Flying W v. City of Colo Springs

24CA1455 Flying W v Colorado Springs 06-26-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1455
El Paso County District Court Nos. 23CV32349 & 23CV32362
Honorable Amanda J. Phillips, Judge

Flying W, LLC, a Colorado limited liability company, and Lawrence E. Starr,

Plaintiffs-Appellants,

v.

City of Colorado Springs, a home rule City and Colorado municipal corporation;
City of Colorado Springs City Council; and Colorado Springs Utilities,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE TOW
Yun and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 26, 2025

Mulliken Weiner Berg & Jolivet P.C., Murray I. Weiner, Olivia Urso, Colorado
Springs, Colorado; Flynn & Wright, LLC, Bruce M. Wright, Colorado Springs,
Colorado, for Plaintiff-Appellant Flying W, LLC

Zuckerman Legal, Harmon Zuckerman, Boulder, Colorado, for
Plaintiff-Appellant Lawrence E. Starr

Wynetta P. Massey, City Attorney, Anne H. Turner, Assistant City Attorney,
Colorado Springs, Colorado, for Defendants-Appellees
¶1 In this C.R.C.P. 106(a)(4) action, plaintiffs, Flying W, LLC, and

Lawrence E. Starr (collectively, the objecting landowners), appeal

the district court’s judgment dismissing their challenge to the

decision by the City of Colorado Springs City Council (the City

Council) permitting Colorado Springs Utilities (CSU) to significantly

increase the height of a water tower built on municipal property

near the objecting landowners’ properties. We affirm the judgment,

albeit on different grounds than those relied on by the district

court.

I. Background

A. Factual Background

¶2 The City of Colorado Springs (the City) owns a parcel of

property (the Wilson Tank Property) that, at the time of the

administrative proceedings at issue in this appeal, had an existing

water tank that was thirty-nine feet tall. Because the existing water

tank had reached the end of its life cycle, the City, through its

enterprise, CSU, proposed to build a replacement water tank on the

Wilson Tank Property. CSU submitted a development plan

application for the new water tank to the City’s Planning and

Community Development Department (the Planning Department).

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The application sought approval for a height of up to forty-five feet

for the new tank. The Planning Department approved the

application, with the condition that its “development . . . conform

completely to the approved development plan.”

¶3 During the construction of the new water tank, the objecting

landowners raised questions about the height of the structure.

Further investigation revealed that the new water tank significantly

exceeded the forty-five-foot height limit provided for in the approved

development plan. CSU filed for a major modification to the

development plan (major modification request), which disclosed that

the height of the tank as constructed was approximately sixty feet.

The objecting landowners opposed the major modification request.

After considering public comments on the matter, the Planning

Department issued a “Notice of Violation and Order to Abate” to

CSU and referred the major modification request to the City’s

Planning Commission (the Planning Commission).

¶4 The Planning Commission held a quasi-judicial hearing to

determine whether to grant CSU’s major modification request. It

denied CSU’s request by a vote of six to two, stating “that

significant errors had been made by [CSU]” and that “allowing the

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[major modification request to the] tank would undermine public

trust.”

¶5 Availing itself of the appellate processes provided in the

municipal code, CSU appealed the Planning Commission’s decision

to the City Council. See Colo. Springs City Code § 7.5.705 (“The

City Council shall hear appeals from decisions of the Planning

Commission . . . and shall make a decision to affirm, reverse,

modify the action, or remand the item back to the body that made

the appealed-from decision.”). The objecting landowners requested

that all members of the City Council recuse themselves from

hearing the appeal because, under the municipal code, the City

Council serves as the board of directors of CSU. See Colo. Springs

City Code § 12.1.102.D. The objecting landowners argued that the

City Council’s fiduciary duties to CSU created a conflict of interest

preventing the City Council from acting as a quasi-judicial body

over CSU’s appeal. See id. (directing the City Council, in its

capacity as CSU’s board, to govern CSU “in accord with sound

business principles, in a manner that supports long-term

sustainability of the enterprise and maximizes value to the

citizens”).

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¶6 Relying on advice from the City Attorney’s office, which the

City Council made public to explain its rationale, the City Council

members determined that their dual role as quasi-judicial

decisionmakers and board members for CSU did not pose a conflict

of interest that required recusal. Alternatively, the City Council

acknowledged that, under the “well-settled principle at common

law” known as the “rule of necessity,” the City Council must fulfill

its duty to hear the land use appeal notwithstanding any conflict of

interest, because no other body could hear the appeal.

¶7 The council hearing proceeded, and after hearing testimony

and public comments, the City Council reversed, by a vote of five to

two, the Planning Commission’s denial of the major modification

request.

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B. The C.R.C.P. 106(a)(4) Actions

¶8 In separate C.R.C.P. 106(a)(4) actions filed one day apart,

Flying W sued the City, while Starr sued the City Council and CSU.

The actions were consolidated at the parties’ request.1

¶9 The objecting landowners reiterated their position that the City

Council had a duty to remain impartial when acting in its

quasi-judicial capacity. However, they also asserted that the City

Council had a conflicting fiduciary obligation to CSU as its board of

directors. Due to this conflict, they argued, the City Council could

not provide an impartial adjudication of CSU’s appeal. The

objecting landowners thus insisted that the City Council abused its

discretion and violated the objecting landowners’ due process rights

by considering CSU’s appeal and reversing the Planning

Commission’s decision in favor of CSU.

¶ 10 The City Council countered that the objecting landowners had

failed “to meet their heavy burden to rebut the presumption that

1 The City, the City Council, and CSU, though nominally distinct

defendants, are represented by the same counsel from the City
Attorney’s office, filed a single brief, and essentially stand as a
unified party. Thus, because the actions of the City Council are at
issue here, we refer to these entities collectively as the City Council.

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City Council acted impartially.” Alternatively, the City Council

argued that, even if a conflict existed, the rule of necessity applied

because no other body could hear the administrative appeal.

¶ 11 The district court found that

[t]he mere existence of the dual mandates that
Councilors act in the best interest of the [C]ity
and their constituents while also acting as
fiduciaries and members of the board for CSU
does not affirmatively prove a conflict of
interest, much less a conflict of interest so
severe that it deprived [the objecting
landowners] of due process.

The court also noted that the objecting landowners had been “able

to cite no case . . . where a conflict of interest rising to the level of a

due process violation resulted from an official duty, rather than a

personal or pecuniary interest or bias.” Thus, the court concluded,

the objecting landowners “ha[d] not met their burden of

demonstrating that the interest of the councilmembers in their roles

as CSU board members posed such a risk of actual bias or

prejudgment that allowing them to act on the appeal of the

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Planning [Commission’s][2] decision must be forbidden to guarantee

due process.” Because the court found no conflict of interest, it did

not address the City Council’s rule of necessity argument.

II. Standard of Review and Applicable Law

¶ 12 When reviewing an action under C.R.C.P. 106(a)(4), we review

the decision of the administrative body rather than that of the trial

court. Sheep Mountain All. v. Bd. of Cnty. Comm’rs, 271 P.3d 597,

601 (Colo. App. 2011). “Our review is limited to deciding whether

the governmental body’s decision was an abuse of discretion, based

on the evidence in the record before it, or was made in excess of its

jurisdiction.” No Laporte Gravel Corp. v. Bd. of Cnty. Comm’rs, 2022

COA 6M, ¶ 23; accord C.R.C.P. 106(a)(4)(I). “Abuse of discretion has

occurred if a decision is not reasonably supported by any

competent evidence in the record, or if the agency has misconstrued

or misapplied applicable law.” Sheep Mountain All., 271 P.3d at

601. “An agency’s denial of due process in its exercise of

2 In its order, the district court referred to the “Planning

Department’s decision” rather than the “Planning Commission’s
decision.” Context makes clear, however, that it meant the
Planning Commission, since the matter before the court was the
City Council’s review of that body’s decision.

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quasi-judicial functions also may constitute an abuse of discretion.”

Id.

¶ 13 An appellate court may affirm on any ground supported by the

record. See Taylor v. Taylor, 2016 COA 100, ¶ 31; see also Johnson

v. Civil Serv. Comm’n, 2018 COA 43, ¶ 32 (applying this rule in the

context of a C.R.C.P. 106 action).

III. The Objecting Landowners’ Due Process Claim

¶ 14 The objecting landowners do not contend that the City

Council’s decision to grant CSU’s major modification request

substantively deviated from the relevant guidelines for reviewing

requests for major modifications. See Colo. Springs City Code

§ 7.5.516.D.1 (defining when a request for a major modification to a

development plan may be approved). Rather, they argue only that

the City Council’s dual statutory mandates presented a conflict of

interest and that the body’s failure to recuse itself deprived the

objecting landowners of due process.

¶ 15 True, “[a] governmental body or officer acting in a

quasi-judicial capacity abuses its discretion when it fails to afford

procedural due process to affected individuals.” Copley v. Robinson,

224 P.3d 431, 435 (Colo. App. 2009). And “[t]he due process

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requirement of neutrality in adjudicative proceedings entitles a

person to an impartial decision-maker.” No Laporte Gravel Corp.,

¶ 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. (quoting

Scott v. City of Englewood, 672 P.2d 225, 228 (Colo. App. 1983)).

¶ 16 But, unlike the district court, we focus not on whether the City

Council’s dual role created a conflict of interest that implicated due

process but, rather, whether any due process concerns must “give

way to the fundamental need for a tribunal that can address” a

party’s claims. Moro v. State, 320 P.3d 539, 547 (Or. 2014). That

is, even if we assume without deciding that the City Council’s dual

roles created a conflict of interest, we perceive no basis to reverse in

light of the rule of necessity. See Taylor, ¶ 31.

¶ 17 “The rule of necessity provides that it may become necessary

for a judge to hear a case in which [they] ha[ve] an interest where

no one else can take [their] place.” Off. of State Ct. Adm’r v.

Background Info. Servs., Inc., 994 P.2d 420, 426 (Colo. 1999) (citing

United States v. Will, 449 U.S. 200, 213 (1980)). The rule of

necessity applies in administrative proceedings. Leonard v. Bd. of

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Dirs., 673 P.2d 1019, 1023 (Colo. App. 1983); see also deKoevend v.

Bd. of Educ., 688 P.2d 219, 229 n.6 (Colo. 1984) (“The rule of

necessity is sometimes invoked to permit a judicial or administrative

tribunal to act when no other body is authorized to make a

decision.”) (emphasis added).3

¶ 18 This case presents the quintessential scenario calling for the

application of the rule of necessity. The municipal code grants the

City Council — and only the City Council — the authority to hear

appeals from decisions of the Planning Commission. Colo. Springs

City Code § 7.5.705. If the City Council members were to recuse,

there would be no tribunal to hear the administrative appeal in this

case.

¶ 19 The objecting landowners suggest that this is not a problem —

that the Planning Commission’s decision could simply be allowed to

stand, subject to a C.R.C.P. 106(a)(4) action. Initially, we note that

3 Indeed, though we recognize that the State Administrative

Procedure Act, §§ 24-4-101 to -204, C.R.S. 2024, does not apply
here, we note that the rule of necessity is essentially codified in that
statute. See § 24-4-105(3), C.R.S. 2024 (providing that an agency
or member of an agency may withdraw from presiding over an
agency adjudication “unless [their] withdrawal makes it impossible
for the agency to render a decision”).

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it is not clear whether any party can assert a C.R.C.P. 106(a)(4)

challenge to the Planning Commission’s decision. Two sections of

the City’s municipal code — section 7.5.411.C and section

7.5.415.A.9 — specify that only the City Council’s decisions are

subject to such a challenge.

¶ 20 In any event, the objecting landowners’ suggestion

misunderstands the fundamental nature of the rule of necessity

and would create an exception that would all but swallow the rule.

Under the municipal code, land use decisions by the Planning

Commission are subject to an administrative appeal. Allowing the

decision to remain in place, with only a C.R.C.P. 106(a)(4) district

court review — which “is not a traditional appeal,” Brown v. Walker

Com., Inc., 2022 CO 57, ¶ 31 — would eliminate a party’s

administrative appellate avenue. If the objecting landowners’

“solution” were valid, it would essentially abrogate the rule of

necessity in administrative proceedings. The landowners offer no

authority for such a watershed change.

¶ 21 Because, by operation of the rule of necessity, the City Council

was not disqualified from hearing the administrative appeal, the

objecting landowners are not entitled to relief under C.R.C.P.

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106(a)(4). Thus, the district court did not err by dismissing their

complaint.

IV. Disposition

¶ 22 The judgment is affirmed.

JUDGE YUN and JUDGE SULLIVAN concur.

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