24CA0825 McCallum v CDOT 03-06-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0825 City and County of Denver District Court No. 22CV32310 Honorable Jill D. Dorancy, Judge
Bryce McCallum and Patty McCallum,
Plaintiffs-Appellants,
v.
Colorado Department of Transportation,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE J. JONES Brown and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 6, 2025
Steven A. Gall, P.C., Steven A. Gall, Hot Sulphur Springs, Colorado, for Plaintiffs-Appellants
Philip J. Weiser, Attorney General, Barbara J. Stauch, Senior Assistant Attorney General, Pawan Nelson, Senior Assistant Attorney General, Denver, Colorado, for Defendant-Appellee ¶1 Plaintiffs, Bryce and Patty McCallum, appeal the district
court’s judgment affirming a final agency decision in favor of
defendant, the Colorado Department of Transportation (CDOT). We
affirm.
I. Background
¶2 The McCallums and the Deweys (who aren’t parties to this
appeal) own adjoining properties in Grand County. The Deweys’
property abuts U.S. Highway 34. Since 1961, the McCallums’
property has benefitted from an easement (the historical easement)
over the Deweys’ property to access the highway, depicted below.
Map of Historical Easement and Highway Access
1 ¶3 In August 2019, shortly after the Deweys bought their
property, they agreed to lease it to Beacon Landing, a local marina.
Beacon Landing then applied for a special use permit from the
Grand County Board of County Commissioners (BOCC) to use the
Deweys’ property for commercial boat storage. The BOCC approved
Beacon Landing’s application on the condition that the Deweys
obtain a state highway access permit from CDOT. See § 43-2-
147(5)(a), C.R.S. 2024 (“[P]roviding vehicular access to or from any
state highway from or to property adjoining a state highway”
requires an access permit.).
¶4 The Deweys applied for the highway access permit. CDOT
determined that the Deweys’ property was allowed only one highway
access point and that the original access point — located at the east
end of the historical easement — needed to be relocated
approximately one hundred twenty feet to the southwest for safety
reasons so that the new access point would align with an existing
access point directly across the highway. To ensure the McCallums
maintained highway access, CDOT required the Deweys to grant the
McCallums an easement connecting the historical easement to the
new highway access point.
2 ¶5 The Deweys complied with CDOT’s requirement by granting
the McCallums two easements (the new easements).1 CDOT then
issued the highway access permit, directing the Deweys to
construct the new access point and close the original one. The
BOCC issued Beacon Landing’s special use permit the following
month. As discussed in more detail below, the special use permit
specifically referenced the highway access permit.
¶6 The Deweys finished relocating the highway access point in
December 2020, as depicted below. Since then, the McCallums
have used the new access point and the new easements for ingress
and egress to and from their property.
1 The Deweys granted the McCallums a second easement because
CDOT determined that the first one didn’t extend far enough to meet the new highway access point.
3 Map of New Easements and Access Points
¶7 The McCallums vehemently opposed the relocation of the
highway access point because it made accessing their property
more difficult: Closing the original highway access point meant they
could no longer turn directly onto the historical easement from the
highway. They appealed CDOT’s decision to “destroy their access”
and requested a hearing by the Transportation Commission, which
referred the matter to an administrative law judge (ALJ). Following
a four-day hearing, the ALJ issued a final agency decision
upholding the relocation of the highway access point.
4 ¶8 The McCallums appealed to the district court, see § 24-4-
106(4), C.R.S. 2024, which affirmed the ALJ’s decision.
II. Discussion
¶9 The McCallums raise four arguments for reversal on appeal:
(1) CDOT lacked statutory authority to relocate the highway access
point; (2) CDOT failed to ensure the McCallums maintained
reasonable highway access; (3) CDOT’s failure to obtain the BOCC’s
written concurrence and judicial approval for the change violated
Colorado law; and (4) the McCallums were denied due process
under the Colorado and United States Constitutions and their
rights under the State Administrative Procedure Act (APA), §§ 24-4-
101 to -109, C.R.S. 2024, because CDOT didn’t afford them a pre-
relocation hearing. We address and reject each of these contentions
in turn.
A. Standard of Review and Applicable Law
¶ 10 We review a final agency decision de novo, standing in the
same position as the district court. Martelon v. Colo. Dep’t of Health
Care Pol’y & Fin., 124 P.3d 914, 916 (Colo. App. 2005). We will
reverse only if the final agency decision is “arbitrary or capricious,
in excess of statutory authority, not in accord with the procedures
5 or procedural limitations of the APA or as otherwise required by
law, an abuse or clearly unwarranted exercise of discretion,
unsupported by substantial evidence, or otherwise contrary to law.”
HCA-HealthONE LLC v. Colo. Dep’t of Lab. & Emp., 2020 COA 52,
¶ 28 (citing § 24-4-106(7)(b)).
¶ 11 “In applying this standard, we presume the validity and
regularity of administrative proceedings and resolve all reasonable
doubts as to the correctness of administrative rulings in favor of the
agency.” Gessler v. Grossman, 2015 COA 62, ¶ 11, aff’d sub nom.
Gessler v. Smith, 2018 CO 48; see also Coffman v. Colo. Common
Cause, 102 P.3d 999, 1005 (Colo. 2004) (we defer to an agency’s
reasonable interpretation of its own regulations). And we won’t
disturb a hearing officer’s factual findings unless they’re clearly
erroneous. Neppl v. Colo. Dep’t of Revenue, 2019 COA 29, ¶ 9;
see § 24-4-106(7)(b)(VII). “The credibility of witnesses, the weight to
be afforded the evidence, and the resolution of conflicting evidence
are factual matters solely within the hearing officer’s province as
the trier of fact.” Neppl, ¶ 9 (citing Long v. Colo. Dep’t of Revenue,
2012 COA 130, ¶ 7).
6 B. Analysis
1. CDOT’s Authority to Regulate Highway Access
¶ 12 Throughout their opening brief, the McCallums repeatedly
assert that CDOT lacked statutory authority to relocate the highway
access point.2 As we understand their argument, the McCallums
contend that CDOT’s authority to regulate highway access under
section 43-2-147 didn’t extend to closing the original access point
in this case because doing so interfered with the historical
easement, which, given its grandfathered status, fell outside
CDOT’s ambit. See § 43-2-147(6)(a) (“The provisions of this section
shall not apply to driveways in existence on June 30, 1979, unless
specifically stated otherwise.”); see also Dep’t of Transp. Reg.
2 The McCallums also argue that CDOT lacked authority to direct
the Deweys to grant them the new easements. They assert that the ALJ erroneously determined that “per [section 43-2-147(1), C.R.S. 2024], CDOT can regulate access which included [the] Deweys’ imposition of their easements upon [the] McCallums.” But the ALJ never made such a determination, and the McCallums don’t point us to any authority that addresses this issue. See Castillo v. Koppes-Conway, 148 P.3d 289, 291-92 (Colo. App. 2006) (failure to set forth a cogent argument with proper citations to authority and the record precludes appellate review). In any event, it appears the McCallums’ muddled discussion on this issue pertains largely to the new easements’ alleged invalidity and the Deweys’ alleged wrongdoing. As discussed below, we can’t address these matters because the Deweys aren’t parties to this appeal.
7 1.5(41), 2 Code Colo. Regs. 601-1 (“‘Grandfathered’ means a
condition that existed prior to June 21, 1979 when [section 43-2-
147] was first signed into law . . . .”).
¶ 13 A division of this court rejected the McCallums’ argument in
McCallum v. Dewey, (Colo. App. No. 23CA2004, June 27, 2024) (not
published pursuant to C.A.R. 35(e)):
Under section 43-2-147(1)(a), CDOT is authorized to regulate vehicular access to public highways “in order to protect the public health, safety, and welfare.” And under section 43-2-147(6)(b), CDOT can require a driveway to be reconstructed to comply with the highway access code if the driveway is connected to a highway’s access points. See Dep’t of Transp. Reg. 1.5(33), 2 Code Colo. Regs. 601-1 (defining “Driveway” to mean “an access that is not a public street, road, or highway”). CDOT thus had the authority to regulate the access point and driveway — which included the historical easement.
8 Id., slip op. at ¶ 11.3
¶ 14 We agree with the division’s reasoning. Section 43-2-147(6)(b)
expressly provides that “[a]ny driveway, whether constructed before,
on, or after June 30, 1979, may be required by the department of
transportation . . . to be reconstructed or relocated to conform to
the access code . . . .” (Emphasis added.) We therefore reject the
McCallums’ argument that CDOT lacked authority under section
43-2-147 to close the original access point.
2. Reasonable Highway Access
¶ 15 The McCallums next contend that CDOT failed to ensure that
they maintained reasonable highway access. We disagree.
3 CDOT wasn’t a party in McCallum v. Dewey, (Colo. App. No.
23CA2004, June 27, 2024) (not published pursuant to C.A.R. 35(e)). In that case, a division of this court reviewed the district court’s order granting summary judgment against the McCallums on their wrongful interference claim against the Deweys. The McCallums had asked for damages and “the restoration of the historical easement including the historical easement access point.” Id., slip op. at ¶ 10. As to damages, the division concluded that summary judgment was improper. Id. at ¶¶ 14-16. But the division determined that the McCallums couldn’t reinstate the historical access point through their wrongful interference claim against the Deweys because CDOT had the authority to regulate the access point. Id. at ¶ 11.
9 ¶ 16 The State Highway Access Code, see Dep’t of Transp. Reg.
1.2(7), 2 Code Colo. Regs. 601-1 (enacted pursuant to section 43-2-
147(4)), directs CDOT to “work closely with property owners and
local governments to provide reasonable access to the general street
system that is safe” and “enhances the movement of traffic.” See
also Dep’t of Transp. Reg. 1.2(3), 2 Code Colo. Regs. 601-1 (CDOT
must “consider its impacts on public and private land use
decisions” because “[p]roperty owners have the right of reasonable
access to the general street system.”). The Access Code also
encourages “beneficial modifications to existing developed property.”
Id. at Reg. 2.6(2). Where significant modifications to property
abutting a state highway are proposed, CDOT must determine “the
best overall solution to access and circulation patterns.” Id. at Reg.
1.2(6).
¶ 17 The ALJ found that CDOT’s decision to relocate the highway
access point complied with these regulations. He credited the
testimony from Mr. Bunnell, CDOT’s traffic and safety engineer, and
Mr. Killian, CDOT’s regional access manager, that (1) CDOT’s best
practice is to manage highway access in a way that minimizes
accidents; (2) the Deweys’ property was allowed only one highway
10 access point; (3) because the Deweys’ proposed land use would
increase vehicular traffic from the highway onto the Deweys’
property, the safest approach was to relocate the original access
point, so that the new one would align with an existing access point
directly across the highway; (4) this approach minimizes accidents
by allowing two vehicles to turn left simultaneously at the
intersection; (5) to ensure the McCallums’ right to reasonably
access the highway from their property, CDOT required the Deweys
to grant the McCallums an easement connecting the new access
point to the historical easement; and (6) the new easements the
Deweys granted the McCallums include a curvature that allows
large vehicles to turn onto the historical easement. Although the
McCallums testified that large emergency vehicles had difficulty
navigating the turn, the ALJ found that the McCallums themselves
had caused this difficulty by unilaterally installing a fence with gate
posts on the Deweys’ property and that removing the fence would
allow additional room to navigate the turn. The McCallums also
testified that the new easements created a “muddy mess” in the
spring and increased snow plowing costs in the winter, but the ALJ
found that CDOT’s public health and safety concerns outweighed
11 these considerations and justified the relocation. The evidence is
more than sufficient to support the ALJ’s findings.
¶ 18 We aren’t persuaded by the McCallums’ argument that they
don’t have reasonable highway access because the new easements
are terminable. As things stand, the McCallums can access the
highway from the historical easement using the new easements,
which the Deweys granted the McCallums with “non-exclusive,
perpetual access.” If future owners of the McCallums’ property run
into problems using the new easements, they may bring a quiet title
action against the Deweys in a separate judicial proceeding.
Indeed, we can’t address property rights concerning the new
easements because the Deweys aren’t parties to this appeal. See
Keith v. Kinney, 961 P.2d 516, 518 (Colo. App. 1997) (in a quiet title
action, anyone with a claim to the property, or a material interest
that might be affected by the judgment, is a necessary party).4
4 In addition to wrongful interference, the McCallums sued the
Deweys for a declaratory judgment that the new easements are void. McCallum, No. 23CA2004, slip op. at ¶ 5. The division reversed the district court’s order granting summary judgment against the McCallums on this claim, id. at ¶¶ 19-21, which is scheduled for a jury trial in July 2025.
12 3. Written Concurrence and Judicial Approval
¶ 19 The McCallums next contend that CDOT acted unlawfully
because it didn’t obtain the BOCC’s written concurrence and
judicial approval before it relocated the highway access point.
Again, we disagree.
¶ 20 As discussed, section 43-2-147(6)(b) authorized CDOT’s
actions in this case. That section provides, in relevant part, that
“[a]ny driveway . . . may be required by the department of
transportation with written concurrence of the appropriate local
authority to be reconstructed or relocated to conform to the access
code.” Id. (Emphasis added.) The parties agree that the BOCC was
the “appropriate local authority” under section 43-2-147(6)(b).
¶ 21 The McCallums argue that the written concurrence
requirement wasn’t met because the BOCC didn’t give CDOT a
written agreement specifically assenting to the relocation of their
driveway. But the record conclusively shows that the BOCC agreed
with CDOT’s decision to relocate the highway access point. The
BOCC approved Beacon Landing’s application for a special use
permit on the condition that the Deweys obtain a highway access
permit from CDOT. After the Deweys obtained the highway access
13 permit detailing CDOT’s terms and design plans, the BOCC issued
Beacon Landing’s special use permit, which specifically referenced
the highway access permit:
WHEREAS, the conditions of approval have been met and a copy of the State Highway Access Permit No. 320066 granted by Colorado Department of Transportation is incorporated by reference herein and attached as Exhibit “A”.
¶ 22 This satisfied the written concurrence requirement. See Dep’t
of Transp. Reg. 2.14(1), 2 Code Colo. Regs. 601-1 (“Written
concurrence by the appropriate local authority in the design plans
illustrating access changes or by correspondence will constitute
concurrence pursuant to section 43-2-147(6)(b) . . . .”) (emphasis
added).
¶ 23 The McCallums also argue that CDOT needed to obtain a court
order authorizing the relocation because they didn’t consent to it.
In support of their argument, they rely on Roaring Fork Club, L.P. v.
St. Jude’s Co., 36 P.3d 1229 (Colo. 2001).
¶ 24 We agree with the ALJ’s determination that Roaring Fork is
distinguishable. In that case, the owner of property burdened by an
irrigation ditch easement unreasonably interfered with the
14 benefitted estate owner’s use of the easement because it had
“destroyed ditch banks and portions of ditches, realigned ditch
channels, diverted ditch water flows, piped portions of ditches,
constructed cabins and golf course greens within the easements,
and temporarily piped wastewater into one of the ditches.” Id. at
1230. On appeal, the Colorado Supreme Court began its analysis
by emphasizing the importance of ditches in Colorado and
explaining how the rights attendant to ditch easements are greater
than and distinct from those of other types of easements. Id. at
1231-32. The court “approach[ed] the issues . . . with due regard
for the importance of ditches and ditch rights under the law,” id. at
1232, and held that the unilateral alteration of an irrigation ditch
easement, made without the easement holder’s consent or a court
order authorizing the alteration, constitutes trespass. Id. at 1231.
¶ 25 Because the historical easement over the Deweys’ property —
a driveway — is nothing like the ditch easement at issue in Roaring
Fork, we aren’t convinced that the holding in that case applies to
the circumstances before us. And the McCallums don’t point us to
anything in section 43-2-147 or the Access Code, or to any other
authority, that would have required CDOT to obtain either their
15 consent or judicial approval before relocating the highway access
point.
4. Due Process
¶ 26 Lastly, the McCallums contend that they were denied due
process under the Colorado and United States Constitutions and
their rights under the APA because CDOT didn’t hold a hearing
before it closed the original highway access point. This contention
fails for several reasons.
¶ 27 First, the McCallums don’t have a cognizable property interest
to assert a constitutional due process claim. See Wilkerson v. State,
830 P.2d 1121, 1124 (Colo. App. 1992) (“[I]n alleging a deprivation
of due process, plaintiff must first demonstrate the existence of the
property interest which enables him to assert the constitutional
claim and the basis of his entitlement to it.”). The McCallums don’t
own the original access point; they merely have the right to
reasonable ingress and egress to and from the highway. See § 42-
1-102(18), C.R.S. 2024 (“[O]wners or occupants of abutting lands
and other persons have no legal right of access to or from the
[highway, street, or roadway] except at such points only and in
such manner as may be determined by the public authority having
16 jurisdiction over such highway, street, or roadway.”); State Dep’t of
Highways v. Interstate-Denver W., 791 P.2d 1119, 1121 (Colo. 1990)
(declining to adopt a per se rule that substantial interference occurs
and compensation is required whenever a landowner loses a
particular highway access point). And “[a]n easement, regardless of
the manner of its creation, does not carry any title to the land over
which it is exercised, nor does it serve to dispossess the landowner.”
Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1234 (Colo.
1998).5 The McCallums have the right to use the easement, but the
Deweys own the property over which the easement runs. See id.
(“The owner of the servient estate enjoys all the rights and benefits
of proprietorship consistent with the burden of the easement; while
the rights of the owner of the dominant estate are limited to those
connected with use of the easement.”).
¶ 28 Second, CDOT wasn’t required to hold a hearing for the
McCallums under section 24-4-104(6), C.R.S. 2024, of the APA.
5 Although this rule is somewhat altered in the case of an exclusive
easement (i.e., for the easement holder’s sole enjoyment), Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1234 n.5 (Colo. 1998), it’s undisputed that the historical easement is non- exclusive.
17 The McCallums equate CDOT’s decision to “destroy their access”
with revoking a license. Accordingly, they contend, CDOT should
have complied with section 24-4-104(6), which requires an agency
to hold a hearing before revoking a previously issued license. In
further support of their argument, they cite Sanchez v. State, 730
P.2d 328 (Colo. 1986), in which the supreme court held that if a
licensee’s conduct would warrant revocation, section 24-4-104’s
“prohibition against summary revocation of a license in the absence
of an initial express finding of deliberate and willful conduct is
necessary because the licensee suffers the immediate loss of
livelihood without the due process protections of prior notice and
formal hearing.” Id. at 332.
¶ 29 We aren’t convinced that CDOT’s conduct amounted to
revocation of a license. But even if it did, the McCallums aren’t the
relevant licensees who would have been entitled to a hearing. The
APA defines “[l]icense” to include an agency permit. § 24-4-102(7),
C.R.S. 2024. The Access Code, in turn, defines “permittee” as “any
person, unit of government, public agency or any other entity that
owns a fee interest in the property served, to whom an access
permit is issued.” Dep’t of Transp. Reg. 1.5(60), 2 Code Colo. Regs.
18 601-1. CDOT issued the highway access permit to the Deweys, who
hold fee simple title to the property for which access to the highway
was relocated. The relevant licensees are thus the Deweys; insofar
as the relocation interfered with the McCallums’ use of the original
access point and historical easement connected thereto, section 24-
4-104(6)’s procedural protections didn’t extend to them.
¶ 30 Third, CDOT ultimately afforded the McCallums a meaningful
opportunity to be heard. After the McCallums appealed CDOT’s
decision, the ALJ held a four-day hearing to determine whether
CDOT’s actions were authorized and reasonable. Eleven witnesses
testified, counsel for the McCallums and CDOT introduced more
than one hundred exhibits into evidence, and the ALJ heard closing
arguments. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“[A]n
unauthorized intentional deprivation of property by a state
employee does not constitute a violation of the procedural
requirements of the Due Process Clause of the Fourteenth
Amendment if a meaningful postdeprivation remedy for the loss is
available.”).
19 III. Attorney Fees
¶ 31 The McCallums request an award of attorney fees. Because
they haven’t prevailed in this appeal or otherwise stated a legal
basis for an award of attorney fees, we deny their request. See
C.A.R. 39.1; Holt Grp., L.L.C. v. Kellum, 260 P.3d 50, 56 (Colo. App.
2010).
IV. Disposition
¶ 32 The judgment is affirmed.
JUDGE BROWN and JUDGE YUN concur.