Keep Airport v. BOCC Boulder

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
January 29, 2026

2026COA5

No. 24CA2203, Keep Airport v. BOCC Boulder — Jurisdiction of
Courts — Standing; Real Property — Conservation Easements
— Termination

A division of the court of appeals considers, as a matter of first

impression, whether adjacent property owners and other interested

residents (the neighbors) have standing to challenge a board of

county commissioners’ decision to terminate a conservation

easement that burdens private land. The division concludes that

the neighbors lack standing to challenge the termination of the

conservation easement because they do not have a legally protected

interest recognized by common law or by the applicable land use

code.
COLORADO COURT OF APPEALS 2026COA5

Court of Appeals No. 24CA2203
Boulder County District Court No. 23CV30652
Honorable Michael Kotlarczyk, Judge

Keep Airport Road Environmental & Safe; Eric Scherer; Gwen Scherer; Greg
Petrosky; and Michelle Romeo,

Plaintiffs-Appellants,

v.

Boulder County Board of Commissioners,

Defendant-Appellee.

APPEAL DISMISSED AND CASE REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE MOULTRIE
J. Jones and Kuhn, JJ., concur

Announced January 29, 2026

Progressive Law LLC, Karen R. Breslin, Elizabeth, Colorado, for
Plaintiffs-Appellants

Ben Pearlman, County Attorney, David Hughes, Deputy County Attorney, Erica
Rogers, Assistant County Attorney, Boulder, Colorado, for Defendant-Appellee
¶1 In this action seeking judicial review of a decision by

defendant, the Boulder County Board of County Commissioners

(BOCC), to terminate a conservation easement, plaintiffs, Keep

Airport Road Environmental & Safe, Eric Scherer, Gwen Scherer,

Greg Petrosky, and Michelle Romeo (collectively, the neighbors),

appeal the district court’s order upholding the BOCC’s decision. We

dismiss the appeal for lack of standing and remand with directions.

I. Background

¶2 In 1982, the BOCC approved the Kanemoto Estates

Subdivision (Kanemoto Estates). Kanemoto Estates consists of

three parcels: two residential parcels and an agricultural parcel,

“Outlot A.” When the subdivision was created, the original owners

of Kanemoto Estates executed an agreement granting Boulder

County (the county) a conservation easement1 encumbering Outlot

A.

¶3 The purpose of the conservation easement was to “preserve[]

open land for agricultural purposes.” Under the terms of the

1 A conservation easement is a restriction that runs with land for

the purpose of maintaining the land in a predominantly natural,
scenic, or open condition. Kowalchik v. Brohl, 2012 COA 25, ¶ 2.

1
conservation easement, the owners and their successors were

prohibited from constructing any structures (including pavement)

on Outlot A that were residential or “not necessary to an existing

principal agricultural use,” occupied over ten acres, or occupied

over ten percent of the land. They were also required to manage

Outlot A as a single agricultural unit. The easement was specified

to run with the land and remain “until terminated or transferred”

by the county. As now relevant, the easement permitted the county

to terminate the easement if the Boulder County Planning

Commission (Planning Commission) and the BOCC determined that

a proposed development or land use was “consistent with the

current Boulder County Comprehensive Plan and Boulder County

Land Use Regulations.”

¶4 After the easement was created, the BOCC executed a series of

intergovernmental agreements with the City of Longmont (the city)

to coordinate land annexation and property development activities

within the city and the county. One such agreement created a

mechanism for authorizing the development rights for a property to

be transferred to a different property that the city and the county

2
deemed appropriate for additional development, consistent with the

county’s comprehensive plan.

¶5 In February 2023, Lefthand Ranch, LLC, the current owner of

Kanemoto Estates, requested termination of the easement so that

the area encompassing the subdivision could be annexed into the

city for proposed development as a mixed residential housing

community. The Planning Commission requested public comment

concerning termination of the easement and held a public hearing

in March 2023. The BOCC likewise requested public comment and

held a public hearing in July 2023.

¶6 The neighbors — a coalition of individuals who own property

adjacent to Outlot A and a community conservation entity they

created — as well as other county residents submitted public

comments and testified in opposition to termination of the

easement. A staff member of the county’s Community Planning and

Permitting Department prepared a memorandum for both hearings

that included the public comments. The memorandum

recommended granting Lefthand Ranch’s request to terminate the

easement.

3
¶7 The Planning Commission unanimously voted to terminate the

easement at the March 2023 hearing, concluding that termination

of the easement was consistent with the Boulder County Land Use

Code (BCLUC) and the county’s comprehensive plan. The BOCC

likewise voted to terminate the easement at the conclusion of its

July 2023 hearing.

¶8 The neighbors sought judicial review of the BOCC’s decision

under C.R.C.P. 106(a)(4).2 The BOCC filed a motion to dismiss the

neighbors’ complaint, contending that (1) the neighbors lacked

standing because they hadn’t suffered an injury in fact to a legally

protected interest and (2) the BOCC’s decision was an

administrative decision not subject to review under Rule 106(a)(4).

¶9 The district court disagreed with both contentions. In a

written order denying the motion to dismiss, the court determined

that the neighbors had satisfied both prongs of the standing inquiry

because they (1) have a legally protected interest under common

2 The neighbors also asserted claims for declaratory judgment,

conflict of interest, and judicial review of agency action under the
State Administrative Procedure Act, § 24-4-106, C.R.S. 2025. The
district court dismissed these claims, which aren’t before us on
appeal.

4
law to safeguard their properties against “neighboring zoning and

other land use decisions” and (2) had alleged aesthetic and financial

harm sufficient to establish injury in fact.3 After considering the

merits of the neighbors’ complaint, the court determined that the

county didn’t abuse its discretion by terminating the easement and

thus upheld the BOCC’s decision.

II. Standing

¶ 10 In its answer brief on appeal, the BOCC reasserts its argument

that the neighbors don’t have standing to challenge its decision.

Specifically, the BOCC argues that the neighbors don’t have a

legally protected interest affected by the termination of the

easement because they are neither parties to the agreement that

created the easement nor owners of the land subject to the

easement. The neighbors don’t respond to this argument in their

reply brief. See People v. Bondsteel, 2015 COA 165, ¶ 61 n.6 (“An

3 The court also concluded that the neighbors had a legally

protected interest under C.R.C.P. 106(a)(4) to challenge quasi-
judicial decisions. But Rule 106(a)(4) doesn’t confer a legally
protected interest for purposes of establishing standing; rather, it
sets forth procedures for seeking review of quasi-judicial decisions
when standing otherwise exists. Reeves v. City of Fort Collins, 170
P.3d 850, 852 (Colo. App. 2007).

5
appellant’s failure to respond in the reply brief to an argument

made in the answer brief may be taken as a concession.”), aff’d,

2019 CO 26, overruled on other grounds by, Garcia v. People, 2022

CO 6. However, they argued in the district court that they have

standing to bring their complaint because (1) under common law,

they have a legally protected interest in safeguarding their

properties from the adverse effects of zoning or other land use

decisions; and (2) section 3-205(C)(5)(b) of the BCLUC affords

“adjacent and/or nearby property owners” the right to advance

notice when the BOCC seeks to vacate an easement.

¶ 11 As discussed in detail below, we agree with the BOCC that the

neighbors lack standing to challenge its termination of the

easement because the neighbors haven’t demonstrated that they

have a legally protected interest.

A. Applicable Legal Principles and Standard of Review

¶ 12 Standing is a jurisdictional prerequisite that may be raised at

any time, Wibby v. Boulder Cnty. Bd. of Cnty. Comm’rs, 2016 COA

104, ¶ 9, and a plaintiff must establish standing independently

from a court’s Rule 106(a)(4) jurisdiction, Reeves v. City of Fort

Collins, 170 P.3d 850, 852 (Colo. App. 2007). We can’t consider the

6
merits of the neighbors’ claims without first determining whether

they have standing to bring those claims. See Wibby, ¶ 9.

¶ 13 In resolving a question of standing, we accept the plaintiffs’

factual allegations as true, Reeves, 170 P.3d at 851, and may

consider other documentary evidence in the appellate record to

determine whether the plaintiffs have standing, Rangeview, LLC v.

City of Aurora, 2016 COA 108, ¶ 11. The plaintiffs have standing if

they have suffered (1) an “injury in fact” (2) to a “legally protected

interest.” Id. The first standing requirement “ensures that an

actual controversy exists so that the matter is a proper one for

judicial resolution,” while the second “promotes judicial self-

restraint.” Hickenlooper v. Freedom from Religion Found., Inc., 2014

CO 77, ¶¶ 9-10. “Claims for relief under the constitution, the

common law, a statute, or a rule or regulation satisfy the legally-

protected-interest requirement.” Id. at ¶ 10.

¶ 14 We review de novo whether a party has standing. Wibby, ¶ 13.

7
B. Analysis

1. The Neighbors Haven’t Demonstrated That They Have a Legally
Protected Interest Under Common Law

¶ 15 The neighbors argued below that Colorado law recognizes a

legally protected interest any time a land use decision “could

subject adjacent or nearby property owners to the risk of

diminishment of their property values.” In support of this

argument, the neighbors referenced Board of County

Commissioners v. City of Thornton, 629 P.2d 605 (Colo. 1981);

Rangeview, 2016 COA 108; Wells v. Lodge Properties, Inc., 976 P.2d

321 (Colo. App. 1998); and Condiotti v. Board of County

Commissioners, 983 P.2d 184 (Colo. App. 1999).

¶ 16 In Thornton — a case challenging a county’s rezoning of

property — the supreme court held that “an owner of property

adjacent to rezoned land has standing to challenge rezoning which

adversely affects his property.” 629 P.2d at 609. A division of this

court reiterated that principle in Rangeview — another case

challenging the proposed rezoning of property. Rangeview, ¶ 12

(“Colorado courts have recognized that owners of property adjacent

8
to rezoned land have standing to challenge rezoning that adversely

affects them.”).

¶ 17 The neighbors argued that Wells and Condiotti expanded this

principle to apply to challenges to land use decisions other than

zoning decisions. In Wells, a division of this court applied the

principle in a case involving a challenge to a building permit,

holding that the plaintiff’s “interest is sufficiently similar to a

property owner’s right to contest a detrimental rezoning on adjacent

property as to confer standing on [the plaintiff].” 976 P.2d at 324.

Similarly, in Condiotti, a division of this court recognized the

principle in a matter involving a challenge to an amendment to a

county’s land use plan. 983 P.2d at 187.

¶ 18 Even assuming that Colorado case law supports the expansive

interpretation espoused by the neighbors, we disagree with the

neighbors that they have standing under the circumstances here,

for two reasons.

¶ 19 First, we disagree with the neighbors’ conclusory assertion

that the BOCC’s action of terminating the easement was a “land use

decision.” A “[l]ocal land use decision” is an action of a

governmental entity that has the effect of “granting, denying, or

9
granting with conditions an application for a development permit.”

§ 13-51.5-102(3), C.R.S. 2025. The BOCC’s termination of the

easement alone didn’t have the effect of authorizing development of

the proposed mixed residential housing community. Rather,

termination of the easement removed the restrictions prohibiting

certain types of development on Outlot A, thereby allowing a

developer to apply for a permit free of those restrictions. Put

simply, the termination of the easement, at most, removed a barrier

to a developer being able to successfully pursue a permit to

construct the proposed mixed residential housing community.

¶ 20 Second, even accepting as true that the neighbors would suffer

an injury in fact based on their asserted “financial and aesthetic”

losses resulting from the easement’s termination, they don’t have a

legally recognized interest that allows them to enforce the terms of

the easement.

¶ 21 A conservation easement is a contractual obligation that

provides its owner with the benefit of an interest in real property.

See § 38-30.5-102, C.R.S. 2025 (defining “[c]onservation easement

in gross”); Restatement (Third) of Prop.: Servitudes § 5.8 (A.L.I.

2000) (servitude burdens that exist in gross are simply contractual

10
obligations, the benefit of which is an interest in land). Unless a

person is a third-party beneficiary of a contract, only the parties to

a contract may seek to enforce its terms. Bewley v. Semler, 2018

CO 79, ¶¶ 16-17; cf. Title Guar. Co. v. Harmer, 430 P.2d 78, 80

(Colo. 1967) (“Strangers to the instrument creating an easement

over real estate for a specific purpose cannot interfere with the right

of the owner of the land to exercise full dominion over his

property.”).

¶ 22 A person is a third-party beneficiary of a contract and may sue

to enforce its terms “if the parties to the agreement intended to

benefit the non-party, provided that the benefit claimed is a direct

and not merely an incidental benefit of the contract.” Bewley, ¶ 17

(citation omitted). And in assessing the effect of a contract’s terms,

appellate courts consider the law existing at the time a contract was

executed as a part of the document itself. McShane v. Stirling

Ranch Prop. Owners Ass’n, 2017 CO 38, ¶ 17.

¶ 23 The neighbors acknowledge that the easement is a property

interest that was created as a result of the county’s agreement with

the prior owners of the Kanemoto Estates to subdivide the property.

But the neighbors aren’t parties to the subdivision agreement, and

11
the plain language of the easement doesn’t evidence an intent to

directly benefit the neighbors or other members of the general

public. See id. at ¶ 16 (a court first looks to the plain language of a

deed to ascertain the parties’ intent).

¶ 24 Additionally, under the applicable statutory language in effect

when the easement was created — which predates the cases on

which the neighbors rely — a conservation easement can be

terminated by any lawful means, including by agreement of the

parties. See § 38-30.5-107, C.R.S. 1982 (allowing conservation

easements to be terminated in any manner “in which easements

may be lawfully terminated”) (originally enacted by Ch. 153, sec. 1,

§ 38-30.5-107, 1976 Colo. Sess. Laws 751); see also Restatement

(Third) of Prop.: Servitudes § 7.1 (noting that an easement may be

terminated by agreement of the parties). And under the currently

applicable statute, only Lefthand Ranch or the county is entitled to

initiate a proceeding to enforce the terms of the easement. See

§ 38-30.5-108(2), C.R.S. 2025 (“Actual or threatened injury to . . . a

conservation easement in gross or the interest intended for

protection by such easement may be prohibited or restrained . . . in

12
a proceeding initiated by the grantor or by an owner of the

easement.”).

¶ 25 While we aren’t aware of a Colorado case addressing

circumstances similar to those present in this case, we find

authority from other states persuasive. See LaFond v. Sweeney,

2015 CO 3, ¶ 19 (considering the persuasive authority of decisions

from other jurisdictions). Courts in other states have concluded

that unless expressly authorized by the governing document’s

terms, third parties lack standing to enforce a conservation

easement encumbering privately owned land.

¶ 26 For example, in Schwartz v. Chester County Agricultural Land

Preservation Board, 180 A.3d 510, 511 (Pa. Commw. Ct. 2018), the

court considered whether an appellant had standing to enforce the

terms of a conservation easement entered into between private

landowners and the county. The purpose of that easement was to

“protect and conserve prime agricultural farmland by . . . limit[ing]

development and use of agricultural land for nonagricultural

purposes.” Id.

¶ 27 The appellant, who wasn’t a party to the easement agreement,

alleged that the landowners were using the land in a manner that

13
violated the terms of the conservation easement. Id. at 512. Noting

that the terms of the easement were “first and foremost the polestar

of [the court’s] inquiry,” the court determined that the appellant

lacked standing because the easement’s terms didn’t provide a

mechanism for a third party “to enforce any violation, threatened or

actual.” Id. at 514.

¶ 28 Likewise, in Long Green Valley Ass’n v. Bellevale Farms, Inc.,

46 A.3d 473, 477 (Md. Ct. Spec. App. 2012), aff’d, 68 A.3d 843 (Md.

2013), the court considered whether the appellants — neighboring

property owners and a community organization opposed to a

proposed development on a dairy farm — had standing to enforce

the terms of a conservation easement agreement. The easement

agreement, which had been entered into by the owner of the dairy

farm and a state agency, granted to the state an “agricultural

preservation easement” that generally restricted the landowner from

using the dairy farm for any commercial, industrial, or residential

purpose. Id. at 477-79.

¶ 29 The appellants argued that, as members of the public and

persons who owned land adjacent to or near the dairy farm, they

were third-party beneficiaries of the easement. Id. at 483-84. The

14
court disagreed, finding that, under the easement’s plain language,

the appellants were not third-party beneficiaries of the easement.

Id. at 485-86. Rather, the court concluded that, at best, the

appellants were “incidental beneficiaries of the [e]asement

[a]greement” and, as such, weren’t entitled to enforce it. Id. at 486.

The court thus determined that the appellants lacked standing to

enforce the terms of the easement. See id. at 486-87.4

¶ 30 Here, the neighbors are neither parties to the agreement

creating the easement nor third-party beneficiaries of the

agreement. Therefore, they have no authority to enforce the

4 Conversely, at least one court has recognized third-party standing

to enforce a conservation easement where such right of enforcement
was expressly recognized by the terms of the deed and by state
statute. See Tenn. Env’t Council, Inc. v. Bright Par 3 Assocs., L.P.,
No. E2003-01982-COA-R3-CV, 2004 WL 419720, at *3 (Tenn. Ct.
App. Mar. 8, 2004) (unpublished opinion) (any state resident could
enforce the terms of a conservation easement where then-applicable
state statute expressly provided that conservation easements are
“held for the benefit of the people” (quoting Tenn. Code Ann. § 66-9-
303 (2004)); see also Est. of Robbins v. Chebeague & Cumberland
Land Tr., 2017 ME 17, ¶ 23 (recognizing that state statutes may
confer standing on individuals to advance the public interest); 765
Ill. Comp. Stat. 120/4(c) (2025) (authorizing “the owner of any real
property abutting or within 500 feet of the real property subject to
the conservation right” to enforce the conservation right).

15
easement agreement’s terms, including the term addressing how

the easement may be terminated.

¶ 31 Accordingly, because (1) the termination of the easement

wasn’t a “land use decision” and (2) the neighbors aren’t entitled to

enforce the easement’s terms, we conclude that the neighbors

haven’t demonstrated that they have a legally protected interest

arising out of common law that affords them standing.

2. The Neighbors Haven’t Demonstrated That They Have a Legally
Protected Interest Under the BCLUC

¶ 32 The neighbors also argued below that they have a legally

protected interest arising from the notice requirement contained in

section 3-205(C)(5)(b) of the BCLUC. That section says that

“adjacent and/or nearby property owners” must be provided at least

fourteen days’ notice of public hearings concerning “vacations.”

The neighbors contend that this section affords them a right of

participation similar to that recognized in Reeves, 170 P.3d at 854,

such that they have a legally protected interest sufficient to confer

standing. Again, we disagree, for two reasons.

¶ 33 First, we aren’t persuaded that section 3-205(C)(5)(b)’s notice

requirement applies to the termination of conservation easements.

16
That section is contained in Article 3 of the BCLUC, which identifies

the procedures associated with land use actions that require prior

approval from the BOCC. See BCLUC §§ 3-100 to -300. Section

3-205(C)(5)(b) applies to requests to vacate certain land use actions,

and only a property owner’s request to vacate a utility easement

requires fourteen days’ advance notice to adjacent landowners. See

BCLUC § 3-100(A)(17) (a property owner’s request to vacate a “road,

right-of-way, or utility easements” requires prior county approval);

see also BCLUC § 10-100(A) (governing vacations of “[p]ublic roads,

alleys, and easements . . . after consideration at a public hearing by

both the Planning Commission and the [BOCC]”). Indeed, section

6-800 of the BCLUC, which governs conservation easements,

doesn’t contain a provision requiring notice to adjacent or nearby

landowners if termination of a conservation easement is proposed.

See BCLUC § 6-800(B)(2).

¶ 34 Second, Reeves is distinguishable. In Reeves, 170 P.3d at

852, a division of this court held that the plaintiff, who lived near a

proposed redevelopment, had a legally protected interest sufficient

to confer standing to challenge the redevelopment. The division’s

reasoning was based on specific language in Fort Collins’s land use

17
and municipal codes that expressly afforded certain “parties in

interest” the same rights as land use development applicants to

challenge adverse decisions. Id. at 853. The division thus held that

“by their plain terms, the [Fort Collins Land Use Code] and

Municipal Code include a class of individuals who otherwise may

not have a legally protected interest under common law, as well as

expand the class of individuals beyond those who have such a

common law protected interest.” Id. (emphasis added). The

neighbors don’t direct us to, nor have we found, similar language in

the BCLUC supporting their contention.

¶ 35 For the foregoing reasons, we conclude that the neighbors

haven’t demonstrated that they have a legally protected interest

sufficient to confer standing. Therefore, we need not address the

parties’ remaining arguments on appeal. See Wibby, ¶ 10.

III. Disposition

¶ 36 The appeal is dismissed, and the case is remanded to the

district court with directions to dismiss the neighbors’ claim for

judicial review under Rule 106(a)(4).

JUDGE J. JONES and JUDGE KUHN concur.

18