Pine View v. BOCC

25CA0079 Pine View v BOCC 05-14-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0079
Boulder County District Court No. 24CV30372
Honorable Judith L. LaBuda, Judge

Pine View, LLC, a Colorado limited liability company, and CM3 Living Trust, a
Minnesota Trust,

Plaintiffs-Appellants,

v.

Board of County Commissioners of the County of Boulder, Colorado,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE BROWN
Freyre and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 14, 2026

Dietze and Davis, P.C., Karl F. Kumli, Robyn W. Kube, S. Daniel Rubin,
Boulder, Colorado, for Plaintiffs-Appellants

Ben Pearlman, County Attorney, David Hughes, Deputy County Attorney, Erica
Rodgers, Assistant County Attorney, Boulder, Colorado, for Defendant-Appellee
¶1 Plaintiffs, Pine View, LLC and CM3 Living Trust (collectively,

owners), appeal the district court’s judgment dismissing their

request to review a zoning map amendment made by defendant, the

Board of County Commissioners of the County of Boulder (the

BOCC). We affirm.

I. Background

¶2 Owners seek to challenge an amendment the BOCC made to

the Boulder County Floodplain Overlay District. The Floodplain

Overlay District provides land use controls necessary to qualify

unincorporated areas of Boulder County for federal flood insurance.

The Floodplain Overlay District consists of floodplain zones

established by the Federal Emergency Management Agency (FEMA)

combined with floodplain zones established by the county.

¶3 Owners own and maintain adjoining parcels of agricultural

real property located in unincorporated Boulder County. Owners

rely on the Dry Creek Carrier Ditch (the Ditch) to divert water from

Baseline Reservoir and South Boulder Creek to irrigate their

respective properties. Owners alleged they are entitled to the

diverted irrigation water pursuant to Colorado water court decrees

and their shares in the Base Line Land and Reservoir Company.

1
¶4 Following severe flooding in 2013, the Colorado General

Assembly created and funded the Colorado Hazard Mapping

Program (CHAMP), managed by the Colorado Water Conservation

Board (CWCB), to update local flood-hazard information and

produce new regulatory floodplain maps for the most affected

waterways in unincorporated Boulder County. The Ditch was

identified in the CHAMP study as an affected floodway. In 2017

and 2018, the county incorporated preliminary CHAMP data into

amendments to the Floodplain Overlay District.

¶5 In 2019, based on the CHAMP remapping efforts, FEMA

released preliminary Flood Insurance Rate Maps (FIRMs). Because

the preliminary FIRMs contained minor adjustments from the

previously adopted CHAMP maps, the county amended the

Floodplain Overlay District to account for the changes.

¶6 In July 2023, FEMA released revised preliminary FIRMs that

were expected to become effective in 2024. In response, the county

determined it needed to amend the Floodplain Overlay District

again to reflect the changes made by FEMA. Specifically, the

county sought to remove the county floodplain maps included in

the CHAMP study and align the Floodplain Overlay District with the

2
FEMA FIRMs, such that the FIRMs would be the sole regulatory

floodplain maps for CHAMP-affected areas. Doing so would prevent

the BOCC from having to amend the county floodplain zones each

time FEMA altered the FIRMs; FEMA’s changes would be

automatically incorporated into the Floodplain Overlay District.

¶7 In November 2023, owners received a postcard notifying them

of a virtual information session to be held the following month

concerning the proposed amendment to the Floodplain Overlay

District. Owners participated in the virtual information session,

where they allege they first learned that the Ditch had been

included in CHAMP.

¶8 In anticipation of a January 2024 hearing before the county’s

Planning Commission concerning the proposed amendment, owners

submitted formal comments to the County Floodplain Administrator

explaining that they believed the Ditch had been misclassified.

Owners asserted that, because the Ditch is an irrigation facility, a

CWCB Irrigation Facility Regulation, Dep’t of Nat. Res. Rule 9(E), 2

Code Colo. Regs. 408-1, required the county to enter into an

agreement with owners prior to including the Ditch in the

3
Floodplain Overlay District, but that had not happened. As relevant

to owners’ arguments, the regulation provides as follows:

• “The CWCB recommends that irrigation facilities (including,

but not limited to, ditches and canals) not be used as

stormwater or Flood conveyance facilities, unless

specifically approved and designated by [the county] and

approved by the irrigation facility owners.” Id.

• “The Flood conveyance capacity of irrigation facilities shall

be acknowledged only by agreement between the facility

owners and [the county], with review and concurrence from

the Colorado Division of Water Resources to ensure that

water rights administration needs are properly considered.”

Id.

• “A maintenance easement or agreement shall be in place

allowing [the county] maintenance access to the irrigation

facility if needed.” Id.

• “The irrigation facility shall be assumed as running full so

that there are no computed Flood reduction benefits

downstream of the irrigation facility.” Id.

4
¶9 In their pre-hearing comments, owners asked the county to

remove the Ditch from the preliminary FIRMs and allow them to file

a late appeal of the Ditch’s floodway designation. The county

denied the request, noting that the Ditch had been mapped in a

floodplain since 1979, the county did not have the authority to

remove the Ditch from the FIRMs, and the FEMA appeal deadlines

had passed.

¶ 10 On January 17, 2024, the Planning Commission held a public

hearing to consider the Floodplain Overlay District amendment.

Owners attended the hearing and participated by providing oral

comments. The Planning Commission voted unanimously to

recommend the approval of the Floodplain Overlay District

amendment to the BOCC.

¶ 11 The BOCC conducted a public hearing to consider the

Planning Commission’s recommendation on March 26. Before the

hearing, owners again submitted written comments raising their

concerns with the designation of the Ditch as a floodway. Owners

also attended the hearing and participated by providing oral

comments. The BOCC voted unanimously to approve the

amendment to the Floodplain Overlay District.

5
¶ 12 In April 2024, owners initiated this action under C.R.C.P. 106,

seeking district court review of the BOCC’s designation of a

floodway over the Ditch in the Floodplain Overlay District. Owners

alleged that the BOCC abused its discretion by (1) determining that

the Ditch was not an irrigation facility and (2) designating a

floodway over the Ditch without first entering into an agreement

with owners regarding its excess flood conveyance capacity and

maintenance and without assuming the Ditch is running full. They

alleged that the BOCC exceeded its jurisdiction by designating a

floodway over the Ditch without receiving the Colorado Division of

Water Resources’ concurrence. And they alleged that the BOCC

deprived them of their property rights without due process of law.

¶ 13 The BOCC moved to dismiss owners’ complaint, arguing that

(1) the court lacked jurisdiction under C.R.C.P. 106 to review the

BOCC’s adoption of the amendment to the Floodplain Overlay

District; and (2) the BOCC did not deprive owners of a legally

protected property interest, and, even if it had, the BOCC provided

owners with sufficient process. In a detailed written order, the

district court granted the motion, concluding that the BOCC’s

adoption of the Floodplain Overlay District amendment was a

6
legislative act that it did not have jurisdiction to review under

C.R.C.P. 106 and that owners did “not have a property interest that

[gave] rise to a procedural due process claim.”

II. Analysis

¶ 14 Owners contend that the district court erred by (1) partially

denying their request for leave to file a surreply to the BOCC’s

motion to dismiss; (2) determining that it did not have jurisdiction

under C.R.C.P. 106 to review the BOCC’s adoption of the

amendment to the Floodplain Overlay District; (3) concluding that

the BOCC afforded owners sufficient due process; and (4) failing to

address owners’ request to file an amended complaint. We address

the surreply contention first because if the court erred by partially

disallowing the surreply, remand to the district court to consider

the additional arguments may have been appropriate. But we

conclude that the court did not err by declining to consider parts of

owners’ surreply, so we proceed to address owners’ remaining

contentions. In the end, we affirm.

7
A. Surreply

¶ 15 Owners contend that the district court erred by partially

denying their motion for leave to file a surreply to the BOCC’s

motion to dismiss. We disagree.

1. Applicable Law and Standard of Review

¶ 16 A surreply, if authorized by the court, permits a nonmoving

party to respond to new evidence and legal arguments raised for the

first time in a moving party’s reply brief. Olson v. State Farm Mut.

Auto. Ins. Co., 174 P.3d 849, 860 (Colo. App. 2007). The trial court

has discretion to deny a party’s request to file a surreply,

“particularly when the court will grant [a moving party’s motion]

without relying on any new materials that may appear in the

moving party’s reply brief.” Id.

¶ 17 We review a trial court’s decision to accept or reject a surreply

for an abuse of discretion. Migoya v. Wheeler, 2024 COA 124, ¶ 23;

see also Conroy v. Vilsack, 707 F.3d 1163, 1179 n.6 (10th Cir.

2013) (“[A] district court abuses its discretion only when it both

denies a party leave to file a surreply and relies on new materials or

new arguments in the opposing party’s reply brief.”). A court

8
abuses its discretion if its decision is manifestly arbitrary,

unreasonable, or unfair, or if it misapplies the law. Migoya, ¶ 23.

2. Additional Background

¶ 18 After the BOCC filed its reply in support of its motion to

dismiss, owners moved for leave to file a surreply. In the proposed

surreply filed with their motion, owners argued that the BOCC had

made three new arguments in their reply that owners had not had

an opportunity to address: (1) owners failed to allege that the BOCC

had taken or threatened to take any action to stop owners from

using their property; (2) the BOCC did not have to comply with the

CWCB Irrigation Facility Regulation because the CWCB funded,

managed, and approved the remapping process that led to the

amended FIRM; and (3) the designation of the Ditch as a floodway

did not harm owners or leave them without an available remedy

under the county’s land use code.

¶ 19 In its dismissal order, the district court granted owners’

request to file a surreply regarding the CWCB’s management of the

remapping process, concluding that the BOCC had not raised the

issue prior to its reply. But the court denied owners’ request as to

the remaining issues, concluding that the BOCC made the

9
arguments in its motion to dismiss or to address arguments raised

by the owners’ response.

3. The District Court Acted Within Its Discretion by Partially
Denying Owners’ Motion for Leave to File a Surreply

¶ 20 Owners contend that the district court abused its discretion by

denying their motion for leave to file a surreply, arguing that the

court relied on the BOCC’s reply arguments to erroneously

conclude that “[owners] are not harmed or without a remedy

because [owners’] historic manner of operating the ditch will be

exempt from [c]ounty regulation and the [land use code] provides a

process for future alterations to the ditch.” We perceive no abuse of

discretion.

¶ 21 As an initial matter, owners’ argument misconstrues the

court’s order. The portion of the order owners quote as evidence of

the court’s reliance on the challenged arguments is not part of the

court’s own conclusions leading to its dismissal of owners’

complaint. Rather, the quoted language reflects the court’s

summary of what owners characterized as the “new arguments” in

the BOCC’s reply. Owners neglect to identify, nor can we discern,

any other portion of the court’s order that relies on the challenged

10
arguments as a basis for granting the BOCC’s motion to dismiss.

See Olson, 174 P.3d at 860.

¶ 22 Further, in ruling on the request to file a surreply, the court

identified the page numbers of the BOCC’s motion to dismiss and

owners’ response where the challenged issues were briefed by the

parties. Owners do not contend that the court erred in this regard.

And we agree that the challenged arguments are reflected in the

parts of the motion and response the court noted and were not

raised for the first time in the BOCC’s reply. Thus, we discern no

abuse of discretion in the court’s partial denial of owners’ motion

for leave to file a surreply. See Migoya, ¶ 23.

B. Jurisdiction Under C.R.C.P. 106(a)(4)

¶ 23 Owners contend that the district court erred by concluding it

did not have jurisdiction under C.R.C.P. 106(a)(4) to review the

BOCC’s adoption of the amendment to the Floodplain Overlay

District. We disagree.

1. Standard of Review

¶ 24 Where, as here, there are no disputed issues of material fact,

we review de novo a C.R.C.P. 12(b)(1) motion to dismiss for lack of

subject matter jurisdiction. Peabody Sage Creek Mining, LLC v.

11
Colo. Dep’t of Pub. Health & Env’t, 2020 COA 127, ¶ 9. In deciding

whether a complaint should be dismissed under C.R.C.P. 12(b)(1),

we examine the substance of the claim based on the facts alleged

and the relief requested. City of Aspen v. Kinder Morgan, Inc., 143

P.3d 1076, 1078 (Colo. App. 2006). The plaintiff bears the burden

of proving the factual basis for the court’s exercise of subject matter

jurisdiction. Id.

2. Applicable Law

¶ 25 Under C.R.C.P. 106(a)(4), a district court has jurisdiction to

review quasi-judicial actions performed by a governmental body,

but it does not have jurisdiction to review the quasi-legislative

actions the body performs.1 See Jafay v. Bd. of Cnty. Comm’rs, 848

P.2d 892, 897-98 (Colo. 1993); Verrier v. Colo. Dep’t of Corr., 77 P.3d

875, 879 (Colo. App. 2003) (“Legislative and administrative actions

are not reviewable pursuant to C.R.C.P. 106(a)(4).”). Specifically,

C.R.C.P. 106(a)(4) permits judicial review when “any governmental

1 Municipal governing bodies perform functions that are similar to,

though not the same as, “those performed by legislatures and the
judiciary, hence the terms ‘quasi-legislative’ and ‘quasi-judicial.’”
Farmers Water Dev. Co. v. Colo. Water Conservation Bd., 2015 CO
21, ¶ 15.

12
body or officer or any lower judicial body exercising judicial or

quasi-judicial functions has exceeded its jurisdiction or abused its

discretion, and there is no plain, speedy and adequate remedy

otherwise provided by law.”

¶ 26 We decide de novo whether a challenged governmental action

was quasi-judicial or quasi-legislative. Garcia v. Harms, 2014 COA

154, ¶ 11. The predominate consideration is “the nature of the

governmental decision and the process by which that decision is

reached.” Cherry Hills Resort Dev. Co. v. City of Cherry Hills Village,

757 P.2d 622, 627 (Colo. 1988). A quasi-legislative action is

“usually reflective of some public policy relating to matters of a

permanent or general character, is not normally restricted to

identifiable persons or groups, and is usually prospective in

nature.” Id. at 625. Conversely, quasi-judicial functions generally

involve “a determination of the rights, duties, or obligations of

specific individuals on the basis of the application of presently

existing legal standards or policy considerations to past or present

facts developed at a hearing conducted for the purpose of resolving

the particular interests in question.” Id.

13
3. The District Court Did Not Have Jurisdiction to Review the
BOCC’s Quasi-Legislative Floodplain Overlay District
Amendment

¶ 27 Owners contend that the district court erred by concluding

that the BOCC’s adoption of the amendment to the Floodplain

Overlay District was quasi-legislative and thus not reviewable under

C.R.C.P. 106(a)(4). Owners argue that the BOCC’s action was

quasi-judicial because it (1) uniquely affected their property and

water rights; (2) made an individualized application of law to

existing facts; and (3) was preempted by state law. We disagree.

¶ 28 We conclude that the BOCC’s amendment of the Floodplain

Overlay District was a quasi-legislative act because it was motivated

by public policy, not restricted to an identifiable group, and

prospective in nature.2 See Cherry Hills Resort Dev. Co., 757 P.2d

at 625. The amendment arose from a decade-long comprehensive

effort to research and update regulatory floodplain boundaries with

2 The parties’ submissions to the district court and the court’s

dismissal order cite an unpublished opinion issued by a division of
this court, Lindow v. Board of Commissioners, (Colo. App. No.
19CA0450, Aug. 20, 2020) (not published pursuant to C.A.R. 35(e)).
Although we do not rely on Lindow, we note that our conclusion
that the BOCC’s amendment to the Floodplain Overlay District was
quasi-legislative is consistent with the division’s opinion in that
case. Id. at ¶ 23.

14
the stated purpose of using the best data available to protect the

public during future flood events and allow property owners to

procure flood insurance. The amendment broadly impacted

property along 230 miles of stream in unincorporated Boulder

County. It was not restricted to identifiable people or groups and

was not site-specific. See Jafay, 848 P.2d at 898 (zoning

regulations were quasi-legislative in part because they did “not

apply only to one site, and only to particular parties involved in the

litigation”); Landmark Land Co. v. City & County of Denver, 728 P.2d

1281, 1284-85 (Colo. 1986) (a municipal mountain-view zoning

amendment was quasi-legislative because it was binding on all the

land it affected, not just the land occupied by appellants). And it

applied prospectively. City & County of Denver v. Eggert, 647 P.2d

216, 222 (Colo. 1982) (“Quasi-legislative action is prospective in

nature . . . .”).

¶ 29 Nonetheless, owners argue that the BOCC’s amendment of the

Floodplain Overlay District was quasi-judicial because it “adversely

affected the protected interests of specific individuals — [owners] —

in a manner distinguishable from the more generalized,

development-related, impact [it] had on other landowners.”

15
Specifically, owners argue that the amendment adversely affects

their water-related rights, “which are subject to a well-developed

regulatory framework wholly separate from land-use zoning.” On

this basis, owners attempt to distinguish Jafay, in which the

supreme court concluded that a county’s zoning action was

“quasi-legislative in nature based on the prospective nature and

broad impact of the resolution.” 848 P.2d at 898.

¶ 30 But owners offer no authority, nor are we aware of any,

holding that quasi-legislative action becomes quasi-judicial simply

because it affects some individuals or groups differently. Instead,

“[z]oning plans are generally applicable even though their impact

may be felt differently by specific landowners.” Onyx Props. LLC v.

Bd. of Cnty. Comm’rs, 838 F.3d 1039, 1047 (10th Cir. 2016); see

also Jafay, 848 P.2d at 898 (determining that a county zoning

amendment was quasi-legislative despite the appellant’s allegations

of unique, individualized impacts). And the BOCC’s alleged failure

to comply with the CWCB Irrigation Facility Regulation when

adopting the amendment does not alter the nature of its action.

See Onyx Props. LLC, 838 F.3d at 1047 (county’s failure to comply

with state-required procedures for enacting zoning ordinance “may

16
render legislation invalid under state law but does not change its

character as legislation”).3

¶ 31 Owners also argue that the BOCC’s action was quasi-judicial

because, in adopting the amendment, the BOCC undertook an

analysis of whether the Ditch was an “irrigation facility” under the

CWCB Irrigation Facility Regulation. Owners assert that the BOCC

took public comments and evidence from the CWCB and county

officials and then erroneously determined that the Ditch was not an

“irrigation facility” and that the Irrigation Facility Regulation did not

apply. Thus, owners argue that the BOCC made “a determination

of the rights, duties, or obligations of specific individuals on the

basis of the application of presently existing legal standards or

3 Owners argue that Oborne v. Board of County Commissioners, 764

P.2d 397 (Colo. App. 1988), supports its claim that the BOCC’s
action was quasi-judicial because there the division held that a
zoning resolution could not address a subject over which another
governmental body had exclusive regulatory jurisdiction (as it
argues the CWCB does here). But the division in Oborne reviewed
the denial of an individual application for a permit to drill an
exploratory oil well at a specified location, a matter that was
undisputedly reviewable under C.R.C.P. 106(a)(4). Id. at 398. And
the division’s preemption discussion addressed the propriety of the
governmental action, see id. at 401-02, not whether the action was
quasi-judicial or quasi-legislative — indeed, those terms appear
nowhere in the opinion.

17
policy considerations to past or present facts developed at a

hearing,” Cherry Hills Resort Dev. Co., 757 P.2d at 625, and thus

the nature of the action was quasi-judicial. We are not persuaded.

¶ 32 As an initial matter, the record reveals that the BOCC engaged

in conversations concerning whether the Ditch was an “irrigation

facility” subject to the procedures in the Irrigation Facility

Regulation, but owners fail to cite the precise location in the record

where the BOCC expressly resolved the issue. See C.A.R.

28(a)(7)(B) (Arguments “must contain . . . citations to the . . . parts

of the record on which the appellant relies.”). However, assuming

that the BOCC impliedly made such a determination by adopting

the amendment to the Floodplain Overlay District without

negotiating an agreement with owners under the Irrigation Facility

Regulation, we conclude that the determination does not alter the

overall nature of the BOCC’s action.

¶ 33 Case law instructs that “the predominant consideration in

determining whether the governmental body has exercised a

quasi-judicial function in rendering its decision” “is the nature of

the decision rendered.” Cherry Hills Resort Dev. Co., 757 P.2d

at 627. As discussed, the specific action being challenged by

18
owners is the BOCC’s 2024 amendment to the Floodplain Overlay

District. The action was broadly applicable and driven by public

policy and a comprehensive effort to protect the public from future

flood events. It was not an individualized, site-specific decision

made after a hearing on an application or appeal by owners. Cf. id.

at 628 (resolution was quasi-judicial because it “pertained only to

the use of the particular site in question, and was not a decision

affecting future land use on a city-wide basis”). The fact that the

BOCC discussed the Ditch and the CWCB Irrigation Facility

Regulation in response to owners’ public comments does not

change the nature of the BOCC’s action.

¶ 34 Finally, owners argue that the BOCC’s quasi-legislative

authority to enact land use restrictions that affect water rights are

limited or preempted by state statutes and administrative

regulations. Essentially, owners argue that the BOCC lacked

legislative authority to designate a floodway over the Ditch in

conflict with water court decrees and CWCB regulations.4

4 At oral argument, owners’ counsel clarified that this is not a water

case involving priorities or adjudications over which the Colorado
Supreme Court has exclusive jurisdiction. See § 13-4-102(1)(d),
C.R.S. 2025.

19
¶ 35 Owners’ argument misses the mark. Whether the BOCC had

the authority to amend the Floodplain Overlay District as it did or

whether the amendment was preempted by statute or regulation

does not speak to the nature of the action. See id. The court may

not reach the merits of owners’ arguments or determine the validity

of the BOCC’s action unless it first has jurisdiction to review the

matter. See Long v. Cordain, 2014 COA 177, ¶ 10 (“A [district] court

may decide only those cases over which it has subject matter

jurisdiction.”).

¶ 36 Accordingly, we perceive no error in the court’s determination

that the BOCC’s Floodplain Overlay District amendment was

quasi-legislative and thus not reviewable under C.R.C.P. 106(a)(4).

See Cherry Hills Resort Dev. Co., 757 P.2d at 627.

C. Procedural Due Process

¶ 37 Owners contend that the district court erred by dismissing

their claim that the BOCC’s Floodplain Overlay District amendment

deprived them of their property rights without due process of law.

We disagree.

20
1. Standard of Review

¶ 38 A motion to dismiss under C.R.C.P. 12(b)(5) for failure to state

a claim upon which relief can be granted tests the formal

sufficiency of the claim. Lavarato v. Branney, 210 P.3d 485, 488

(Colo. App. 2009). To survive such a motion, “a plaintiff must state

a claim for relief that is plausible (not speculative) on its face.”

Hess v. Hobart, 2020 COA 139M2, ¶ 11; see also Warne v. Hall,

2016 CO 50, ¶ 9.

¶ 39 We review de novo a trial court’s ruling on a C.R.C.P. 12(b)(5)

motion. Hess, ¶ 11. We apply the same standards as the trial

court, accepting the factual allegations in the complaint as true and

viewing those allegations in the light most favorable to the plaintiff.

Id.; Patterson v. James, 2018 COA 173, ¶ 16. But we need not

accept as true legal conclusions couched as factual allegations.

Woodall v. Godfrey, 2024 COA 42, ¶ 8. We may consider only the

facts that are alleged in the pleadings and any documents that are

attached as exhibits or incorporated by reference. Hess, ¶ 11.

21
2. The BOCC’s Quasi-Legislative Action Did Not Implicate
Owners’ Constitutional Right to Due Process

¶ 40 “The essence of due process is basic fairness in procedure.”

Jafay, 848 P.2d at 899 (quoting deKoevend v. Bd. of Educ., 688

P.2d 219, 227 (Colo. 1984)). In determining whether a party was

afforded adequate process, a court must consider (1) “whether a

property right has been identified”; (2) “whether governmental

action with respect to that property right amounts to a deprivation”;

and (3) “whether the deprivation, if one be found, was visited upon

the plaintiff without due process of law.” Hillside Cmty. Church v.

Olson, 58 P.3d 1021, 1025 (Colo. 2002) (quoting Fusco v.

Connecticut, 815 F.2d 201, 205 (2d Cir. 1987)). “Whether particular

procedures adopted to review determinations affecting property

interests satisfy due process standards depends upon the

circumstances of the particular case.” Jafay, 848 P.2d at 899

(citation omitted).

¶ 41 In dismissing owners’ due process claim, the district court

concluded that owners “did not possess a protected due process

property interest” because “procedural guarantees stemming from

state law or local ordinance do not create a constitutionally

22
cognizable property interest.” In so concluding, it appears that the

court understood owners to contend only that the BOCC deprived

them of the procedures under the CWCB Irrigation Facility

Regulation without due process of law. See Dep’t of Nat. Res. Rule

9(E), 2 Code Colo. Regs. 408-1. Indeed, the court explained that

owners’ “due process violation is based on [their] assertion that the

[c]ounty violated the procedure set forth in state laws or rules.”

¶ 42 To the extent that owners contend that they have a protected

property interest in the procedural safeguards provided by the

Irrigation Facility Regulation, we agree with the district court’s

conclusion. There is no constitutionally cognizable property right in

procedures conferred by state laws or local ordinances. Hillside

Cmty. Church, 58 P.3d at 1026-27 (“[T]here can be no property right

in mere procedure,” and a governmental body’s failure to comply

with its own procedural requirements “does not create a violation of

constitutional proportions.”).

¶ 43 But owners also alleged that the BOCC’s Floodplain Overlay

District amendment designating the Ditch a floodway interfered

with and thus deprived owners of their full property rights. To this

extent, we agree with owners that they adequately alleged the

23
deprivation of a protected property interest. See Navajo Dev. Co. v.

Sanderson, 655 P.2d 1374, 1377-78 (Colo. 1982) (a priority of right

to use water amounts to a property interest that may not be

deprived absent due process of law). Nonetheless, owners’ due

process argument fails.

¶ 44 As we have concluded, the BOCC’s action at issue here was

quasi-legislative in nature. Our supreme court has consistently

held that “‘where an administrative agency is acting in a

quasi-legislative capacity, there is no [c]onstitutional requirement

that the agency provide the opportunity for a hearing to anyone,’

even though such a hearing may be held pursuant to other law.”

Farmers Water Dev. Co. v. Colo. Water Conservation Bd., 2015 CO

21, ¶¶ 19, 29 (citation omitted); see Jafay, 848 P.2d at 899 n.10

(when a municipal body is acting in its quasi-legislative capacity,

24
there is no constitutional requirement for notice and a hearing).5

Because quasi-legislative actions do not implicate constitutionally

protected due process rights, the BOCC could not have violated

owners’ due process rights through the quasi-legislative action here.

Farmers Water Dev. Co., ¶¶ 19, 29.

¶ 45 This is true even though the legislature has prescribed notice

and hearing requirements for zoning amendments. See

§ 30-28-116, C.R.S. 2025; Jafay, 848 P.2d at 899; cf. Hushen v.

Gonzales, 2025 CO 37, ¶¶ 4-5 (clarifying that whether a proceeding

involves due process safeguards is a separate inquiry from whether

the proceeding is quasi-judicial (or quasi-legislative)). Before a

county may adopt a proposed zoning amendment, it must hold a

public hearing on the matter and provide the public with fourteen

days’ notice of its time and location. § 30-28-116. But it is

5 We acknowledge that in Jafay v. Board of County Commissioners,

848 P.2d 892, 898-99 (Colo. 1993), the supreme court conducted a
due process analysis notwithstanding its recognition that there is
no constitutional due process right to notice and a hearing
regarding a municipal body’s quasi-legislative action. Even so, the
court concluded that the procedural requirements in section 30-28-
116, C.R.S. 1986, which has not been amended in any substantive
manner affecting our analysis, satisfied due process. Jafay, 848
P.2d at 899.

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uncontested that the BOCC held a duly noticed public hearing

concerning its adoption of the Floodplain Overlay District

amendment on March 26, 2024. And it is also undisputed that

owners provided the BOCC with written comments before the public

hearing and were permitted to provide three minutes of public

testimony related to their concerns. The process the BOCC afforded

owners satisfied the statutory requirements. See id.; see also

Jafay, 848 P.2d at 899 (compliance with the procedures in section

30-28-116 satisfies due process).

¶ 46 Nevertheless, owners argue that the minimal notice

requirements contained in section 30-28-116 are “grossly

insufficient” and that “more specific statutes and regulations

regarding notice and process [were] applicable to the County’s

[designation] of the [D]itch as a floodway.” Aside from pointing us

to a string of water law statutes they claim are controlling, see

§§ 37-92-302, -305, C.R.S. 2025 — despite conceding at oral

argument that “this is not a water rights case” — owners neglect to

explain why and to what extent due process demands these

procedures apply to the BOCC’s Floodplain Overlay District

amendment. See Antolovich v. Brown Grp. Retail, Inc., 183 P.3d

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582, 604 (Colo. App. 2007) (we do not address underdeveloped and

conclusory arguments raised on appeal).

¶ 47 Owners argue that, had they “been provided with proper notice

regarding CHAMP, or earlier notice of the [BOCC]’s intent to

designate the Ditch as a new floodway,” they would not have been

deprived the opportunity to appeal the FIRM during FEMA’s appeal

process.6 Thus, owners appear to assert a due process violation

stemming from a lack of notice of some earlier part of the CHAMP or

FEMA FIRM process. But Owners did not allege and have not

sufficiently explained on appeal what specific state or federal action

6 Owners also contend that the BOCC’s notice of its Floodplain

Overlay District amendment was insufficient because the BOCC
referred to the Ditch by several different names throughout its
remapping process. It is uncontested that during the county’s
virtual information session held in December 2023, owners
understood that the Ditch was included in the BOCC’s planned
Floodplain Overlay District amendment. Owners then attended and
participated in each public hearing the county held to consider the
matter. Thus, the record does not support the contention that the
various names used for the Ditch adversely impacted the adequacy
of the notice afforded to owners by the BOCC or owners’ ability to
participate in the duly noticed proceedings. See Gessler v.
Grossman, 2015 COA 62, ¶ 53 (insufficient notice does not require
reversal unless the complaining party can show that they were
prejudiced by the deficiency).

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required notice, what notice or opportunity to be heard should have

been provided, or when those procedures were required. See id.

¶ 48 We conclude that the district court did not err by dismissing

owners’ due process claim under C.R.C.P. 12(b)(5).

D. Request to Amend Complaint

¶ 49 Owners contend that the district court erred by failing to

address their “motion” for leave to amend their complaint. On

appeal, owners essentially argue that, since the court dismissed

their C.R.C.P. 106(a)(4) claim, they should have been able to

challenge the Floodplain Overlay District amendment through a

claim for declaratory relief under C.R.C.P. 57.

¶ 50 But owners did not file a motion to amend their complaint.

Instead, in their response to the BOCC’s motion to dismiss, owners

asserted that the motion should be denied or, “alternatively, [that

owners] should be afforded the opportunity to amend their

Amended Complaint to supply any additional facts the court deems

necessary.” Owners did not pursue the request further, and the

district court did not address it in its dismissal order. We conclude

that owners failed to preserve this appellate contention.

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¶ 51 An issue is preserved for appeal when it is brought to the

court’s attention and the court has an opportunity to rule on it. In

re Marriage of Turilli, 2021 COA 151, ¶ 12. Unless the court orders

otherwise, any motion involving a contested issue of law is to be

made in writing and supported by legal authority. See C.R.C.P.

121, § 1-15(1)(a). “A motion shall not be included in a response or

reply to the original motion.” C.R.C.P. 121, § 1-15(1)(d).

¶ 52 Owners’ request for leave to file an amended complaint, made

in a single sentence at the end of their response to the BOCC’s

motion to dismiss, did not constitute a motion. See Patterson, ¶ 10

(A plaintiff “[s]imply suggesting in other motions that [they] would

amend [their] complaint if the court believed the complaint was

unclear is not a motion for leave to amend.”). And even if the

request constituted a motion, owners did not obtain a ruling on it.

See id. at ¶ 11 (if the moving party fails to secure a court ruling on

a matter they urge, the party waives or abandons that argument on

appeal). Because owners made no motion and secured no ruling,

we conclude that this contention is unpreserved and decline to

address it further. See Salazar v. Pub. Tr. Inst., 2022 COA 109M,

¶ 35.

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III. Disposition

¶ 53 We affirm the district court’s judgment.

JUDGE FREYRE and JUDGE SCHUTZ concur.

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