On Friday, May 15, 2020, Colorado Governor Jared Polis issued Executive Order D 2020 065, temporarily suspending certain statutory requirements governing the distribution, signing, and certification of ballot measures for the November 2020 election. The Order would, among other things, permit campaigns for ballot measures that have titles set or pending before the Colorado
Supreme Court Rules That Takings Claims Can Be Brought In Federal Court, Reversing 30-Year-Old Precedent
On Friday, the U.S. Supreme Court issued its opinion in Knick v. Township of Scott, in which the Court ruled that a plaintiff in a takings claim need not first exhaust state-court remedies before bringing the claim before a federal court. The decision, addressing a largely procedural matter, is expected to lead to an increase in federal court litigation involving takings issues, and likely increases the chances that local governments may be required to compensate landowners where regulation devalues private property.
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Colorado Court of Appeals: Court Should Defer to City Council’s Code Interpretations, But No Bond for Rule 106 Defendants
In May, the Colorado Court of Appeals upheld the City of Thornton’s approval of a specific use permit for a self-storage facility against a challenge brought by a competitor self-storage facility. While the court’s decision in Stor-N-Lock Partners #15, L.L.C. v. City of Thornton was a victory for the defendants, including the city and the developer, the court ruled that defendants in Rule 106(a)(4) actions may not recover delay-induced damages through the imposition of a bond. Otten Johnson attorneys Brian Connolly and Bill Kyriagis represented the defendant landowner and developer, CenturyLink and Resolute Investments, Inc., respectively, throughout the proceedings.
In the case, Resolute obtained the city’s approval of a specific use permit for its project. A neighboring self-storage facility challenged the approval under Colorado Rules of Civil Procedure Rule 106(a)(4), which allows for judicial review of quasi-judicial decisions by local government bodies. The plaintiff alleged that the approval of the specific use permit did not improve the welfare of its property, which was one of the Thornton code’s criteria for the issuance of a specific use permit. The district court affirmed the city’s decision but denied the defendant’s motion to require the plaintiff to post security in an amount that would cover the defendant’s losses incurred as a result of litigation-related delays.
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U.S. Supreme Court To Review New Takings Case—Will It Become Easier To File Takings Claims In Federal Courts?
Last week, the U.S. Supreme Court granted a petition for certiorari in the case of Knick v. Township of Scott. In Knick, the Court is being asked to re-examine its 30-year-old doctrine requiring takings claimants to exhaust state court remedies before filing a claim for just compensation stemming from a regulatory taking in federal court. The decision to grant the petition indicates that at least four justices agree that it’s time to consider eliminating procedural hurdles created by the Court’s 1985 decision in Williamson County Regional Planning Commission v. Hamilton Bank.
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Colorado Condominium Construction Defect Issue: Colorado Supreme Court Affirms the Right of Declarants for Condominium and Other Common Interest Communities to Require Binding Arbitration of Disputes
As previously reported on this blog a Colorado Court of Appeals decision in 2015 allowed a developer/declarant to retain a right to consent to amendments to a common interest community’s declaration that require arbitration of construction defect claims.
The Colorado Supreme Court has now weighed in on the case involved, which is known as Vallagio at Inverness Residential Condo. Ass’n v. Metro. Homes, Inc., affirming the decision of the Court of Appeals.
Vallagio involved a residential development in which the declaration, created pursuant to the Colorado Common Interest Ownership Act (“CCIOA”) included certain dispute resolution provisions, including an arbitration requirement. The dispute resolution provisions also stated that those provisions could “not ever be amended without the written consent of the Declarant,” who was the developer of the project.
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