25CA1316 McLain v Colorado Springs 07-30-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA1316 El Paso County District Court No. 24CV31520 Honorable Gregory R. Werner, Judge
John McLain; Melissa Harte; and Protect Mountain Shadows, a nonprofit corporation,
Plaintiffs-Appellants,
v.
City of Colorado Springs, a home rule City and Colorado municipal corporation, acting through the city council of the City of Colorado Springs,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE MOULTRIE Grove and Bernard*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 30, 2026
Katherine Gayle, Colorado Springs, Colorado, for Plaintiffs-Appellants
Marc Smith, Acting City Attorney, W. Erik Lamphere, Division Chief, Colorado Springs, 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 Plaintiffs, John McLain; Melissa Harte; and Protect Mountain
Shadows, a nonprofit corporation, appeal the district court’s
judgment affirming the decision of defendant, the Colorado Springs
City Council (City Council), to approve a rezoning application and
associated development plan. We affirm.
I. Background
¶2 Arrowswest Apartment I, LLC (Arrowswest), owns
approximately 9.5 acres of land (the property) near the intersection
of North 30th Street and West Garden of the Gods Road (the
intersection) in Colorado Springs. Nearly three-quarters of the
property was zoned as a business park, while the remaining portion
was zoned for “medium scale” mixed use. Arrowswest submitted an
application to the Colorado Springs Planning Commission (Planning
Commission) requesting that the entire property be rezoned for
mixed use so that Arrowswest could build a 222-unit multifamily
apartment complex at the southwest corner of the intersection (the
project).
¶3 The Planning Commission held a hearing in April 2024 and
found that the rezoning request complied with the applicable
1 rezoning criteria and conditionally found1 that the project complied
with the criteria for a development plan.2 The Planning
Commission recommended that City Council approve Arrowswest’s
application.
¶4 A public hearing on Arrowswest’s application was set for June
2024, but it was rescheduled after confusion arose during the
hearing regarding whether the property was within a hillside overlay
zone.3 Kevin Walker, the interim director of planning and
neighborhood services, explained to City Council that the “hillside
overlay” applies to locations in Colorado Springs with vegetation
and slope that would be impacted by property development and,
1 The Planning Commission’s recommendation was conditioned on
Arrowswest providing certain additional information. The additional information requested is irrelevant to our analysis. 2 Section 7.5.515(A) of the Unified Development Code of the City of
Colorado Springs says that the purpose of a development plan is to “evaluate the specific impacts of the proposed land use and site design on the adjacent properties, neighborhood, schools, parks, road systems, and existing and planned infrastructure to ensure that proposed development is appropriate at a particular location.” 3 An “overlay” zone or district imposes “independent or
supplemental restrictions or controls on land use and development within the area designated for the classification or allow[s] a use or activity in the designated area that would otherwise be prohibited.” 1 Arden H. Rathkopf, Daren A. Rathkopf & Edward H. Ziegler, Jr., Rathkopf’s The Law of Zoning and Planning § 10:3, Westlaw (4th ed. database updated May 2026).
2 thus, require “extra sensitivity and care” with respect to “visibility,
access, and a variety of other criteria.”
¶5 Walker told City Council that he didn’t believe the property
was zoned with a hillside overlay, but certain ordinances and
zoning maps created confusion about its status. City Council
postponed the hearing to allow Walker the opportunity to research
the issue and present his findings at a future hearing.
¶6 At the second public hearing, Walker presented information to
City Council about various zoning actions beginning in 1980 that
had impacted the property’s zoning classification. Ultimately,
Walker concluded that the property was excluded from the hillside
overlay zone by a 1989 ordinance. He explained that the property
had been graded, so “it no longer exhibited any of the hillside
characteristics.” The city attorney agreed with Walker’s analysis.
¶7 City Council also heard from supporters of the project,
including the director of government affairs for the local chamber of
commerce and representatives from two nonprofits that focus on
affordable housing; the city’s fire marshal, who provided
information about local fire districts’ improved ability to be
responsive to potential wildfire events; and numerous citizens who
3 opposed the project. At the end of the hearing, City Council
approved Arrowswest’s application.
II. Procedural Background
¶8 Plaintiffs filed a complaint under C.R.C.P. 106(a)(4)
challenging City Council’s approval of the application. They argued
that City Council abused its discretion by violating a provision in
the city’s municipal code that says a rezoning decision “will not be
detrimental to the public interest, health, safety, convenience, or
general welfare,” Colo. Springs City Code § 7.5.704(D)(2), and by
violating the hillside overlay.
¶9 The complaint also included a request for a declaratory
judgment under C.R.C.P. 57. In support of the declaratory
judgment claim, plaintiffs alleged that the application review
process had the appearance of impropriety and was affected by
conflicts of interest because four of the councilmembers who voted
to approve the application had each received a $2,500 campaign
contribution from Arrowswest. Plaintiffs therefore requested a
declaratory judgment stating that City Council’s approval of
Arrowswest’s application was “contrary to and in violation of”
certain ethics-related sections of the Colorado Springs City Code
4 (city code) and requiring councilmembers to abide by their
obligations under those sections when considering future
development applications from Arrowswest.
¶ 10 The district court dismissed plaintiffs’ Rule 106(a)(4)
complaint. The court explained that plaintiffs misunderstood the
standard of review because if any competent evidence existed in the
record to support City Council’s decision, the court was required to
affirm it — even if plaintiffs had presented conflicting evidence
based on legitimate concerns. The court concluded that, reviewing
the record as a whole, there was competent evidence to support City
Council’s decision. With respect to whether City Council had a
conflict of interest, the court concluded that plaintiffs had “failed to
overcome the presumption of integrity, honesty and impartiality” as
set forth in Soon Yee Scott v. City of Englewood, 672 P.2d 225 (Colo.
App. 1983).
¶ 11 About a month after the district court’s ruling, plaintiffs filed
their notice of appeal in this court. And a month after that, they
filed a motion in the district court seeking clarification of whether
the court had actually ruled on their request for declaratory
judgment.
5 ¶ 12 In September 2025, this court issued a briefing schedule, but
plaintiffs didn’t file their opening brief by the deadline. As a result,
we issued a show cause order requiring plaintiffs to explain why
their appeal shouldn’t be dismissed for their failure to file an
opening brief. Plaintiffs’ counsel responded and explained that she
(1) believed the pending motion for clarification required a ruling
before appellate jurisdiction vested; (2) was undergoing medical
treatment the week before the briefing schedule was issued, which
adversely affected her such that her ability to work and monitor
electronic filing notices was limited; and (3) missed the electronic
filing notice from this court, so she wasn’t aware of the opening
brief deadline until she received the show cause order. The show
cause order was deferred to the merits division, and the parties
were ordered to submit their respective briefs.
III. The Show Cause Order is Discharged
¶ 13 Counsel’s (incorrect) belief that appellate jurisdiction hadn’t
fully vested because a ruling remained pending on the motion for
clarification isn’t good cause for missing the filing deadline. And we
note that, despite counsel’s assertion that she didn’t receive the
briefing schedule, the service history shows that she received and
6 read the notice of briefing schedule one week after this court issued
it. Nevertheless, we accept her representation that ongoing medical
treatments prevented her from being able to attend to work
obligations and conclude that her resulting neglect in missing the
briefing deadline was excusable. We therefore find good cause to
accept plaintiffs’ opening brief and discharge the show cause order.4
See C.A.R. 26(c); see also Farm Deals, LLLP v. State, 2012 COA 6,
¶ 20 (for a court to grant a “good cause” extension under C.A.R.
26(c), “a party must establish that its failure to meet the applicable
deadline was due to ‘excusable neglect’” (citation omitted)); Guevara
v. Foxhoven, 928 P.2d 793, 795 (Colo. App. 1996) (“excusable
neglect” exists “when surrounding circumstances would cause a
reasonably prudent person similarly to overlook a required act in
the performance of some responsibility”).
¶ 14 We now turn to the merits of the appeal.
4 We note that City Council doesn’t allege any prejudice from our
acceptance of plaintiffs’ opening brief under an extended filing deadline.
7 IV. Applicable Legal Principles
A. Rule 106(a)(4) and Rezoning Decisions
¶ 15 A party alleging that a governmental body exceeded its
jurisdiction or abused its discretion in exercising its quasi-judicial
decision-making authority may seek judicial review under Rule
106(a)(4). See C.R.C.P. 106(a)(4)(I); Rangeview, LLC v. City of
Aurora, 2016 COA 108, ¶ 15; see also Whitelaw v. Denv. City
Council, 2017 COA 47, ¶ 8 (a city council’s decision to rezone
property is a quasi-judicial decision).
¶ 16 We are in the same position as the district court when
reviewing City Council’s decision. See Whitelaw, ¶ 8. We thus
review the decision of the administrative body itself, not that of the
district court. Roybal v. City & County of Denver, 2019 COA 8, ¶ 9;
Ross v. Fire & Police Pension Ass’n, 713 P.2d 1304, 1309 (Colo.
1986) (“[T]he appropriate consideration for an appellate court [in a
C.R.C.P. 106(a)(4) action] is whether there is sufficient evidentiary
support in the record for the decision of the administrative tribunal,
and not whether there is an adequate source of evidence to support
the decision of the district court.”). We, like the district court, have
no factfinding authority in Rule 106(a)(4) actions; rather, our review
8 is limited to whether City Council exceeded its authority or abused
its discretion based upon the evidence in the record before it. See
Rangeview, LLC, ¶ 15; C.R.C.P. 106(a)(4)(I).
¶ 17 A city council abuses its discretion when its decision isn’t
supported by any competent evidence in the record. Rangeview,
LLC, ¶ 16. “No competent evidence” means that a city council’s
decision was “so devoid of evidentiary support that it can only be
explained as an arbitrary and capricious exercise of authority.” Id.
(quoting Ross, 713 P.2d at 1309). When conducting our review, we
don’t sit as a zoning board of appeals, won’t reweigh the evidence,
and must accept the weight given to conflicting evidence by the city
council. Bd. of Cnty. Comm’rs v. O’Dell, 920 P.2d 48, 50-51 (Colo.
1996).
B. Rule 57
¶ 18 A party may seek, and a district court may issue, a declaratory
judgment that affords the party with “‘relief from uncertainty and
insecurity’ with respect to rights, status, and other legal relations.”
Nash v. Mikesell, 2024 COA 68, ¶ 50 (quoting Citizens Progressive
All. v. Sw. Water Conservation Dist., 97 P.3d 308, 310 (Colo. App.
2004)); see C.R.C.P. 57(a).
9 V. Analysis
A. City Council Didn’t Abuse Its Discretion when It Approved Arrowswest’s Rezoning Request and Development Plan
¶ 19 Raising arguments similar to those they raised in district
court, plaintiffs assert that City Council’s rezoning decision is
contrary to public safety and isn’t supported by competent
evidence. In so arguing, they point to a 2021 City Council decision
that denied, for public safety reasons, a rezoning request by a
different developer to build an apartment complex near the
intersection. Plaintiffs argue that City Council’s approval of
Arrowswest’s application despite its previous denial of a different
development near the intersection is arbitrary and capricious. They
assert that City Council’s approval was based on testimony that
was “internally inconsistent, uniformly contradicted by other expert
evidence, and relied solely on Zonehaven” — an emergency response
system that, as relevant here, alerts people of the need to evacuate
in a wildfire situation. Plaintiffs argue that the city’s use of
Zonehaven was City Council’s “only justification . . . to upend [its]
prior decision at [the] intersection.” They thus assert that City
Council’s decision to discontinue its use of Zonehaven within
10 months of its approval of Arrowswest’s application demonstrates
that its approval of the application was arbitrary.
¶ 20 We agree with the district court that plaintiffs appear to
misunderstand the narrow role of judicial review under Rule
106(a)(4). It appears that plaintiffs are asking us to reweigh the
evidence. But we don’t have that authority. See O’Dell, 920 P.2d at
50-51. And while we acknowledge that the record reflects that
there was conflicting evidence, we must accept City Council’s
resolution of the conflicts if its decision is supported by competent
evidence. See id.
¶ 21 It’s undisputed that City Council received conflicting evidence
at the second public hearing. People opposed to the project told
City Council how they believed the project was detrimental to public
safety. They primarily relied on traffic congestion at the
intersection during the 2012 Waldo Canyon fire and City Council’s
denial of a different rezoning application in 2021.
¶ 22 City Council also heard from an Arrowswest representative,
who explained that the company had conducted two traffic studies
that indicated the project would have a negligible impact on traffic.
Specifically, traffic experts estimated that the project would
11 generate about half the traffic volume of the property’s current
industrial zoning, which could generate up to 3,000 vehicles per
day. The Arrowswest representative also said that they had met
with the fire department and that fire officials confirmed the project
complied with required standards without objection.
¶ 23 Furthermore, the fire marshal described to City Council the
city’s firefighting infrastructure and system changes implemented
after the Waldo Canyon wildfire. The fire marshal and a
councilmember had the following exchange:
[Councilmember]: Do we change zoning and put a large apartment complex at a chokepoint, at [the] intersection? Increased density, buildings near each other, bigger buildings, can that contribute to fire spread with higher temperatures and just the proximity of structures?
[Fire marshal]: It absolutely can. But in the instance of this complex, I would say it will not.
¶ 24 In their opening brief — in passing and without citation to
legal authority — plaintiffs argue that it’s necessary for this court
“to restore the doctrinal integrity of Rule 106(a)(4) review and to
clarify the limits of judicial deference where public safety is at
stake.” And plaintiffs cite Eason v. Board of County Commissioners,
12 70 P.3d 600, 610 (Colo. App. 2003), in their reply brief for the
proposition that “when [a] decision upends a previous decision
made by the same body pertaining to the same site[,] the decision is
not entitled to deference and can be set aside upon C.R.C.P.
106(a)(4) review.”5 But Eason involved a singular business owner
who applied for, and received, a permit to operate his business
under one interpretation of the applicable zoning regulations. Id. at
603. The business owner was thereafter stripped of the permit by
the local government body based on the government’s
“reinterpretation” of the applicable zoning regulations. Id. A
division of this court concluded that, because the business owner
had a vested property interest based on the government’s original
interpretation of the zoning regulations but didn’t receive due
process before the government stripped him of that interest, the
government body’s decision wasn’t due deference. See id. at 610.
5 We exercise our discretion to address plaintiffs’ underdeveloped
deference argument because City Council addressed the same in its answer brief and addressed the applicability of Eason v. Board of County Commissioners, 70 P.3d 600 (Colo. App. 2003), specifically, during oral argument. Cf. In re Marriage of Dean, 2017 COA 51, ¶ 31 (appellate court need not consider arguments raised for the first time in a reply brief or those that seek to expand upon contentions the party raised in their opening brief).
13 Eason thus doesn’t stand for the broad holding that plaintiffs
assert.
¶ 25 Here, it’s undisputed that the two developments were at
different locations and proposed by different developers.
Arrowswest proposed to build the project at the southwest corner of
the intersection, whereas the other developer’s proposed
development would have been located directly west of the
intersection. Plaintiffs don’t cite any authority that says a city
council is bound by its previous rezoning decisions for different
properties, nor are we aware of any.
¶ 26 Moreover, plaintiffs disregard the fact that the previous
proposed development was almost twice the size of Arrowswest’s
project. Plaintiffs suggest that because a division of this court
upheld City Council’s denial of the other developer’s rezoning
request, it means that any residential development built at the
intersection would be detrimental to public safety. We aren’t
persuaded.
¶ 27 In 2424GOTG, LLC v. City of Colorado Springs, (Colo. App. No.
22CA1145, July 13, 2023) (not published pursuant to C.A.R. 35(e)),
a division of this court affirmed City Council’s 2021 denial of the
14 other developer’s rezoning request. The division concluded that the
evidence in the record of that case supported City Council’s denial
of the developer’s request on the basis that rezoning would be
detrimental to public safety because of evacuation concerns. See
Id., slip. op. at ¶¶ 34-39.
¶ 28 But in this case, City Council determined the project wasn’t a
detriment to public safety, and it received evidence to support its
decision — namely, Arrowswest’s traffic studies,6 the fire marshal’s
opinion, and information that the project supported the city’s goal
of infill development and reduced its housing market deficit. And,
as plaintiffs note, “[City] Council’s obligation under the [city] code is
to evaluate the merits of each project.”
¶ 29 Because competent evidence in the record before City Council
in this case supports its decision, we can’t conclude that City
Council abused its discretion when it approved Arrowswest’s
application. See Rangeview, LLC, ¶ 16; O’Dell, 920 P.2d at 50; see
also Sundance Hills Homeowners Ass’n v. Bd. of Cnty. Comm’rs, 534
6 One traffic study showed that, unlike in 2424GOTG, LLC v. City of
Colorado Springs, (Colo. App. No. 22CA1145, July 13, 2023) (not published pursuant to C.A.R. 35(e)), traffic would exit directly onto Garden of the Gods Road rather than 30th Street.
15 P.2d 1212, 1215-16 (Colo. 1975) (a reviewing court may not
substitute its judgment for that of the city council).
¶ 30 Furthermore, we decline to consider plaintiffs’ argument that
the city’s discontinued use of Zonehaven shows that City Council’s
decision was arbitrary because, logically, City Council’s decision
couldn’t have been based on an action that hadn’t yet occurred.
Thus, that information wasn’t in City Council’s record, so we can’t
consider it. See Rangeview, LLC, ¶ 15; C.R.C.P. 106(a)(4)(I).
B. Plaintiffs’ Estoppel and Laches Arguments Are Undeveloped
¶ 31 Plaintiffs next argue that the doctrines of estoppel and laches
prevent the city’s removal of the hillside overlay from the property.
City Council asserts that plaintiffs’ arguments were undeveloped in
the district court, so we shouldn’t address them for the first time on
appeal.7 We agree with City Council.
7 City Council cited an unpublished opinion from this court in
support of its argument. Absent exceptions inapplicable here, this court’s policy prohibits citations to our opinions that aren’t selected for official publication. Colo. Jud. Branch, Court of Appeals Policies, Policy Concerning Citation of Opinions Not Selected for Official Publication (2026), https://perma.cc/ZQW2-H29D. We trust counsel will adhere to this policy in the future.
16 ¶ 32 In one paragraph in their district court opening brief, plaintiffs
asserted that the doctrines of estoppel and laches should apply
because they and other property owners relied on the hillside
overlay restrictions and encumbrances for thirty-five years, so it
wouldn’t be fair to suddenly remove that restriction from the
property. But plaintiffs presented this argument to the district
court in a conclusory manner without any citation to authority.
See Gravina Siding & Windows Co. v. Gravina, 2022 COA 50, ¶ 71
(it’s not a court’s “proper function to make or develop a party’s
argument when that party has not endeavored to do so itself”
(citation omitted)); Barnett v. Elite Props. of Am., Inc., 252 P.3d 14,
19 (Colo. App. 2010) (parties “must inform the court both as to the
specific errors asserted and the grounds, supporting facts, and
authorities to support their contentions”).
¶ 33 Although plaintiffs attempt to supplement their estoppel and
laches arguments on appeal, they didn’t adequately develop their
arguments in the district court. See Marquez v. Schaefer, 2025
COA 44, ¶ 30 (“To properly preserve an argument for appeal, a
party must present ‘the sum and substance of the argument’ to the
district court.” (citation omitted)). And plaintiffs conceded during
17 oral argument that they didn’t develop these arguments in the
district court. We thus decline to further consider plaintiffs’
estoppel and laches arguments. See id. at ¶¶ 51, 54.
C. The District Court Impliedly Denied Plaintiffs’ Request for Declaratory Judgment Under Rule 57
¶ 34 Plaintiffs assert that the district court didn’t address their
request for declaratory judgment. They argue that because the
district court didn’t address this claim, under C.R.C.P. 54(b), the
judgment is incomplete and “prevent[s] proper appellate review.”
¶ 35 We note that if we accepted plaintiffs’ assertion that the
judgment here is incomplete, we would have to dismiss their
appeal. See C.R.C.P. 54(b); see also Musick v. Woznicki, 136 P.3d
244, 250 (Colo. 2006) (“[A]bsent correct C.R.C.P. 54(b) certification,
‘litigation involving multiple claims . . . is not final and appealable
until all of the issues in the litigation are adjudicated.’” (citation
omitted)). However, as we explain next, we disagree that plaintiffs’
claims weren’t fully resolved.
¶ 36 The court noted that there was no record evidence about the
total campaign contributions that each of the four councilmembers
received, which was important because “not ‘every campaign
18 contribution by a litigant or attorney creates a probability of bias
that requires . . . a recusal.’” See Caperton v. A.T. Massey Coal Co.,
556 U.S. 868, 884 (2009). The court thus found there was no basis
to conclude that the councilmembers who received campaign
contributions were improperly influenced by them.
¶ 37 Furthermore, the court noted that the city code encourages
councilmembers whose actions may cause an appearance of
impropriety to disclose and recuse or disclose and declare
impartiality but doesn’t require either disclosure or recusal. And
city code section 1.3.111(B)(1) expressly states that “no violation of
this Code of Ethics shall be found to apply to . . . [a] campaign
contribution as defined by law.” Ultimately, the court concluded
that plaintiffs “failed to overcome the presumption of integrity,
honesty, and impartiality.” The district court thus impliedly denied
plaintiffs’ Rule 57 claim.8 See Pacitto v. Prignano, 2017 COA 101,
8 Because we conclude that the district court addressed — and
rejected — plaintiffs’ declaratory judgment claim, we don’t address City Council’s arguments that plaintiffs “abandoned, waived, and forfeited” the claim or that plaintiffs lacked standing to assert this claim.
19 ¶ 5 (the district court’s ruling “impliedly rejected” the party’s
declaratory judgment claim).
¶ 38 Because plaintiffs assert only that the district court didn’t
address their declaratory judgment claim, and don’t ask us to
review the propriety of the district court’s resolution of the merits of
it, we need not address it further.
VI. Disposition
¶ 39 The judgment is affirmed.
JUDGE GROVE and JUDGE BERNARD concur.