicial review of agency action under the State Administrative Procedure Act, § 24-4-106, C.R.S. 2025. The district court dismissed these claims, which aren’t before us on appeal.
4 law to safeguard their properties against “neighboring zoning and
other land use decisions” and (2) had alleged aesthetic and financial
harm sufficient to establish injury in fact.3 After considering the
merits of the neighbors’ complaint, the court determined that the
county didn’t abuse its discretion by terminating the easement and
thus upheld the BOCC’s decision.
II. Standing
¶ 10 In its answer brief on appeal, the BOCC reasserts its argument
that the neighbors don’t have standing to challenge its decision.
Specifically, the BOCC argues that the neighbors don’t have a
legally protected interest affected by the termination of the
easement because they are neither parties to the agreement that
created the easement nor owners of the land subject to the
easement. The neighbors don’t respond to this argument in their
reply brief. See People v. Bondsteel, 2015 COA 165, ¶ 61 n.6 (“An
3 The court also concluded that the neighbors had a legally
protected interest under C.R.C.P. 106(a)(4) to challenge quasi- judicial decisions. But Rule 106(a)(4) doesn’t confer a legally protected interest for purposes of establishing standing; rather, it sets forth procedures for seeking review of quasi-judicial decisions when standing otherwise exists. Reeves v. City of Fort Collins, 170 P.3d 850, 852 (Colo. App. 2007).
5 appellant’s failure to respond in the reply brief to an argument
made in the answer brief may be taken as a concession.”), aff’d,
2019 CO 26, overruled on other grounds by, Garcia v. People, 2022
CO 6. However, they argued in the district court that they have
standing to bring their complaint because (1) under common law,
they have a legally protected interest in safeguarding their
properties from the adverse effects of zoning or other land use
decisions; and (2) section 3-205(C)(5)(b) of the BCLUC affords
“adjacent and/or nearby property owners” the right to advance
notice when the BOCC seeks to vacate an easement.
¶ 11 As discussed in detail below, we agree with the BOCC that the
neighbors lack standing to challenge its termination of the
easement because the neighbors haven’t demonstrated that they
have a legally protected interest.
A. Applicable Legal Principles and Standard of Review
¶ 12 Standing is a jurisdictional prerequisite that may be raised at
any time, Wibby v. Boulder Cnty. Bd. of Cnty. Comm’rs, 2016 COA
104, ¶ 9, and a plaintiff must establish standing independently
from a court’s Rule 106(a)(4) jurisdiction, Reeves v. City of Fort
Collins, 170 P.3d 850, 852 (Colo. App. 2007). We can’t consider the
6 merits of the neighbors’ claims without first determining whether
they have standing to bring those claims. See Wibby, ¶ 9.
¶ 13 In resolving a question of standing, we accept the plaintiffs’
factual allegations as true, Reeves, 170 P.3d at 851, and may
consider other documentary evidence in the appellate record to
determine whether the plaintiffs have standing, Rangeview, LLC v.
City of Aurora, 2016 COA 108, ¶ 11. The plaintiffs have standing if
they have suffered (1) an “injury in fact” (2) to a “legally protected
interest.” Id. The first standing requirement “ensures that an
actual controversy exists so that the matter is a proper one for
judicial resolution,” while the second “promotes judicial self-
restraint.” Hickenlooper v. Freedom from Religion Found., Inc., 2014
CO 77, ¶¶ 9-10. “Claims for relief under the constitution, the
common law, a statute, or a rule or regulation satisfy the legally-
protected-interest requirement.” Id. at ¶ 10.
¶ 14 We review de novo whether a party has standing. Wibby, ¶ 13.
7 B. Analysis
1. The Neighbors Haven’t Demonstrated That They Have a Legally Protected Interest Under Common Law
¶ 15 The neighbors argued below that Colorado law recognizes a
legally protected interest any time a land use decision “could
subject adjacent or nearby property owners to the risk of
diminishment of their property values.” In support of this
argument, the neighbors referenced Board of County
Commissioners v. City of Thornton, 629 P.2d 605 (Colo. 1981);
Rangeview, 2016 COA 108; Wells v. Lodge Properties, Inc., 976 P.2d
321 (Colo. App. 1998); and Condiotti v. Board of County
Commissioners, 983 P.2d 184 (Colo. App. 1999).
¶ 16 In Thornton — a case challenging a county’s rezoning of
property — the supreme court held that “an owner of property
adjacent to rezoned land has standing to challenge rezoning which
adversely affects his property.” 629 P.2d at 609. A division of this
court reiterated that principle in Rangeview — another case
challenging the proposed rezoning of property. Rangeview, ¶ 12
(“Colorado courts have recognized that owners of property adjacent
8 to rezoned land have standing to challenge rezoning that adversely
affects them.”).
¶ 17 The neighbors argued that Wells and Condiotti expanded this
principle to apply to challenges to land use decisions other than
zoning decisions. In Wells, a division of this court applied the
principle in a case involving a challenge to a building permit,
holding that the plaintiff’s “interest is sufficiently similar to a
property owner’s right to contest a detrimental rezoning on adjacent
property as to confer standing on [the plaintiff].” 976 P.2d at 324.
Similarly, in Condiotti, a division of this court recognized the
principle in a matter involving a challenge to an amendment to a
county’s land use plan. 983 P.2d at 187.
¶ 18 Even assuming that Colorado case law supports the expansive
interpretation espoused by the neighbors, we disagree with the
neighbors that they have standing under the circumstances here,
for two reasons.
¶ 19 First, we disagree with the neighbors’ conclusory assertion
that the BOCC’s action of terminating the easement was a “land use
decision.” A “[l]ocal land use decision” is an action of a
governmental entity that has the effect of “granting, denying, or
9 granting with conditions an application for a development permit.”
§ 13-51.5-102(3), C.R.S. 2025. The BOCC’s termination of the
easement alone didn’t have the effect of authorizing development of
the proposed mixed residential housing community. Rather,
termination of the easement removed the restrictions prohibiting
certain types of development on Outlot A, thereby allowing a
developer to apply for a permit free of those restrictions. Put
simply, the termination of the easement, at most, removed a barrier
to a developer being able to successfully pursue a permit to
construct the proposed mixed residential housing community.
¶ 20 Second, even accepting as true that the neighbors would suffer
an injury in fact based on their asserted “financial and aesthetic”
losses resulting from the easement’s termination, they don’t have a
legally recognized interest that allows them to enforce the terms of
the easement.
¶ 21 A conservation easement is a contractual obligation that
provides its owner with the benefit of an interest in real property.
See § 38-30.5-102, C.R.S. 2025 (defining “[c]onservation easement
in gross”); Restatement (Third) of Prop.: Servitudes § 5.8 (A.L.I.
2000) (servitude burdens that exist in gross are simply contractual
10 obligations, the benefit of which is an interest in land). Unless a
person is a third-party beneficiary of a contract, only the parties to
a contract may seek to enforce its terms. Bewley v. Semler, 2018
CO 79, ¶¶ 16-17; cf. Title Guar. Co. v. Harmer, 430 P.2d 78, 80
(Colo. 1967) (“Strangers to the instrument creating an easement
over real estate for a specific purpose cannot interfere with the right
of the owner of the land to exercise full dominion over his
property.”).
¶ 22 A person is a third-party beneficiary of a contract and may sue
to enforce its terms “if the parties to the agreement intended to
benefit the non-party, provided that the benefit claimed is a direct
and not merely an incidental benefit of the contract.” Bewley, ¶ 17
(citation omitted). And in assessing the effect of a contract’s terms,
appellate courts consider the law existing at the time a contract was
executed as a part of the document itself. McShane v. Stirling
Ranch Prop. Owners Ass’n, 2017 CO 38, ¶ 17.
¶ 23 The neighbors acknowledge that the easement is a property
interest that was created as a result of the county’s agreement with
the prior owners of the Kanemoto Estates to subdivide the property.
But the neighbors aren’t parties to the subdivision agreement, and
11 the plain language of the easement doesn’t evidence an intent to
directly benefit the neighbors or other members of the general
public. See id. at ¶ 16 (a court first looks to the plain language of a
deed to ascertain the parties’ intent).
¶ 24 Additionally, under the applicable statutory language in effect
when the easement was created — which predates the cases on
which the neighbors rely — a conservation easement can be
terminated by any lawful means, including by agreement of the
parties. See § 38-30.5-107, C.R.S. 1982 (allowing conservation
easements to be terminated in any manner “in which easements
may be lawfully terminated”) (originally enacted by Ch. 153, sec. 1,
§ 38-30.5-107, 1976 Colo. Sess. Laws 751); see also Restatement
(Third) of Prop.: Servitudes § 7.1 (noting that an easement may be
terminated by agreement of the parties). And under the currently
applicable statute, only Lefthand Ranch or the county is entitled to
initiate a proceeding to enforce the terms of the easement. See
§ 38-30.5-108(2), C.R.S. 2025 (“Actual or threatened injury to . . . a
conservation easement in gross or the interest intended for
protection by such easement may be prohibited or restrained . . . in
12 a proceeding initiated by the grantor or by an owner of the
easement.”).
¶ 25 While we aren’t aware of a Colorado case addressing
circumstances similar to those present in this case, we find
authority from other states persuasive. See LaFond v. Sweeney,
2015 CO 3, ¶ 19 (considering the persuasive authority of decisions
from other jurisdictions). Courts in other states have concluded
that unless expressly authorized by the governing document’s
terms, third parties lack standing to enforce a conservation
easement encumbering privately owned land.
¶ 26 For example, in Schwartz v. Chester County Agricultural Land
Preservation Board, 180 A.3d 510, 511 (Pa. Commw. Ct. 2018), the
court considered whether an appellant had standing to enforce the
terms of a conservation easement entered into between private
landowners and the county. The purpose of that easement was to
“protect and conserve prime agricultural farmland by . . . limit[ing]
development and use of agricultural land for nonagricultural
purposes.” Id.
¶ 27 The appellant, who wasn’t a party to the easement agreement,
alleged that the landowners were using the land in a manner that
13 violated the terms of the conservation easement. Id. at 512. Noting
that the terms of the easement were “first and foremost the polestar
of [the court’s] inquiry,” the court determined that the appellant
lacked standing because the easement’s terms didn’t provide a
mechanism for a third party “to enforce any violation, threatened or
actual.” Id. at 514.
¶ 28 Likewise, in Long Green Valley Ass’n v. Bellevale Farms, Inc.,
46 A.3d 473, 477 (Md. Ct. Spec. App. 2012), aff’d, 68 A.3d 843 (Md.
2013), the court considered whether the appellants — neighboring
property owners and a community organization opposed to a
proposed development on a dairy farm — had standing to enforce
the terms of a conservation easement agreement. The easement
agreement, which had been entered into by the owner of the dairy
farm and a state agency, granted to the state an “agricultural
preservation easement” that generally restricted the landowner from
using the dairy farm for any commercial, industrial, or residential
purpose. Id. at 477-79.
¶ 29 The appellants argued that, as members of the public and
persons who owned land adjacent to or near the dairy farm, they
were third-party beneficiaries of the easement. Id. at 483-84. The
14 court disagreed, finding that, under the easement’s plain language,
the appellants were not third-party beneficiaries of the easement.
Id. at 485-86. Rather, the court concluded that, at best, the
appellants were “incidental beneficiaries of the [e]asement
[a]greement” and, as such, weren’t entitled to enforce it. Id. at 486.
The court thus determined that the appellants lacked standing to
enforce the terms of the easement. See id. at 486-87.4
¶ 30 Here, the neighbors are neither parties to the agreement
creating the easement nor third-party beneficiaries of the
agreement. Therefore, they have no authority to enforce the
4 Conversely, at least one court has recognized third-party standing
to enforce a conservation easement where such right of enforcement was expressly recognized by the terms of the deed and by state statute. See Tenn. Env’t Council, Inc. v. Bright Par 3 Assocs., L.P., No. E2003-01982-COA-R3-CV, 2004 WL 419720, at *3 (Tenn. Ct. App. Mar. 8, 2004) (unpublished opinion) (any state resident could enforce the terms of a conservation easement where then-applicable state statute expressly provided that conservation easements are “held for the benefit of the people” (quoting Tenn. Code Ann. § 66-9- 303 (2004)); see also Est. of Robbins v. Chebeague & Cumberland Land Tr., 2017 ME 17, ¶ 23 (recognizing that state statutes may confer standing on individuals to advance the public interest); 765 Ill. Comp. Stat. 120/4(c) (2025) (authorizing “the owner of any real property abutting or within 500 feet of the real property subject to the conservation right” to enforce the conservation right).
15 easement agreement’s terms, including the term addressing how
the easement may be terminated.
¶ 31 Accordingly, because (1) the termination of the easement
wasn’t a “land use decision” and (2) the neighbors aren’t entitled to
enforce the easement’s terms, we conclude that the neighbors
haven’t demonstrated that they have a legally protected interest
arising out of common law that affords them standing.
2. The Neighbors Haven’t Demonstrated That They Have a Legally Protected Interest Under the BCLUC
¶ 32 The neighbors also argued below that they have a legally
protected interest arising from the notice requirement contained in
section 3-205(C)(5)(b) of the BCLUC. That section says that
“adjacent and/or nearby property owners” must be provided at least
fourteen days’ notice of public hearings concerning “vacations.”
The neighbors contend that this section affords them a right of
participation similar to that recognized in Reeves, 170 P.3d at 854,
such that they have a legally protected interest sufficient to confer
standing. Again, we disagree, for two reasons.
¶ 33 First, we aren’t persuaded that section 3-205(C)(5)(b)’s notice
requirement applies to the termination of conservation easements.
16 That section is contained in Article 3 of the BCLUC, which identifies
the procedures associated with land use actions that require prior
approval from the BOCC. See BCLUC §§ 3-100 to -300. Section
3-205(C)(5)(b) applies to requests to vacate certain land use actions,
and only a property owner’s request to vacate a utility easement
requires fourteen days’ advance notice to adjacent landowners. See
BCLUC § 3-100(A)(17) (a property owner’s request to vacate a “road,
right-of-way, or utility easements” requires prior county approval);
see also BCLUC § 10-100(A) (governing vacations of “[p]ublic roads,
alleys, and easements . . . after consideration at a public hearing by
both the Planning Commission and the [BOCC]”). Indeed, section
6-800 of the BCLUC, which governs conservation easements,
doesn’t contain a provision requiring notice to adjacent or nearby
landowners if termination of a conservation easement is proposed.
See BCLUC § 6-800(B)(2).
¶ 34 Second, Reeves is distinguishable. In Reeves, 170 P.3d at
852, a division of this court held that the plaintiff, who lived near a
proposed redevelopment, had a legally protected interest sufficient
to confer standing to challenge the redevelopment. The division’s
reasoning was based on specific language in Fort Collins’s land use
17 and municipal codes that expressly afforded certain “parties in
interest” the same rights as land use development applicants to
challenge adverse decisions. Id. at 853. The division thus held that
“by their plain terms, the [Fort Collins Land Use Code] and
Municipal Code include a class of individuals who otherwise may
not have a legally protected interest under common law, as well as
expand the class of individuals beyond those who have such a
common law protected interest.” Id. (emphasis added). The
neighbors don’t direct us to, nor have we found, similar language in
the BCLUC supporting their contention.
¶ 35 For the foregoing reasons, we conclude that the neighbors
haven’t demonstrated that they have a legally protected interest
sufficient to confer standing. Therefore, we need not address the
parties’ remaining arguments on appeal. See Wibby, ¶ 10.
III. Disposition
¶ 36 The appeal is dismissed, and the case is remanded to the
district court with directions to dismiss the neighbors’ claim for
judicial review under Rule 106(a)(4).
JUDGE J. JONES and JUDGE KUHN concur.