Brown v. Chaffee County

24CA1593 Brown v Chaffee County 08-28-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1593
Chaffee County District Court No. 18CV30016
Honorable Amanda Hunter, Judge

Alison Brown,

Plaintiff-Appellee,

v.

Chaffee County Board of Review; Miles Cotton, in His Official Capacity as
Chaffee County Planning Manager; and Board of County Commissioners of
Chaffee County,

Defendants-Appellants.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE MEIRINK
Freyre and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 28, 2025

Cain & Skarnulis PLLC, Charles J. Cain, Matthew K. Hobbs, Bradley A.
Kloewer, Salida, Colorado, for Plaintiff-Appellee

Sullivan Green Seavy Jarvis LLC, Barbara J.B. Green, Jo Lauren Seavy,
Victoria L. Jarvis, Boulder, Colorado; Lynda J. Knowles, Deputy County
Attorney, Salida, Colorado for Defendants-Appellants
¶1 Chaffee County (the County)1 appeals the district court’s order

that the County abused its discretion under C.R.C.P. 106(a)(4) by

denying Alison Brown’s application for a Limited Impact Review

(LIR) permit to operate a dog kennel after construing Brown’s two

properties as one contiguous parcel and determining that Brown

failed to meet the applicable standards under the Chaffee County

Land Use Code (CCLUC). The County also appeals the district

court’s order granting Brown’s motion for summary judgment after

the court concluded that Brown did not engage in breeding

activities as part of the kennel’s operation and that there were no

disputed issues of material fact to resolve. We reverse both orders

and remand the case with directions.

I. Factual Background

¶2 Brown purchased her first property (Property A) in Chaffee

County in May 2014. She purchased the property “with the intent

of maintaining horses and foxhounds to use for foxhunting on

1 Although Chaffee County Board of Review; Jon Roorda, in His

Official Capacity as Chaffee County Planning Manager; and the
Board of County Commissioners of Chaffee County are nominally
distinct defendants, they are represented by the same counsel, filed
a single brief, and essentially stand as a unified party. Thus, we
will hereinafter refer to these parties collectively as the County.

1
public and private lands . . . [and] constructed agricultural

buildings to board and maintain horses and foxhounds on the

property.” Brown also formed a foxhunting club, which she

registered with the Masters of Foxhounds Association of America

(MFAA).

¶3 When Brown purchased Property A, the CCLUC’s definition of

a kennel focused on the purpose of having animals on a property:

[A kennel is] [a]n establishment other than a
pet shop or veterinary clinic or hospital, in
which dogs, cats and other animals are
boarded for compensation or are bred or raised
for sale purposes. Dogs used as part of an
agricultural activity are not included in this
definition.

¶4 In 2016, Brown submitted a building permit application to

construct a residence on Property A. As part of the application

process, Brown met with Chaffee County Planning Manager, Jon

Roorda,2 to discuss her application, her plans, and her intended

land use. Following their meetings, Brown sent Roorda a summary

of their discussions, a site plan, a description of current and

2 Jon Roorda no longer holds this position, but for the purposes of

this appeal, when we reference Roorda, we reference him in his
former capacity as the Chaffee County Planning Manager.

2
intended land use, and an explanation that the construction of the

structure on the property was related to her land use. In her

summary, Brown specified that the kennel was not used “for any

commercial purpose such as boarding or breeding dogs for sale.”

¶5 The County issued Brown’s building permit in November 2016.

In March 2017, Roorda sent Brown a letter indicating, in relevant

part, that she kept a “large number” of dogs for recreational use;

the MFAA and the Pet Animal Care and Facilities (PACFA)

acknowledged her as a small-scale breeder; and she was operating

a kennel under the CCLUC, which required her to apply for an LIR

permit. Roorda asked Brown to prepare and submit application

materials for an LIR permit to the Chaffee County Planning

Commission.3

¶6 In late May 2017, Brown appealed Roorda’s classification of

her land use as a kennel. She argued that, at the time, she had not

bred any foxhounds on the property, but she intended to breed

foxhounds for her personal use as her hounds aged and retired

3 Roorda sent Brown a second letter in May 2017, which included

the same information and urged Brown to submit an application for
an LIR.

3
from hunting. In response, the Planning Manager’s staff prepared a

report supporting Roorda’s classification of Brown’s land use as a

kennel. The County’s Board of Adjustment (BOA) ultimately

affirmed Roorda’s classification of Brown’s land use as a kennel in

June 2017.

¶7 In July 2017, Brown purchased another property (Property B),

which was adjacent to Property A. Shortly thereafter, Brown

changed her license category with PACFA from a small-scale

breeder to a pet sanctuary, with such a change prohibiting dog

breeding on her property.

¶8 Then, in November 2017, the CCLUC amended the definition

of a kennel. Rather than focusing on the purpose of having animals

on a property, the new definition focused on the number of dogs on

a property:

[A kennel is] [a]ny lot, parcel, or tract or
structure in which more than seven dogs, six
months old or older are bred, or are kept,
raised, trained, housed or boarded for longer
than two weeks. This definition shall not
apply to a properly permitted pet shops [sic] or
veterinary hospital.

¶9 Around the same time, Brown’s residence on Property A was

nearing construction, but the County denied her certificate of

4
occupancy based on her violations of the CCLUC for operating a

kennel without a permit.

¶ 10 Brown subsequently applied for a temporary camping permit

on Property A, which was denied. Brown also applied for a

temporary camping permit on Property B. The County also denied

this application after determining that Property A and Property B

were one “parcel” for purposes of the temporary camping permit

and the outstanding violations.

¶ 11 In February 2018, the Board of County Commissioners

(BOCC) notified Brown that her contiguous parcel violated the

CLUCC’s amended definition of a kennel, and that, pursuant to

Table 2.2 of the then-current CCLUC, she was required to obtain a

kennel permit following an LIR. In September 2018, Brown applied

for an LIR permit that would authorize her to kennel twenty-five

foxhounds. After reviewing the application and holding a public

hearing, the Planning Commission remained concerned that Brown

failed to address several impacts, including noise. The Planning

Commission thus denied the application. Brown appealed to the

BOCC. After reviewing the evidence and holding a public hearing in

5
May 2019, the BOCC agreed with the Planning Commission’s

decision to deny the permit.

II. Procedural History

¶ 12 The procedural posture of this case is complex. In 2017,

Brown first filed an appeal under C.R.C.P. 106(a)(4) of the BOA’s

classification of her land use as a kennel. While the case was

pending, the County amended the CCLUC’s definition of a kennel,

which rendered Brown’s appeal moot.

¶ 13 After the 2017 amendment, the County filed a motion for a

preliminary injunction to enjoin Brown’s land use under both

kennel definitions as well as the CCLUC’s definition of an outfitting

facility.4 The court ultimately issued an injunction pertaining to

outfitting, but it clarified that it did not address the constitutional

issues with the outfitting ordinance.

¶ 14 In 2018, Brown sought C.R.C.P. 106(a)(4) review of her

temporary camping permit application denials. The court granted

Brown’s motion and compelled the BOA’s administrative review.

4 Article 15 of the Chaffee County Land Use Code (CCLUC) defines

outfitting facilities as “[t]he improved structures and facilities
related to guiding services for outdoor expeditions, including
fishing, camping, biking, motorized recreation and similar.”

6
After its review, the BOA denied Brown’s appeal and upheld

Roorda’s interpretation of the amended definition of a kennel as

applying to contiguous, commonly owned real property. Brown

appealed this determination to the district court in 2019.

¶ 15 Brown was also denied a limited use permit under the

amended definition of kennel, which denial she appealed and for

which denial she sought declaratory relief under C.R.C.P. 57.

¶ 16 The district court consolidated the cases in April 2020. In

March 2023, the court entered its decision on Brown’s C.R.C.P.

106(a)(4) motion, holding that the BOA abused its discretion when

it determined that Brown’s properties were one parcel for the

purpose of applying the kennel regulation. The court further held

that the BOCC’s basis for denying Brown’s camping permit was

arbitrary and that the BOCC violated Colorado’s merger statute, §

30-28-139, C.R.S. 2025. The court also held that the County

abused its discretion when it denied Brown’s kennel permit for not

complying with CCLUC standards and for being inconsistent or

incompatible with agricultural land uses.

¶ 17 In August 2024, the district court entered its order on Brown’s

motion for summary judgment in the declaratory judgment

7
proceeding, concluding that Brown possessed more than seven dogs

prior to the November 2017 amendment of the CCLUC and that

Brown had a prior nonconforming use prohibiting the County from

enforcing its November 2017 kennel definition against Brown.

III. Analysis

¶ 18 On appeal, the County makes three arguments: (1) that the

district court improperly granted summary judgment on Brown’s

C.R.C.P. 57 declaratory judgment claim because C.R.C.P. 106(a)(4)

was Brown’s exclusive remedy, and, alternatively, there were

outstanding issues of material fact yet to be resolved; (2) that the

BOA’s interpretation of the term “parcel” was reasonable as applied

to the CCLUC’s definition of a kennel; and (3) that there was

sufficient evidence supporting the BOCC’s decision to deny Brown’s

LIR permit to operate a dog kennel.

¶ 19 Issue one pertains to Brown’s claim for declaratory judgment

under C.R.C.P. 57. Issues two and three pertain to the district

court’s order finding that the decision to deny Brown’s LIR permit

was arbitrary and capricious under C.R.C.P. 106(a)(4). We address

each argument in turn.

8
A. Brown’s Claims Were Cognizable Under
C.R.C.P. 106(a)(4) and C.R.C.P. 57

¶ 20 The County argues that the district court erred by granting

summary judgment on Brown’s motion for declaratory judgment

under C.R.C.P. 57 because C.R.C.P. 106(a)(4) was her exclusive

remedy for a quasi-judicial review. We disagree. Brown was free to

initiate a proceeding under C.R.C.P. 106(a)(4) or C.R.C.P. 57, as

they each have distinct functions.

¶ 21 The purpose of a C.R.C.P. 106(a)(4) motion is to ensure that an

administrative body exercising a judicial or quasi-judicial function

— like a town board or commission — has not exceeded its

jurisdiction or abused its discretion by misapplying existing laws to

regulations or specific situations. C.R.C.P. 106(a)(4); see Friends of

the Black Forest Pres. Plan, Inc. v. Bd. of Cnty. Comm’rs, 2016 COA

54, ¶ 12; Fire House Car Wash, Inc. v. Bd. of Adjustment for Zoning

Appeals, 30 P.3d 762, 766 (Colo. App. 2001).

¶ 22 In contrast, C.R.C.P. 57 allows courts to declare rights, status,

and other legal relations, and is applicable to legislative actions

such as municipal ordinances. C.R.C.P. 57(b). Unlike C.R.C.P.

106(a)(4), which is interpreted narrowly, Brown v. Walker Com., Inc.,

9
2022 CO 57, ¶ 1, C.R.C.P. 57 is remedial and should be liberally

construed to settle and afford relief from uncertainty and insecurity

with respect to legal rights. Freed v. Bonfire Ent. LLC, 2024 COA

65, ¶ 11. Although C.R.C.P. 106(a)(4) is the sole remedy for review

of a quasi-judicial action, a party may request a declaratory

judgment of the same matter if, “in the context of a particular

controversy, the remedy afforded by [the C.R.C.P. 106(a)(4)] review

would be inadequate.” Collopy v. Wildlife Comm’n, 625 P.2d 994,

1004 (Colo. 1981).

¶ 23 Here, Brown sought two distinct remedies. First, Brown

sought judicial review under C.R.C.P. 106(a)(4) to determine

whether the BOCC exceeded its authority or abused its discretion

by denying her LIR permit. The district court concluded that the

County abused its discretion when it (1) considered Brown’s

properties as one parcel instead of two in violation of Colorado’s

merger statute, § 30-28-139, and (2) determined that Brown’s

kennel was incompatible with the CCLUC’s standards for

agricultural land uses.

¶ 24 Second, after the County amended the CCLUC’s definition of a

kennel, Brown filed a declaratory action for prospective relief under

10
C.R.C.P. 57 to determine whether the County could enforce the

CCLUC’s amended definition of kennel against her when — as

Brown contends — her kennel was a pre-existing, nonconforming

land use under the CCLUC’s prior definition of a kennel. In the

alternative, Brown argued, even if the County could enforce the

amended definition against her, her kennel was not subject to the

amended definition.

¶ 25 Given the distinct relief Brown sought under C.R.C.P. 106(a)(4)

and C.R.C.P. 57 and each proceeding’s unique function, we

conclude that both were proper. Accordingly, the district court was

correct to entertain an action for judicial review under C.R.C.P.

106(a)(4) and one for declaratory judgment under C.R.C.P. 57.

B. The District Court Erred by Granting Summary Judgment in
the C.R.C.P. 57 Proceeding

¶ 26 The County contends — and we agree — that there are

genuine issues of material fact that preclude entry of summary

judgment in Brown’s favor on the issue of whether she had a pre-

existing, lawful nonconforming use of her property.

11
1. Standard of Review and Applicable Law

¶ 27 We review the district court’s summary judgment ruling on a

declaratory judgment claim under C.R.C.P. 57 de novo. Ragan v.

Ragan, 2021 COA 75, ¶ 14. Because we apply the same standard

as the district court in our review, we must “determine whether a

genuine issue of material fact existed and whether the district court

correctly applied the law.” City of Fort Collins v. Colo. Oil & Gas

Ass’n, 2016 CO 28, ¶ 9. Summary judgment is a drastic remedy

that should be granted only when it is clear that the applicable

standards have been met. Poudre Sch. Dist. R-1 v. Stanczyk, 2021

CO 57, ¶ 12. C.R.C.P. 56(c) allows courts to consider pleadings,

depositions, answers to interrogatories, admissions, and affidavits

when determining whether a genuine issue of material fact exists.

¶ 28 Section 38-1-101(3), C.R.S. 2025, prohibits local governments

from enacting or enforcing ordinances, resolutions, or regulations

that require a nonconforming property use, lawful at the time of its

inception, to be terminated or eliminated by amortization. Section

12
15 of the CCLUC5 defines a nonconforming use as a “use of land

legally existing at the time of enactment of this land use code or

lawful amendments to this Code and which does not conform to the

regulations of the zoning district in which it is situated or used.”

¶ 29 As previously mentioned, the CCLUC’s 2014 definition of a

kennel did not specify the number of dogs allowed on a parcel. It

simply defined a kennel as “[a]n establishment other than a pet

shop or veterinary clinic or hospital, in which dogs, cats and other

animals are boarded for compensation or are bred or raised for sale

purposes.”

2. Discussion

¶ 30 The County argues that summary judgment was inappropriate

because it was unclear (1) whether Brown had engaged in breeding

activities that violated the former CCLUC definition of a kennel and

(2) whether Brown’s kennel operation was an existing legal land use

under the CCLUC’s prior definition of a kennel. We agree with the

5 Except as otherwise stated, all references to the Chaffee County

Land Use Code (CCLUC) herein are to the CCLUC version in effect
on and before May 7, 2019, the date of the final BOCC denial of
Brown’s permit applications.

13
County that both factual issues were never resolved and that the

district court erred by granting summary judgment.

¶ 31 In her motion for summary judgment, Brown highlighted that

the 2014 definition of kennel did not hinge on the number of dogs,

but instead on whether dogs were boarded for compensation or

bred or raised for sale purposes. While Brown asserted that she did

not engage in breeding activities on her properties, the County

concluded that Brown violated the CCLUC’s definition of a kennel

based on the acknowledgment from the MFAA designating Brown as

a “breeder of foxhounds” and a letter from Brown’s attorney stating

that Brown “breeds, raises, and trains hounds on her property.”

¶ 32 Based on the parties’ conflicting claims regarding Brown’s

breeding practices, there is a genuine dispute of material fact

regarding whether Brown was breeding foxhounds in violation of

the CCLUC’s 2014 definition of a kennel.

¶ 33 Breeding issue aside, the central concern is whether Brown’s

kennel operation was lawful under the CCLUC’s 2014 kennel

definition. To trigger protections under section 38-1-101 and

CCLUC section 4.2, Brown had to establish that her kennel

operation was lawful before the 2017 amendment of the CCLUC.

14
See Giuliani v. Jefferson Cnty. Bd. of Cnty. Comm’rs, 2012 COA 190

¶ 23 (“[Section 38-1-101(3)] protects only nonconforming uses that

were lawful at the inception or enforcement of a local government’s

ordinance or regulation.”); Anderson v. Bd. of Adjustment for Zoning

Appeals, 931 P.2d 517, 519 (Colo. App. 1996).

¶ 34 This issue was never resolved. As evidenced in a hearing

before the BOA, the County and Brown disagreed over whether her

land use was lawful under the 2014 definition of a kennel:

And then in terms of ex post facto, it, it has to
be a legal use at the time for — so to be
grandfathered or, or for this particular — for it
to be an illegal sort of change [to] the position
— for a Government to change a position of
somebody’s use of their land, their use of land
had to have been previously legal. And[] so the
County and Dr. Brown disagree over the
legality of the prior use.

....

This Board took the position a few years ago
that . . . there was a, a violation of the
requirement to obtain a Kennel Permit under
the old definition. . . . So, the County is taking
a position that her prior land use was . . . not
. . . in conformance with the [CCLUC].

It remains disputed whether Brown had an existing legal land use.

15
¶ 35 The parties’ disagreements over whether Brown bred

foxhounds on her property in violation of the 2014 CCLUC and the

County’s position that Brown did not possess a lawful

nonconforming use both present genuine issues of material fact.

Accordingly, the district court erred by granting Brown’s request for

summary judgment.

C. The District Court Erred by Granting Brown’s C.R.C.P.
106(a)(4) Motion

¶ 36 The County contends that the district court erred by reversing

the County’s decision to deny Brown’s LIR permit for two reasons.

First, the County asserts that the BOA’s interpretation of the term

“parcel” in the context of the CCLUC’s definition of a kennel was

reasonable. Second, the County argues that the district court

ignored evidence that Brown failed to meet and comply with the

CCLUC’s standards and restrictions for agricultural use. We agree

with both contentions.

1. Standard of Review and Applicable Law

¶ 37 In an appeal of a C.R.C.P. 106(a)(4) proceeding, the appellate

court is in the same position as the district court concerning review

of an administrative board’s decision. Ad Two, Inc. v. City & County

16
of Denver, 9 P.3d 373, 376 (Colo. 2000); Sierra Club v. Billingsley,

166 P.3d 309, 311 (Colo. App. 2007). Our review is limited to

deciding whether the governmental body’s decision was an abuse of

discretion, based on the evidence in the record before it, or was

made in excess of its jurisdiction. C.R.C.P. 106(a)(4)(I); Whitelaw v.

Denv. City Council, 2017 COA 47, ¶ 7.

¶ 38 In conducting our review, we apply a deferential standard, and

“we may not disturb the governmental body’s decision absent a

clear abuse of discretion.” Langer v. Bd. of Comm’rs, 2020 CO 31,

¶ 13. “A governmental entity abuses its discretion only when it

applies an erroneous legal standard or when no competent evidence

in the record supports its ultimate decision.” Id. We will only reach

this conclusion if the decision was “so devoid of evidentiary

support” that the decision was arbitrary and capricious. Freedom

Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dep’t, 196 P.3d 892, 900

(Colo. 2008).

¶ 39 Land use codes and ordinances “are subject to the general

canons of statutory interpretation.” Shupe v. Boulder County, 230

P.3d 1269, 1272 (Colo. App. 2010) (quoting City of Colorado Springs

v. Securcare Self Storage, Inc., 10 P.3d 1244, 1248-49 (Colo. 2000)).

17
When construing a land use code, we first look to the plain

language, being mindful of the principle that we presume that the

governing body enacting the code meant what it clearly said.

Shupe, 230 P.3d at 1272. If the code’s language is ambiguous, “we

give deference to the board’s interpretation of the code it is charged

with enforcing, and its interpretation will stand if it has a

reasonable basis in law and is warranted by the record.” Id.

However, if the board’s interpretation is inconsistent with the

relevant governing articles, then that interpretation is not entitled to

deference. Id.

2. Discussion

¶ 40 In her C.R.C.P. 106(a)(4) action, Brown argued that the

County abused its discretion by construing the terms “lot, parcel or

tract,” as used in the CCLUC’s amended definition of a kennel, as

one contiguous property as opposed to two distinct lots. We

disagree.

a. The County’s Interpretation of “Lot, Parcel or Tract” Was
Reasonable

¶ 41 Before the County amended the CCLUC definition of a kennel

in 2017, Brown maintained more than seven foxhounds on Property

18
A, which she claims was legal under the prior definition. Brown

argues that the amendment was intended to target her kennel

operation by limiting the number of dogs she could have. Brown

contends that the County abused its discretion by combining her

properties into one singular parcel to fit the CCLUC’s amended

definition of a kennel’s description of “[a]ny lot, parcel, or tract,”

rather than counting her properties separately. Brown asserts that

by merging her properties to fit the amended definition of a kennel,

the County arbitrarily and capriciously reduced the number of dogs

she could have on her properties (without obtaining an LIR permit)

from fourteen to seven. She also claims that combining her

properties violated her due process rights under the merger statute,

§ 30-28-139(1), which sets forth the notification and consent

process the County must follow when merging “two or more parcels

of land for the purpose of eliminating interior lot lines, obsolete

subdivisions, or otherwise.”

¶ 42 The County interpreted “lot, parcel, or tract” to mean the

contiguous tract of land under common ownership rather than

focusing on lot lines and boundaries attached to two separate legal

tracts. The County claims its interpretation tracks the ordinary

19
meaning of the terms, and, to the extent the terms are ambiguous,

its interpretation was reasonable.

¶ 43 Though the terms “parcel,” “lot,” and “tract” are used

throughout the CCLUC, they are not specifically defined in the

CCLUC. Turning to their ordinary meanings, a parcel is defined, in

relevant part, as “a tract or plot of land.” Merriam-Webster

Dictionary, https://perma.cc/68ZZ-6M5G. A lot is defined both as

“a portion of land” and “a measured parcel of land having fixed

boundaries and designated on a plot or survey.” Merriam-Webster

Dictionary, https://perma.cc/WRC6-RR6Z. A tract is defined as

“an infinite stretch of land” or “a defined area of land.” Merriam-

Webster Dictionary, https://perma.cc/G39N-H5X7.

¶ 44 Giving “parcel, lot, and tract” their ordinary meanings,

Brown’s interpretation of Property A and Property B as two

properties having distinct boundaries or defined areas of land is

logical and reasonable. Likewise, the County’s interpretation of

both properties as a single plot of land, portion of land, or infinite

stretch of land under common ownership is also rational and

reasonable. Because the terms are susceptible to more than one

interpretation, we look to extraneous evidence and give deference to

20
how the County interprets the code it is responsible for enforcing.

See Shupe, 230 P.3d at 1272.

¶ 45 As evidenced in the hearing transcripts, the BOA discussed at

length what parcel meant in the context of the CCLUC in general

and with respect to the CCLUC’s definition of a kennel. The BOA

acknowledged that parcel could refer to a distinct lot, but it

maintained that, in many instances, “adjacent lots are treated as a

unified, though not merged, property.” In these instances, the

County focused on either common ownership of properties or the

concept that the impacts of the proposed use could not be

contained within lot lines. The BOA used the example of a special

event to illustrate. Even though the special event might occur on

multiple adjoining properties, for purposes of issuing a permit, the

County would treat the land as one parcel — not multiple properties

— because the impacts of the event, i.e., traffic, safety, noise, and

creation of waste, could not be contained to one property but would

spread to all the adjoining properties regardless of lot lines or

boundaries. Similarly, if multiple properties were owned by the

same person or entity, the County treated the properties as one

parcel when it applied the rubbish, debris, and weed provisions of

21
the CCLUC because having “junk on a property ha[s] . . . the

potential to have negative effects on adjoining property” regardless

of property lines.

¶ 46 The BOA’s interpretation of a parcel as “contiguous properties

having common ownership or control such as those owned by

[Brown]” was reasonable and consistent with these other examples

the BOA cited wherein it interpreted parcel to mean land under

common ownership. By interpreting parcel in this manner, the

BOA ensured that Brown would be responsible for mitigating

adverse impacts from noise, waste, traffic, and safety that could not

be contained within the lot lines of Property A and Property B.

¶ 47 The BOA also looked to other counties for guidance, including

Pueblo County and Lake County, because their land use codes are

similar to the CCLUC. At a hearing, Roorda testified that the

Pueblo County Planning and Development Department “would have

interpreted contiguous properties under a common ownership in

the same manner that [he] did in their interpretation of their

definition of a kennel.” While some counties may have interpreted

parcel differently, similar and neighboring counties interpreted

parcel the same way as Chaffee County, and thus the BOA

22
recognized: “[O]ur interpretation is reasonable. It’s not out of

bounds of what is traditionally accepted by other counties.”

¶ 48 As required by the case law, we give deference to the BOA’s

interpretation of the CCLUC and conclude that it properly

construed Brown’s properties as one parcel when it applied the

CCLUC’s definition of a kennel.

¶ 49 Brown also asserts that the County’s interpretation of the

word parcel was contrary to section 30-28-139(1), which sets forth

a formal process a county must follow when a “county ordinance,

regulation, or resolution provides for the merger of two or more

parcels of land for the purpose of eliminating interior lot lines,

obsolete subdivisions, or otherwise.” As one commissioner

explained during a hearing,

[T]he [m]erger [s]tatute deals with what is
essentially a lot line combination. . . . [I]t
results in two separate parcels being legally
treated as one parcel. . . . The County isn’t
attempting to do that. The County still is
treating those two parcels or properties as
separate lots for purposes of being able to sell.
It’s only being treated as a single parcel or
tract for purposes of applying the definition of
kennel.

....

23
[H]istorically[,] there were times before that
Statute came into effect that counties were
trying to legally combine lots into one lot. And
the law that was — is being cited was an
attempt to sort of curb that so that a
government wouldn’t — couldn’t do that
without consent of the property owners.

The statute requires consent from the property owners because

merging two separate properties results in the creation of one legal

property. § 30-28-139(2)(a). It further requires counties to file a

record with the county clerk and recorder and to assess the merged

parcels as one parcel of real property for purposes of levying and

collecting property tax. See § 30-28-139(3).

¶ 50 The merger statute does not apply because Brown’s properties

were not legally merged. Instead, Brown’s properties were being

treated as a unified parcel for the purpose of considering the

adverse effects of Brown’s proposed kennel and to ensure she

mitigated any negative effects consistent with the CCLUC’s LIR

process. Further, the BOA was clear in its notice of decision that

Brown’s properties remained separate legal lots.

24
b. The BOCC’s Decision to Deny Brown’s LIR Permit Was
Appropriate Because Brown Failed to Comply with the
CCLUC’s Requirements

¶ 51 Under the CCLUC, any kennel operating in a rural zone must

have an LIR permit. The CCLUC defines an LIR as

[a] shortened land use change permit
application and review process, described in
Article 4, Section 4.2.2. of [the CCLUC],[6] by
which the Planning Commission approve
permits for uses being allowed on the basis of
their limited impact with regard to
compatibility with the site and surrounding
land and uses, and the adequacy of required
services.

“The burden of proof is on the applicant to demonstrate that the

proposed land use change satisfies the applicable standards.”

CCLUC § 1.3.5.B.3.c. The applicant must submit a narrative,

vicinity map, site plan, impact analysis, and suitability analysis, as

well as a traffic study. Id. § 4.2.3.A.1. The CCLUC defines the

impact analysis, section 4.6.2.E, as follows:

The Impact Analysis shall provide a
description of the impacts that the proposed
land use change may cause, based upon the

6 Article 4 sets forth the administrative process for reviewing a land-

use change application. Once the application is submitted, the staff
evaluates and reviews the application, then the Planning
Commission holds a public hearing and makes a decision, which
may be appealed to the BOCC. CCLUC § 4.1.1.

25
standards that the proposed use must satisfy.
The Impact Analysis shall include a complete
description of how the applicant will ensure
that impacts will be mitigated and standards
will be satisfied. The analysis shall consider at
a minimum the potential impacts to nearby
properties resulting from the project, including
but not limited to: safety, water pollution,
noise, vibration, smoke, dust, odor, heat, glare;
wildfire, flood, or geologic hazard; and visual
impact; and propose mitigations to minimize
such impacts.

Further, an applicant seeking to operate a kennel must

demonstrate compliance with Article 2 and Article 7.

¶ 52 Article 2 of the CCLUC discusses the County’s zoning district

and use regulations. Applicable here are the rural zoning

requirements, which are intended “to allow agricultural uses of any

kind and to promote development that enhances the agrarian and

rural character of the County.” Id. § 2.2.3.A. Any development

within the rural zone district “should maintain agricultural

resources; . . . protect wildlife habitat and corridors; . . . and allow

for the continuance of the rural lifestyle.” Id. CCLUC section

2.2.3.C states, “New non-residential uses in the Rural zone may be

required to restrict operating hours, develop landscaping, increase

setbacks, or similar mitigation in order to minimize potential

26
impacts on nearby residential uses and to meet the intent and

purpose of the Rural zone.”

¶ 53 Article 7 of the CCLUC discusses basic preservation standards

for all land use permits and requires the proposed land use change

to consider the natural environment and mitigate environmental

impacts. CCLUC section 7.8.17 provides the County’s specific

standards for kennels and includes a requirement that all kennels

“prevent any sounds in excess of the maximum permissible noise

levels for residential zone districts, set forth in C.R.S. 25-12-103 as

amended.” Id. § 7.8.17.A. In addition to noise restrictions, kennels

must have an adequate waste disposal system, id. § 7.8.17.B.1; and

measures in place to protect health and safety and to minimize

“vermin infestation, odors, disease hazards and nuisances.” Id. §

7.8.17.B.2.

¶ 54 Brown applied for an LIR permit to maintain a kennel to

“raise, train, and keep twenty-five (25) hound dogs on her Property

in five (5) fenced-in kennel areas and a fenced dog park located

adjacent to the dog kennels[,] which is used for exercising, training

and giving the dogs playtime in a controlled area.” Brown

represented the following in her application:

27
(1) Sound/noise abatement and mitigation efforts were done

prior to the application by the placement of the kennel

facilities and other structures.

(2) No additional sound/noise mitigation was proposed in

the current application on Brown’s property for the

kennel facilities.

(3) The kennels and fencing were not constructed with any

sound/noise barriers or materials.

(4) It is not an option to kennel the hound dogs in indoor

kennel facilities.

(5) It is not an option to kennel or limit the hound dogs’

outdoor access at night.

(6) The hound dogs made the most noise/sound during

times of feeding and exercising.

(7) There are no set hours for exercising the hound dogs.

¶ 55 Several neighboring property owners made nuisance

complaints about the noise coming from Brown’s dogs and noticed

changes in wildlife behavior and patterns after Brown started using

her property as a kennel. Community members submitted a sound

monitoring report to the BOCC, which noted “several events” that

28
exceeded the sound limits on multiple occasions. Brown submitted

her own report indicating that sound levels never exceeded the

sound limits. The County considered both reports.

¶ 56 The County Planning Commission held three public hearings.

After these hearings, the County Planning Commission voted 6-0 to

deny Brown’s LIR application for the following reasons:

(1) Brown failed to show or propose any sound/noise

mitigation to minimize the impacts of the kennel facilities

to nearby properties as required by CCLUC §§ 4.6.2 and

7.8.17.A.

(2) The proposed kennel facilities are inconsistent with the

historical and current uses of the nearby properties and

would not enhance the agrarian and rural character of

the County as contemplated by CCLUC § 2.2.3.

(3) Brown failed to show or propose any sound/noise

mitigation or buffering to mitigate impacts the kennel

facilities would have on wildlife habitat areas, such as

several nearby properties that have perpetual wildlife

conservation easements as contemplated by CCLUC §

7.1.6.

29
¶ 57 Brown appealed the Planning Commission’s decision to the

BOCC, which held another public hearing. Brown testified as to

her sound/noise abatement efforts, the noise measurement report

she commissioned, the credibility of her neighbors’ noise

complaints, and the impact of the proposed kennel on neighboring

properties and wildlife. The BOCC also heard testimony from

others regarding the kennel’s impact on noise, lack of mitigating

sound barriers, depreciation of land values, adverse impact on

wildlife, the veracity of Brown’s noise measurement report, and that

the kennel was not consistent with the historical use of the

neighborhood. The testimony further described Brown’s reluctance

to address her neighbors’ concerns. For instance, multiple

neighbors complained about “near constant barking” and the

inadequacy of Brown’s noise mitigation measures. However, Brown

rejected the sound and noise mitigation suggestions provided by the

BOCC and claimed that they were unacceptable for her foxhounds.

¶ 58 At the hearing, the BOCC discussed how the CCLUC was

developed “in a general way that encourages or produces

compatibility” throughout the community and “allows for the

continuance of the rural lifestyle.” Specifically, a new

30
nonresidential use may be required to engage in mitigation to

minimize potential impacts on nearby residential uses to meet the

intent and purpose of the rural zone. The BOCC noted that while

the kennel’s noise and sound propagation were within acceptable

limits, the noise remained a high concern for many neighbors who

predated the kennel.

¶ 59 Before issuing its decision, the BOCC held a final meeting.

During the meeting, the BOCC noted that the proposed facilities

were not compatible with the historical and current uses of the

nearby properties, and that the proposed kennel would not enhance

or promote the agrarian or rural character of the County as

contemplated by CCLUC section 2.2.3. The BOCC also expressed

concern that Brown did not address, show, or propose adequate

noise mitigation to minimize the impact of the proposed kennel

facilities.

¶ 60 In a 3-0 vote, the BOCC denied Brown’s application for an LIR

permit and issued Resolution 2019-42. The BOCC determined that

Brown failed to meet CCLUC section 2.2.3.C and section 7.2.3

standards to “minimize potential impacts on nearby residential

uses,” to “not result in a significant adverse impact to adjacent

31
land,” and to “be compatible with adjacent land uses.” The BOCC

also concluded that the application did not have a section 4.6.2

impact analysis that demonstrated that adverse noise impacts had

been addressed.

¶ 61 Unless there is no competent evidence in the record to support

it, we are required to uphold a governmental body’s decision in a

C.R.C.P. 106(a)(4) action. Bd. of Cnty. Comm’rs v. O’Dell, 920 P.2d

48, 50 (Colo. 1996). Here, the BOCC carefully considered Brown’s

application, analyzed it under the CCLUC’s standards, held

multiple public hearings, heard from Brown and community

members — who both supported and opposed the kennel — and

considered two studies conducted on Brown’s sound levels. The

BOCC’s decision is not “so devoid of evidentiary support that it can

only be explained as an arbitrary and capricious exercise of

authority.” Id. (quoting Ross v. Fire and Police Pension Ass’n, 713

P.2d 1304, 1309 (Colo.1986)). Instead, the record supports the

County’s decision to deny Brown’s LIR permit application based on

its conclusion that Brown failed to comply with the CCLUC’s LIR

permitting standards. Accordingly, the district court erred by

32
holding that the County abused its discretion when it denied

Brown’s permit.

D. Appellate Attorney Fees

¶ 62 Brown requests an award of appellate attorney fees and costs

under C.A.R. 38(b), which permits an award of attorney fees on

appeal if we determine that an appeal is frivolous. Glover v.

Serratoga Falls LLC, 2021 CO 77, ¶ 70.

¶ 63 We decline Brown’s request. She provides no argument

supporting her claim for attorney fees under C.A.R. 38(b), and the

claims pursued by the County on appeal were not frivolous.

IV. Disposition

¶ 64 We reverse the district court’s orders granting Brown’s

C.R.C.P. 106(a)(4) motion and granting Brown summary judgment

in the C.R.C.P. 57 proceeding. We remand the case with

instructions to (1) reinstate the final decisions of the BOCC and the

BOA with respect to the C.R.C.P. 106(a)(4) proceeding, and (2)

resume the C.R.C.P. 57 action, the outcome of which may be

dispositive of the C.R.C.P. 106(a)(4) proceeding.

JUDGE FREYRE and JUDGE GOMEZ concur.

33