Town of Vail v. Village Inn Plaza , 2021 COA 108 ( 2021 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
August 12, 2021
2021COA108
No. 20CA1179, Town of Vail v. Village Inn Plaza – Phase V
Condominium Association — Real Property — Common Interest
Communities — Colorado Common Interest Ownership Act —
Applicability of Local Ordinances, Regulations, and Building
Codes
A division of the court of appeals considers whether the anti-
discrimination provision of the Colorado Common Interest
Ownership Act (CCIOA), section 38-33.3-106, C.R.S. 2020,
invalidates a section within a Town of Vail ordinance that pre-dates
the CCIOA’s enactment. The division holds that it does.
Specifically, it finds that (1) because the present-day enforcement of
the ordinance is an “event[] and circumstance[] occurring on or
after July 1, 1992,” § 38-33.3-117(1), C.R.S. 2020, the CCIOA and
its anti-discrimination provision retroactively apply; (2) section
11(6) of the Town’s ordinance violates the CCIOA’s anti-
discrimination provision because it facially discriminates against
condominiums; and (3) the CCIOA preempts the Town’s ordinance.
Based on this holding, the division also finds that the defendant
condominium association is entitled to attorney fees.
COLORADO COURT OF APPEALS 2021COA108
Court of Appeals No. 20CA1179
Eagle County District Court No. 14CV30259
Honorable Reed W. Owens, Judge
Town of Vail, a Colorado home rule municipality,
Appellant,
v.
Village Inn Plaza-Phase V Condominium Association, a Colorado non-profit
corporation; Vail Village Inn, Inc., a Colorado corporation; Griffin Development
LLC, a Texas limited liability company; Karin Wagner, as Trustee for the Karin
Wagner Revocable Inter Vivos Trust; Meadow Drive Ventures Inc., a Colorado
Corporation; Potamus Bean LLC, a Texas limited liability company; Staufer
Commercial LLC, a Colorado limited liability company; VVI, LLC, a Colorado
limited liability company; Richard L. Liebhaber,
Appellees.
JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE DAVIDSON*
Román and Lipinsky, JJ., concur
Announced August 12, 2021
Hoffman, Parker, Wilson & Carberry, P.C., Kendra L. Carberry, Denver,
Colorado; Hoffman, Parker, Wilson & Carberry, P.C., J. Matthew Mire, Vail,
Colorado, for Appellant
Miletich, P.C., Walter N. Houghtaling, Denver, Colorado; Frederick G. Aldrich
LLC, Frederick G. Aldrich, Grand Junction, Colorado, for Appellee Village Inn
Plaza-Phase V Condominium Association
Porterfield Oliver LLC, Wendell Porterfield, Vail, Colorado, for Appellees Staufer
Commercial LLC and Vail Village Inn, Inc.
Hale Law LLC, Allan Hale, Steamboat Springs, Colorado, for Appellees Griffin
Development LLC, Karin Wagner, Meadow Drive Ventures Inc., Potamus Bean
LLC, Richard L. Liebhaber; and VVI, LLC
Altitude Community Law, P.C., William Short, Azra Taslimi, Lakewood,
Colorado, for Amicus Curiae Community Associations Institute
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 The anti-discrimination provision of the Colorado Common
Interest Ownership Act (CCIOA), section 38-33.3-106, C.R.S. 2020,
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.” At issue in this appeal is whether a portion of an
ordinance enacted by the Town of Vail (Town) violates this
provision. In a declaratory order entered on summary judgment in
favor of the Village Inn Plaza-Phase V Condominium Association
(the Association), the district court said it did, and we agree.
Accordingly, we affirm.
I. Background
A. The Town’s Ordinance, its Restrictions, and the Association’s
Amended Rules
¶2 The Town Code of Vail (Town Code) and its zoning regulations
allow the City Council to establish Special Development Districts
through an ordinance. Town Code § 12-9A-4(D). In 1976, the Town
enacted an ordinance establishing the Village Inn Plaza
development as Special Development District No. 6 (SDD no. 6). In
1987, the Town enacted an ordinance modifying the 1976
1
ordinance to allow for the development of Phase V of the Village Inn
Plaza development.
¶3 The 1987 ordinance includes several conditions of approval for
developers building within SDD no. 6. The relevant condition of
approval here is section 11(6), which states as follows:
Restrictions on any units in Phases IV or V
which would be condominiumized shall be as
outlined in Section 17.26.075 of the Vail
Municipal Code and any amendments thereto.
Section 17.26.075, recodified as section 13-7-8 of the Town Code,
imposes several restrictions on units converted to condominiums
prior to February 7, 1995. Town Code § 13-7-8(A).1 The
restrictions require that condominium units “remain in the short
term rental market to be used as temporary accommodations
available to the general public,” Town Code § 13-7-8(B); limit an
owner’s personal use of their unit during the “high season,” Town
Code § 13-7-8(B)(1); and impose fines for violations, Town Code
1 The Town Code defines a “condominium conversion” as the use of
any property as a condominium project regardless of the present or
prior use of the property. Town Code § 13-7-2.
2
§ 13-7-8(B)(2). Although the 1987 ordinance has been amended,
the restrictions remain in the Town Code.
¶4 In 1988, the Association, seeking to establish a condominium
project within Phase V, recorded a condominium declaration. The
declaration adopted the restrictions for condominiums outlined in
the 1987 ordinance and section 13-7-8 of the Town Code as section
21(i) of the declaration. In 2013, the Association adopted Policies,
Rules, Regulations, and Guidelines. In 2013 and 2014, the
Association amended its rules to state that the Association would
no longer enforce section 21(i) of its original condominium
declaration (i.e., the restrictions from the 1987 ordinance and
section 13-7-8 of the Town Code).
B. Procedural History
¶5 In 2014, Staufer Commercial, LLC, a commercial owner in
Phase V, sought a declaratory judgment that the Association’s
amended rules announcing its refusal to enforce section 21(i) violate
the Association’s condominium declaration. The Town joined as an
indispensable party and filed a cross-claim seeking a declaratory
judgment that section 21(i) of the amended rules violates the 1987
ordinance and section 13-7-8 of the Town Code.
3
¶6 In January 2015, the Town amended its cross-claim to allege
that section 21(i) specifically violates section 11(6) of the 1987
ordinance and section 13-7-8 of the Town Code (i.e., the restrictions
on condominiums). Subsequently, the Association filed a motion
for partial summary judgment pursuant to C.R.C.P. 56, seeking
dismissal of the Town’s cross-claim on the grounds that section
11(6) of the ordinance violates the anti-discrimination clause of the
CCIOA. The Town asserted in response that the CCIOA does not
apply retroactively to the 1987 ordinance and that, even if it does,
the Association presented no evidence to show discrimination
against the condominium form of ownership.
¶7 In June 2018, the district court granted the Association’s
motion for partial summary judgment on the amended cross-claim
based on section 11(6) of the ordinance. It found that (1) although
the CCIOA applies generally to communities created after July 1,
1992, it applies here because the Town’s enforcement of the 1987
ordinance constituted an “event[] and circumstance[]” that permits
retroactive application of the CCIOA, § 38-33.3-117(1), C.R.S. 2020;
and (2) the 1987 ordinance is discriminatory as a matter of law
4
because “the language of Vail’s ordinance applies only to
condominiums.”
¶8 The Town filed an appeal with this court, but, because the
June 2018 order did not resolve the Town’s second amended cross-
claim — a claim for penalties against the Association and
residential owner defendant Richard L. Liebhaber — we dismissed it
without prejudice for lack of jurisdiction. On remand, the district
court granted a motion to dismiss the Town’s second amended
cross-claim on the same grounds as those set forth in its June 2018
order. The court then issued a C.R.C.P. 54(b) certification, and we
are satisfied that we now have jurisdiction to consider the Town’s
appeal of the district court’s declaratory judgment order dismissing
the second cross-claim.
¶9 On appeal, the Town argues that the district court’s
determination that the restriction provision of section 11(6) of the
1987 ordinance violates the anti-discrimination provision of the
CCIOA was in error because the CCIOA does not retroactively apply
to the 1987 ordinance and because the 1987 ordinance is not
facially discriminatory. It further argues that, in any event, the
5
CCIOA is inapplicable because it is preempted by section 11(6) as a
matter of purely local concern.
II. Whether the Anti-Discrimination Provision of the CCIOA
Retroactively Applies to Section 11(6) of the 1987 Ordinance
¶ 10 Phase V of the development was created in 1988, four years
before the CCIOA’s effective date. As a threshold matter, the Town
contends that section 11(6) of the 1987 ordinance cannot violate the
CCIOA because the statute does not apply retroactively to the 1987
ordinance. We disagree.
A. Legal Principles
¶ 11 Whether the CCIOA applies in this instance is a question of
statutory interpretation. We review questions of statutory
interpretation de novo. Hunsaker v. People, 2015 CO 46, ¶ 11.
When interpreting a statute, our primary goal is to ascertain and
give effect to the General Assembly’s purpose and intent in enacting
it. People v. Cooper, 27 P.3d 348, 354 (Colo. 2001); People v. Sims,
2019 COA 66, ¶ 33. In doing so, we look first to the statute’s plain
language, and if that language is clear, we enforce the statute as
written and “do not need to resort to other rules of statutory
construction.” Nowak v. Suthers, 2014 CO 14, ¶ 20.
6
B. Analysis
¶ 12 The CCIOA applies to common interest communities “created”
in Colorado after the CCIOA’s effective date of July 1, 1992. § 38-
33.3-115, C.R.S. 2020. Importantly, however, while the statute
generally does not apply to communities created before its effective
date, § 38-33.3-117(3); see also DA Mountain Rentals, LLC v. Lodge
at Lionshead Phase III Condo. Ass’n, 2016 COA 141, ¶ 28, it
provides for two exceptions. The first allows associations for pre-
existing communities to elect to be governed by the CCIOA in its
entirety. § 38-33.3-118, C.R.S. 2020; DA Mountain Rentals, ¶ 28.
That exception is not relevant here because the Association did not
elect to do so.
¶ 13 The second exception, however, 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.” § 38-33.3-117(1); see Giguere v. SJS Fam. Enters.,
Ltd., 155 P.3d 462, 469 (Colo. App. 2006) (sections of the CCIOA
made applicable to pre-existing common interest communities
apply retroactively pursuant to section 38-33.3-117). Here, the
parties do not dispute that section 38-33.3-106, the anti-
7
discrimination provision of the CCIOA, is one of the provisions
covered by section 38-33.3-117(1) for “events and circumstances
occurring on or after July 1, 1992.” But they disagree whether
there has been an “event[] and circumstance[]” occurring after July
1, 1992, triggering section 38-33.3-117(1).
¶ 14 In its order, the district court concluded that “the present-day
effect of this ordinance is, of necessity, an ‘event[] and
circumstance[] occurring on or after July 1, 1992.” We agree.
¶ 15 “Event” means “something that happens,” or “a noteworthy
happening.” Merriam-Webster Dictionary, https://perma.cc/4VTG-
HNPQ. “Circumstance” means “a condition, fact, or event
accompanying, conditioning, or determining another.” Merriam-
Webster Dictionary, https://perma.cc/357U-LD8V. Certainly, the
Town’s current attempt to enforce section 11(6) of the 1987
ordinance by bringing cross-claims against the Association and the
residential owners is something that is happening and an event
with the potential to determine future events. The plain meaning of
an “event and circumstance,” therefore, unambiguously includes
the Town’s current actions in seeking to enforce the 1987
ordinance. As the district court reasoned, “the relevant provisions
8
of the CCIOA are applicable to common-interest entities created
before 1992, and those relevant provisions, as a matter of plain
language, apply to current-day occurrences, with such occurrences
including the present-day effect of municipal ordinances.” See DA
Mountain Rentals, ¶ 29 (association exercising its power to amend
its declaration triggered retroactive application of the CCIOA);
Pagosa Lakes Prop. Owners Ass’n v. Caywood, 973 P.2d 698, 701
(Colo. App. 1998) (association exercising its power to adopt and
amend bylaws, rules, and regulations triggered retroactive
application of the CCIOA); Giguere, 155 P.3d at 467 (retroactive
application of the CCIOA was imposed after association’s
declaration was amended); RiverPointe Homeowners Ass’n v.
Mallory, 656 S.E.2d 659, 660-61 (N.C. Ct. App. 2008) (association’s
attempt to impose fines and enforce the fines by foreclosure
constituted an event and circumstance triggering application of the
North Carolina Planned Community Act); Holloway v. Tanasi Shores
Owners Ass’n, No. M2018-00932-COA-R3-CV, 2019 WL 1988502,
at *2 (Tenn. Ct. App. May 6, 2019) (association policy change
constituted an event and circumstance triggering retroactive
application of the Tennessee Condominium Act).
9
¶ 16 Contrary to the Town’s assertion, deeming enforcement of a
pre-existing ordinance an “event and circumstance” does not lead,
in the Town’s words, to the “absurd result” that it cannot enforce
any pre-existing ordinance, including zoning ordinances, against a
common interest community.
¶ 17 First, we are not convinced that section 11(6) of the ordinance
and section 13-7-8 of the Town Code are zoning ordinances.2
¶ 18 In any event, and more importantly, the legislature has
specified that, if and when events and circumstances warrant, only
certain parts of the CCIOA could be applied retroactively; that is,
application of the CCIOA to pre-existing common interest
communities does not render entire ordinances invalid — just the
parts that violate prohibitions within section 38-33.3-117. See DA
Mountain Rentals, ¶ 28; Giguere, 155 P.3d at 469. Indeed, the
court’s declaratory judgment that section 38-33.3-106(2) of the
CCIOA invalidates as discriminatory section 11(6) of the ordinance
2 Although the Town asserted in its briefs, and again at oral
argument, that it treats subdivision regulations the same as zoning
regulations, it offered no explanation or supporting authority as to
why.
10
— regardless of whether it is a subdivision or zoning regulation —
does not affect the remainder of the ordinance.
¶ 19 Accordingly, we agree with the district court and conclude that
the Town’s actions in attempting to enforce section 11(6) of the
1987 ordinance are “events and circumstances” triggering
application of the CCIOA’s anti-discrimination clause under section
38-33.3-106(2) and further conclude, therefore, that this provision
of the CCIOA applies retroactively in this instance.3
III. Whether the Ordinance is Facially Discriminatory
¶ 20 Alternatively, the Town contends that even if the CCIOA anti-
discrimination clause applies, the district court erred by granting
3 The Town argued for the first time in a motion for reconsideration
filed in the district court that the court erred by failing to consider
the legislative history of the Uniform Act on which the CCIOA was
based. The Association counters that the argument wasn’t properly
raised and, even if it was, the legislative history supports the court’s
statutory interpretation. We need not reach those issues, however.
Any review of legislative history is unnecessary and inappropriate
because we have determined that the statutory language is plain
and the result of enforcing the plain language is not absurd. See,
e.g., Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1190 (Colo.
2010) (“The legislative history . . . cannot render the plain and
unambiguous language of [a statutory provision] ambiguous.”).
11
summary judgment for the Association on the grounds that the
1987 ordinance violates this provision as a matter of law.
A. Legal Principles
¶ 21 Under C.R.C.P. 56, summary judgment is proper when the
pleadings, affidavits, depositions, and admissions show that there is
no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Civ. Serv. Comm’n v.
Pinder, 812 P.2d 645, 649 (Colo. 1991). The burden of establishing
the nonexistence of a genuine issue of material fact is on the
moving party. C.R.C.P. 56; Cont’l Air Lines, Inc. v. Keenan, 731 P.2d
708 (Colo. 1987). Once the moving party clears this initial
evidentiary hurdle, the burden shifts to the nonmoving party to
present evidence showing a triable issue of fact. Griswold v. Nat’l
Fed’n of Indep. Bus., 2019 CO 79, ¶ 24. If the nonmoving party
cannot produce such evidence, the moving party is entitled to
summary judgment. Cont’l Air Lines, 731 P.2d at 713.
¶ 22 We review the court’s decision granting summary judgment de
novo. Credit Serv. Co. v. Dauwe, 134 P.3d 444, 445 (Colo. App.
2005).
12
¶ 23 The same rules of construction apply in interpreting
ordinances as apply in interpreting statutes. City of Colorado
Springs v. Securcare Self Storage, Inc., 10 P.3d 1244, 1248 (Colo.
2000). Therefore, in construing an ordinance, we look first to its
plain language, and if we can give effect to the ordinary meaning of
the words used by the legislative body, we construe it as written.
Id. at 1249.
¶ 24 We review de novo the district court’s interpretation of the
ordinance. Asphalt Specialties, Co. v. City of Commerce City, 218
P.3d 741, 745 (Colo. App. 2009).
B. Analysis
¶ 25 As set forth above, the anti-discrimination provision of the
CCIOA 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.
§ 33-33.3-106(2) (emphasis added). That is, when an ordinance
imposes a restriction based on a development being a
condominium, the ordinance violates the CCIOA’s anti-
discrimination clause.
13
¶ 26 And, as also set forth above, section 11(6) of the Town’s 1987
ordinance states:
Restrictions on any units in Phases IV or V
which would be condominiumized shall be as
outlined in Section 17.26.075 of the Vail
Municipal Code and any amendments thereto.
(Emphasis added). By its plain terms, section 11(6) anticipates two
distinct forms of ownership — condominium ownership and non-
condominium ownership — and imposes restrictions on only the
condominium form of ownership.
¶ 27 Also in plain terms, section 11(6) further states that the
restrictions as described in section 17.26.075 of the Town Code
(now section 13-7-8), which imposes restrictions on units converted
from different types of ownership to condominiums prior to
February 7, 1995, shall apply to units “which would be
condominiumized.” Those restrictions, as described in section 13-
7-8, require that the condominium units “remain in the short term
rental market to be used as temporary accommodations available to
the general public,” restrict an owner’s personal use of their unit
during the “high season,” and impose fines for violations. Critically,
these restrictions do not apply to other forms of ownership.
14
¶ 28 Because section 11(6) of the ordinance singles out
condominiums (and section 13-7-8 of the Town Code does so as
well), it is facially apparent that section 11(6) discriminates against
the condominium form of ownership in violation of the CCIOA’s
anti-discrimination provision as a matter of law. Section 11(6)
imposes the restrictions described in section 17.26.075, now
section 13-7-8 of the Town Code, on Phase V units only if the units
would be condominiumized. Conversely, in plain language, if the
units are not condominiumized, then the restrictions do not apply.
¶ 29 Similarly, we see no merit in the Town’s argument that the
court erred by failing to require evidence from the Association to
demonstrate discrimination — for example, that the developer
sought to construct Phase V without any condominiums, or that the
Town would not have imposed the residency restriction for the
development of physically identical non-condominium dwellings, or
that other buildings exist that are identical to Phase V and those
buildings don’t contain condominiums, or that such buildings were
not subject to the restrictions as a condition of approval.
¶ 30 What the Town or the developer would do under other
circumstances is immaterial. It simply does not matter whether
15
Phase V currently has non-condominiums or whether there are
plans to have non-condominiums. Regardless of what units exist or
are ultimately developed, the plain language of the ordinance
applies the restrictions only to condominiums and, conversely,
excludes from the restrictions non-condominiums. As the district
court stated: “The language of Vail’s ordinance applies only to
condominiums. The ordinance is, on its face, discriminatory. This
is not a matter of proof — it is a matter of law.” See Town of
Westerly v. Waldo, 524 A.2d 1117, 1119 (R.I. 1987) (identifying
condominium ownership as a “use” in the zoning regulations would
have violated a state statute prohibiting discrimination against
condominiums); Multi-Fam. Council of Se. Pa. v. City of Philadelphia,
3 Pa. D. & C.4th 1, 2 (Ct. Com. Pl. 1989) (city tax that singled out
condominiums violated Pennsylvania’s Uniform Condominium Act
and its prohibition on discrimination against condominiums).
IV. Whether the CCIOA Cannot Apply Because Vail is a Home-
Rule Municipality
¶ 31 The Town also argues that the CCIOA cannot invalidate the
ordinance because enforcement of the ordinance’s regulations is a
16
matter of purely local concern reserved for home-rule
municipalities. Again, we disagree.
A. Legal Background
¶ 32 Article XX, section 6 of the Colorado Constitution grants
municipalities “home-rule” authority to create or amend charters to
govern local and municipal matters. The effect of this
constitutional provision is that on issues of local concern, a home-
rule city’s law can preempt conflicting state legislation; and on
matters of statewide concern, state legislation can preempt a home-
rule city’s conflicting law. See City of Northglenn v. Ibarra, 62 P.3d
151, 155 (Colo. 2003).
¶ 33 To determine whether a home-rule city or the state has
plenary authority for purposes of article XX, section 6, we have
recognized that regulatory matters fall into three broad categories:
(1) matters of local concern; (2) matters of statewide concern; and
(3) matters of mixed state and local concern. Ibarra, 62 P.3d at 155
(citing City of Commerce City v. State, 40 P.3d 1273, 1279 (Colo.
2002)). In matters of local concern, both the state and home-rule
city may legislate. Id. If the home-rule city’s regulation conflicts
with the state statute, the home-rule enactment controls. Webb v.
17
City of Black Hawk, 2013 CO 9, ¶¶ 16-17 (citing City & Cnty. of
Denver v. Qwest Corp., 18 P.3d 748, 754 (Colo. 2001)). In matters
of statewide concern, the state legislature exercises plenary
authority, and home-rule cities may regulate only if the constitution
or a statute authorizes such legislation. Ibarra, 62 P.3d at 155. In
matters involving mixed state and local concern, local enactments
and state statutes may coexist if there is no conflict. Id. In the
event of a conflict, however, the state statute supersedes the local
regulation. Webb, ¶ 18 (citing City & Cnty. of Denver v. State, 788
P.2d 764, 767 (Colo. 1990)).
¶ 34 To determine whether a matter is local, statewide, or mixed,
we consider several factors, including (1) the need for statewide
uniformity of regulation; (2) the extra-territorial impact of local
regulation; (3) whether the matter has traditionally been regulated
at the state or local level; and (4) whether the Colorado Constitution
specifically commits the matter to state or local regulation. Town of
Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30, 37 (Colo.
2000). We have also considered legislative declarations as to
whether a matter is of statewide concern. Ibarra, 62 P.3d at 156
(first citing City of Commerce City, 40 P.3d at 1280; and then citing
18
Telluride, 3 P.3d at 37). When considering these factors, we weigh
the respective interests of the locality and the state in regulating a
particular matter. Id. At times, we may conclude that a matter is
of mixed or statewide concern even though there exists a relatively
smaller, local interest. See id. Thus, even if the locality may have
an interest in regulating a matter to the exclusion of the state under
its home-rule powers, such an interest may be insufficient to find
that the matter is purely local. Id.
B. Analysis
¶ 35 Applying the four factors, we conclude that the enforcement or
non-enforcement of the Town’s 1987 ordinance is a matter of mixed
local and state concern and that, because the ordinance conflicts
with the CCIOA, the CCIOA preempts it.
1. The Regulation of Common Interest Communities is a Matter
of Mixed Concern
¶ 36 We first conclude that the regulation of common interest
communities is a matter of mixed concern, addressing each factor
in turn.
19
a. Uniformity
¶ 37 When the General Assembly enacted the CCIOA, it intended to
create a “clear, comprehensive, and uniform framework for the
creation and operation of common interest communities.” § 38-
33.3-102(1)(a), C.R.S. 2020 (emphasis added) (CCIOA legislative
declaration). In doing so, the legislature declared “[t]hat it is the
policy of this state to give developers flexible development rights
with specific obligations within a uniform structure of development of
a common interest community that extends through the transition to
owner control.” § 38-33.3-102(1)(c) (emphasis added). As well,
section 38-33.3-106, the anti-discrimination clause, is titled
“Applicability of local ordinances, regulations, and building codes.”
The section’s goal is clearly to regulate and limit discriminatory
local ordinances. Because the legislature has indicated a clear
interest in regulating discriminatory local ordinances and an
interest in uniformity under the CCIOA generally, we find that the
CCIOA sets forth a clear need for the uniform regulation of common
interest communities. See City of Commerce City, 40 P.3d at 1280
(we may look at legislative declarations to determine the uniformity
element); Ibarra, 62 P.3d at 160 (“Although uniformity in itself is no
20
virtue, we have found statewide uniformity necessary when it
achieves and maintains specific state goals.”) (citations omitted).
b. Extra-Territorial Impact
¶ 38 The extent of the extra-territorial impact of the regulation of
common interest communities is informed in part by our supreme
court’s decision in Telluride, 3 P.3d 30. There, the Town of Telluride
sought to enforce an ordinance that imposed an “affordable
housing” requirement. The court held, first, that the ordinance was
at its core a rent control ordinance and, second, that state
regulations prohibiting rent control preempted the ordinance
because rent control was a matter of mixed local and statewide
concern. In coming to that conclusion, the court noted the extra-
territorial impact of the ordinance on the state’s objectives and
other communities:
Managing population and development growth
is among the most pressing problems currently
facing communities throughout the state.
Restricting the operation of the free market with
respect to housing in one area may well cause
housing investment and population to migrate to
other communities already facing their own
growth problems. Although such a ripple effect
may well be minimal in Telluride because of its
geographic isolation, it is absolutely true that
the growth of other mountain resort
21
communities has impacted neighboring
communities greatly. The fact that the
Telluride ordinance is an affirmative effort to
mitigate that impact does not change the fact
that the growth of the one community is tied to
the growth of the next, thereby buttressing the
need for a regional or even statewide approach.
Id. at 39 (emphasis added).
¶ 39 Like the rent control ordinance in Telluride, the ordinance here
restricts the operation of the free housing market in a way that
could have an extra-territorial ripple effect. Restrictions on the
condominium form of ownership — especially those requiring
owners to place their units on a short-term rental market — could
cause housing investment and populations to migrate to
communities without such restrictions.
c. Tradition
¶ 40 Although the regulation of housing is sometimes left to local
bodies, and municipalities certainly have an interest in regulating
housing, we aren’t convinced that this local interest outweighs the
state interest in regulating common interest communities so much
so that we can classify regulating condominiums as a purely local
matter. See Ibarra, 62 P.3d at 162. For one thing, we aren’t aware
of any case saying that the regulation of common interest
22
communities is traditionally a matter of purely local concern. True,
as the Town points out, we have typically categorized zoning-related
matters as local for purposes of article XX, section 6. See Securcare
Self Storage, 10 P.3d at 1247. However, there is also a clear
statewide interest in regulating common interest communities. As
explained, the legislature declared such a statewide interest, and
there is an interest in ensuring that local ordinances don’t have a
strong extra-territorial impact on the housing market. Thus,
although there is some local interest in regulating housing, to
designate the regulation of common interest communities as
traditionally a matter of purely local concern “fails to capture the
sweep of this ordinance’s impact upon state” activity in regulating
common interest communities. See Ibarra, 62 P.3d at 162
(classifying a matter as traditionally one of purely local concern
didn’t capture the sweep of the ordinance’s impact on state
interests).
d. The Constitution
¶ 41 The constitution does not assign the issue of occupancy
restrictions, the regulation of common interest communities and
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condominiums, or economic regulation generally either to the state
or to localities. See Colo. Const. art. XX, § 6.
e. Considering These Factors, the Matter is one of Mixed State
and Local Concern
¶ 42 Although we acknowledge that there is a local interest in
regulating common interest communities, that interest is
insufficient to make this matter purely local since there are also
strong statewide interests in maintaining the uniform regulation of
common interest communities and avoiding the potential for an
extra-territorial ripple effect. See Ibarra, 62 P.3d at 156 (citing City
of Commerce City, 40 P.3d at 1280) (even where there is a local
concern, the matter can still be classified as a matter of statewide
concern). Thus, because the regulation of common interest
communities implicates both state and local interests, we find that
the matter is one of mixed state and local concern. See Telluride, 3
P.3d at 37 (similarly classifying rent control regulation as mixed).
2. Because the Ordinance Conflicts with the CCIOA, the CCIOA
Preempts it
¶ 43 Having determined that this matter is one of mixed state and
local concern, we next turn to whether there is a conflict between
the ordinance and the CCIOA.
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¶ 44 The CCIOA and an ordinance can coexist if there is no conflict
between them. See Ibarra, 62 P.3d at 155. In the event of a
conflict, however, the CCIOA supersedes the ordinance. Webb,
¶ 16.
¶ 45 Here, there is a direct conflict between the ordinance and the
CCIOA. The ordinance discriminates against the condominium
form of ownership, which is prohibited by the CCIOA. Thus, the
CCIOA preempts the Town’s ordinance.
¶ 46 Because the CCIOA preempts the ordinance, the Town’s
argument that the CCIOA cannot apply because it is a home-rule
municipality fails.
V. Attorney Fees on Appeal
¶ 47 The Association seeks recovery of legal fees and costs incurred
in defending this appeal and the prior appeal that was dismissed for
lack of jurisdiction.
¶ 48 Section 38-33.3-123(1)(c), C.R.S. 2020, states that “[i]n any
civil action to enforce or defend the provisions of this article or of
the declaration, bylaws, articles, or rules and regulations, the court
shall award reasonable attorney fees, costs, and costs of collection
to the prevailing party.” The provision entitles the prevailing party
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to attorney fees and costs for each claim and for “that aspect of [the]
case.” Giguere, 155 P.3d at 472 (citation omitted). Here, the
Association was the prevailing party and thus is entitled to attorney
fees encompassing litigation as it relates to these claims, including
this appeal and the previous appeal.4
¶ 49 However, because the trial court is in a better position to
determine the amount of reasonable fees incurred by the
Association on appeal, we exercise our discretion to remand the
case for further proceedings on that issue. See C.A.R. 39.1.
VI. Conclusion
¶ 50 The judgment is affirmed, and the case is remanded with
directions.
4 We note the Town’s unsupported assertion that, because it
explicitly stated in its cross-claim that the cross-claim “was not
being brought under [the] CCIOA,” the CCIOA doesn’t apply to this
case and consequently cannot provide support for an award of
attorney fees. However, we agree with the Association that the mere
fact that the Town isn’t asserting a claim under the CCIOA doesn’t
preclude its applicability, including the provisions relating to
attorney fees. See § 38-33.3-123(1)(c), C.R.S. 2020. Indeed, the
Town doesn’t direct us to any legal authority supporting its
argument. See C.A.R. 28(a)(7)(B); People v. Simpson, 93 P.3d 551,
555 (Colo. App. 2003) (declining to address “a bald legal
proposition” not developed with supporting argument).
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JUDGE ROMÁN and JUDGE LIPINSKY concur.
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