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Town of Vail v. Village Inn Plaza-Phase V Condominium Ass’n.

2021 COA 108. No. 20CA1179.  Common Interest Communities—Colorado Common Interest Ownership Act—Anti-Discrimination—Retroactive Application—Home-Rule Municipalities.

August 12, 2021


The Town Code of Vail and its zoning regulations allow the city council to establish special development districts through an ordinance. In 1976, the Town of Vail (Town) enacted an ordinance establishing the Village Inn Plaza development as Special Development District No. 6 (SSD). In 1987, the Town enacted an ordinance to allow for the development of Phase V of the Village Inn Plaza development (ordinance). The ordinance included several conditions of approval for developers building within the SDD. In 1988, the Village Inn Plaza-Phase V Condominium Association (the Association) sought to establish a condominium project within Phase V and recorded a condominium declaration that adopted the restrictions for condominiums outlined in the ordinance and the Town Code. In 2013 and 2014, the Association amended its rules to state that the Association would no longer enforce the restrictions from the ordinance and the Town Code.

A commercial owner in Phase V sought a declaratory judgment that the Association’s amended rules announcing its refusal to enforce the ordinance violated the Association’s condominium declaration. The Town joined as an indispensable party and filed a cross-claim seeking a declaratory judgment that the amended rules violated the restrictions on condominiums. The Association then filed a motion for partial summary judgment seeking dismissal of the Town’s cross-claim on grounds that the ordinance violated the Colorado Common Interest Ownership Act’s (CCIOA) anti-discrimination clause. The district court agreed and granted the motion.

On appeal, the Town argued that the district court erred in determining that the ordinance’s restriction provision violated CCIOA’s anti-discrimination provision because CCIOA does not retroactively apply to the ordinance. CCIOA’s anti-discrimination provision states that no ordinance may “impose any requirement upon a condominium or cooperative which it would not impose upon a physically identical development under a different form of ownership.” Phase V of the development was created in 1988, four years before the CCIOA’s effective date. But CCIOA provides that, for certain specified statutory provisions, pre-existing communities are subject to the CCIOA for “events and circumstances occurring on or after July 1, 1992,” which circumstances include the CCIOA’s anti-discrimination provisions. Here, the Town’s actions in attempting to enforce the ordinance are “events and circumstances” triggering application of CCIOA’s anti-discrimination clause, and CCIOA applies retroactively in this instance. Accordingly, the district court did not err.

Alternatively, the Town contended that even if CCIOA’s anti-discrimination clause applied, the district court erred by granting summary judgment for the Association on grounds that the ordinance violates this provision as a matter of law. However, the ordinance’s plain language applies the restrictions only to condominiums and, conversely, excludes non-condominiums from the restrictions. Accordingly, as a matter of law the ordinance discriminates against the condominium form of ownership in violation of CCIOA’s anti-discrimination provision.

The Town also argued that CCIOA cannot invalidate the ordinance because enforcement of the ordinance’s regulations is a matter of purely local concern reserved for home-rule municipalities. However, enforcement or nonenforcement of the Town’s ordinance is a matter of mixed local and state concern, and because the ordinance conflicts with CCIOA, CCIOA preempts it.

The judgment was affirmed and the case was remanded to determine the amount of the Association’s reasonable appellate attorney fees.

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

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