Plaintiff Jordan-Arapahoe, LLP purchased property in Arapahoe County with the intent to develop a dealership, relying on applicable development plans which listed “Automotive Sales and Repair” as an allowable use. At the request of the city of Centennial, the County imposed a moratorium suspending all applications for development approval of automobile sales uses in the area, and subsequently added a “Overlay District” that increased the original 30 foot setback to a 1,500 foot setback for all public rights of way surrounding the property, making it impossible for plaintiff to build a car dealership. Plaintiff filed a §1983 claim for deprivation of a protected property interest without due process in violation of the Fourteenth Amendment of the United States Constitution. The district court dismissed the claim for failure to allege facts sufficient to show that under Colorado law, Arapahoe County had limited discretion to change the zoning and disapprove their final development plan.
On appeal, plaintiffs contended they had protected property interest through Colorado’s Vested Property Rights Act (VPRA), which established a property right by virtue of Arapahoe County’s zoning scheme combined with the County’s approval of the preliminary development plan; and Colorado common law, which establish vest property rights because plaintiff reasonably relied on county’s zoning classification in expending substantial sums developing its property for a car dealership.
The United States Court of Appeals, Tenth Circuit affirmed the district court’s decision holding the VPRA as applied to the Arapahoe County Land Development Code gives the county discretion to approve or reject zoning uses until it gives final approval of a “final development plan.” Plaintiffs did not receive approval of a final development plan, and the County was not required to approve it even if it was identical to the already approved preliminary development plan.
As to the common law argument, the Court cited to Colorado case law that held developers who rely only on zoning or approved uses without building permit had no vested common-law development rights as a matter of law. Although plaintiffs showed they took substantial action in detrimental reliance on the County’s approval of the preliminary development plan that alone is not enough of a “representation or affirmative action” for a right to vest. Citing a recent decision with similar facts but different outcome, the Court implied that reliance on a permitted use under the zoning classification along with the local government’s confirmation of permitted uses could be enough to establish a vested property right. However, it did not alter the conclusion that the zoning scheme and County’s conduct did not deprive plaintiffs of a protected property interest.
Jordan-Arapahoe, LLP v. Board of County Commissioners of the County of Arapahoe, 2010 WL 420439 (C.A.10 (Colo.) 2/8/11)).
The opinion can be accessed at: http://www.ca10.uscourts.gov/opinions/09/09-1501.pdf
