RH Mining v. Summit County

24CA1541 RH Mining v Summit County 07-03-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1541
Summit County District Court No. 23CV30070
Honorable Karen A. Romeo, Judge

RH Mining Claims, LLC,

Plaintiff-Appellant,

v.

Summit County Board of Adjustment,

Defendant-Appellee.

JUDGMENT AFFIRMED

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

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2025

Ingenuity Law Colorado, Alexander Dorotik, Denver, Colorado, for Plaintiff-
Appellant

Hamre, Rodriguez, Ostrander & Prescott, P.C., Donald M. Ostrander, Emily N.
Ostrander, Englewood, Colorado; Jeffrey L. Huntley, County Attorney, Cameron
Turpin, Assistant County Attorney, Breckenridge, Colorado, for Defendant-
Appellee
¶1 Plaintiff, RH Mining Claims, LLC (RH Mining), appeals the

district court’s order regarding RH Mining’s complaint for judicial

review under C.R.C.P. 106(a)(4). The district court partially granted

the motion of defendant, Summit County Board of Adjustment (the

BOA), to strike RH Mining’s amended reply brief and affirmed

Resolution No. 2023-05, which concerns RH Mining’s property. We

affirm the district court’s order granting the motion to strike a

portion of RH Mining’s amended reply brief and affirming

Resolution No. 2023-05.

I. Background

A. Factual Background

¶2 The subdivision at issue comprises 4.01 acres of land and

consists of twelve lots zoned for industrial purposes. Lot 11 is at

issue here. The original plan for the subdivision included only ten

lots. In 1979, Summit County’s regional planning commission met

to discuss the subdivision project, which by then included Lot 11

and Lot 12. At this meeting, the former planning director explained

that the intent was “to develop parking on Lot 11 for Lots 7, 8, 9 &

10” and that “Lots 11 and 12 need the common area to be

stipulated on the plat.”

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¶3 As shown in the figure below, the proposed plat did not

identify a common open area, but it labeled Lot 11 as “Open,

Parking, Snowstack” and did not assign floor space to Lots 11 and

12.

Proposed Subdivision Plat Detail for Lot 11

¶4 The proposed plat included a dotted line with a ninety-degree

angle in the middle of Lot 11 that ran parallel to the lot’s outer

borders. This line ran through several other parcels in the

subdivision and was identified in the plat as the “Building Setback

Line.” In a “Detailed Submittal and Final Plat” for the subdivision

submitted in November 1979, the project description stated that

19.7% of the subdivision would be designated common open area

“to accommodate channel of French Creek, common parking and a

common leach field and storage area.”

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¶5 In January 1980, the developer and the chairman of the

Summit County Board of Commissioners (BOCC) signed an

“Improvements Agreement” to ensure phased construction of utility

improvements to support future development on Lots 1 through 10,

which would be known as “French Creek Center, Phase I.” The

Improvements Agreement did not mention Lot 11 or 12.

¶6 Later that year, the BOCC approved and recorded the final

subdivision plat, which is partially shown below. The final plat

largely resembled the proposed plat, but unlike the proposed plat,

the description underneath Lot 11’s acreage just read “Open,” and

“n/a” was written in the project data table cell for the floor space

allocated to Lots 11 and 12:

Final Subdivision Plat Detail for Lot 11

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¶7 Lot 11 remained undeveloped for forty years. In 2021, RH

Mining purchased it.

B. Procedural History

¶8 In September 2022, RH Mining applied to the Summit County

Planning Department (Planning Department) for a permit to install

a 900-square-foot portable storage unit on Lot 11. The Planning

Department denied the application because Lot 11 was platted as

an “open space parcel with no assigned density [and] [w]hen the lot

was platted, it was created as an open space parcel per the French

Creek Center Sub Plat.” Because it was a platted open space parcel

with no density assigned, the Planning Department concluded that

“no structure can be built on the site.”

¶9 RH Mining claimed that the denial improperly labeled Lot 11

as “open space” when the parcel was just labeled “open,” so the

Planning Department reconsidered its permit denial. It denied the

permit application again, but on different grounds and stated the

following:

It has been determined that the plat for Lot 11,
French Creek Center Sub would not allow for
any structures to be built on this lot regardless
of whether the structure in question would
count as floor area for the purposes of density.

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During the platting of this lot, it was discussed
that this lot may be able to be used as a
common parking area for the other lots in Lot
11 but otherwise should remain open, per the
plat for the French Creek Center Sub.

¶ 10 RH Mining appealed this denial to the BOA, which held a

hearing on the matter. Following the hearing, the BOA

unanimously voted to affirm the Planning Department’s decision for

the following reasons: (1) staff interpreted “open” to mean “free from

structures”; (2) the developer did not allocate any floor space to Lots

11 and 12; (3) the combined acreage of Lots 11 and 12 was 19.7%

of the total acreage of the subdivision, which was the same

percentage of land within the subdivision allocated as common

open area; and (4) the developer did not list Lots 11 and 12 as

intended for development in Phase I of the Improvements

Agreement.

¶ 11 The BOA then adopted Resolution No. 2023-05, which made

two findings:

1. The use of the word “open” and the lack of allocated floor

area on the plat, combined with the description in the

materials from the preliminary and final platting process

that Lot 11 would be used for parking and snow storage,

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supported the Code Administrator’s determination that

no structures should be allowed on the property.

2. There is a process in the Summit County Land Use and

Development Code (Code) by which the applicant could

request additional density and/or uses for the property,

and the BOA appeal process is not a substitute for the

proper procedure.

¶ 12 RH Mining filed a complaint for judicial review of the BOA’s

decision under C.R.C.P. 106(a)(4). RH Mining contended that the

words “open” and “n/a” signaled that “at the time of the [plat’s]

approval, it was unclear how Lot 11 would be developed in the

future and thus remained ‘open,’” and therefore the plat does not

prohibit structures or density on Lot 11. RH Mining did not discuss

the Building Setback Line.

¶ 13 In its opening brief, RH Mining asserted: (1) that the BOA

applied an incorrect framework by not referencing the Code when

interpreting the plat; (2) that the BOA abused its discretion by

failing to resolve any ambiguity in the plat; and (3) that because the

plat was ambiguous, the BOA was required to adjudicate the

application consistent with the Code. Again, it did not raise the

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issue of the Building Setback Line. The BOA’s answer brief also did

not raise arguments relating to the Building Setback Line The

district court granted RH Mining a seven-day extension to file its

reply brief, which was eventually timely filed.

¶ 14 Two days later, however, with no leave from the court or

conferral with the BOA, RH Mining filed an amended reply brief

containing arguments related to the Building Setback Line. The

BOA moved to strike the amended reply brief or, in the alternative,

for leave to file a surreply brief. RH Mining filed a response to the

motion, and the BOA filed its reply.

¶ 15 The district court granted the BOA’s motion to strike RH

Mining’s argument concerning the Building Setback Line,

concluding that it presented a new argument not raised in the

opening brief. The court also affirmed Resolution No. 2023-05 and

held (1) the plat unambiguously prohibits any structures from being

built on Lot 11; and (2) assuming that the plat was ambiguous,

extraneous evidence showed that the plat intended for no

structures to be built on Lot 11.

¶ 16 RH Mining appeals.

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II. Discussion

¶ 17 RH Mining contends that the district court erred by (1) striking

all information concerning the Building Setback Line and

concluding that RH Mining waived this argument; (2) concluding

the plat unambiguously prohibited structures from being built on

Lot 11; and (3) concluding that extraneous evidence showed the

plat intended for no structures to be built on Lot 11.1 We disagree

with these contentions and address each in turn.

A. The District Court Did Not Err by Partially Granting the BOA’s
Motion to Strike

¶ 18 RH Mining contends that the district court erroneously struck

part of RH Mining’s amended reply brief, which waived all

information pertaining to the Building Setback Line from the record

and precluded RH Mining from making an argument based on it.

We disagree.

1 RH Mining’s opening brief does not comply with C.A.R. 28(a)(7)(A),

which requires citation to the record and for the appellant to
indicate whether the issues raised were preserved on appeal. We
decline to impose sanctions under C.A.R. 38(a) but remind counsel
of the obligation litigants have to comply with the rules. See
Castillo v. Koppes-Conway, 148 P.3d 289, 291 (Colo. App. 2006)
(recognizing that it is the litigant’s duty to locate and synthesize
relevant facts and arguments, and this duty should not be given to
the appellate court).

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¶ 19 “We review a district court’s decision to accept or reject a brief

for an abuse of discretion.” Migoya v. Wheeler, 2024 COA 124,

¶ 23. A district court abuses its discretion only “if its decision is

manifestly unreasonable, arbitrary, or unfair, or it misapplies the

law.” HMLL LLC v. MJM Holdings Ltd., 2024 COA 85, ¶ 17.

¶ 20 Generally, a court will not consider arguments raised for the

first time in a reply brief. See IBC Denver II, LLC v. City of Wheat

Ridge, 183 P.3d 714, 718 (Colo. App. 2008).

¶ 21 RH Mining maintains that by striking the Building Setback

Line argument in its amended reply brief, the district court

“deliberately ignored a portion of the record” when conducting its

judicial review. This is inaccurate. By partially granting the BOA’s

motion to strike, the district court did not “waive part of the record”;

rather it waived RH Mining’s ability to raise a Building Setback

Line-related argument for the first time in a reply brief.

¶ 22 By waiting to raise the argument until it filed its amended (and

untimely) reply brief in the district court, RH Mining denied the

BOA the opportunity to consider and respond to that argument at

the administrative level and the district court level. See, e.g.,

Widder v. Durango Sch. Dist. No. 9-R, 85 P.3d 518, 526 (Colo. 2004)

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(recognizing that judicial review under C.R.C.P. 106(a)(4)

“contemplates that the district court will review the record of the

proceedings conducted elsewhere” and “[will] not contemplate a new

evidentiary hearing at the district court level”); In re Marriage of

Drexler, 2013 COA 43, ¶ 27 (arguments raised for the first time in a

reply brief are not considered for appellate review).

¶ 23 We conclude that the court did not abuse its discretion by

partially granting the BOA’s motion to strike RH Mining’s amended

reply brief.

B. Review of the BOA’s Administrative Decision Under C.R.C.P.
106(a)(4)

¶ 24 RH Mining contends that the BOA erred by denying RH

Mining’s appeal and affirming the Planning Department’s

determination. Again, we disagree.

1. Standard of Review and Applicable Law

¶ 25 Our review under C.R.C.P. 106(a)(4) is limited to “a

determination of whether the [governmental] body or officer has

exceeded its jurisdiction or abused its discretion, based on the

evidence in the record before the defendant body or officer.”

C.R.C.P. 106(a)(4)(I). The appropriate consideration for an appellate

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court is whether there is sufficient evidentiary support for the

decision reached by the administrative tribunal, not whether there

is adequate evidentiary support for the lower court’s decision. See

City of Colorado Springs v. Givan, 897 P.2d 753, 756 (Colo. 1995).

Therefore, an appellate court is in the same position as the district

court when reviewing a decision under Rule 106(a)(4). Ad Two, Inc.

v. City & Cnty. of Denver, 9 P.3d 373, 376 (Colo. 2000).

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

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

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

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

applies an erroneous legal standard or when no competent evidence

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

this conclusion if the BOA’s decision was “so devoid of evidentiary

support” that the decision was arbitrary and capricious. Freedom

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

(Colo. 2008).

¶ 27 But when the decision involves the interpretation of recorded

instruments, we review it de novo. See Ad Two, 9 P.3d at 376; Pulte

Home Corp. v. Countryside Cmty. Ass’n, 2016 CO 64, ¶ 23. “In

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doing so, we give words and phrases their common meanings and

will enforce such documents as written if their meaning is clear.”

Pulte, ¶ 23. We only consider extraneous evidence to prove intent

when the meaning of a term is unclear or ambiguous on its face.

Ad Two, 9 P.3d at 376. A term is ambiguous if it has more than

one reasonable interpretation. Id. Mere differences in opinion

between parties over how to interpret the instrument does not

create an ambiguity. Id.

2. Analysis

a. The Plat Unambiguously Prohibits Any Structures from Being
Built on Lot 11

¶ 28 RH Mining contends that the terms of the plat were

ambiguous and that the plat was subject to multiple reasonable

interpretations. We disagree.

¶ 29 The plat identifies all twelve parcels, their perimeters, and

their respective acreage. Notably, Lots 1 through 10 do not contain

any words under their acreage, while Lots 11 and 12 do. Lot 11 is

labeled “open” and the words “leach field” and “snowstack” appear

on Lot 12. The plat also contains a project data table that identifies

each parcel, its area, and its floor space. Lots 1 through 10 are

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assigned floor space, but Lots 11 and 12 have no floor space.

Instead, the term “n/a” is written in their floor space cell.

¶ 30 The plat does not define what the terms “open,” “floor space,”

or “n/a” mean, so we look to their plain meanings. See Sch. Dist.

No. 1 v. Denver Classroom Tchrs. Ass’n, 2019 CO 5, ¶ 13 (in

determining whether certain terms of an instrument are

ambiguous, “[w]e may consult with definitions in recognized

dictionaries to give undefined words their plain and generally

accepted meaning”).

¶ 31 The word “open” has several definitions, including “having no

enclosing or confining barrier”; “completely free from concealment:

exposed to general view or knowledge”; “not restricted to a

particular group or category of participants”; and “presenting no

obstacle to passage or view: not enclosed, obstructed, or filled with

objects.” Merriam-Webster Dictionary, https://perma.cc/SK55-

6DNT.

¶ 32 “Floor space” is defined as “the area of the floor of a building

such as a shop, office, or factory.” Cambridge Dictionary,

https://perma.cc/ZJF5-SGMP.

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¶ 33 “N/a” is an abbreviation for several terms, including “not

applicable” and “not available.” Merriam-Webster Dictionary,

https://perma.cc/HH3H-2SRL.

¶ 34 Giving the words defined above their common meaning, we

conclude that “open” as used in the plat means “having no

enclosing or confining barrier” and “presenting no obstacle to

passage or view: not enclosed, obstructed, or filled with objects.”

This is consistent with the way that the floor space for Lots 11 and

12 was marked “n/a” to mean no square footage was allocated for a

building or structure on these two parcels. See, e.g., Premier Farm

Credit, PCA v. W-Cattle, LLC, 155 P.3d 504, 517 (Colo. App. 2006)

(recognizing that the written document’s “language must be

examined and construed in harmony with the plain and generally

accepted meaning of the words used, and reference must be made

to all the agreement’s provisions” (quoting Fibreglas Fabricators, Inc.

v. Kylberg, 799 P.2d 371, 374 (Colo. 1990))).

¶ 35 RH Mining argues that if there was no intent to allow

structures on Lot 11, it would be unnecessary for the plat to

include a Building Setback Line on Lot 11 and including a setback

renders the plat ambiguous. In support, RH Mining cites Section

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3505.13 of the Code, which defines a setback as “an undeveloped

open area of fixed width within a parcel along the front, side or rear

property line which shall remain free of any development and no

building, structural improvement or paving is to be placed in any

required setback except as provided in Section 3505.13.F. and G.”

By including setbacks on Lot 11, RH Mining contends that

buildings are allowed on Lot 11 as long as they are not located

within the setbacks.

¶ 36 RH Mining’s contention is misplaced. All the parcels have

building setbacks — not just Lot 11. What distinguishes Lot 11 is

that, in addition to a setback, which is intended to be an

undeveloped area along the parcel’s perimeter, Lot 11 has the word

“open,” which we have already indicated means “presenting no

obstacle to passage or view.” Unlike Lots 1 through 10, which

permit structures to be erected — except within the setback areas

— no structures were intended for placement inside or outside of

Lot 11’s Building Setback Line. Thus, even applying the Code’s

definition of a setback, there is no ambiguity or conflict with the

conclusion that no buildings were intended on Lot 11.

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b. Extraneous Evidence Supports the BOA’s Finding that the Plat
Intended for No Structures to Be Built on Lot 11

¶ 37 Even if the plat is ambiguous, the following extraneous

evidence supports the BOA’s conclusion that no structures were

intended to be built on Lot 11:

• At the regional planning commission meeting in 1979,

the former planning director explained that “the concept

[wa]s to develop parking on Lot 11 for Lots 7, 8, 9, & 10.”

• The final proposed project description allocated 19.7% of

the subdivision as “common open area to accommodate

the channel of French Creek, common parking and a

common leach field and storage area.” The combined

acreage of Lots 11 and 12, which is calculated in the

project data table on the plat, totals 0.79 acres —

roughly 19.7% of the subdivision’s 4.01 acres. Nothing

in the record indicates that the Planning Department

changed this designation.

• The developer and BOCC chairman signed an

Improvements Agreement to construct utilities and

improvements on the subdivision. The agreement

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included Lots 1 through 10 but did not mention Lot 11 or

12.

¶ 38 Having considered this extraneous information, we conclude

that the BOA did not err in finding that no structures can be built

on Lot 11.

III. Disposition

¶ 39 Accordingly, we affirm the district court’s judgment granting

the BOA’s motion to strike the Building Setback Line argument

from RH Mining’s amended reply brief and affirming Resolution

No. 2023-05.

JUDGE FREYRE and JUDGE GOMEZ concur.

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