Scythian v. Mtn Village

24CA0359 Scythian v Mtn Village 03-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0359
San Miguel County District Court No. 22CV30045
Honorable J. Steven Patrick, Judge

Scythian Ltd., Cloud 9 Investments, LLC, and Cloud 9 Land Holdings, LLC,

Plaintiffs-Appellants,

v.

Town of Mountain Village, Colorado, Town of Mountain Village Town Council,
Colorado, Tiara Telluride, LLC, and Vault Management, LLC,

Defendants-Appellees.

JUDGMENTS AFFIRMED

Division III
Opinion by JUDGE TOW
Dunn and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 6, 2025

Foster Graham Milstein & Calisher, LLP, David Wm. Foster, Chip G.
Schoneberger, Denver, Colorado, for Plaintiffs-Appellants

Garfield & Hecht, P.C., David H. McConaughy, Andrea S. Bryan, Christine L.
Gazda, Glenwood Springs, Colorado, for Defendants-Appellees Town of
Mountain Village and Town of Mountain Village Town Council

Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Bill E. Kyriagis, Nicholas
Gunther, Denver, Colorado, for Defendants-Appellees Tiara Telluride, LLC and
Vault Management, LLC
¶1 Plaintiffs, Scythian Ltd., Cloud 9 Investments, LLC, and Cloud

9 Land Holdings, LLC, appeal the district court’s judgments entered

in favor of defendants, the Town of Mountain Village (the Town), the

Town of Mountain Village Town Council (the Council), Tiara

Telluride, LLC (Tiara), and Vault Management, LLC (Vault). We

affirm.

I. Factual Background

¶2 The following undisputed facts are taken from plaintiffs’

complaint filed in San Miguel County Case No. 23CV30035.

¶3 The Town is a home rule municipality. Tiara owns a lot in the

Town. The Council first approved a planned unit development

(PUD) for the lot in 2010. The Council initially authorized a

five-year vested property rights1 period for the 2010 PUD. The

Council thereafter approved two extensions to the vested property

rights period.

¶4 In 2022, Vault, with Tiara’s consent, applied for another

extension of the vested property rights period. At a September 2022

1 “‘Vested property right’ means the right to undertake and complete

the development and use of property under the terms and
conditions of a site specific development plan.” § 24-68-102(5),
C.R.S. 2024.

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meeting, the Council extended the vested property rights period for

another nine months (Third Amendment to the 2010 PUD). Under

the Town of Mountain Village Community Development Code, which

is contained in the Town of Mountain Village Municipal Code

(Municipal Code), final PUD approval includes approval of an

ordinance rezoning the property. Thus, when the Council approved

the Third Amendment to the 2010 PUD, it also approved Ordinance

2022-10, rezoning the property.

¶5 While this third extension was pending, Tiara submitted an

application to amend the “2010 PUD’s height, design, and other

development matters.” Tiara later revised the application and

included several major design changes. At an August 2023

meeting, the Council conditionally approved the application. On

September 8, 2023, the vested property rights in the 2010 PUD

expired. On September 20, 2023, the Council approved the

application (Fourth Amendment to the 2010 PUD). The approval of

the Fourth Amendment to the 2010 PUD included the approval of

Ordinance 2023-13, rezoning the property.

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II. Procedural Background

¶6 Plaintiffs, who own real estate parcels that are close to Tiara’s

lot, filed a complaint under C.R.C.P. 106(a)(4) in district court,

alleging that the Council’s approval of Ordinance 2022-10 was an

abuse of discretion. The district court dismissed the case for lack of

subject matter jurisdiction, holding that the case was moot because

the Fourth Amendment to the 2010 PUD had superseded the Third

Amendment to the 2010 PUD.

¶7 Plaintiffs filed another complaint under C.R.C.P. 106(a)(4) in

district court, alleging that the Council’s approval of Ordinance

2023-13 was an abuse of discretion.

¶8 Specifically, plaintiffs alleged that Tiara ignored the request of

the Design Review Board (the Board) to provide a shoring plan

before the Council reviewed the application. They alleged that the

Board failed to review major design changes to the application and

did not do an analysis under the design regulations for such

changes as required by the Municipal Code.

¶9 Plaintiffs also alleged that the application to amend the 2010

PUD sought a height allowance that exceeded what was allowed

under the Municipal Code but not what was allowed under the

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2010 PUD. They alleged that by the time the Council approved

Ordinance 2023-13, the vested property rights in the 2010 PUD had

expired, but Vault had not requested or reapplied for a new height

variation as required by the Municipal Code.

¶ 10 Next, plaintiffs alleged that the Council extended the vested

property rights to property not included in the 2010 PUD because

the application included open space outside of the lot specified in

the 2010 PUD.

¶ 11 Finally, plaintiffs alleged that the Council overlooked the

failure of the application to meet certain review criteria that must

be met in order for the Council to approve a rezoning of the PUD, as

required by the Municipal Code.

¶ 12 The district court dismissed plaintiffs’ case for lack of subject

matter jurisdiction, this time on the grounds that the Town of

Mountain Village Town Charter (Charter) and Municipal Code

vested exclusive original jurisdiction in the municipal court.

¶ 13 Plaintiffs appeal both judgments.

III. Subject Matter Jurisdiction

¶ 14 As a threshold matter, plaintiffs concede that if we affirm the

district court’s dismissal of their action seeking review of the

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approval of Ordinance 2023-13 for lack of subject matter

jurisdiction based on Town of Frisco v. Baum, 90 P.3d 845 (Colo.

2004), then that would constitute alternative grounds to affirm the

district court’s dismissal of their case seeking review of the

Council’s approval of Ordinance 2022-10.

¶ 15 Indeed, defendants contend that this case is “virtually

identical” to Baum, while plaintiffs attempt to distinguish Baum in

various ways. Because we agree with defendants, we begin with a

discussion of Baum. We then analyze whether, under Baum, the

district court had subject matter jurisdiction over the case seeking

review of the Council’s approval of Ordinance 2023-13.

A. Baum

¶ 16 In Baum, neighboring landowners sought review in district

court under Rule 106(a)(4) of the Town of Frisco’s council’s

approval, under the town code, of an application for conditional

land use development, alleging violations of the town’s ordinances.

90 P.3d at 846, 850. Frisco’s town charter vested its municipal

court with “exclusive original jurisdiction over all matters arising

under [Frisco’s Town] Charter, the ordinances, and other

enactments of the Town.” Id. at 846. Frisco argued that the district

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court lacked jurisdiction because its charter vested the municipal

court with exclusive jurisdiction over matters arising from its local

ordinances, which included land use claims. Id.

¶ 17 The supreme court held that a home rule town possesses the

authority under the Colorado Constitution and Colorado statutes to

define the jurisdiction of its municipal court over matters that are of

local or municipal concern — not over matters of state or mixed

concern. Id. at 847-48, 849 n.4. The supreme court also held that

“even if an issue is one of local concern, if the town has not

included it within the jurisdiction of the municipal court, a

municipal court cannot hear the matter.” Id. at 849.

¶ 18 The supreme court found that the underlying matter was

“undeniably one of local concern” because it involved only local

zoning decisions and did not interfere with a matter of statewide

concern. Id. at 850 n.6. Thus, the challenge to the town’s actions

had to be filed in municipal court because Frisco had “properly

created a municipal court and granted to that court exclusive

original jurisdiction of all claims arising under enactments of the

town pertaining to matters of local concern.” Id. at 850.

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B. Standard of Review

¶ 19 “[W]hen, as here, the parties dispute only the characterization

of the complaint at issue and not the jurisdictional facts alleged

within it, the [district] court can decide the jurisdictional question

as a matter of law, and our review is de novo.” City of Boulder v.

Pub. Serv. Co. of Colo., 2018 CO 59, ¶ 14. Whether a matter is one

of state, mixed, or local concern is also a legal issue that we review

de novo. See Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3

P.3d 30, 37 (Colo. 2000).

¶ 20 To the extent our analysis requires us to interpret a statute,

statutory interpretation is a question of law that we review de novo.

Colo. Stormwater Council v. Water Quality Control Div. of the Colo.

Dep’t of Pub. Health & Env’t, 2023 COA 11, ¶ 15. “[W]e first look to

the statute’s language and give words their plain and ordinary

meaning.” Id. “We read and consider the statute as a whole to give

consistent, harmonious, and sensible effect to all of its parts, and

we presume that the General Assembly intended the entire statute

to be effective.” Id. “If the statute’s language is clear and

unambiguous, we look no further.” Id.

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C. Charter and Municipal Code

¶ 21 As in Baum, plaintiffs here seek review of a home rule town’s

approval, under the Municipal Code, of a land use ordinance.

¶ 22 Section 7.1 of the Charter provides, in relevant part, that

“[t]here shall be a municipal court . . . vested with exclusive original

jurisdiction over all cases arising under this Charter, under the

ordinances duly enacted under this Charter, and as otherwise

conferred under the law.”2 Municipal Code section 2.12.020

provides that “[t]he Municipal Court shall be vested with exclusive

original jurisdiction over all cases arising under the Charter,

Municipal Code, duly enacted Ordinances and as otherwise

conferred under law.”

¶ 23 The Charter and Municipal Code language is almost identical

to the charter’s language in Baum. And plaintiffs’ attempt to

distinguish Charter section 7.1’s grant of jurisdiction to the

2 Section 3.6 of the Charter provides that the Council, through the

Charter and enactment of ordinances, shall exercise all expressed
or implied legislative powers granted to home rule municipalities by
the Colorado Constitution, including, but not limited to, “[t]he
power and continuing obligation to establish comprehensive and
flexible land use standards, including density, zoning, and
construction, design and enforcement regulations, in order to
provide for the present and future needs of the Town.”

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municipal court over “all cases arising under” the Charter and

Municipal Code from the charter in Baum, which granted the

municipal court jurisdiction over “all matters arising under” Frisco’s

town charter or ordinances, is unavailing. (Emphasis added.) We

discern no meaningful difference between “matters” and “cases.”

Cf. Olson v. Hillside Cmty. Church SBC, 124 P.3d 874, 878 (Colo.

App. 2005) (interpreting the city’s charter language giving its

municipal court “exclusive original jurisdiction of all causes arising

under the ordinances of the city” as encompassing “all causes of

action arising under” the municipal code). Indeed, one cannot bring

a matter before the court unless one files a case in which to bring it.

¶ 24 Thus, the Charter and Municipal Code give the municipal

court exclusive original jurisdiction over all cases arising under the

Municipal Code and duly enacted ordinances. See Baum, 90 P.3d

at 850; Olson, 124 P.3d at 878. Plaintiffs’ complaint arose under

Ordinance 2023-13, which was approved by the Council pursuant

to the Municipal Code. Therefore, if the underlying matter was a

matter of local concern, plaintiffs were required to first file their

case in municipal court. We thus turn to whether the underlying

matter was one of local concern.

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D. Matter of Local Concern

¶ 25 The underlying matter concerns zoning, a matter of local

concern. See Baum, 90 P.3d at 850 n.6; see also, e.g., Voss v.

Lundvall Bros., Inc., 830 P.2d 1061, 1064 (Colo. 1992) (recognizing

that the exercise of zoning authority within a home rule city’s

municipal border is a matter of local concern).

¶ 26 Yet plaintiffs contend that because they brought their

complaint under Rule 106(a)(4), it is necessarily a matter of

statewide concern. Alternatively, plaintiffs contend that their

claims involve adjudication of issues under a state statute and

constitutional due process requirements and are therefore at least a

matter of mixed concern. We disagree.

1. Applicable Law

¶ 27 When determining 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, 3 P.3d at 37. This list is not

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exhaustive. City of Northglenn v. Ibarra, 62 P.3d 151, 156 (Colo.

2003). We have also considered other factors, “including any

legislative declaration as to whether a matter is of statewide

concern.” Id. When considering these factors, we weigh the

respective interests of the locality and the state in regulating a

particular matter. Id.

2. Application

a. Rule 106(a)(4)

¶ 28 Plaintiffs contend that Rule 106(a)(4) actions reflect a “distinct

matter of state interest” in “preventing governmental abuse of

authority” and therefore are inherently matters of statewide concern

— or at a minimum are mixed matters. This contention ignores —

or at least mischaracterizes — Baum.

¶ 29 Acknowledging that Baum involved a Rule 106(a)(4) action

brought in the district court and ultimately dismissed for lack of

subject matter jurisdiction, plaintiffs attempt to argue that the

supreme court in Baum did not directly address the nature of Rule

106(a)(4) actions. However, the supreme court in Baum explicitly

considered that the action was brought pursuant to Rule 106(a)(4)

when it stated its conclusion regarding jurisdiction:

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The case before us provides an illustration of
the interplay between municipal and state
court jurisdiction. Respondent brought his
claim under C.R.C.P. 106(a)(4), challenging the
authority of the town council to decide upon an
application for development, and alleging
violations of the town’s ordinances. If there
had not been a municipal court, Respondent
would have properly filed his claim in the
district court. However, because the town
council created a municipal court and defined
its exclusive original jurisdiction to include
matters arising under the town’s ordinances,
Respondent was required to file first in the
municipal court with a right of appeal to the
district court.

90 P.3d at 850 (emphasis added) (footnotes omitted). The supreme

court also noted that the town adopted Rule 106, appearing to

intend to provide a mechanism for review of civil actions in its

municipal courts.3 Id. at 850 n.5. In other words, the supreme

court acknowledged that home rule towns can define municipal

court jurisdiction to include Rule 106(a)(4) actions seeking review of

governmental actions pertaining to matters of local concern.

¶ 30 Further, in Olson, the supreme court rejected the argument

that Rule 106 actions had to be filed in district court and concluded

3 Both the Charter and Municipal Code provide that the Colorado

Rules of Civil Procedure shall apply to all civil actions pending in
the Town’s municipal court.

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that the district court lacked subject matter jurisdiction over the

plaintiffs’ action brought under Rule 106(a)(4), seeking review of a

home rule city’s application of a land use ordinance and alleging

violations of the city’s municipal code.4 124 P.3d at 878.

¶ 31 Thus, the statute or rule under which the case arises does not

determine whether the underlying matter is one of local, mixed, or

statewide concern.

b. State Statutory Law and Due Process

¶ 32 Alternatively, plaintiffs contend that the underlying matter is

one of mixed concern because, in addition to zoning — a matter of

local concern — the underlying matter also requires the district

court to adjudicate issues under the Vested Property Rights Act

4 Plaintiffs rely on City of Englewood v. Parkinson, 703 P.2d 626,

627-28 (Colo. App. 1985), to suggest that divisions of this court are
divided as to whether municipal courts have jurisdiction to grant
relief in the nature of remedial writs. But Parkinson is inapposite.
See Brown v. Walker Com., Inc., 2022 CO 57, ¶¶ 22-23 (explaining
that Rule 106 abolished special remedial writs but retained the
substantive forms of relief under such special remedial writs). The
division in Olson v. Hillside Community Church SBC, 124 P.3d 874,
879 (Colo. App. 2005), explained why the division’s reasoning in
Parkinson, 703 P.2d at 627-28, is no longer applicable in light of
Town of Frisco v. Baum, 90 P.3d 845 (Colo. 2004).

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(Act), § 24-68-101 to -106, C.R.S. 2024, and the United States and

Colorado Constitutions’ Due Process Clauses.

¶ 33 We disagree with plaintiffs’ characterization of their complaint.

Cf. City of Boulder v. Pub. Serv. Co. of Colo., 996 P.2d 198, 203

(Colo. App. 1999) (“We are not bound by the form in which the

plaintiff asserts its claim, but rather it is the facts alleged and the

relief requested that decide the substance of a claim, which in turn

is determinative of the existence of subject matter jurisdiction.”).

¶ 34 The complaint merely refers to the Act to explain, as

background, that “developers and/or landowners may acquire a

‘vested’ right to develop the real estate property in a PUD consistent

with the site plan approved for that PUD” and that a vested

property right lasts for three years unless extended by an

amendment expressly authorized by the local government. Though

plaintiffs’ allegations relate to extensions of the initial vested

property rights period, the Municipal Code controls any extensions,

not the Act. See § 24-68-104(1), C.R.S. 2024 (The initial three-year

vesting period “shall not be extended by any amendments to a site

specific development plan unless expressly authorized by the local

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government.”). In other words, the court does not need to decide

anything under the Act.

¶ 35 Nor does the fact that the Act states that “[t]he establishment

of vested property rights . . . is . . . declared to be a matter of

statewide concern” change our conclusion that the underlying

matter is one of local concern. § 24-68-101(1)(c). Ordinance 2023-

13 did not establish vested property rights; rather, it extended

them. And the extension of vested property rights is not included in

the legislative declaration of what is a matter of statewide concern.5

Indeed, as noted, the legislature gave local governments the

authority to extend vested property rights. See § 24-68-104(1). In

short, Ordinance 2023-13 concerns only local zoning decisions and

does not interfere with a matter of statewide concern. See Baum,

90 P.3d at 850 n.6 (noting that the underlying matter is clearly one

of local concern because the issue in the case concerns only local

5 Because the legislative declaration is just one factor to consider in

the analysis of whether an underlying matter is one of local, mixed,
or statewide concern, see City of Northglenn v. Ibarra, 62 P.3d 151,
156 (Colo. 2003), we express no opinion on whether an underlying
matter establishing vested rights is a matter of statewide concern.

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zoning decisions and does not interfere with a matter of statewide

concern).

¶ 36 Finally, to the extent plaintiffs challenge Ordinance 2023-13

on constitutional due process grounds, any such challenge is

immaterial to whether the issue is a matter of local, mixed, or

statewide concern. See Trailer Haven MHP, LLC v. City of Aurora, 81

P.3d 1132, 1137 (Colo. App. 2003) (noting that zoning is a matter of

local concern in a case in which the plaintiff asserted that the

amended city code constituted a taking of property without just

compensation in violation of the Colorado Constitution). Whether

there is a due process challenge is not among the factors to

consider in analyzing whether an underlying matter is one of local,

mixed, or statewide concern. Indeed, the nature of the challenge to

an underlying matter of local concern does not transform it into a

matter of mixed or statewide concern. If it did, plaintiffs could

allege violations of the United States and/or Colorado Constitutions

in order to avoid municipal court jurisdiction in cases in which the

underlying matter was otherwise one of purely local concern. The

exception would swallow the rule.

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¶ 37 In sum, the district court lacked jurisdiction to hear plaintiffs’

case because the claims arose under the Municipal Code and

enacted ordinances, and the underlying matter was one of local

concern.

¶ 38 Further, because we conclude that Baum is dispositive of the

subject matter jurisdiction issue, and in light of the plaintiffs’

concession, we similarly conclude that the district court also lacked

subject matter jurisdiction in the case seeking review of the

Council’s approval of Ordinance 2022-10. Accordingly, we need not

reach the mootness issue and, instead, we affirm that dismissal as

well, albeit on different grounds than those relied on by the district

court. See Johnson v. Toohey, 2021 COA 43M, ¶ 7 (“We may affirm

the court on any grounds supported by the record.”).

IV. Disposition

¶ 39 The judgments are affirmed.

JUDGE DUNN and JUDGE MEIRINK concur.

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