Mercer v. Colo Spgs

• Court: Colorado Court of Appeals
• Decided: November 14, 2024
• Docket: 24CA0434
• Status: Unknown

Opinion

24CA0434 Mercer v Colo Spgs 11-14-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0434 El Paso County District Court No. 23CV31684 Honorable Gregory R. Werner, Judge

Lianne Mercer; Jeremy Mercer; Karen Sublett; Barbara Snow; Ultreia Homes LLC, a Colorado LLC, d/b/a Courtyard at San Miguel and Yuma; Kevin Comesky; Marissa Comesky; William Snider; Ruth Snider; Sylvia Wulf; Tracy Schlotman; Sara Webb; Ethan Howard; Lauren Howard; Mack Mason; and Abdillahi Jama Buni,

Plaintiffs-Appellants,

v.

City of Colorado Springs, City Council,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division III Opinion by JUDGE NAVARRO Dunn and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 14, 2024

Frederick W. Newall, Colorado Springs, Colorado, for Plaintiffs-Appellants

Wynetta P. Massey, City Attorney, Brian Stewart, Senior City Attorney, Colorado Springs, Colorado, for Defendant-Appellee ¶1 Plaintiffs, owners of residential property in Colorado Springs,

Colorado, appeal the district court’s order upholding the Colorado

Springs City Council’s decision adopting City Ordinance 23-38,

which rezoned certain land. We affirm.

I. Factual and Procedural History

¶2 In January 2023, Kum & Go, LLC (the applicant) sought

approval from the City to construct a convenience store with a gas

station on a vacant lot. The land was zoned as “PBC/cr” (Planned

Business Center with Conditions of Record). The Conditions of

Record included the following:

(1) a prohibition of auto service businesses, bars, sexually

oriented businesses, medical marijuana businesses, and

liquor stores;

(2) a requirement that all activities be conducted entirely

within a building;

(3) a prohibition on storing materials outside; and

(4) a maximum building height of thirty feet.

¶3 The applicant ultimately requested removal of the second

condition: that all activities be conducted entirely within a building.

1 After review, the City’s staff supported changing the zoning of the

property in accordance with the applicant’s request.

¶4 The Colorado Springs Planning Commission held a public

hearing about the project. Residents had the opportunity to offer

their views on the project. After the hearing, the planning

commission recommended that the City Council remove the

relevant Condition of Record, as memorialized in Ordinance 23-38.

The commission also recommended approval of the applicant’s

concept plan for the property.

¶5 The City Council convened a public hearing about the zoning

change, after which the City Council approved Ordinance 23-38

and the applicant’s concept plan.

¶6 Plaintiffs challenged the City Council’s decision in the district

court under C.R.C.P. 106(a)(4). In their opening brief, plaintiffs

claimed the City Council (1) violated their due process rights by

removing the Condition of Record requiring all activities be

conducted entirely within a building; (2) erred by failing to conclude

that the applicant’s planned development was a prohibited “auto

service” under the first Condition of Record; and (3) abused its

2 discretion by approving construction of the project over residents’

objections.

¶7 The district court rejected the arguments on the merits and

denied plaintiffs relief.

¶8 In this appeal, plaintiffs argue that the City Council abused its

discretion or exceeded its jurisdiction by approving the zoning

change and permitting construction of the convenience store.

Specifically, they claim that the Condition of Record prohibiting

auto service businesses applies to the applicant’s project because

the convenience store will sell automobile fuel. Because plaintiffs

did not raise this argument before the City Council, however, we

affirm the district court’s order, albeit on different grounds. See

People v. Chase, 2013 COA 27, ¶ 17 (“[W]e may affirm a trial court’s

ruling on grounds different from those employed by that court, as

long as they are supported by the record.”).

II. Analysis

A. Relevant Law

¶9 Rule 106(a)(4) permits a party to challenge in the district court

the action of a governmental body exercising judicial or quasi-

judicial authority as in excess of its jurisdiction or an abuse of its

3 discretion. Because we are in the same position as the district

court, we review the court’s decision de novo and assess whether

the governmental body (here, the City Council) exceeded its

jurisdiction or abused its discretion. See Berges v. Cnty. Ct., 2016

COA 146, ¶ 6. Like the district court, we have no factfinding

authority on review and look only to the record before the

governmental body. Canyon Area Residents for the Env’t v. Bd. of

Cnty. Comm’rs, 172 P.3d 905, 907 (Colo. App. 2006).

¶ 10 We may review a Rule 106(a)(4) claim only if it was first

presented to the governmental body. Abromeit v. Denver Career

Serv. Bd., 140 P.3d 44, 53 (Colo. App. 2005) (“[T]he district court

could only address, in C.R.C.P. 106 proceedings, issues that were

properly presented for determination by the administrative

agency . . . .”); see also Debalco Enters., Inc. v. Indus. Claim Appeals

Off., 32 P.3d 621, 624 (Colo. App. 2001) (“[B]ecause these issues

were not raised in the administrative proceedings, they were not

preserved for our review, and we do not address them.”).

B. Application

¶ 11 Plaintiffs contend that the ordinance applicable to the project

site prohibits “auto services,” which includes businesses that

4 provide fuel as the applicant’s project would do. Thus, plaintiffs

claim the City Council abused its discretion by failing to conclude

that the project was prohibited by the Conditions of Record for the

property.

¶ 12 Contrary to C.A.R. 28(a)(7)(A), however, plaintiffs in their

opening brief do not address whether this issue was preserved or

cite the precise location in the record where the issue was raised

before the City Council. For this reason alone, we reject their

appellate claim. See Black v. Black, 2018 COA 7, ¶ 67 (“‘Judges are

not like pigs, hunting for truffles buried in’ the parties’

submission.”) (alteration omitted) (citation omitted); O’Quinn v.

Baca, 250 P.3d 629, 631 (Colo. App. 2010) (explaining that the

purpose of the relevant provision in Rule 28 is to relieve courts from

the burden of having to search records to determine whether —

and, if so, how — issues had been raised and resolved below).

¶ 13 In its answer brief, the City argues that “[b]ecause [p]laintiffs

did not raise this issue with [the] City Council, they cannot raise it

now.” In their reply brief, plaintiffs do not dispute the City’s claim

that they failed to raise this issue with the City Council. Instead,

they effectively concede that they did not raise the issue then. They

5 ask (without furnishing an answer), “[H]ow could they make these

arguments without first being appraised of the government body’s

decision in question?” But simply posing a rhetorical question is

not a cogent argument. In any event, the public was made aware

that the City Council was considering whether to approve the

applicant’s proposal to rezone the property at issue and the

applicant’s plan to include gas pumps. It was incumbent on

plaintiffs to raise any pertinent objection to that rezoning when the

matter was before the City Council. But they did not raise their

current objection then.

¶ 14 Consequently, because plaintiffs’ appellate issue was not

preserved before the governmental body, we affirm the district

court’s order denying relief. See Wolf Creek Ski Corp. v. Bd. of Cnty.

Comm’rs, 170 P.3d 821, 831 (Colo. App. 2007) (“[P]laintiffs do not

dispute the developer’s assertion that they failed to raise those

arguments before the board. Thus, we will not consider them.”).

III. Conclusion

¶ 15 The judgment is affirmed.

JUDGE DUNN and JUDGE GOMEZ concur.