McCallum v. CDOT

24CA0825 McCallum v CDOT 03-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0825
City and County of Denver District Court No. 22CV32310
Honorable Jill D. Dorancy, Judge

Bryce McCallum and Patty McCallum,

Plaintiffs-Appellants,

v.

Colorado Department of Transportation,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE J. JONES
Brown and Yun, JJ., concur

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

Steven A. Gall, P.C., Steven A. Gall, Hot Sulphur Springs, Colorado, for
Plaintiffs-Appellants

Philip J. Weiser, Attorney General, Barbara J. Stauch, Senior Assistant
Attorney General, Pawan Nelson, Senior Assistant Attorney General, Denver,
Colorado, for Defendant-Appellee
¶1 Plaintiffs, Bryce and Patty McCallum, appeal the district

court’s judgment affirming a final agency decision in favor of

defendant, the Colorado Department of Transportation (CDOT). We

affirm.

I. Background

¶2 The McCallums and the Deweys (who aren’t parties to this

appeal) own adjoining properties in Grand County. The Deweys’

property abuts U.S. Highway 34. Since 1961, the McCallums’

property has benefitted from an easement (the historical easement)

over the Deweys’ property to access the highway, depicted below.

Map of Historical Easement and Highway Access

1
¶3 In August 2019, shortly after the Deweys bought their

property, they agreed to lease it to Beacon Landing, a local marina.

Beacon Landing then applied for a special use permit from the

Grand County Board of County Commissioners (BOCC) to use the

Deweys’ property for commercial boat storage. The BOCC approved

Beacon Landing’s application on the condition that the Deweys

obtain a state highway access permit from CDOT. See § 43-2-

147(5)(a), C.R.S. 2024 (“[P]roviding vehicular access to or from any

state highway from or to property adjoining a state highway”

requires an access permit.).

¶4 The Deweys applied for the highway access permit. CDOT

determined that the Deweys’ property was allowed only one highway

access point and that the original access point — located at the east

end of the historical easement — needed to be relocated

approximately one hundred twenty feet to the southwest for safety

reasons so that the new access point would align with an existing

access point directly across the highway. To ensure the McCallums

maintained highway access, CDOT required the Deweys to grant the

McCallums an easement connecting the historical easement to the

new highway access point.

2
¶5 The Deweys complied with CDOT’s requirement by granting

the McCallums two easements (the new easements).1 CDOT then

issued the highway access permit, directing the Deweys to

construct the new access point and close the original one. The

BOCC issued Beacon Landing’s special use permit the following

month. As discussed in more detail below, the special use permit

specifically referenced the highway access permit.

¶6 The Deweys finished relocating the highway access point in

December 2020, as depicted below. Since then, the McCallums

have used the new access point and the new easements for ingress

and egress to and from their property.

1 The Deweys granted the McCallums a second easement because

CDOT determined that the first one didn’t extend far enough to
meet the new highway access point.

3
Map of New Easements and Access Points

¶7 The McCallums vehemently opposed the relocation of the

highway access point because it made accessing their property

more difficult: Closing the original highway access point meant they

could no longer turn directly onto the historical easement from the

highway. They appealed CDOT’s decision to “destroy their access”

and requested a hearing by the Transportation Commission, which

referred the matter to an administrative law judge (ALJ). Following

a four-day hearing, the ALJ issued a final agency decision

upholding the relocation of the highway access point.

4
¶8 The McCallums appealed to the district court, see § 24-4-

106(4), C.R.S. 2024, which affirmed the ALJ’s decision.

II. Discussion

¶9 The McCallums raise four arguments for reversal on appeal:

(1) CDOT lacked statutory authority to relocate the highway access

point; (2) CDOT failed to ensure the McCallums maintained

reasonable highway access; (3) CDOT’s failure to obtain the BOCC’s

written concurrence and judicial approval for the change violated

Colorado law; and (4) the McCallums were denied due process

under the Colorado and United States Constitutions and their

rights under the State Administrative Procedure Act (APA), §§ 24-4-

101 to -109, C.R.S. 2024, because CDOT didn’t afford them a pre-

relocation hearing. We address and reject each of these contentions

in turn.

A. Standard of Review and Applicable Law

¶ 10 We review a final agency decision de novo, standing in the

same position as the district court. Martelon v. Colo. Dep’t of Health

Care Pol’y & Fin., 124 P.3d 914, 916 (Colo. App. 2005). We will

reverse only if the final agency decision is “arbitrary or capricious,

in excess of statutory authority, not in accord with the procedures

5
or procedural limitations of the APA or as otherwise required by

law, an abuse or clearly unwarranted exercise of discretion,

unsupported by substantial evidence, or otherwise contrary to law.”

HCA-HealthONE LLC v. Colo. Dep’t of Lab. & Emp., 2020 COA 52,

¶ 28 (citing § 24-4-106(7)(b)).

¶ 11 “In applying this standard, we presume the validity and

regularity of administrative proceedings and resolve all reasonable

doubts as to the correctness of administrative rulings in favor of the

agency.” Gessler v. Grossman, 2015 COA 62, ¶ 11, aff’d sub nom.

Gessler v. Smith, 2018 CO 48; see also Coffman v. Colo. Common

Cause, 102 P.3d 999, 1005 (Colo. 2004) (we defer to an agency’s

reasonable interpretation of its own regulations). And we won’t

disturb a hearing officer’s factual findings unless they’re clearly

erroneous. Neppl v. Colo. Dep’t of Revenue, 2019 COA 29, ¶ 9;

see § 24-4-106(7)(b)(VII). “The credibility of witnesses, the weight to

be afforded the evidence, and the resolution of conflicting evidence

are factual matters solely within the hearing officer’s province as

the trier of fact.” Neppl, ¶ 9 (citing Long v. Colo. Dep’t of Revenue,

2012 COA 130, ¶ 7).

6
B. Analysis

1. CDOT’s Authority to Regulate Highway Access

¶ 12 Throughout their opening brief, the McCallums repeatedly

assert that CDOT lacked statutory authority to relocate the highway

access point.2 As we understand their argument, the McCallums

contend that CDOT’s authority to regulate highway access under

section 43-2-147 didn’t extend to closing the original access point

in this case because doing so interfered with the historical

easement, which, given its grandfathered status, fell outside

CDOT’s ambit. See § 43-2-147(6)(a) (“The provisions of this section

shall not apply to driveways in existence on June 30, 1979, unless

specifically stated otherwise.”); see also Dep’t of Transp. Reg.

2 The McCallums also argue that CDOT lacked authority to direct

the Deweys to grant them the new easements. They assert that the
ALJ erroneously determined that “per [section 43-2-147(1), C.R.S.
2024], CDOT can regulate access which included [the] Deweys’
imposition of their easements upon [the] McCallums.” But the ALJ
never made such a determination, and the McCallums don’t point
us to any authority that addresses this issue. See Castillo v.
Koppes-Conway, 148 P.3d 289, 291-92 (Colo. App. 2006) (failure to
set forth a cogent argument with proper citations to authority and
the record precludes appellate review). In any event, it appears the
McCallums’ muddled discussion on this issue pertains largely to
the new easements’ alleged invalidity and the Deweys’ alleged
wrongdoing. As discussed below, we can’t address these matters
because the Deweys aren’t parties to this appeal.

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1.5(41), 2 Code Colo. Regs. 601-1 (“‘Grandfathered’ means a

condition that existed prior to June 21, 1979 when [section 43-2-

147] was first signed into law . . . .”).

¶ 13 A division of this court rejected the McCallums’ argument in

McCallum v. Dewey, (Colo. App. No. 23CA2004, June 27, 2024) (not

published pursuant to C.A.R. 35(e)):

Under section 43-2-147(1)(a), CDOT is
authorized to regulate vehicular access to
public highways “in order to protect the public
health, safety, and welfare.” And under
section 43-2-147(6)(b), CDOT can require a
driveway to be reconstructed to comply with
the highway access code if the driveway is
connected to a highway’s access points. See
Dep’t of Transp. Reg. 1.5(33), 2 Code Colo.
Regs. 601-1 (defining “Driveway” to mean “an
access that is not a public street, road, or
highway”). CDOT thus had the authority to
regulate the access point and driveway —
which included the historical easement.

8
Id., slip op. at ¶ 11.3

¶ 14 We agree with the division’s reasoning. Section 43-2-147(6)(b)

expressly provides that “[a]ny driveway, whether constructed before,

on, or after June 30, 1979, may be required by the department of

transportation . . . to be reconstructed or relocated to conform to

the access code . . . .” (Emphasis added.) We therefore reject the

McCallums’ argument that CDOT lacked authority under section

43-2-147 to close the original access point.

2. Reasonable Highway Access

¶ 15 The McCallums next contend that CDOT failed to ensure that

they maintained reasonable highway access. We disagree.

3 CDOT wasn’t a party in McCallum v. Dewey, (Colo. App. No.

23CA2004, June 27, 2024) (not published pursuant to C.A.R.
35(e)). In that case, a division of this court reviewed the district
court’s order granting summary judgment against the McCallums
on their wrongful interference claim against the Deweys. The
McCallums had asked for damages and “the restoration of the
historical easement including the historical easement access point.”
Id., slip op. at ¶ 10. As to damages, the division concluded that
summary judgment was improper. Id. at ¶¶ 14-16. But the
division determined that the McCallums couldn’t reinstate the
historical access point through their wrongful interference claim
against the Deweys because CDOT had the authority to regulate the
access point. Id. at ¶ 11.

9
¶ 16 The State Highway Access Code, see Dep’t of Transp. Reg.

1.2(7), 2 Code Colo. Regs. 601-1 (enacted pursuant to section 43-2-

147(4)), directs CDOT to “work closely with property owners and

local governments to provide reasonable access to the general street

system that is safe” and “enhances the movement of traffic.” See

also Dep’t of Transp. Reg. 1.2(3), 2 Code Colo. Regs. 601-1 (CDOT

must “consider its impacts on public and private land use

decisions” because “[p]roperty owners have the right of reasonable

access to the general street system.”). The Access Code also

encourages “beneficial modifications to existing developed property.”

Id. at Reg. 2.6(2). Where significant modifications to property

abutting a state highway are proposed, CDOT must determine “the

best overall solution to access and circulation patterns.” Id. at Reg.

1.2(6).

¶ 17 The ALJ found that CDOT’s decision to relocate the highway

access point complied with these regulations. He credited the

testimony from Mr. Bunnell, CDOT’s traffic and safety engineer, and

Mr. Killian, CDOT’s regional access manager, that (1) CDOT’s best

practice is to manage highway access in a way that minimizes

accidents; (2) the Deweys’ property was allowed only one highway

10
access point; (3) because the Deweys’ proposed land use would

increase vehicular traffic from the highway onto the Deweys’

property, the safest approach was to relocate the original access

point, so that the new one would align with an existing access point

directly across the highway; (4) this approach minimizes accidents

by allowing two vehicles to turn left simultaneously at the

intersection; (5) to ensure the McCallums’ right to reasonably

access the highway from their property, CDOT required the Deweys

to grant the McCallums an easement connecting the new access

point to the historical easement; and (6) the new easements the

Deweys granted the McCallums include a curvature that allows

large vehicles to turn onto the historical easement. Although the

McCallums testified that large emergency vehicles had difficulty

navigating the turn, the ALJ found that the McCallums themselves

had caused this difficulty by unilaterally installing a fence with gate

posts on the Deweys’ property and that removing the fence would

allow additional room to navigate the turn. The McCallums also

testified that the new easements created a “muddy mess” in the

spring and increased snow plowing costs in the winter, but the ALJ

found that CDOT’s public health and safety concerns outweighed

11
these considerations and justified the relocation. The evidence is

more than sufficient to support the ALJ’s findings.

¶ 18 We aren’t persuaded by the McCallums’ argument that they

don’t have reasonable highway access because the new easements

are terminable. As things stand, the McCallums can access the

highway from the historical easement using the new easements,

which the Deweys granted the McCallums with “non-exclusive,

perpetual access.” If future owners of the McCallums’ property run

into problems using the new easements, they may bring a quiet title

action against the Deweys in a separate judicial proceeding.

Indeed, we can’t address property rights concerning the new

easements because the Deweys aren’t parties to this appeal. See

Keith v. Kinney, 961 P.2d 516, 518 (Colo. App. 1997) (in a quiet title

action, anyone with a claim to the property, or a material interest

that might be affected by the judgment, is a necessary party).4

4 In addition to wrongful interference, the McCallums sued the

Deweys for a declaratory judgment that the new easements are
void. McCallum, No. 23CA2004, slip op. at ¶ 5. The division
reversed the district court’s order granting summary judgment
against the McCallums on this claim, id. at ¶¶ 19-21, which is
scheduled for a jury trial in July 2025.

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3. Written Concurrence and Judicial Approval

¶ 19 The McCallums next contend that CDOT acted unlawfully

because it didn’t obtain the BOCC’s written concurrence and

judicial approval before it relocated the highway access point.

Again, we disagree.

¶ 20 As discussed, section 43-2-147(6)(b) authorized CDOT’s

actions in this case. That section provides, in relevant part, that

“[a]ny driveway . . . may be required by the department of

transportation with written concurrence of the appropriate local

authority to be reconstructed or relocated to conform to the access

code.” Id. (Emphasis added.) The parties agree that the BOCC was

the “appropriate local authority” under section 43-2-147(6)(b).

¶ 21 The McCallums argue that the written concurrence

requirement wasn’t met because the BOCC didn’t give CDOT a

written agreement specifically assenting to the relocation of their

driveway. But the record conclusively shows that the BOCC agreed

with CDOT’s decision to relocate the highway access point. The

BOCC approved Beacon Landing’s application for a special use

permit on the condition that the Deweys obtain a highway access

permit from CDOT. After the Deweys obtained the highway access

13
permit detailing CDOT’s terms and design plans, the BOCC issued

Beacon Landing’s special use permit, which specifically referenced

the highway access permit:

WHEREAS, the conditions of approval have
been met and a copy of the State Highway
Access Permit No. 320066 granted by Colorado
Department of Transportation is incorporated
by reference herein and attached as Exhibit
“A”.

¶ 22 This satisfied the written concurrence requirement. See Dep’t

of Transp. Reg. 2.14(1), 2 Code Colo. Regs. 601-1 (“Written

concurrence by the appropriate local authority in the design plans

illustrating access changes or by correspondence will constitute

concurrence pursuant to section 43-2-147(6)(b) . . . .”) (emphasis

added).

¶ 23 The McCallums also argue that CDOT needed to obtain a court

order authorizing the relocation because they didn’t consent to it.

In support of their argument, they rely on Roaring Fork Club, L.P. v.

St. Jude’s Co., 36 P.3d 1229 (Colo. 2001).

¶ 24 We agree with the ALJ’s determination that Roaring Fork is

distinguishable. In that case, the owner of property burdened by an

irrigation ditch easement unreasonably interfered with the

14
benefitted estate owner’s use of the easement because it had

“destroyed ditch banks and portions of ditches, realigned ditch

channels, diverted ditch water flows, piped portions of ditches,

constructed cabins and golf course greens within the easements,

and temporarily piped wastewater into one of the ditches.” Id. at

1230. On appeal, the Colorado Supreme Court began its analysis

by emphasizing the importance of ditches in Colorado and

explaining how the rights attendant to ditch easements are greater

than and distinct from those of other types of easements. Id. at

1231-32. The court “approach[ed] the issues . . . with due regard

for the importance of ditches and ditch rights under the law,” id. at

1232, and held that the unilateral alteration of an irrigation ditch

easement, made without the easement holder’s consent or a court

order authorizing the alteration, constitutes trespass. Id. at 1231.

¶ 25 Because the historical easement over the Deweys’ property —

a driveway — is nothing like the ditch easement at issue in Roaring

Fork, we aren’t convinced that the holding in that case applies to

the circumstances before us. And the McCallums don’t point us to

anything in section 43-2-147 or the Access Code, or to any other

authority, that would have required CDOT to obtain either their

15
consent or judicial approval before relocating the highway access

point.

4. Due Process

¶ 26 Lastly, the McCallums contend that they were denied due

process under the Colorado and United States Constitutions and

their rights under the APA because CDOT didn’t hold a hearing

before it closed the original highway access point. This contention

fails for several reasons.

¶ 27 First, the McCallums don’t have a cognizable property interest

to assert a constitutional due process claim. See Wilkerson v. State,

830 P.2d 1121, 1124 (Colo. App. 1992) (“[I]n alleging a deprivation

of due process, plaintiff must first demonstrate the existence of the

property interest which enables him to assert the constitutional

claim and the basis of his entitlement to it.”). The McCallums don’t

own the original access point; they merely have the right to

reasonable ingress and egress to and from the highway. See § 42-

1-102(18), C.R.S. 2024 (“[O]wners or occupants of abutting lands

and other persons have no legal right of access to or from the

[highway, street, or roadway] except at such points only and in

such manner as may be determined by the public authority having

16
jurisdiction over such highway, street, or roadway.”); State Dep’t of

Highways v. Interstate-Denver W., 791 P.2d 1119, 1121 (Colo. 1990)

(declining to adopt a per se rule that substantial interference occurs

and compensation is required whenever a landowner loses a

particular highway access point). And “[a]n easement, regardless of

the manner of its creation, does not carry any title to the land over

which it is exercised, nor does it serve to dispossess the landowner.”

Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1234 (Colo.

1998).5 The McCallums have the right to use the easement, but the

Deweys own the property over which the easement runs. See id.

(“The owner of the servient estate enjoys all the rights and benefits

of proprietorship consistent with the burden of the easement; while

the rights of the owner of the dominant estate are limited to those

connected with use of the easement.”).

¶ 28 Second, CDOT wasn’t required to hold a hearing for the

McCallums under section 24-4-104(6), C.R.S. 2024, of the APA.

5 Although this rule is somewhat altered in the case of an exclusive

easement (i.e., for the easement holder’s sole enjoyment), Lazy Dog
Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1234 n.5
(Colo. 1998), it’s undisputed that the historical easement is non-
exclusive.

17
The McCallums equate CDOT’s decision to “destroy their access”

with revoking a license. Accordingly, they contend, CDOT should

have complied with section 24-4-104(6), which requires an agency

to hold a hearing before revoking a previously issued license. In

further support of their argument, they cite Sanchez v. State, 730

P.2d 328 (Colo. 1986), in which the supreme court held that if a

licensee’s conduct would warrant revocation, section 24-4-104’s

“prohibition against summary revocation of a license in the absence

of an initial express finding of deliberate and willful conduct is

necessary because the licensee suffers the immediate loss of

livelihood without the due process protections of prior notice and

formal hearing.” Id. at 332.

¶ 29 We aren’t convinced that CDOT’s conduct amounted to

revocation of a license. But even if it did, the McCallums aren’t the

relevant licensees who would have been entitled to a hearing. The

APA defines “[l]icense” to include an agency permit. § 24-4-102(7),

C.R.S. 2024. The Access Code, in turn, defines “permittee” as “any

person, unit of government, public agency or any other entity that

owns a fee interest in the property served, to whom an access

permit is issued.” Dep’t of Transp. Reg. 1.5(60), 2 Code Colo. Regs.

18
601-1. CDOT issued the highway access permit to the Deweys, who

hold fee simple title to the property for which access to the highway

was relocated. The relevant licensees are thus the Deweys; insofar

as the relocation interfered with the McCallums’ use of the original

access point and historical easement connected thereto, section 24-

4-104(6)’s procedural protections didn’t extend to them.

¶ 30 Third, CDOT ultimately afforded the McCallums a meaningful

opportunity to be heard. After the McCallums appealed CDOT’s

decision, the ALJ held a four-day hearing to determine whether

CDOT’s actions were authorized and reasonable. Eleven witnesses

testified, counsel for the McCallums and CDOT introduced more

than one hundred exhibits into evidence, and the ALJ heard closing

arguments. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“[A]n

unauthorized intentional deprivation of property by a state

employee does not constitute a violation of the procedural

requirements of the Due Process Clause of the Fourteenth

Amendment if a meaningful postdeprivation remedy for the loss is

available.”).

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III. Attorney Fees

¶ 31 The McCallums request an award of attorney fees. Because

they haven’t prevailed in this appeal or otherwise stated a legal

basis for an award of attorney fees, we deny their request. See

C.A.R. 39.1; Holt Grp., L.L.C. v. Kellum, 260 P.3d 50, 56 (Colo. App.

2010).

IV. Disposition

¶ 32 The judgment is affirmed.

JUDGE BROWN and JUDGE YUN concur.

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