El Paso County District Court No. 01CV0540

COLORADO COURT OF APPEALS

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Court of Appeals No. 01CA2253

Honorable Kirk S. Samelson, Judge

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Friends of the Black Forest Regional Park, Inc., a Colorado nonprofit corporation; Dennis Hartley and Deborah Hartley, individually; James Fine and Jennifer Fine, individually; and Raymond A. Miller and Cynthia L. Miller, individually,

Plaintiffs-Appellees,

Board of County Commissioners of the County of El Paso,

Defendant-Appellant

and Concerning

Kings Deer Development, LLC, a Colorado limited liability company,

Intervenor-Appellant.

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JUDGMENT AFFIRMED

Division III

Opinion by JUDGE ROY

Davidson and Webb, JJ., concur

April 24, 2003

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Sparks Willson Borges Brandt & Johnson, P.C., Kenneth Sparks, Stephen A. Hess, Colorado Springs, Colorado, for Plaintiffs-Appellees

Michael A. Lucas, County Attorney, Jay A. Lauer, Assistant County Attorney, Colorado Springs, Colorado, for Defendant-Appellant

Anderson, Dude & Lebel, P.C., Lenard Rioth, Bennie H. South, Colorado Springs, Colorado, for Intervenor-Appellant

Defendant, Board of County Commissioners of the County of El Paso, Colorado (county), and intervenor, Kings Deer Development, LLC (developer), appeal the trial court’s judgment in favor of plaintiffs, Friends of the Black Forest Regional Park, Inc., Dennis and Deborah Hartley, James and Jennifer Fine, and Raymond and Cynthia Miller. We affirm.

This case concerns a determination of the permitted uses of property described as the W 1/2 of the SW 1/4 of Section 12, Township 12 South, Range 66 West of the 6th P.M. (subject property), which is the south portion of the El Paso County Black Forest Regional Park (the park).

The first issue is whether a prior owner of the subject property created a road easement thirty feet in width along the west section line of Section 12 (the road easement). We conclude that the road easement does not exist. The second issue is whether the use of the subject property is restricted by 16 U.S.C. § 484a (2002)(the Sisk Act), so as to prevent the construction of a road through and across it. We conclude that the Sisk Act prohibits construction of the road.

In 1919, a lumber company owned all the pertinent parts of Sections 1, 2, 11, and 12. These four sections form a square, with the northeast quarter being Section 1, the northwest quarter being Section 2, the southwest quarter being Section 11, and the southeast quarter being Section 12. Section 10 is immediately west of Section 11 and the described square. The county road network does not penetrate the square.

In 1921, the lumber company conveyed Section 11 and other lands by a deed that contained the following pertinent language:

[I]t is expressly understood and agreed between the parties hereto that this conveyance is made subject to a right of way over and across a strip of land thirty (30) feet wide on each side of each section line, said right of way being reserved for use as a future roadway for the benefit of the owners of the tract and owners of adjoining tracts in these sections and adjacent sections, with the intent hereof being to have section lines available for road purposes as occasion demands . . . .

The other lands conveyed in the 1921 deed included both sides of the section lines between Sections 1 and 2 and Sections 2 and 11 along their entire lengths and both sides of the section line between Sections 10 and 11 along its southerly portion.

In 1932, the lumber company conveyed the subject property by a deed that stated, inter alia, the conveyance was "subject to right of way for road purposes along section lines." Eventually the subject property was conveyed to the United States Forest Service (USFS) in 1944.

In the 1970s, pursuant to a special use permit from the USFS, the county began using the subject property and adjacent county property as the park. The permit stated nine specific purposes for which the subject property could be used, which included roadway and other park purposes. The county installed park facilities.

In 1999, the USFS conveyed the subject property to the county subject to the pertinent limitations of the Sisk Act, which applies to exchanges of forest service lands and states:

Whenever an exchange of land is proposed by a . . . county . . . [pursuant to] authority . . . under which the Secretary of Agriculture is authorized to exchange national forest lands or other lands administered by the Forest Service, [the exchange may be completed upon certain conditions] . . . .

The provisions of this section shall not be applicable to the conveyance in exchange of more than eighty acres to any one . . . county . . . . Lands may be conveyed to any . . . county . . . pursuant to this section only if the lands were being utilized by such entities on January 12, 1983. Lands so conveyed may be used only for the purposes for which they were being used prior to conveyance.

16 U.S.C. § 484a (emphasis added).

The terms of the deed from the USFS to the county stated, in pertinent part:

SUBJECT TO the limitations pursuant to the authority of Sec. 8(b) of the Act of January 12, 1983 (96 Stat. 2535), which amended the Act of December 4, 1967 (82 Stat. 531) and states: "lands may be conveyed to any State, County, or municipal government pursuant to this Act only if the lands were being utilized by such entities on the date of the enactment of this sentence. Lands so conveyed may be used only for the purposes for which they were being used prior to the conveyance." Therefore, Grantee agrees and covenants that the above-described land will be used for local government purposes in perpetuity . . . .

(Emphasis added.)

Developer now owns all, or substantial portions of, Sections 1 and 2. Friends of the Black Forest Regional Park, Inc., is a nonprofit corporation composed of individuals who own property near the park.

An improved gravel road has been constructed on a thirty-foot easement along the east section line of Section 11, which serves residences on unplatted lots in that section and also provides access to the park facilities on the subject property. The validity of that easement is, apparently, the subject of a separate proceeding. No road has been constructed on the road easement at issue here except for slight encroachments by the road constructed in Section 11.

Developer wants to develop portions of Sections 1 and 2, and it requested that the county grant access from the south using the full sixty-foot easement along the section line between sections 11 and 12 for approximately 1650 feet. The access then would proceed north-north-east through the subject property and departs from it approximately 450 feet east of the west section line. The road would then proceed through the north portion of the park to developer's property.

Because of their concerns that the new road would create heavy traffic through the subject property, plaintiffs brought a declaratory judgment action to determine whether the road would violate the deed limitations set forth in the USFS deed to the county and the Sisk Act and whether the road easement was valid. Plaintiffs obtained a temporary restraining order to stay the zoning proceedings pending the outcome of this litigation.

Subsequently, the parties stipulated that the zoning process would proceed, but road construction would not commence pending the outcome of this litigation. The county approved the development plan with the road as proposed. Plaintiffs then amended their complaint by adding a C.R.C.P. 106(a)(4) claim for judicial review of the county’s rezoning decision.

The county filed a motion to dismiss asserting that plaintiffs lacked standing, that the administrative proceedings were plaintiffs’ sole remedy, and that plaintiffs had failed to join indispensable parties. Developer intervened in support of the county and argued that the Sisk Act did not apply to the transfer from the United States to the county or alternatively that the Sisk Act did not prohibit the extension of the road for access to the subject property. The trial court denied both motions to dismiss.

Developer then filed a motion for summary judgment on the issue of whether the 1921 deed created the road easement. Plaintiffs filed opposing briefs and then, at the trial court’s request, filed their own motion for summary judgment arguing that the language of the deed did not create the road easement.

The trial court ruled that plaintiffs had standing to contest the validity of the easement and that the 1921 deed did not create the road easement. The trial court also ruled that the subject property was conveyed pursuant and subject to the Sisk Act and further concluded that the USFS was not a necessary party. As to the C.R.C.P. 106(a)(4) claim, the trial court later concluded that the county did not exceed its jurisdiction or abuse its discretion in approving developer’s zoning request and access through the subject property.

However, after a trial on the application of the Sisk Act, the trial court concluded that the Act prohibited construction of a road through the subject property and that developer did not have standing to argue otherwise.

This appeal followed.

We first address the trial court’s ruling on plaintiffs’ declaratory judgment claim. Developer contends that the trial court’s conclusion on the C.R.C.P. 106(a)(4) claim that the county did not exceed its jurisdiction or abuse its discretion in approving the rezoning and access road is the law of the case and that the trial court could not subsequently reach a contrary conclusion in the declaratory judgment action pertaining to the application of the Sisk Act. The county contends that a C.R.C.P. 106(a)(4) action was plaintiffs’ exclusive remedy. We disagree with both contentions.

Generally, the exclusive remedy for one challenging a rezoning is judicial review pursuant to C.R.C.P. 106(a)(4). However, in certain circumstances, an action for declaratory judgment may proceed contemporaneously with a C.R.C.P. 106(a)(4) action. Norby v. City of Boulder, 195 Colo. 231, 577 P.2d 277 (1978). In addition, a declaratory judgment action is allowed to resolve a dispute as to the applicability of a statute. Section 13-51-106, C.R.S. 2002; seeDenver & Rio Grande Western R.R. v. City & County of Denver, 673 P.2d 354 (Colo. 1983).

C.R.C.P. 106(a)(4) allows the court to review an administrative agency's decision to determine whether the agency acted outside its jurisdiction or abused its discretion.

Here, plaintiffs sought review of the county's decision to approve developer’s request for rezoning and for access across the subject property. With respect to a land use decision, the county’s jurisdiction extends only to the construction and application of its own ordinances, regulations, and procedures and such matters as may be specifically delegated to it by the state or federal governments. The county’s jurisdiction does not extend to, inter alia, the construction and applicability of other statutes, regulations, procedures, covenants, reservations, or conditions that may impact the use of the land. Thus, the trial court’s review of the county’s rezoning decision would not resolve the Sisk Act or easement issues or preclude a later declaratory judgment with respect thereto.

Here, plaintiffs requested that the trial court determine the validity of the road easement and implications of the Sisk Act, a federal statute. Thus, plaintiffs’ declaratory judgment action was proper on these issues.

Accordingly, we conclude that the trial court properly considered plaintiffs' declaratory judgment action.

II.

Developer contends that plaintiffs do not have standing to challenge the validity of the road easement. We disagree.

As standing concerns a court’s subject matter jurisdiction, we review the trial court’s determination de novo. City of Boulder v. Public Service Co., 996 P.2d 198 (Colo. App. 1999).

Standing is a jurisdictional prerequisite that requires a named plaintiff to bring suit only to protect a cognizable interest. A plaintiff has standing if he or she has an “injury in fact” and that injury is to a “legally protected interest.” Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977). The injury in fact test does not require that the plaintiff demonstrate an economic injury. Instead, harm to intangible values is sufficient.

Although Colorado standing jurisprudence does not duplicate the federal law, similar considerations underlie both, and Colorado courts frequently consult federal cases as persuasive authority on standing. City of Greenwood Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427 (Colo. 2000). Thus, we consider federal precedent to determine whether plaintiffs’ injury was sufficient.

The United States Supreme Court has held that aesthetic and ecological interests are sufficient to grant standing to a plaintiff. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); see alsoDesert Citizens Against Pollution v. Bisson, 231 F.3d 1172 (9th Cir. 2000)(finding that plaintiffs asserting environmental and aesthetic interests in public lands had standing to challenge an anticipated land exchange under the Federal Land Policy and Management Act, even before the exchange occurred). The Colorado Supreme Court has also recognized aesthetic and ecological interests as sufficient to for standing purposes. SeeGreenwood Village v. Petitioners for Proposed City of Centennial, supra.

Further, the United States Supreme Court recently explained the “legally protected interest” prong of the standing requirement: “The proper inquiry is simply ‘whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected . . . by the statute.’” National Credit Union Administration v. First National Bank & Trust Co., 522 U.S. 479, 492, 118 S.Ct. 927, 935, 140 L.Ed.2d 1 (1998)(quoting Ass’n of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970)). Unnecessary or premature decisions of constitutional questions should be avoided, and parties actually protected by a statute or constitutional provision are generally best situated to vindicate their own rights. SeeGreenwood Village v. Petitioners for Proposed City of Centennial, supra.

Here, the primary plaintiff is a nonprofit corporation organized to preserve and enhance the park and protect the interests of its neighbors. The individual plaintiffs are owners of property adjoining the park. Plaintiffs have alleged that if the county allows a road to go through the subject property partly on the easement, the road would adversely affect the aesthetics of the park and erode the property values of adjoining landowners. The interests that plaintiffs seek to protect are sufficient to establish an injury in fact. SeeGreenwood Village v. Petitioners for Proposed City of Centennial, supra.

Cases cited by developer on the standing issue are inapposite. For example, Title Guaranty Co. v. Harmer, 163 Colo. 278, 430 P.2d 78 (1967), holding that a party cannot assert rights to an easement created by an instrument to which it is a stranger, does not apply here because the easement at issue in this case is on public, not private, land. Where, as here, the land is public, an organization whose members have, or individuals who have, rights to be on the land and use the land may bring a suit if those protected rights are in jeopardy. SeeDesert Citizens Against Pollution v. Bisson, supra.

Moreover, Brotman v. East Lake Creek Ranch, L.L.P., 31 P.3d 886 (Colo. 2001), is distinguishable. In Brotman, the supreme court concluded that the plaintiff did not have an imminent injury in fact because he sought to enjoin the performance of an agreement between a landowner and the agency that might create an interference with the land. Here, the construction of the road through the subject property would harm plaintiffs’ aesthetic, ecological, and property interests. This direct injury satisfies the standing requirement.

Accordingly, the trial court did not err in concluding that plaintiffs have standing to challenge the validity of the road easement.

III.

Developer next contends that the trial court erred when it concluded that there is no road easement. We disagree.

We review the district court’s order granting plaintiffs’ motion for summary judgment de novo. SeeAspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo. 1995).

Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c). Summary judgment is appropriate when there is no doubt concerning material facts. SeeRoderick v. City of Colorado Springs, 193 Colo. 104, 563 P.2d 3 (1977). All doubts as to the existence of an issue of material fact must be resolved against the moving party. SeeRidgeway v. Kiowa School District C-2, 794 P.2d 1020 (Colo. App. 1989).

Developer first argues that plaintiffs are precluded from arguing that an easement does not exist because the county, as owner of the subject property, admitted its existence. In addition, based on the county’s admission, developer argues that it has an easement by estoppel. We disagree.

The county admitted the existence of the road easement in response to developer’s requests for admissions. Developer argues that because the county’s admissions may provide the trial court with evidence for summary judgment and the county did not respond to developer’s motion for summary judgment, the county did not meet its burden of proof. See C.R.C.P. 56(e) (if there is no response to opposing party’s affidavits, then summary judgment, if appropriate, shall be entered). Thus, according to developer, the trial court should have granted its motion for summary judgment, and plaintiffs are estopped from asserting that an easement does not exist.

Developer is arguing that it and the county are opposing parties and the county’s admission is controlling against plaintiffs, a third party. Although C.R.C.P. 36(b) regarding admissions states that “[a]ny matter admitted under this Rule is conclusively established,” we find persuasive the reasoning interpreting the corresponding federal rule that precludes the application of such “admissions” to a third party. The federal approach avoids the danger of collusion between parties and allows the third party a proper adjudication on the merits. SeeKittrick v. GAF Corp., 125 F.R.D. 103 (M.D. Pa. 1989); see also C. Wright & A. Miller, Federal Practice and Procedure § 2264, at 741 (1970)(“Admissions obtained under Rule 36 may be offered in evidence at the trial of the action, but they are subject to all pertinent objections to admissibility that may be interposed at trial . . . . It is only when the admission is offered against the party who made it that it comes within the exception to the hearsay rule for admissions of a party opponent.”).