10th Circuit Court of Appeals Find No Vested Rights for Use of Property as a Kennel to Train Foxhounds and Host Recreational Hunting Events

This post was authored by Olga Doukas, Jacob D. Fuchsberg Touro Law Center, JD candidate 2024.

In 2014, the Petitioner purchased property in Chaffee County, Colorado (the “County”) to host recreational hunting events. From 2014 – 2016, she recruited and trained twenty-two foxhounds on her property and formed a fox hunting club that operated for three consecutive hunting seasons without the benefit of permits. In 2016, the Petitioner filed a building permit application with the Respondent to construct a new structure on the property to rent to a caretaker. The parties discussed the generally permitted land uses under the Chaffee County Colorado Land Use Code (the “Code”) as part of this process. However, based upon the limited application for only the proposed structure, the County only required limited application review instead of the more rigorous review required for the other structures and uses at the property. As a result, the County did not review the plan to include a proposal for housing foxhounds (i.e., “outfitting facility”) or the construction of an arena at the property. Instead, the County issued a building permit for the caretaker home, approving the plan only with respect to the caretaker home.

After construction had commenced, the County advised the Petitioner that she was operating a commercial outfitting facility and kennel in violation of the Code. As a result, the County declined to issue a certificate of occupancy for the completed caretaker building until the Petitioner addressed the violation. To resolve the violation, the proposal would have to undergo “limited impact review” to maintain the foxhunting operation as an “outfitting facility”. Therefore, the “aggregate use” of the Petitioner’s property would have required a more intense review. While the County did not dispute that it signed off on a building permit for the caretaker home at the property, the parties disagreed as to the scope of the approval. The Petitioner claimed that when the County approved the building’s construction, it endorsed the building and the use of the land as a kennel and a foxhunting club. The Petitioner further argued that her interpretation is supported by the fact that the County never responded otherwise to her email seeking clarification on this point.

Consequently, the Petitioner file a lawsuit alleging that she had a vested right to use her property as a kennel and foxhunting club because she detrimentally relied on the County’s representations about acceptable land uses for the property and understood the County’s issuance of the building permit to approve those land uses at the property.

The Court determined that Petitioner failed to meet the burden to establish a right by estoppel under Colorado law. Under Colorado property law, the County had to clearly and unambiguously communicate to the Petitioner that she could use the property as a foxhunting club and kennel under the approved building permit. Otherwise, the Petitioner could not reasonably rely on those representations. Accordingly, since the Petitioner’s general communications with the County did not meet this standard, the Court determined that the Petitioner had not established a vested right to develop the kennel and outfitting facility (i.e., foxhunting club).  

Brown v. Chaffee Cnty. Bd. of Cnty. Comm’rs., 2023 WL 4579366 (10th Cir. CA July 18, 2023).