26 CO 47, 24SC522 Kavanaugh, Tiffany v. Telluride Locals Coalition

OCR transcription for search; preserved printed pages are authoritative

The opinion summaries are not part of the Colorado Supreme
Court's opinion. They have been prepared solely for the reader's
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.

ADVANCE SHEET HEADNOTE

June 15, 2026

# 2026 CO 47

No. 24SC522, Kavanaugh v. Telluride Locs. Coal. Petitioners' Comm. - Planned
Unit Development Act of 1972- Election Law-Initiative and Referendum

This case requires the supreme court to consider how the citizen initiative
power may be used with respect to planned unit developments ("PUDs") under
Colorado's Planned Unit Development Act, §§ 24-67-101 to -108, C.R.S. (2025). The
court has long held that the initiative power is limited to legislative acts and does
not extend to administrative acts. Legislative acts are those which establish
generally applicable rules based on broad policy grounds. Administrative acts, by
contrast, are based on individualized, case-specific considerations, or are
necessary to carry out existing legislative policies and purposes.

Applying these principles, the court concludes that the proposed initiative
at issue, which sought to amend an existing PUD agreement, is administrative in
character and thus is not subject to the initiative process. The court accordingly
reverses the judgment of the court of appeals and remands the case to the district

<!-- PageBreak -->

court for consideration of the reasonableness of the Town of Telluride's request
for attorney fees.

<!-- PageBreak -->

# The Supreme Court of the State of Colorado 2 East 14th Avenue · Denver, Colorado 80203

2026 CO 47

Supreme Court Case No. 24SC522 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 23CA1035

Petitioner:

Tiffany Kavanaugh in her official capacity as Telluride Town Clerk,

V.

Respondents:

Telluride Locals Coalition Petitioners' Committee; Matthew Hintermeister; Ian Wilson; Daniel Aurand; and Brighton Properties, LLC, a Colorado limited

liability company.

Judgment Reversed

en banc

June 15, 2026

Attorneys for Petitioner:

Nathan Dumm &amp; Mayer P.C.

Nicholas C. Poppe

Emily M. Miller

Denver, Colorado

Attorneys for Respondents:

Pat Mellen Law, LLC

Patricia Ann Mellen

Denver, Colorado

West Group Law and Policy

Suzanne Taheri

<!-- PageBreak -->

Denver, Colorado

Attorneys for Amicus Curiae Colorado Municipal League:
Robert D. Sheesley
Rachel Bender
Denver, Colorado

JUSTICE BERKENKOTTER delivered the Opinion of the Court, in which
CHIEF JUSTICE MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD,
JUSTICE GABRIEL, JUSTICE SAMOUR, and JUSTICE BLANCO joined.

<!-- PageBreak -->

JUSTICE BERKENKOTTER delivered the Opinion of the Court.

11
The Colorado Constitution vests the legislative power of the state in the
General Assembly, but it reserves to the people the power to propose laws
independent of the General Assembly by initiative. Colo. Const. art. V, § 1;
Vagneur v. City of Aspen, 2013 CO 13, 1 35, 295 P.3d 493, 504.

[2 In this case, we consider how the citizen initiative power may be used with
respect to planned unit developments ("PUDs"). Specifically, we consider
whether Brighton Properties, LLC ("Brighton"), the original developer of the
Butcher Creek PUD in Telluride-which still owns a single lot within the PUD,
and a coalition of local petitioners may modify the terms of the Butcher Creek PUD
Agreement ("the PUD Agreement") by initiative rather than by amendment.1
After considering the statutorily prescribed method for enabling, creating, and
changing a PUD agreement, we conclude that the initiative power may not be used
to amend such an agreement. We therefore conclude that Brighton's proposed
initiative, which concerned rezoning the single lot within the PUD that it still
owns, is not legislative in character and thus is not subject to initiative.
Accordingly, we reverse and remand the case to the court of appeals with

1 Though Brighton and the other petitioners are distinct parties, they joined the
same briefs on appeal below and before this court. Thus, for brevity, we refer to
these parties as "Brighton."

<!-- PageBreak -->

directions to remand it to the district court for consideration of the reasonableness
of the Town of Telluride's ("the Town") request for attorney fees.

## I. Facts and Procedural History

13 In 1995, pursuant to Colorado's Planned Unit Development Act ("PUD
Act"), §§ 24-67-101 to -108, C.R.S. (2025), the Town approved Butcher Creek, a
PUD proposed by Brighton. At the time of its approval, the Town's PUD enabling
ordinance required a PUD application to meet certain specialized land use
requirements. The proposed plan had to conform with the Town's master plan,
mitigate geological and flood hazards, demonstrate that proposed future or
existing transportation systems would serve the plan, and prove that the plan's
site design accommodated existing view corridors and open space. Town of
Telluride, Colo., Land Use Code, art. VI, div. 3, § 6-313.

14 As part of the approval process, Brighton and the Town entered into the
PUD Agreement. The Agreement bound both parties to the conditions of
approval; set out the zoning restrictions of eighteen specific lots; and set aside
Lot A, which was designated as a common open space due to the steep slopes on
its northern boundary. The PUD Agreement also contained an "[a]mendments"
clause, stating that it could not be modified unless all parties (the Town, Brighton,
and any of their successors) consented. Between 1995 and 2018, Brighton sought

<!-- PageBreak -->

seven amendments to the PUD Agreement. Each time, Brighton sought to modify
the Agreement in a manner consistent with its rules and procedures.

15 By 2018, Brighton had sold all the lots in the PUD except Lot A. That year,
Brighton proposed an eighth amendment, one that would amend part of Lot A's
designation as open space so Brighton could construct affordable housing on the
southern portion of the lot. The Town declined the proposal because Brighton had
not obtained the consent of all owners within the PUD, as required by the
amendments clause.

16 In 2019, still seeking to develop Lot A, Brighton proposed a ballot
initiative-amending the PUD Agreement to rezone Lot A-to allow for
development of the lot. The Town rejected this proposed initiative on two
grounds. First, it found that the proposal involved administrative or quasi-judicial
matters and was not proper for a ballot initiative under Vagneur. Second, the Town
reasoned that granting Brighton's request for the ballot proposal would violate the
statutory process for amending PUDs.

17 Brighton filed suit, seeking, among other things, a declaration that its
rezoning initiative was legislative in character and thus the proper subject for a
ballot initiative. Both parties subsequently filed motions for summary judgment.
Brighton argued, in pertinent part, that the initiative constituted a legislative
action subject to the initiative process. The Town argued, by contrast, that

<!-- PageBreak -->

amending the PUD Agreement constituted an administrative action, and
consequently was not subject to the initiative.

18 The district court denied Brighton's motion. In doing so, it pointed to
section 24-67-106(3)(b), C.R.S. (2025), which requires a locality to first provide
notice and a public hearing before amending a PUD agreement. The court
reasoned that the proposed subject of the initiative was quasi-judicial, not
legislative, making summary judgment improper. Further, the court noted that
the PUD Agreement, which required the Town's consent to any amendment, was
a binding contract.

19 The district court simultaneously granted the Town's motion for summary
judgment on similar grounds. The court explained that because the PUD
Agreement could be amended, it was not "of a permanent or general nature," and
because it applied only to one lot, it did not "declare a new public policy." Once
again, the district court concluded that the proposed amendment was not
legislative in character and was thus improper for a ballot initiative.

110 Brighton appealed and a division of the court of appeals reversed. Telluride
Locs. Coal. Petitioners' Comm. v. Kavannaugh, 2024 COA 69, 1 50, 557 P.3d 381, 392.2
Relying heavily on Margolis v. District Court, 638 P.2d 297 (Colo. 1981), the division

2 Consistent with the briefing before this court, we spell the Telluride Town Clerk's
last name- Kavanaugh -with one "n." Below it was spelled with two.

<!-- PageBreak -->

held that zoning and rezoning "have long been considered legislative matters
subject to the initiative power" and that "a PUD is a form of zoning or rezoning."
Telluride, 1 17, 557 P.3d at 386; see also Margolis, 638 P.2d at 303-04 ("[O]riginal
zoning decisions are legislative in character . ... " (emphasis added)). The division
then concluded that the ordinance was legislative because (1) the original PUD
constituted a permanent zoning decision, which was a legislative action; (2) the
ordinance declared a new public policy regarding the use of Lot A; and (3) the
initiative served to amend an initial legislative action. Telluride, 11 26-27, 557 P.3d
at 388.

111 We granted the Town's petition for certiorari review.3

## II. Analysis

T12
The Town now reiterates its argument that amendments to PUD agreements
are not legislative in character and thus are not subject to the initiative process. It

3 We granted certiorari to review the following issues:

1\. Whether the court of appeals correctly applied this court's opinion
in Vagneur v. City of Aspen, 295 P.3d 493 (Colo. 2013), where the
court held that government land use decisions subject to complex
or specialized expertise are not ordinarily subject to the power of
citizen initiatives.

2\. Whether Colorado's Planned Unit Development Act of 1972,
sections 24-67-101 to -108, C.R.S. (2024) ("PUD Act"), which
delegates regulation of planned unit developments to
municipalities, can be overridden by the power of initiative.

<!-- PageBreak -->

contends that although the Town's passage of the PUD enabling ordinance
constituted legislative activity, it is the only act in the three-step PUD process that
is legislative in character. The Town argues that an amendment to an existing PUD
agreement is administrative in character because it is not of a general or permanent
nature. Such an amendment, it posits, merely modifies a PUD agreement
according to the legislative goals already set out in a PUD enabling ordinance. An
amendment to a PUD agreement thus is not subject to initiative. In the Town's
view, permitting an initiative in this case would allow Brighton to invade the
Town's administrative authority. We agree.

113 We begin our analysis by reviewing Colorado's PUD Act and summarizing
the three steps required to create and amend a PUD. We then examine the
initiative process and relevant standard of review for determining whether a
proposed initiative is a proper subject of the citizens' power to propose laws
independent of the General Assembly. We do so by asking whether an initiative
is legislative in nature-and thus a proper exercise of the initiative power-or,
conversely, whether an act is administrative or quasi-judicial in nature and thus
not a proper exercise of the initiative power. We analyze this question through
the lens of our prior case law. Then, we turn to Brighton's proposed initiative and
conclude that it is administrative in character and thus not a proper exercise of the
initiative process.

<!-- PageBreak -->

### A. Colorado's PUD Act

114 The General Assembly passed Colorado's PUD Act in response to
recognized shortcomings in traditional Euclidian zoning. Tri-State Generation &
Transmission Co. v. City of Thornton, 647 P.2d 670, 677 (Colo. 1982); see §§ 24-67-101
to -108. Euclidian zoning4 prescribes fixed uses and requirements to a specified
area, separating theoretically incompatible land uses by establishing rigid
legislative rules. Euclidean Zoning, Merriam-Webster Dictionary, https://
www.merriam-webster.com/legal/Euclidean%20zoning [https://perma.cc/
7FHV-ELPJ] ("Euclidean zoning [is] a system of zoning whereby a town or
community is divided into areas in which specific uses of land are permitted.");
Campion v. Bd. of Aldermen, 899 A.2d 542, 560-61 (Conn. 2006) (explaining that
Euclidean zoning is designed to achieve stability in land use planning and zoning
and is a comparatively inflexible, self-executing mechanism).

115 A PUD is a more flexible zoning mechanism. It allows a municipality5 to
control the development of individual tracts of land by specifying the

4 The term "Euclidian zoning" comes from Village of Euclid v. Ambler Realty Co.,
272 U.S. 365, 396 (1926). There, the Supreme Court upheld the constitutionality of
a zoning scheme that excluded apartments and commercial uses from a single-
family residential district. Id. at 397.

5 The PUD Act applies to municipalities and counties. § 24-67-102(1), C.R.S. (2025).
Because this case concerns the Town, we focus on the Act as it concerns
municipalities, though our reasoning here extends to counties as well.

<!-- PageBreak -->

development permitted within each tract in accordance with the municipality's
PUD enabling ordinance. Tri-State Generation, 647 P.2d at 677. Consequently, a
PUD grants municipalities "the flexibility necessary to permit adjustment to
changing needs, and the ability to provide for more compatible and effective
development patterns within a city." Id. at 677-78. Indeed, section 24-67-102(1)(i),
C.R.S. (2025), of the PUD Act allows municipalities to "relate the type, design, and
layout of residential, commercial, and industrial development to the particular
site, thereby encouraging preservation of the site's natural characteristics."

116 The PUD Act sets out a three-step process for creating and amending PUDs:
(1) the passage of a PUD enabling ordinance; (2) the evaluation of each PUD
application to determine if it meets the criteria set forth in the enabling ordinance
(which, if approved, leads to the creation of a PUD and PUD agreement); and
(3) the amendment, if desired, of the PUD agreement. We discuss each of these
steps in turn.

117 First, before creating a PUD, a municipality must pass a PUD enabling
ordinance. The enabling ordinance must set forth the general development
standards with which a PUD must comply. § 24-67-104. For instance, it must
include the permitted density or intensity of land use, minimum number of units
or acres required, and the sequence of development. § 24-67-105(1)-(5), C.R.S.

<!-- PageBreak -->

(2025). These standards establish the criteria the municipality will apply in
evaluating subsequent PUD applications. See § 24-67-104(1)(a)-(f), C.R.S. (2025).

118 Next, the municipality evaluates each PUD application it receives against
these prescribed standards. See §§ 24-67-104, -105. A governing body designated
by the enabling ordinance reviews PUD applications and, if needed, introduces
certain conditions for approval. § 24-67-104(1)(b). The body approves those
applications which are compliant with the enabling ordinance and the
municipality and applicant enter into a PUD agreement -ultimately creating a
PUD. § 24-67-104.

119 Finally, if desired, a PUD agreement may be amended so long as the changes
comply with the procedure set forth in the PUD Act. Specifically, the PUD Act
prohibits any "substantial modification, removal, or release of the provisions of
the plan" except if, after a public hearing, the amendment meets certain statutory
criteria. § 24-67-106(3)(b). For instance, the amendment must be consistent with
the entire existing PUD and must not substantially harm either the enjoyment of
abutting properties or the public interest. See Whatley v. Summit Cnty. Bd. of Cnty.
Comm'rs, 77 P.3d 793, 803 (Colo. App. 2003).

## B. The Initiative Process

120 Article III of the Colorado Constitution provides for the separation of
powers among the branches of Colorado's government. The legislative, executive,

<!-- PageBreak -->

and judicial branches of government may exercise only their own respective
powers. Colo. Const. art. III; People v. Barth, 981 P.2d 1102, 1105 (Colo. App. 1999).
No branch may usurp the powers of another. See Vagneur, 1 34, 295 P.3d at 503-04.
121 The Colorado Constitution vests the legislative power in the General
Assembly but reserves the power of initiative to the people. Colo. Const. art. V,
§ 1(1)-(2). As noted, the people's power of initiative is the power to propose laws
independent of the General Assembly. Id. We have long construed this power to
vest only legislative power in the people because article V deals only with the
legislative branch. Vagneur, 136, 295 P.3d at 504. Accordingly, the initiative
power applies only to acts that are "legislative in character." City of Aurora v.
Zwerdlinger, 571 P.2d 1074, 1076 (Colo. 1977). For that reason, based on separation
of powers principles, the initiative power does not extend to acts that are
administrative or quasi-judicial. Vagneur, 1 36, 295 P.3d at 504.

122 We review de novo whether a particular citizen initiative is legislative in
character, and thus a proper exercise of the initiative power. Id. at 1 32, 295 P.3d
at 503. We have acknowledged that determining whether an initiative is
legislative is a difficult question to answer, especially at the municipal level. Id. at
1 38, 295 P.3d at 504. Our analysis thus requires us to engage in a case-by-case
inquiry. Id. at [ 48, 295 P.3d at 507.

<!-- PageBreak -->

123 We look to case law to guide that analysis. Id. at [ 44, 295 P.3d at 506.
Although we have utilized several different tests to determine whether an
initiative is legislative, "no single test is necessarily controlling; rather, the
principles underlying those tests must guide the overall determination of whether
a proposed initiative is legislative or administrative." Id. at 1 48, 295 P.3d at 507.

124 We have defined legislative activity as action that is permanent and general
in nature, often involving a declaration of public policy. Zwerdlinger, 571 P.2d at
1077. In contrast, we have defined administrative activity as action that is
"temporary in operation and effect" and "necessary to carry out existing
legislative policies and purposes." Id.

125 These definitions have been applied to a variety of initiatives. In
Zwerdlinger, we held that an initiative regarding utility rate ordinances was
administrative in character because it was temporary, did not make new law, and
pursued no new policy. Id. Similarly, in City of Idaho Springs v. Blackwell, 731 P.2d
1250, 1254-55 (Colo. 1987), we concluded that an initiative seeking to select a new
site and structure for the city hall was administrative because it did "not relate to
policy declarations of general applicability, and the initiative proposal therefore
[did] not address matters of a permanent or general nature." Instead, the initiative
was an act ""necessary to carry out' the existing legislative policy to build a new
city hall." Id. at 1255 (quoting Witcher v. Canon City, 716 P.2d 445, 449 (Colo. 1986)).

<!-- PageBreak -->

T26 Later, we clarified the definitions of legislative and administrative
activity - sometimes referred to as executive acts-in Vagneur. There, we held
unconstitutional an initiative that sought to overturn a city's proposed placement
and design of a state highway entrance. Vagneur, 167, 295 P.3d at 511. We
explained that legislative power is "the promulgation of laws of general
applicability." Id. at | 46, 295 P.3d at 507. When the government legislates, we
continued, "it establishes a generally applicable rule that sets the governing
standard for all cases coming within its terms." Id. While legislative acts are based
on broad policy grounds, "executive acts are ... based on ... 'individualized,
case-specific considerations."" Id. at 1 47, 295 P.3d at 507 (quoting Carter v. Lehi
City, 269 P.3d 141, 154 (Utah 2012)). "Accordingly, decisions that require
specialized training and experience or intimate knowledge of the fiscal or other
affairs of government to make a rational choice may be properly characterized as
administrative." Id.

127 Applying these definitions in Vagneur, we concluded that the proposed
initiatives were administrative in nature because they "[did] not propose new laws
or rules of general applicability that set a governing standard." Id. at | 51, 295 P.3d
at 508. Instead, they sought "to mandate ... a specific proposal for the location,
design, and construction of a state highway corridor." Id. We noted that this
initiative "directly circumvent[ed] a complex and multi-layered administrative

<!-- PageBreak -->

process ... that entailed case-specific evaluation based on careful study and
specialized expertise." Id.

128 We previously considered whether a zoning decision was legislative in
character, and thus a proper subject of an initiative, in Margolis. 638 P.2d at 298.
There, we concluded that "original zoning decisions are legislative in character
since the act of original zoning is of a general and permanent character and
involves a general rule or policy." Id. at 304-05 (emphasis added). An amendatory
act of rezoning, we continued, "is likewise legislative even though the procedures
may entail notice and hearing which characterize a quasi-judicial proceeding." Id.
at 304.

129 Notably, however, we have also held that amendments to fundamentally
contractual agreements are administrative. See Witcher, 716 P.2d at 451. Unlike an
amendment to a policy scheme, such as a municipality's original zoning, an
amendment to a contractual agreement does not change a general rule or policy.
Id. at 450. It changes only the execution, not the substance, of a policy. In Witcher,
we held that an amendment to a contractual agreement-a lease-was
administrative because it "merely carried out the previously established policy of
transferring all operational and maintenance responsibilities for the bridge to a
private company." Id. at 451.

<!-- PageBreak -->

130 With these tests in mind, we turn to consider whether an amendment to a
PUD agreement is properly characterized as legislative or administrative in
nature.

## C. Application

131 We conclude that an amendment to a PUD agreement is not legislative in
character and thus is not a proper subject of the initiative process. Further, we
distinguish this case from Margolis insofar as Brighton's initiative does not propose
an original zoning decision; instead, it proposes to amend one specific PUD.

132 A municipality's adoption of an enabling ordinance is an exercise of its
legislative power because it sets forth the general terms and criteria for all PUDs
within the jurisdiction. It is a decision of "broad public policy," Zwerdlinger,
571 P.2d at 1077 (quoting Whitehead v. H & C Dev. Corp., 129 S.E.2d 691, 696 (Va.
1963)), which establishes rules of general applicability and consequently is
legislative in character, Vagneur, 1 63, 295 P.3d at 511.

133 Once an enabling ordinance is passed, however, a PUD application is
reviewed on a site-specific basis to see if it conforms with the standards in its
enabling ordinance. See §§ 24-67-104, -105. This process enforces preexisting
legislative goals-namely, those set forth in the municipality's relevant enabling
ordinance-and marks a shift from acts that are legislative in character to those
that are administrative in character. See Zwerdlinger, 571 P.2d at 1077.

<!-- PageBreak -->

Additionally, a municipality's amendment of existing contractual obligations is
administrative in nature and not subject to initiative because an amendment
merely carries out existing legislative policy.

134 Here, when the Town passed its PUD enabling ordinance, it exercised its
legislative power: It set a permanent standard for PUD applications within the
Town. But, when the Town reviewed and approved Brighton's PUD application,
it exercised its administrative power because it was carrying out the preexisting
legislative goals set forth in the PUD enabling ordinance. The Town reviewed the
application based on case-specific considerations that require specialized
knowledge. For instance, the Town reviewed if the PUD application included "[a]
summary of environmental conditions addressing, at a minimum, soil types and
bearing capabilities; geologic hazard areas; high groundwater tables; slope
steepness and potential erosion problems; flood prone areas; [and] impacts on
existing fish, wildlife, vegetation[,] and wetland designations." Town of Telluride,
Colo., Land Use Code, art. VI, div. 3, § 6-306.F. The PUD Agreement reflected
these considerations in its terms.

135 By attempting to override the proper procedure to amend the PUD
Agreement, Brighton invaded the Town's administrative authority. Much as in
Vagneur, Brighton sought to circumvent a "complex and multi-layered
administrative process," 151, 295 P.3d at 508, by using the initiative power to

<!-- PageBreak -->

sidestep the requirements set forth in the PUD Agreement so it could develop land
set aside in the PUD as open space.

136 We additionally conclude that the division's reliance on Margolis is
misplaced. To be sure, a PUD is a form of zoning. Even so, the initiative at issue
here does not seek to change an original zoning decision. Margolis, 638 P.2d at 304.
Instead, the initiative seeks to amend a specific PUD agreement to permit
construction on a single lot that is currently designated as open space. The
initiative process is not equipped to address the complex assessments required by
the Town's enabling ordinance, such as how to best mitigate geologic hazard areas
and high groundwater tables or how to maintain transportation linkage for
adjacent properties. Which is all to say that Brighton may not use the initiative
power to evade the PUD amendment process.

## III. Conclusion

137 We conclude that amendments to PUD agreements are not legislative in
character and, accordingly, are not a proper subject of the initiative process.
Brighton's proposed initiative here is thus administrative in character and not a
proper subject of the initiative process. For these reasons, we reverse and remand
the case to the court of appeals with directions to remand it to the district court for
consideration of the reasonableness of the Town's request for attorney fees.