2800 v. Residences

24CA1162 2800 v Residences 09-04-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1162
City and County of Denver District Court No. 23CV31396
Honorable David H. Goldberg, Judge

2800 E. 2nd Avenue #304, a Colorado limited liability company,

Plaintiff-Appellant,

v.

The Residences at Northcreek Association, a Colorado nonprofit corporation,

Defendant-Appellee.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE SCHUTZ
Fox and Harris, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 4, 2025

Sweetbaum Miller PC, Alan D. Sweetbaum, Andrew S. Miller, Ryan Hull,
Denver, Colorado, for Plaintiff-Appellant

Hall & Evans, LLC, Valerie Garcia, Heather A. Thomas, Denver, Colorado, for
Defendant-Appellee
¶1 This appeal arises from a dispute between 2800 E. 2nd

Avenue #304, LLC (Owner) and The Residences at Northcreek

Association (the Association) over a proposed project to enclose an

outdoor rooftop patio. The Association approved the proposed

improvements subject to conditions. Owner filed suit challenging

the conditions.

¶2 Owner moved for summary judgment, and the Association

moved for the determination of a question of law central to the case.

The court denied Owner’s motion, granted the Association’s motion,

and entered judgment in the Association’s favor on all claims.

Owner appeals. We affirm and remand with directions.

I. Background

¶3 The Residences at Northcreek (Residences) is a luxury

condominium development located in the Cherry Creek North area

of Denver. The Residences was formed in 2007 as a common

interest ownership community and is subject to a “Declaration of

Covenants, Conditions and Restrictions” and the “Master

Declarations of Covenants, Conditions and Restrictions for

Northcreek” (collectively, the Declaration). The Residences’

formative documents also include a condominium map, which

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describes and illustrates its units, common elements, and limited

common elements. The condominium map also identifies the

“location . . . of the horizontal boundaries of each unit” and “[t]he

approximate location and dimensions of limited common elements,

including porches, balconies, and patios.” § 38-33.3-209(2)(g),

(2)(j), C.R.S. 2025 (describing the map requirements for a common

interest ownership community).

¶4 The Residences is subject to the Colorado Common Interest

Ownership Act (CCIOA). See §§ 38-33.3-101 to -401, C.R.S 2025.

The Association is responsible for the management of the

Residences. Proposed improvements at the Residences must be

approved by the Association’s Design Review Board.

¶5 In 2021, Owner purchased Unit 304, which is located on the

top floor of the Residences and includes an enclosed elevator and

stairway (shared with Unit 303) that provides access to the

Association’s enclosed mechanical closet and two unenclosed

rooftop patios, one for Unit 303 and the other for Unit 304. The

following are floorplans of the third floor (left image) and rooftop

(right image) from the condominium map setting forth the

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horizontal and vertical boundaries of Unit 304, the limited common

elements, and some general common elements:

¶6 The rooftop patio above Unit 304 is a limited common element

for Unit 304’s exclusive use, subject to an easement in favor of the

Association to access the entirety of the rooftop for repair and

maintenance of the mechanical and utility elements located there.

¶7 On August 10, 2022, Owner applied to make improvements to

the rooftop patio. Specially, Owner sought approval to build out

and enclose most of the rooftop patio with exterior walls and a roof

and interior finishes that included an office, library, kitchenette,

and bathroom. The estimated cost of the proposed improvements

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was $4.4 million. In the application, Owner did not expressly seek

to alter the boundaries of Unit 304. To the contrary, Owner argued

that the proposed improvements did not change the boundaries of

Unit 304 in any manner and that the enclosed portion of the rooftop

patio would remain a limited common element for Owner’s exclusive

use subject only to the Association’s utility easement.

¶8 Two weeks after submitting the application, Owner contacted

the Association to follow up on its status. The Association informed

Owner that it had sent the application to the Design Review Board

for further consideration. Over the following months, the Design

Review Board evaluated the application and requested additional

information to assist in its review, which Owner provided.

¶9 In March 2023, after several communications and exchanges

of information with Owner, the Design Review Board conditionally

approved the application. The conditional approval required the

Owner to obtain a conveyance from the Association of the limited

common element and approval of the transfer from 67% of the

Association’s members and 50% of the entities holding first

mortgages on all units in accordance with section 17.3(c) of the

Declaration (requiring consent from 50% of the first mortgagees to

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any change in a unit boundary) and section 38-33.3-312(1), C.R.S.

2025 (requiring consent from 67% of unit owners for the

Association’s transfer of common elements).

¶ 10 Owner objected to the approval conditions, and when the

dispute could not be resolved, it initiated this lawsuit. Owner

brought claims against the Association for declaratory relief, breach

of contract, and breach of the Declaration’s implied covenant of

good faith and fair dealing. Owner requested the court to find that

(1) the application must be “deemed approved” because the Design

Review Board did not approve or deny the application within thirty

days from its submittal; (2) the Association had waived any right to

treat the proposed improvements as a change in the boundaries of

Unit 304 and the limited common element; and (3) the proposed

addition did not modify the boundaries of Unit 304 or necessitate a

transfer of the limited common element.

¶ 11 Owner filed a motion for partial summary judgment, and the

Association filed a motion for the determination of a question of law

regarding whether the proposed improvements would change the

boundaries of Unit 304, thereby triggering the voting conditions

5
imposed by the Association. The district court granted the

Association’s motion and denied Owner’s motion.

¶ 12 As relevant on appeal, the court rejected Owner’s argument

that the Association had implicitly approved the application by

failing to take definitive action within thirty days. The court also

concluded that Owner’s contemplated enclosure of the rooftop

patio, and associated improvements, converted the rooftop patio

from a limited common element for the exclusive use of Unit 304

into part of Unit 304. The court also decided that the changes to

Unit 304’s boundaries required a conveyance of the limited common

element to Owner from the Association; such a conveyance, in turn,

required approval by 67% of the other unit owners and 50% of the

first mortgagees. Alternatively, the court concluded that, even if the

improvements did not effectuate a change in the boundaries of Unit

304 or the ownership of the limited common element, the Design

Review Board acted within its reasonable discretion by imposing the

conveyance and voting requirements.

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¶ 13 Owner now appeals these portions of the district court’s

judgment,1 along with its determination that the Association was

the prevailing party in the litigation and therefore entitled to an

award of its costs and attorney fees.

II. Analysis

¶ 14 We begin by setting forth the standard of review and

applicable law. We then address the parties’ arguments regarding

the implied approval issues. Finally, we turn to the court’s

conclusions that the improvements amounted to a modification of

Unit 304’s and the limited common element’s boundaries, thus

triggering the transfer and approval conditions, and its related

conclusion that the imposed conditions were reasonable.

A. Standard of Review and Applicable Law

¶ 15 C.R.C.P. 56(h) permits a party to move for determination of a

question of law, and the district court may decide the question if

“there is no genuine issue of any material fact necessary for [its]

determination.” Mitton v. Danimaxx of Colo., Inc., 2023 COA 18, ¶ 9

(quoting C.R.C.P. 56(h)). “Under C.R.C.P. 56(c), a party may move

1 Owner does not appeal the district court’s rejection of its waiver

argument, so we do not address that issue further.

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for, and a court may enter, summary judgment if there is no

genuine issue as to any material fact and the moving party is

entitled to a judgment as a matter of law.” Mitton, ¶ 9. “We review

orders under both rules de novo, applying the same standards as

the district court.” Id. (first citing Bill Barrett Corp. v. Lembke, 2020

CO 73, ¶ 11; and then citing In re Estate of Davies, 2022 COA 90,

¶ 11). When applying the undisputed facts, we draw all reasonable

inferences therefrom in favor of the nonmoving party. Timm v.

Reitz, 39 P.3d 1252, 1255 (Colo. App. 2001).

¶ 16 Homeowners’ association (HOA) by-laws and declarations are

contracts. Briargate at Seventeenth Ave. Owners Ass’n v. Nelson,

2021 COA 78M, ¶ 54; see also Swan Creek Vill. Homeowners v.

Warne, 2006 UT 22, ¶ 50 (“[T]he Declaration constitutes a contract

between the HOA and its members and . . . a recorded Declaration

imparts notice of its contractual terms to all who acquire property

subject to it.”).

¶ 17 We review a district court’s interpretation of a contract de

novo, but we defer to the court’s factual findings unless they are

clearly erroneous. French v. Centura Health Corp., 2022 CO 20,

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¶ 24. When interpreting a contract provision, our primary goal is to

give effect to the parties’ intent. Id. ¶ 25.

B. Deemed Approved Claim

¶ 18 Owner argues that the Association “was required to make a

final determination on any design review application ‘no later than

30 days’ after receipt of the completed application.” Because the

Association did not respond within thirty days, Owner’s argument

continues, the Association’s approval must be deemed granted. The

Association contends that Owner’s position misapprehends the

controlling provision of the Declarations and the undisputed facts.

The district court agreed with the Association’s argument. We

discern no error in that ruling.

¶ 19 Section 10.5 of the Declaration articulates the design review

process, with a subsection describing the timing of design review

decisions. The subsection reads, in relevant part, as follows:

The Design [Review Board] shall make a
determination on each application after receipt
of a completed application with all required
information. The Design [Review Board] may
permit or require that an application be
submitted or considered in stages, in which
case a final decision shall not be required until
after the final, required submission. . . . The
Design [Review Board] shall notify the

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Applicant in writing of the final determination
on any application no later than 30 days after
its receipt of a completed application and all
required submissions. . . .

If the Design [Review Board] fails to respond to
an application within [30 days], approval shall
be deemed given.

¶ 20 The Declaration clearly states that the Board may receive an

application in stages and that it will “make a determination . . .

after receipt of a completed application.” Moreover, contrary to

Owner’s contention, the Declaration does not require approval of

the application within thirty days of its original submission, but

rather, within thirty days of the submission of a complete

application and all required submittals. Finally, the “deemed

approved” language is triggered only if the Design Review Board

“fails to respond to an application” within thirty days. (Emphasis

added.)

¶ 21 The district court found, based on undisputed facts, that the

Design Review Board responded to the application or initiated

communications with Owner on August 22 and September 1, 8, and

9, 2022, all within thirty days of the application’s submission. In

the following months, there were numerous communications

10
between Owner and the Design Review Board. Owner did not

upload the final requested documents until January 2023.

Thereafter, the parties agreed to delay the Design Review Board’s

final vote on the application until March 2023. As evidenced by

these communications, the Design Review Board first responded to

the application twelve days after it was submitted and was clearly

working with Owner and keeping it updated on the status of the

application.

¶ 22 Given the clear language of section 10.5 of the Declaration and

the undisputed facts, the district court did not err by rejecting

Owner’s argument that the Association had implicitly approved the

application.

C. Definition of a Unit Applied by the District Court

¶ 23 In evaluating Owner’s claim that CCIOA does not require a

vote of the unit owners and first mortgagees as a condition

precedent to approving the proposed improvements, the district

court grounded its analysis in two different statutory definitions of

a “unit.”

¶ 24 The court, first quoting portions of section 38-33.3-209(2)(g),

began by noting that CCIOA requires a condominium map to

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evidence “[t]he location, with reference to established data, of the

horizontal boundaries of each unit.” The district court then focused

on a definition of a unit, reasoning as follows:

Describing a unit’s boundaries in both
generalized and specific terms is commonplace
under Colorado law. See CCIOA [sic] §§ 103(3)
and (4) (defining an “individual air space unit”
as an “enclosed room” while empowering
declaration drafters to include language
providing that various other components
outside of that “enclosed room” are also part of
a unit); see also CCIOA [sic] § 105.5(1)(d)
(requiring condominium declaration to
describe boundaries of the unit).

The CCIOA [sic] defines a “condominium unit”
as “an individualized air space together with
the interests in the common elements
appurtenant to such a unit.”

¶ 25 The problem with this analysis is that the court said it was

based on the provisions of CCIOA, which provides the statutory

framework for the formation and administration of the Residences.

The statutes the court relied on, however, are not contained in

CCIOA. Rather, they are located in CCIOA’s predecessor: the

Condominium Ownership Act (COA). See §§ 38-33-101 to -113,

C.R.S. 2025.

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¶ 26 CCIOA applies to common interest communities created after

July 1, 1992. § 38-33.3-115, C.R.S. 2025. The COA does not apply

to common interest communities created after that date. Id.; see

B.B. & C. P’ship v. Edelweiss Condo. Ass’n, 218 P.3d 310, 315

(Colo. 2009). The Residences was created in 2007. Therefore, the

COA definition of a unit has no relevance to the parties claims

under CCIOA, and the district court clearly erred by applying the

COA’s definition of a unit to this dispute.

¶ 27 This error was not — as the Association asserts — a mere

typographical error or a de minimis passing reference. The COA

definition of a unit weighed heavily in the court’s analysis of

Owner’s CCIOA and breach of contract claims.2 In a section titled

“Application of CCIOA,” the district court returned to its focus on

COA section 38-33-103, C.R.S. 2025:

CCIOA [sic] defines a unit to be an
“individualized air space.” Here, [Owner] plans
to enclose the [limited common element] with
drywall or wood paneling and metal siding.
[Owner]’s proposed improvements entail the
construction of a roof over the [limited
common element, as well as the installation of
HVAC equipment to moderate the temperature
within the newly created air space. [Owner]

2 Claims three, four, and five in Owner’s “Amended Complaint.”

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has exclusive use of the [limited common
element], and as such, only [Owner] and [its]
invitees and licensees have access to and use
of the individual air space created by [Owner]’s
proposed improvements. Accordingly, the
Court finds and concludes that [Owner]’s
proposed improvements fall within the
definition of “condominium unit” under
[section] 38-33-103 because [Owner]’s
proposed improvements alter, change, and
modify the individual air space of Unit 304.

¶ 28 Ironically, the district court did not cite or apply CCIOA’s

definition of a unit: “‘Unit’ means a physical portion of the common

interest community which is designated for separate ownership or

occupancy and the boundaries of which are described in or

determined from the declaration.” § 38-33.3-103(30), C.R.S. 2025.

Unlike the COA, CCIOA’s definition does not contain any reference

to an “individual air space unit,” § 38-33-103(1), (4)-(5), which

played a central role in the district court’s conclusion that the

proposed improvements would alter the boundaries of Unit 304.

¶ 29 Owner argues that this error was material and impacted the

district court’s disposition of its CCIOA and breach of contract

claims. Specifically, Owner notes that nothing in CCIOA or the

Declaration requires that other unit owners and first mortgagees

approve the enclosure of a limited common element unless the

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applicant seeks to modify the boundaries of the unit or the limited

common element. Thus, Owner emphasizes that the district court’s

improper reliance on COA’s definition of a unit was essential

because it allowed the district court to apply the “individual air

space” framework which then drove its conclusion that the

proposed improvements would alter the boundaries of Unit 304 and

the associated limited common element.

¶ 30 In a perfunctory analysis, the Association’s answer brief

attempted to dismiss the district court’s repeated references to the

COA definition of a unit as a typographical error or inconsequential

mistake. And the Association asserted that any error is harmless

because “[w]hile the district court’s analysis referred to

‘individualized air space,’ the CCIOA definition can readily be

included in place of the COA definition with no impact on the

district court’s ruling.” But the Association did not perform such

an analysis.

¶ 31 Nonetheless, we may affirm a summary judgment ruling on

any grounds supported by the record, even reasons not decided by

the district court. Roque v. Allstate, Ins. Co., 2012 COA 10, ¶ 7. In

their briefs before the district court, neither party referenced the

15
COA; this is understandable because the district court’s reliance on

the COA was unexpected. Although the parties’ initial appellate

briefs addressed the court’s error in relying on the COA, their

written and oral arguments only briefly addressed whether the

proposed improvements would modify the boundaries of Unit 304

and the associated limited common element under CCIOA and the

terms of the Declaration. So, we asked them to submit

supplemental briefs addressing these issues. We now have the

benefit of those briefs and turn to the merits of that question.

D. Unit Boundaries under CCIOA and the Declaration

¶ 32 Neither party disputes that the court should apply CCIOA’s

definition of a unit, although it differs from the definition provided

in the Declaration. After reviewing both definitions, we conclude

that CCIOA’s definition of a “unit” and the Declaration’s definition

do not necessarily conflict. See § 38-33.3-104, C.R.S. 2025

(“Except as expressly provided in this article, provisions of this

article may not be varied by agreement, and rights conferred by this

article may not be waived. A declarant may not . . . use any . . .

device to evade the limitations or prohibitions of this article or the

declaration.”); Ryan Ranch Cmty. Ass’n v. Kelley, 2016 CO 65, ¶ 25

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(“[D]ocuments concerning CCIOA common interest communities

must comply with that statute’s provisions; to the extent they

conflict, the statute prevails.”). Having reached this determination,

we move forward with our analysis, grounded in the CCIOA

definition of unit and related CCIOA provisions, but also drawing on

the Declaration’s definition to supplement our analysis.

¶ 33 Recall that, as relevant here, CCIOA defines a “unit” as “a

physical portion of the common interest community which is

designated for separate ownership or occupancy and the

boundaries of which are described in or determined from the

declaration.” § 38-33.3-103(30). A declaration includes associated

plats and maps. § 38-33.3-103(13). The plats and maps describe

“[t]he location and dimensions of the vertical boundaries of each

unit, and [t]he location, with reference to established data, of the

horizontal boundaries of each.” § 38-33.3-209(1)(f)-(g).

¶ 34 Section 38-33.3-103(16.5), defines a “[h]orizontal boundary”

as “a plane of elevation relative to a described bench mark that

defines either a lower or an upper dimension of a unit such that the

real estate respectively below or above the defined plane is not a

part of the unit.” CCIOA defines a “[v]ertical boundary” as “the

17
defined limit of a unit that is not a horizontal boundary of that

unit.” § 38-33.3-103(32).

¶ 35 The Declaration specifies that a unit consists of “enclosed

rooms . . . bounded by the unfinished perimeter walls and windows

thereof.” We read this description as consistent with CCIOA’s

definition of a unit’s vertical boundaries. See § 38-33.3-103(16.5).

The Declaration also includes within the definition of a unit “the

upper surface of the concrete slab at the highest boundary of the

unit . . . [including] any ceiling installed below the underside of the

concrete slab that is the highest boundary of the unit.” This

description is consistent with CCIOA’s definition of a unit’s

horizontal boundary.

¶ 36 With these definitions in mind, we turn to the changes created

by the proposed improvements. Owner proposed enclosing 1,080

square feet of what is currently the uncovered portion of the space

above the existing rooftop of Unit 304. The proposed improvements

involve building vertical exterior walls and creating a new horizontal

boundary through the addition of a new ceiling and rooftop above

the existing roof of Unit 304. Moreover, the improvements include

18
substantial plumbing and electrical components to service the

newly enclosed space.

¶ 37 While Unit 304’s limited common element was already

designated for Owner’s exclusive use, we conclude that enclosing

1,080 square feet of the currently open space with exterior walls,

windows, and a new ceiling and rooftop would manifestly modify the

existing vertical and horizontal boundaries of Unit 304.

¶ 38 Despite these physical realities, the Owner argues that the

improvements will not modify the existing boundaries of Unit 304,

the related common element, or the common elements because it

did not ask or intend to modify the boundaries. But that begs the

question at issue. We may not analyze the improvements’ impact

based on Owner’s subjective intent; rather, we must assess the

improvements’ physical and legal impact on the existing boundaries

of Unit 304 and its limited common element. For the reasons

previously stated, that assessment leads to the conclusion that the

proposed addition would modify those boundaries.

¶ 39 Owner next argues that the Association has previously

approved rooftop improvements by other owners, including the

additions of a pergola and a sauna, which also added exterior walls

19
and roofing to the units’ limited common elements. Owner notes

that the Association did not treat those improvements as

modifications of the existing boundaries or require the type of

approvals it has imposed on Owner’s. So, Owner argues, the

Association should not be permitted to do so here. We reject

Owner’s contention.

¶ 40 First, Owner did not appeal the district court’s determination

that the Association’s past approval, without voting conditions, of

limited patio amenities proposed and built by other units did not

amount to a waiver of its right to impose such conditions here.

Thus, Owner’s attempt to undermine the approval conditions

imposed on it based on past approvals of a pergola or sauna

without conditions is unavailing.

¶ 41 Moreover, the improvements proposed here are not minor

amenities. The scale of a pergola or sauna is materially different

than creating a 1,080-square-foot structure, covered by a new

rooftop at least eleven feet above the current rooftop of the building.

We need not try to decipher the exact point at which the addition of

limited improvements on an existing rooftop becomes a modification

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of the unit’s boundaries. It is sufficient to resolve this case for us to

conclude that this proposed addition certainly does.

¶ 42 Finally, Owner argues that the proposed improvements would

not change the status quo because the owner of each unit is

currently responsible for maintaining its associated limited common

elements. Even if we accept that assertion as true, CCIOA

nonetheless requires the Association to maintain “[p]roperty

insurance on the common elements . . . [in] the total amount of . . .

not less than the full insurable replacement cost of the insured

property less applicable deductibles at the time the insurance is

purchased and at each renewal date.” § 38-33.3-313(1)(a), C.R.S

2025. The estimated construction cost of the proposed

improvements was $4.4 million. If, as Owner argues, the

improvements would continue as limited common elements, the

other owners — who collectively pay for the cost of insuring the

limited common elements — would be adversely impacted. This too

suggests that the proposed improvements must be treated as a

material modification of the boundaries between Unit 304 and its

limited common element.

21
¶ 43 These undisputed facts lead to the legal conclusion that the

proposed improvements would modify the existing boundaries of

Unit 304 and its limited common element. Accordingly, the district

court did not err by granting summary judgment in the

Association’s favor on this issue.

E. Conditions of Approval

¶ 44 The Declaration requires 50% of the first mortgagees to

consent to any change in a unit’s boundaries. CCIOA provides that

any transfer of the common elements — which include limited

common elements — must be approved by 67% of the unit owners.

§ 38-33.3-312(1). The Design Review Board approved the proposed

addition subject to the conditions that Owner obtain (1) a transfer

of the entire limited common element associated with Unit 304 from

the Association; (2) the consent of 50% of the first mortgagees; and

(3) the consent of 67% of the unit owners.

¶ 45 Building on its contention that the proposed improvements

would not modify the boundaries of Unit 304 or its limited common

element, Owner argues that it was unreasonable for the Association

to approve the improvements subject to the noted conditions. But

we have already concluded that the proposed addition would modify

22
the boundaries between Unit 304 and its limited common element.

Thus, we perceive no error in the district court’s determination that

the Association’s approval requirements were reasonable.

F. Attorney Fees and Costs

¶ 46 Based on its ruling, the district court concluded that the

Association was the prevailing party in this litigation and awarded it

attorney fees and costs. See § 38-33.3-123(1)(c)(I), C.R.S. 2025

(Subject to a limited exception not applicable here, “[i]n any civil

action to enforce or defend this article 33.3 or the declaration,

bylaws, articles, or rules and regulations, the court shall award

reasonable attorney fees, actual costs, and actual costs of collection

to the prevailing party.”). Thus, we reject Owner’s contention that it

should be awarded attorney fees and costs for the trial court

proceedings or on appeal.

¶ 47 Under section 38-33.3-123(1)(c), the Association is also the

prevailing party on appeal and therefore is entitled to an award of

appellate fees and costs. See Accetta v. Brooks Towers Residences

Condo. Ass’n, 2021 COA 147M2, ¶¶ 50-51. Because the district

court is uniquely suited to undertake the factfinding necessary to

determine such an award, we exercise our discretion and remand to

23
the district court to determine and award the Association its

reasonable appellate attorney fees and costs under C.A.R. 39.1 and

C.A.R. 39(c)(1).

III. Disposition

¶ 48 The judgment is affirmed, and the case is remanded to the

district court to determine the Association’s award of appellate

attorney fees and costs.

JUDGE FOX and JUDGE HARRIS concur.

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