APPEALS FROM LOCAL GOVERNMENT DECISIONS
| Jurisdiction | Colorado |
• C.R.C.P. 57 and 106
Those who are unhappy with a land use or development decision made by an individual, board, or governing body acting on behalf of a Colorado town, city, or county may often appeal the decision to the courts. This has happened more frequently in recent years. The ability to appeal applies not only to landowners but also in some cases to citizens, other governments, and others in the government that made the decision. Appeals may take place not only when zoning and development permits have been denied, but also when they have been approved. Which individuals and organizations have "standing" to appeal such decisions is generally specified in the statutes that authorize the local government to regulate the activity.70
In Colorado, the way in which appeals are processed and the type of judicial review available depends on whether the local government was acting in a "legislative" or a "quasi-judicial" capacity when it made the decision. Challenges to "legislative" decisions are sometimes referred to as "facial" challenges or "as adopted" challenges, and are reviewed under C.R.C.P. 57. Legislative decisions are often described as those that are prospective in nature and apply to the general population, a large area of the community, or many property owners. In contrast, quasi-judicial decisions are generally reactionary in nature and apply to specific persons or parcels of land.71 Challenges to "quasi-judicial" decisions are sometimes called "as applied" challenges, and they are reviewed under C.R.C.P. 106 unless the appeal is filed pursuant to a specific statute that specifies a different appeal process.72
When a property owner is challenging an ordinance or resolution both facially and as applied, public policy requires that both types of claims be brought in one action, under C.R.C.P. 106.73 When an action is challenged under both C.R.C.P. 57 and 106, the 28-day filing deadline applicable to Rule 106 claims apparently applies.74 In addition, some local government actions are categorized as "administrative" in that they are merely subsidiary acts carried out to implement previously adopted legislation. Administrative acts are generally not reviewable under either C.R.C.P. 57 or 106.75 In addition, review of local government land use decisions is sometimes available under federal law pursuant to 42 U.S.C. § 1983.
In addition to appealing land use decisions, citizens regularly challenge city and county land use decisions by introducing petitions for initiated ordinances that would have the effect of reversing the decision through a vote of the people. For a discussion of this topic, see § 2.10, "Initiative/Referendum."
1. Judicial Review of Legislative Acts — Rule 57
A facial constitutional challenge to an ordinance questions the legality of a general rule or policy applicable to an open class of individuals (rather than to a specific property, interest, or situation).76 Although site-specific rezonings are typically considered quasi-judicial and reviewable under C.R.C.P. 106, the action will be considered legislative and reviewable under C.R.C.P. 57 if the rezoning is accomplished through the adoption of an ordinance that will have general application or affect a very broad class of property owners.77
An example of a facial constitutional challenge is a claim that a PUD enabling ordinance, "as adopted," denies due process or equal protection even before any PUDs have been processed under it. A declaratory judgment action is a suit asking that the court issue a judgment forcing the local government to reconsider the matter or take a specific action. The declaratory judgment rule allows any person whose rights, status, or other legal relations are affected by a statute or municipal ordinance to get a determination of any question of construction or validity arising under the statute or ordinance.78 In any proceeding that involves the validity of a municipal ordinance, the municipality must be made a party. If the ordinance is alleged to be unconstitutional, the state attorney general must also be served with a copy of the proceeding.79
Legislative enactments will be generally presumed constitutional if the regulation or ordinance bears a "rational relationship" to the health, safety, or welfare of the community.80 The burden of proving that the challenged act is unconstitutional beyond a reasonable doubt is on the challenging party.81 The combined effect of these legal doctrines is that it is very difficult to prevail on a claim that a legislative action is constitutionally defective. Unlike Rule 106 appeals, there is no 28-day filing deadline for Rule 57 appeals.82
2. Judicial Review of Quasi-Judicial Acts — Rule 106
C.R.C.P. Rule 106 allows review of the quasi-judicial actions of an "inferior tribunal." A commission, board, or governing entity authorized to review zoning, PUD, subdivision, urban renewal, or other actions is an inferior tribunal, and when a city council or board of county commissioners reviews and approves or disapproves an application, it is also acting in a quasi-judicial manner.83 A C.R.C.P. 106(a)(4) proceeding is the exclusive remedy for challenging a zoning or development determination where the issue addressed is how the inferior tribunal "applied" the local ordinance or resolution to specific individuals, interests, or situations.84 Although local ordinances often specify who may appeal a land use decision within the local government, they often do not address who has standing to appeal to the courts. In at least one case, however, the Colorado Court of Appeals has held that by granting a disappointed neighbor who participated in hearing officer proceedings the right to appeal that decision to the city council, a local ordinance had created a "personal, legally protected interest in ensuring the lawfulness of approval or denial decisions" sufficient to support his appeal to the courts.85 The Colorado Supreme Court recently confirmed that a Rule 106(a)(4) appeal of a specific quasi-judicial action cannot also be used to facially challenge the constitutionality of the ordinance under which the decision was made.86
The Colorado Supreme Court held in 1975 that a rezoning decision applicable to specific property is a "quasi-judicial" act subject to judicial review pursuant to Rule 106(a)(4).87 The court developed a three-part test to determine when a local government's act is quasi-judicial rather than legislative in nature. In general, all of the following factors must be present for a government decision to be quasi-judicial: (1) a state or local law requiring that the governmental authority give adequate notice to the community before acting; (2) a state or local law requiring that the governmental authority conduct a public hearing, pursuant to notice, at which time concerned citizens must be given an opportunity to be heard and present evidence; and (3) a state or local law requiring the governmental authority to make a determination by applying the facts of a specific case to certain criteria established by law.88
In later cases, the Colorado Supreme Court clarified that all three factors do not have to be present in order for a decision to be a quasi-judicial action.89 Instead of strictly applying the three factors, the court focused its inquiry on the nature of the governmental decision and the process used to reach the decision.90 If a governmental decision is likely to affect specific individuals, and if the decision is reached by applying pre-existing standards to the facts of a specific case, then it is reasonably certain that the governmental authority acted in a quasi-judicial capacity.91 Even though decisions to rezone...
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