McCullough v. Grand Junction

24CA1391 McCullough v Grand Junction 05-29-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1391
Mesa County District Court No. 22CV30352
Honorable Valerie J. Robinson, Judge

Claire McCullough, Sara Woods, and Daniel Woods,

Plaintiffs-Appellants,

and

Richard McCreanor,

Plaintiff,

v.

The City of Grand Junction, The City of Grand Junction City Council, and
Kettle Capital, LLC,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE SCHUTZ
Welling and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 29, 2025

Drew Moore, Grand Junction, Colorado, for Plaintiffs-Appellants

No Appearance for Plaintiff

John P. Shaver, City Attorney, Jamie B. Beard, Assistant City Attorney, Grand
Junction, Colorado, for Defendants-Appellees The City of Grand Junction and
The City of Grand Junction City Council
Dufford Waldek, Shelly S. Dackonish, Scott D. Goebel, Grand Junction,
Colorado, for Defendant-Appellee Kettle Capital, LLC
¶1 Claire McCullough, Sara Woods, and Daniel Woods

(collectively, the neighbors)1 appeal the district court’s judgment

affirming a City of Grand Junction (the City) resolution, passed by a

vote of the City of Grand Junction City Council (council), approving

a rezoning application filed by Kettle Capital, LLC (developer)

(collectively, the Defendants). We affirm.

I. Background and Procedural History

¶2 This dispute centers around the rezoning of an approximately

fifteen-acre parcel of property located in the Redlands area of Grand

Junction. The Redlands are bordered by the Colorado River, the

Colorado Monument, and the Lower Red Canyon, which serves as a

wildlife corridor.

¶3 The subject property is currently improved with a single-family

residence. It is bordered by Broadway on the south, and an

elementary school to the north. The eastern border of the property

is a designated floodplain known as the Red Canyon Wash, and

further east are single-family residences zoned Rural Residential,

which permits one dwelling unit per five acres. The parcel is

1 Richard McCreanor was identified as a plaintiff in the district

court, but is not a party to the appeal.

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bordered on the west by single-family residences, as is the area

south of Broadway.

¶4 In March 2022, the developer submitted a rezoning application

proposing to convert the property from the existing R-2 zone

district, which allows for two dwelling units per acre, to an R-5 zone

district, which allows multifamily housing units.

¶5 In Grand Junction, when a rezoning is sought, the City’s

planning director is required to review the application and make a

recommendation to the planning commission whether the request

should be approved. Grand Junction Mun. Code §§ 21.02.080,

21.02.140(b) (repealed effective Dec. 20, 2023) (hereinafter

G.J.M.C.).2 The planning commission receives input at a public

hearing. The planning commission then makes a recommendation

to the council. Id.

¶6 The council ultimately decides whether to approve the

rezoning application. Id. If the planning commission recommends

2 We note that since the hearings in this case, section 21.02.140

has been repealed or relocated in the G.J.M.C. The record does not
contain copies of the pertinent sections of the Code as it existed in
2022. But the parties’ briefs agree on the substance of the
applicable provisions, so we draw our citations to the 2022 Code
from their briefs.

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denial of a rezoning application, the applicant must secure the

votes of at least five of the six councilmembers in order to prevail on

the application. Id. § 21.02.120(e).

¶7 In May 2022, the developer held a virtual meeting to introduce

the rezoning request to the community and answer questions. The

meeting lasted about thirty minutes and was attended by ten

residents. After the meeting, Scott Peterson — a senior planner for

the City — prepared a staff report evaluating the application. The

report recommended approving the rezoning application, concluding

that it was consistent with the vision, goals, and policies of the One

Grand Junction Comprehensive Plan (Plan), and met four out of the

five criteria contained in G.J.M.C. section 21.02.140(a)(1) to (5).

¶8 A number of interested parties provided written comments

prior to the hearing, and members of the public also made

statements at the planning commission meeting. Numerous people

who lived close to the property spoke against the requested

rezoning. Among other concerns, they stated that the housing

density enabled by the proposed rezoning was inconsistent with the

surrounding neighborhoods and would be detrimental to wildlife in

the area, improperly burden the Red Canyon Wash and related

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wetlands, and compromise the pastoral setting of some of the

surrounding properties. After the hearing, a quorum of the

planning commission voted 4-0 in favor of recommending that the

council deny the application.

¶9 In July, the council scheduled a public meeting to consider the

application. After learning that only five of six councilmembers

were present, the developer requested a continuance of the hearing,

which the council granted.

¶ 10 The hearing took place in August. Over the course of

approximately forty-five minutes, the developer’s engineer, City

staff, and community members addressed the propriety of the

application. Five community members, including one of the

neighbors, requested that the council deny the application. The

neighbors assert that at the hearing the developer and Peterson

used about twice as much time as that used by members of the

public.

¶ 11 Before voting on the application, the mayor made the following

statement and findings:

I just want to remind us exactly what it is
we’re deciding here tonight. . . . [T]here are
processes in place . . . such as the [Plan] that

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have gone through the process of making sure
that nothing inappropriate is . . . being put
next to things. . . . [W]hat we’re here to decide
tonight specifically is whether or not the
request by the [developer] meets the criteria
and the ordinances that are in place and that
have been decided and voted on by City
Council. And that essentially [is] the law of
our city, the law of the land here. And what
we’re essentially determining is whether or not
the boxes have been checked. . . . We are not
here to make an emotional decision. We are
here to make a very objective decision, which
is pretty black and white. And that’s whether
or not [the application] meets the criteria of the
Zoning and Development Code and whether or
not this meets the [Plan]. And what I heard
this evening is that four of the five zoning and
development criteria were met or are met by
this, and only one has to be met in order for
this to move forward. So, the number of
criteria does not matter, but I think it’s
important to point out that four of five are met
here and also four of the [Plan’s] principles are
addressed here. To me, this is a pretty cut
and dry decision.

I find the boxes are checked and that is . . .
that’s our role here. . . . What we’re being
asked to determine is whether or not this
meets the [Plan] principles and the criteria of
Designing and Development Code. And I find
that it has been.

The council voted 5-1 to approve the application.

¶ 12 The neighbors sought district court review of the council’s

decision under C.R.C.P. 106(a)(4). They argued that the council

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violated their due process rights by failing to give them a

meaningful opportunity to be heard and did not meaningfully

consider their concerns. The neighbors also argued that the council

misinterpreted and misapplied the controlling ordinance by

concluding that it lacked any discretion to reject the application

and by failing to adequately consider whether the rezone was

consistent with the Redlands Area Plan (RAP).3

¶ 13 In response, the City argued that (1) the council approved the

rezoning application in accordance with the Plan and controlling

ordinances; (2) the neighbors’ due process claim fails because they

were properly provided with adequate notice and a meaningful

opportunity to be heard; and (3) the council properly construed and

considered the RAP as an advisory document rather than a binding

standard that controlled the rezoning decision.

¶ 14 In a thorough and well-reasoned order, the district court

denied the neighbors’ claim. The court concluded that the

neighbors had notice of the hearing and were provided ample and

3 The RAP is a 2002 advisory document adopted by the Mesa

County Planning Commission and the City of Grand Junction
Planning Commission that addresses future development in the
Redlands area.

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meaningful opportunities to be heard and thus suffered no violation

of their due process rights. The court also concluded that the

council properly treated the Plan and ordinances as the controlling

legal authority and the RAP as an advisory document. Thus, the

district court determined that the council did not abuse its

discretion by finding that the application met the Plan’s rezoning

requirements. The neighbors timely appealed the district court’s

order.

¶ 15 In August 2024, the City repealed the RAP. The repeal became

effective the following month.

II. Due Process Claim

¶ 16 The neighbors contend the district court erred by concluding

that the City provided them with a meaningful opportunity to be

heard. We are not persuaded.

A. Standard of Review and Applicable Law

¶ 17 We review a district court’s interpretation of the Colorado

Rules of Civil Procedure de novo. Brown v. Walker Com., Inc., 2022

CO 57, ¶ 14. When construing the rules, we apply “settled

principles of statutory construction” and interpret the rules

“according to their commonly understood and accepted meanings.”

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Id. (citation omitted). Similarly, we review de novo the construction

and application of municipal ordinances. City of Golden v. Sodexo

Am., LLC, 2019 CO 38, ¶ 22.

1. Judicial Review Under C.R.C.P. 106(a)(4)

¶ 18 In a Rule 106(a)(4) action, a district court may grant relief only

if the governing body has exceeded its jurisdiction or abused its

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

otherwise provided by law. Martin v. Arapahoe Cnty. Ct., 2016 COA

154, ¶ 10; C.R.C.P. 106(a)(4)(I).

¶ 19 “Review of a governmental body’s decision pursuant to Rule

106(a)(4) requires an appellate court to review the decision of the

governmental body itself rather than the district court’s

determination regarding the governmental body’s decision.” Bd. of

Cnty. Comm’rs v. O’Dell, 920 P.2d 48, 50 (Colo. 1996). In doing so,

we apply the same legal standard as the district court. Alpenhof,

LLC v. City of Ouray, 2013 COA 9, ¶ 9. A governmental body

abuses its discretion if it misinterprets or misapplies the law or if no

competent record evidence supports its decision. Id. Rule 106(a)(4)

does not permit judicial review of legislative acts such as the

passage of a code or ordinance; rather the reviewing court’s analysis

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focuses on the application of an ordinance to a particular set of

facts. Yakutat Land Corp. v. Langer, 2020 CO 30, ¶ 16.

¶ 20 A reviewing court “is not[,] and should not” sit as, a “zoning

board of appeals.” O’Dell, 920 P.2d at 50 (citation omitted). Rather,

the governing body’s decision must be upheld unless it is contrary

to law or there is no competent evidence to support it. See

Whitelaw v. Denver City Council, 2017 COA 47, ¶ 8 (the no

competent evidence standard requires a conclusion that there is

such an absence of evidentiary support that the decision can be

explained only as an arbitrary exercise of authority).

2. The Right to Due Process

¶ 21 The United States and Colorado Constitutions guarantee the

right to due process in matters where a person may be deprived of

their life, liberty, or property. See U.S. Const. amend. XIV, § 1;Colo.

Const. art. II, § 25. Thus, before making a quasi-judicial decision, a

governmental body must provide “notice and an opportunity to be

heard as a matter of ‘fundamental fairness to those persons whose

protected interests are likely to be affected by the governmental

decision.’” Whitelaw, ¶ 8 (quoting Cherry Hills Resort Dev. Co. v.

City of Cherry Hills Village, 757 P.2d 622, 626 (Colo. 1988)).

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¶ 22 “The due process requirement of neutrality in adjudicative

proceedings entitles a person to an impartial decision-maker.” No

Laporte Gravel Corp. v. Bd. of Cnty. Comm’rs, 2022 COA 6M, ¶ 41.

“An impartial adjudication requires ‘the absence of a personal,

financial, or official stake in the decision evidencing a conflict of

interest on the part of a decision-maker.’” Id. (citation omitted).

“This concept encompasses both the absence of actual bias and the

risk of actual bias.” Id. The obligations of neutrality extend to

governmental actors acting in a quasi-judicial capacity. Id.

¶ 23 “Acting as quasi-judicial decision-makers, city council

members are entitled to a ‘presumption of integrity, honesty, and

impartiality.’” Whitelaw, ¶ 11 (quoting Soon Yee Scott v. City of

Englewood, 672 P.2d 225, 227 (Colo. App. 1983)). To overcome this

presumption and invalidate the council’s action, the neighbors

must demonstrate that the conflict, if any, had an impact “on the

outcome of the proceeding.” Id. at ¶¶ 12-13.

B. Application

¶ 24 The neighbors concede that they received adequate notice of

the hearing, but they contend that the district court erred by

finding that the City provided them a meaningful opportunity to be

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heard. They also assert that the hearing was fundamentally unfair

due to the City’s alleged bias.4

¶ 25 The neighbors argued before the district court, and again on

appeal, that they were denied a meaningful opportunity to be heard

because, among other reasons, (1) the council failed to engage in

meaningful deliberation or discussion; (2) the councilmember who

voted against approval of the application provided no explanation

for that vote; (3) the mayor pro tem discussed personal experiences

living near multifamily housing; (4) a councilmember stated that he

felt like he did not have discretion to deny the application; (5) the

mayor stated that she was checking the boxes for the application

and that the decision was pretty black and white; (6) she also

referred to avoiding “emotional” decisions; (7) staff members were

biased against the neighbors and spent too much time advocating

for approval of the rezoning application; and (8) there were ex parte

4 Both parties rely on California case law to bolster their due

process arguments. Although we are permitted to consider
authority from other jurisdictions in the absence of controlling
Colorado case law, because there is Colorado law on point, we need
not rely on the cited California cases. See Wal-Mart Stores, Inc. v.
United Food & Com. Workers Int’l Union, 2016 COA 72, ¶ 17 (“[W]e,
of course, are not bound by the decisions of the courts of other
states.”).

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communications between City staff, developer representatives, and

councilmembers.

¶ 26 The Defendants counter that the City afforded the neighbors

meaningful opportunities to be heard both before the planning

commission and council, and by written comments. The

Defendants also argue that councilmembers listened to and

considered the public’s comments and the evidence presented by

the developers and City staff, and they properly concluded that the

available information demonstrated that the requested rezoning was

consistent with the Plan and applicable zoning ordinances. Thus,

the Defendants conclude, the City did not deny the neighbors a

meaningful opportunity to be heard.

¶ 27 We discern no error in the district court’s finding that the City

provided the neighbors a meaningful opportunity to be heard. The

neighbors were permitted to provide written comments between May

and August. There were no limits on the number or length of those

comments. Furthermore, the City provided the neighbors an

opportunity to speak at the planning commission and council

meetings. Indeed, numerous community members, including one of

the neighbors, expressed concerns at those meetings.

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¶ 28 Nor did the mayor pro tem’s references to his personal

experience living next to multifamily housing create error. Nothing

in Rule 106 or the Federal and Colorado Due Process Clauses

prohibits a fact finder from drawing on their lived experience.

¶ 29 The neighbors’ arguments about “checking the boxes,” “lack of

discretion,” and dismissing “emotional comments” are similarly

unavailing. When read in context, these councilmembers simply

acknowledged that they were required to evaluate whether the

proposed rezoning was consistent with the Plan and met one or

more of the five criteria set forth in G.J.M.C. section 21.02.140(a)(1)

to (5). In doing so, a number of councilmembers expressed that

they heard and empathized with the neighbors’ concerns, but they

were obligated to view the evidence and code dispassionately. We

discern no error in these statements.

¶ 30 Nor do we find any of the other specific allegations persuasive.

As to the asserted absence of factual findings to support the

majority and dissenting votes, we begin by noting that “[g]enerally,

express factual findings are not a prerequisite to a valid decision by

an administrative board if the necessary findings may be implied

from the action taken.” Canyon Area Residents for the Env’t v. Bd.

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of Cnty. Comm’rs, 172 P.3d 905, 909 (Colo. App. 2006) (citing

Sundance Hills Homeowners Ass’n v. Bd. of Cnty. Comm’rs, 534

P.2d 1212 (Colo. 1975)). Thus, the councilmembers were not

required to provide specific factual findings to support their votes.

But we also note that a number of those who voted in favor of the

application provided both the factual and legal context for their

decision.

¶ 31 Nor do we discern any error with how the council managed the

evidentiary presentations. In the first instance, the structure and

process for conducting a public hearing is left to the sound

discretion of the presiding board. See Carpenter v. Civ. Serv.

Comm’n, 813 P.2d 773, 776 (Colo. App. 1990) (“A hearing is nothing

more than an opportunity to be heard at a meaningful time and in a

meaningful manner.”); People v. Dist. Ct., 767 P.2d 239, 241 (Colo.

1989) (a trial court has broad discretion and is the final arbiter of

that admissibility of evidence). During the hearing, a

councilmember asked the developer’s engineer and the city planner

multiple questions and consulted with the city attorney when there

was any confusion about council’s quasi-judicial function.

Councilmembers acknowledged and consistently referred to their

14
obligation to objectively apply the Plan and controlling ordinances.

And though not required, multiple councilmembers articulated

general facts and Plan standards that informed their decision.

These actions contradict the neighbors’ assertion that the council

merely rubber-stamped the planning staff’s recommendations.

¶ 32 The neighbors’ expressions of concern regarding the time given

to the participants at the hearing and the allegedly ex parte

communications between staff members and the developer or

among councilmembers are also unavailing.

¶ 33 As it relates to the allocation of time between the developer

and the neighbors, there is no indication that any neighbors were

unable to meaningfully convey their concerns at the hearing.

Moreover, there is no indication that the allotted time was

inadequate or that interested neighbors were deprived of their

ability to be heard. And even though oral comments were limited to

three minutes per person at the May and August hearings, the

neighbors were also permitted to submit written comments online

prior to those hearings. Viewing the record as a whole, we conclude

that the district court did not err by rejecting the neighbors’

15
contention that they were denied the opportunity to be meaningfully

heard during this process.

¶ 34 We also reject the neighbors’ argument that the City’s

communications with the participants reflected a bias in favor of

the developer. The application process requires communications

between the planning department and the developer, and the

neighbors point to nothing untoward about those communications.

Similarly, we do not perceive anything improper about alleged

communications between two councilmembers who apparently

shared some initial perspectives concerning the Plan and applicable

ordinances as they related to the application.5

¶ 35 Because the record indicates that the neighbors had a

meaningful opportunity to be heard, we discern no error in the

5 In their reply brief, the neighbors argue for the first time on appeal

that the City failed to provide a full record of all communications
between the staff and the developer, or among councilmembers.
But we do not address issues raised for the first time on appeal.
Gebert v. Sears, Roebuck & Co., 2023 COA 107, ¶ 25. Nor will we
speculate about the supposed content of communications that are
not documented in the record. See In re Marriage of Tessmer, 903
P.2d 1194, 1197 (Colo. App. 1995) (The court of appeals is bound
by the record presented and may not consider “arguments and
assertions not supported by evidence in the record.”).

16
district court’s conclusion that the City did not violate their due

process rights.

III. Misapplication of the Law

¶ 36 The neighbors also claim that the district court erred when it

found that the council properly applied the Plan and controlling

ordinances. Again, we are not persuaded.

A. Standard of Review and Applicable Law

¶ 37 A governing body abuses its discretion if it misinterprets or

misapplies the law. No Laporte Gravel, ¶ 23. We review a district

court’s interpretation of statutes and municipal ordinances de novo.

Asphalt Specialties, Co. v. City of Commerce City, 218 P.3d 741, 745

(Colo. App. 2009). Although we are not bound by a governing

body’s interpretation of its local ordinances, we extend deference to

those interpretations. See Roundup Found., Inc. v. Bd. of

Adjustment, 626 P.2d 1154, 1156-57 (Colo. App. 1980) (granting

deference to a board of adjustment’s interpretation of a municipal

ordinance).

B. Application

¶ 38 The neighbors contend that the City misapplied the law by

treating the RAP as merely an advisory document. The neighbors

17
argue that the approval of the rezoning application was inconsistent

with the RAP’s stated objectives, including protecting the floodplain

and related wetlands, protecting wildlife corridors, and maintaining

the pastoral setting of neighboring properties by preserving gradual

transitions to more densely populated areas. The neighbors reason

that these failures contradicted the Plan’s incorporation of

neighborhood plans and the substantive provisions of the RAP.

¶ 39 The Defendants first contend that the issue is moot because

the City repealed the RAP after this appeal was filed. In the

alternative, they argue that regardless of its repeal, the RAP was

merely advisory, and therefore, the council was not bound by its

provisions when deciding the rezoning issue.

1. Mootness

¶ 40 Approximately a week after the neighbors filed their notice of

appeal, the council adopted a resolution repealing the RAP (along

with three other neighborhood plans). Because the RAP no longer

exists, the Defendants argue that even if the rezoning failed to

appropriately apply the RAP, it doesn’t matter. In other words, even

if we were to reverse the City’s decision based on the failure to

properly apply the RAP, it would not affect the outcome of the

18
dispute because on remand the City could again approve the

rezoning application for the same reasons without consideration of

the repealed RAP. See Gresh v. Balink, 148 P.3d 419, 421 (Colo.

App. 2006) (“A case is moot when the relief sought, if granted,

would have no practical legal effect on the controversy.”).

¶ 41 Based on the mootness doctrine, a court generally will not

decide an issue that will not affect the outcome of the case. Giuliani

v. Jefferson Cnty. Bd. of Cnty. Comm’rs, 2012 COA 190, ¶ 15

(“Where a claim is moot on appeal, we decline to address its merits,

and instead dismiss the claim.” (citing USAA v. Parker, 200 P.3d

350, 356 (Colo. 2009)); Campbell v. Meyer, 883 P.2d 617, 618 (Colo.

App. 1994). The neighbors argue that mootness principles should

not be applied in this case because they were not provided notice

and a meaningful opportunity to be heard prior to the repeal of the

RAP. They also argue that the Plan continues to reference and

incorporate the RAP even after its repeal.

¶ 42 We need not weigh in on the mootness issue because

regardless of the current status of the RAP, the City did not err by

not giving it controlling import.

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2. The RAP’s Advisory Nature

¶ 43 The RAP was originally passed in 1986. It was last updated in

2002. Its self-described purpose is “to identify and articulate

detailed needs of the area as they have changed over the last

several years. The [RAP] will help achieve community goals by

providing specific policies and implementation strategies.” It does

not purport to set forth the controlling criteria for the City’s decision

whether to approve a rezoning request.

¶ 44 The Plan was originally adopted in 2010 and last updated in

2020. The Plan designates neighborhood plans, such as the RAP,

as “guiding documents to the City.” Specifically, the Plan provides:

Previously adopted plans, studies, and reports
completed by or for the City of Grand Junction
are important to the current comprehensive
planning process. The 2010 Comprehensive
Plan is first among these as it contains many
guiding principles and information that have
remained relevant to the City’s vision a decade
later. In addition, many of the 2010
Comprehensive Plan policies and
recommendations remain consistent with
the . . . Plan. Where this consistency occurs,
policies and recommendations from the
previous plan have been incorporated into
the . . . Plan. Relationship to [other plans,
including the RAP] also remain important for
City long-term planning and provide for a more
granular assessment and recommendations for

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specific areas . . . or specific services. . . .
These plans remain guiding documents to the
City and should be reviewed for consistency
with [the] Plan and updated periodically.

¶ 45 These provisions indicate that the RAP is an advisory

document that sets forth recommendations and guidelines for the

City to consider when addressing zoning and land use issues in the

Redlands region. But these policies are subservient to the Plan.

And most importantly, the RAP does not change or supersede the

requirements of the G.J.M.C., which controls the approval of a

rezoning request.

3. The Municipal Code Requirements

¶ 46 Section 21.02.140(a) articulates five criteria for the City to

evaluate when determining whether an area should be rezoned:

In order to maintain internal consistency
between the [G.J.M.C.] and the zoning maps,
map amendment must only occur if:

(1) Subsequent events have invalidated the
original premises findings and/or;

(2) The character and/or condition of the area
has changed such that the amendment is
consistent with the Plan; and/or

(3) Public and community facilities are
adequate to serve the type and scope of the
proposed land use; and/or

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(4) An inadequate supply of suitably
designated land is available within the
community as defined by the presiding body to
accommodate the proposed land use; and/or

(5) The community or area, as defined by the
presiding body, will derive benefits from the
proposed amendment.

¶ 47 The neighbors concede that a rezoning application need not

satisfy all five of these criteria. But they contend that the

councilmembers improperly concluded that they had no discretion

to deny the application if any one of the five criteria was satisfied.

We disagree.

¶ 48 Read in context, the councilmembers’ statements that their

decision was controlled primarily by whether the application met

one of the criteria set forth in section 21.02.140(a)(1) to (5) and was

consistent with the vision and objectives of the Plan. We

acknowledge that a couple of the councilmembers expressed

reluctance to reject the application if it met the approval conditions,

but we do not interpret these statements as an abandonment of

their discretion to deny the application.

¶ 49 For example, one councilmember said, “Our job is to apply the

rules that have been adopted to the facts of the case. We don’t have

22
a lot of discretion. And I, I have a lot of commiseration with the

residents who have come and talked.” The mayor stated, “We are

not here to make an emotional decision. We are here to make a

very objective decision, which is pretty black and white. And that’s

whether or not [the rezoning application] meets the criteria of the

[G.J.M.C.] and whether or not this meets the [Plan].”

¶ 50 We interpret these statements as an expression of the

councilmembers’ recognition that they sat in a quasi-judicial

capacity, and that they were obligated to apply the approval criteria

objectively. We reject the notion that these statements reflect their

understanding that they were compelled to accept the application

simply because one or more of the criteria was established. Indeed,

a councilmember listening to the same presentation and discussion

exercised just such discretion by voting against the application.

¶ 51 In sum, we reject the contention that the council

misinterpreted or misapplied the controlling law, including section

21.02.140(a)(1) to (5) and the Plan.

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IV. Disposition

¶ 52 Because the City did not violate the neighbors’ due process

rights, misapply the law, or otherwise abuse its discretion, the

district court’s judgment is affirmed.

JUDGE WELLING and JUDGE KUHN concur.

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