Because Chaffee County never definitively represented to a landowner that she would be able to maintain a kennel and fox hunting operation on her property, the county did not violate her rights when it found her in violation of its land use code, the Denver-based federal appeals court ruled Tuesday.
However, a three-judge panel of the United States Court of Appeals for the 10th Circuit made it clear that Chaffee County was not blameless in the dispute, as evidence could have shown that planning officer Jon Roorda repeatedly failed to give Alison Brown a clear answer about what the county expected.
“In one breath, the county suggested that physical alterations to a guest house would release Dr. Brown from the limited impact review for a kennel. In the next, the county changed course – then changed course again, then went silent,” Judge Timothy M. Tymkovich wrote. in the panel’s July 18 order.
Brown’s lawsuit against Chaffee County was riddled with allegations that county officials targeted her, rewriting policies specifically to affect the fox hunting club she ran on her Salida property. But the question before the 10th Circuit was narrow: When counties tell people they can use their property in a certain way, how clear do they have to be to trigger the owner’s right to that use?
Brown purchased rural land in Chaffee County to operate a fox hunting club. She kept foxhounds and other farm animals, and eventually sought to build a guest house for the person who looked after the dogs and the property. Roorda reviewed his plans and suggested changes to allow the building to circumvent the more stringent scrutiny given to certain types of structures.
In August 2016, Roorda indicated that Brown’s proposal would have to undergo a procedurally intensive “limited impact review” after all, as his foxhunting operation could be an “outfitter facility”. The “global use” of Brown’s property necessitated such scrutiny.
Although it is undisputed that Roorda signed a building permit for Brown, the parties disagreed on whether he only approved the construction of the building or whether he approved the building as well as Brown’s use of its land for a kennel and fox hunting club. Roorda did not respond to Brown’s email requesting clarification.
As Brown was building her guesthouse, Roorda informed her that she was running a commercial outfitter and kennel in violation of the land use code. Chaffee County would not issue a certificate of occupancy for the completed building until it resolved the violation.
Brown sued the county, alleging that she had a vested – that is, unconditional – right to the use of her property, and Chaffee County had infringed that right without due process.
In June 2022, U.S. District Court Judge Regina M. Rodriguez found no constitutional violation because the county did not license Brown to operate a fox hunting club and kennel without review.
“Brown argues that the County made certain representations to her regarding her use of the lands which established her vested proprietary rights in those uses; however, she has not set forth the facts establishing that the County made the representations she contends,” Rodriguez wrote.
In the view of the 10th Circuit, Tymkovich acknowledged that the purpose of vested property rights is to provide fairness for those who rely on government statements.
“If the government tells a landowner that he can use his property in a certain way, and invests in that use to his detriment, then the government cannot pull the rug out from under him,” Tymkovich wrote.
However, under the current interpretation of the law by Colorado courts, counties must actively confirm that a landowner is entitled to a certain land use before the owner is allowed to rely on that promise. Prior approval is not enough, as Tymkovich also wrote in a 2011 decision involving an Arapahoe County zoning change that prevented a car dealership from setting up shop. There was no grandfathering there because the land was only governed by a “preliminary” plan.
Brown’s case was similar, in that there was no definitive confirmation that she had the right to operate her fox hunting club and kennel.
The “interactions between the parties were plagued by obvious misunderstandings and miscommunication,” Tymkovich explained. “Under Colorado’s strict standard, no jury could find the clear representations, and no jury could find the reasonable reliance.”
He added that Brown had been “met with silence” by Roorda on several occasions, and suggested the county had not followed its own procedures “every step.” Nonetheless, Tymkovich concluded, county pronouncements on Brown’s land use “must amount to functional approval”, which never came.
Earlier this year, a state trial judge determined in a separate lawsuit that Chaffee County abused its discretion or otherwise acted arbitrarily in denying Brown’s other permits, including permission to operate a kennel. In 2022, Brown ran unsuccessfully as a Republican candidate for county commissioner, where she condemned “extreme overregulation.“
The case is Brown v. Chaffee County Board of Commissioners.
