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Telluride Locals Coalition Petitioners’ Committee v. Kavannaugh.

2024 COA 69. No. 23CA1035. Zoning—Planned Unit Development Act of 1972—Initiative and Referendum—Administrative Versus Legislative Nature of Initiative.

July 3, 2024

Brighton Properties, LLC (Brighton) submitted an application to the Town of Telluride (town) requesting approval of a planned unit development (PUD). The town, via ordinance, approved the plan, creating the Butcher Creek PUD. As relevant here, the PUD written agreement and plat map (PUD plan) established Lot A as approximately 37 acres of common open space. In 2018, Brighton proposed an amendment to the PUD plan to rezone a portion of Lot A to allow construction of affordable housing. At the time, Brighton still owned Lot A, but the other lots had been sold. The town did not accept the proposal because the amendment required the consent of all lot owners within the Butcher Creek PUD, which Brighton had not obtained. In 2019, Brighton filed two proposed initiated ordinances to be submitted to a vote of the electorate to (1) amend the town’s land use code by creating a new land use classification of Affordable/Conservation (A/C) Subdivision, and (2) rezone Lot A and change its land use to the new A/C Subdivision classification. The town accepted the first initiative and issued blank petitions for circulation, but it rejected the second initiative and subsequent versions of the Lot A ordinance. Brighton then sued the town’s clerk, and per district court order, all other Butcher Creek PUD lot owners were added as defendants by Brighton or allowed to intervene as defendants. As relevant here, Brighton requested (1) a declaration that its proposed ballot initiative rezoning of Lot A (and amending the PUD Plan accordingly) was legislative in nature and thus a proper subject of an initiative; (2) a declaration that the PUD plan could be amended without all lot owners’ consent and approved by the town and Brighton; (3) a declaration that, under the PUD plan, the consent of all lot owners was unnecessary to rezone Lot A and change its common open space designation; and (4) mandamus relief requiring the town to accept the submission of the initiated ordinance rezoning Lot A and amending the PUD plan. The district court granted summary judgment in favor of defendants on Brighton’s ballot initiative claims, concluding that the initiative was administrative, not legislative, in nature. Brighton’s claims relating to the other lot owners’ approval rights under the PUD plan continued to a bench trial, after which the court entered judgment in favor of defendants.

On appeal, Brighton argued that the district court erred by concluding that the proposed rezoning of Lot A within the Butcher Creek PUD was not a legislative act and, therefore, was not a permissible subject of a ballot initiative. Colorado courts have consistently recognized that a PUD is a form of zoning or rezoning for the area included within the PUD. Because of this, and because zoning and rezoning have long been considered legislative matters subject to the initiative power, the court of appeals concluded that the rezoning proposed in the initiative—which seeks to modify the zoning classification applicable to Lot A by changing the permitted use from open space to affordable housing—is a legislative matter subject to the initiative power. Accordingly, the district court erred by concluding that the proposed initiative to rezone Lot A was administrative in character.

Brighton also argued that the district court erred by considering the substantive merits of the Lot A initiative, including its possible effect on the other lot owners’ rights, before its approval by the electorate. These issues should be addressed only if the ordinance is adopted. Therefore, the district court erred by ruling that the proposed ordinance would violate the other lot owners’ rights and would violate the PUD Act or the town’s land use code.

The court declined to resolve defendants’ premature claims pertaining to due process and the statutory requisites for amending a PUD, which require resolution only if the proposed initiative is adopted.

The judgment was reversed and the case was remanded for further proceedings.

The full opinion is available at

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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