Town of Vail v. Vill. Inn Plaza-Phase V Condo. Ass'n

498 P.3d 1123

2021 COA 108

TOWN OF VAIL, a Colorado home rule municipality, Appellant,

v.VILLAGE INN PLAZA-PHASE V CONDOMINIUM ASSOCIATION, a Colorado non-profit corporation; Vail Village Inn, Inc., a Colorado corporation; Griffin Development LLC, a Texas limited liability company; Karin Wagner, as Trustee for the Karin Wagner Revocable Inter Vivos Trust; Meadow Drive Ventures Inc., a Colorado Corporation; Potamus Bean LLC, a Texas limited liability company; Staufer Commercial LLC, a Colorado limited liability company; VVI, LLC, a Colorado limited liability company; Richard L. Liebhaber, Appellees.

Court of Appeals No. 20CA1179

Colorado Court of Appeals, Division II.

Announced August 12, 2021

Hoffman, Parker, Wilson & Carberry, P.C., Kendra L. Carberry, Denver, Colorado; Hoffman, Parker, Wilson & Carberry, P.C., J. Matthew Mire, Vail, Colorado, for Appellant

Miletich, P.C., Walter N. Houghtaling, Denver, Colorado; Frederick G. Aldrich LLC, Frederick G. Aldrich, Grand Junction, Colorado, for Appellee Village Inn Plaza-Phase V Condominium Association

Porterfield Oliver LLC, Wendell Porterfield, Vail, Colorado, for Appellees Staufer Commercial LLC and Vail Village Inn, Inc.

Hale Law LLC, Allan Hale, Steamboat Springs, Colorado, for Appellees Griffin Development LLC, Karin Wagner, Meadow Drive Ventures Inc., Potamus Bean LLC, Richard L. Liebhaber; and VVI, LLC

Altitude Community Law, P.C., William Short, Azra Taslimi, Lakewood, Colorado, for Amicus Curiae Community Associations Institute

Opinion by JUDGE DAVIDSON^*

¶ 1 The anti-discrimination provision of the Colorado Common Interest Ownership Act (CCIOA), section 38-33.3-106, C.R.S. 2020, states that no ordinance may "impose any requirement upon a condominium or cooperative which it would not impose upon a physically identical development under a different form of ownership." At issue in this appeal is whether a portion of an ordinance enacted by the Town of Vail (Town) violates this provision. In a declaratory order entered on summary judgment in favor of the Village Inn Plaza-Phase V Condominium Association (the Association), the district court said it did, and we agree. Accordingly, we affirm.

I. Background

A. The Town's Ordinance, its Restrictions, and the Association's Amended Rules

¶ 2 The Town Code of Vail (Town Code) and its zoning regulations allow the City Council to establish Special Development Districts through an ordinance. Town Code § 12-9A-4(D). In 1976, the Town enacted an ordinance establishing the Village Inn Plaza development as Special Development District No. 6 (SDD no. 6). In 1987, the Town enacted an ordinance modifying the 1976 ordinance to allow for the development of Phase V of the Village Inn Plaza development.

¶ 3 The 1987 ordinance includes several conditions of approval for developers building within SDD no. 6. The relevant condition of approval here is section 11(6), which states as follows:

Restrictions on any units in Phases IV or V which would be condominiumized shall be as outlined in Section 17.26.075 of the Vail Municipal Code and any amendments thereto.

Section 17.26.075, recodified as section 13-7-8 of the Town Code, imposes several restrictions on units converted to condominiums prior to February 7, 1995. Town Code § 13-7-8(A).¹ The restrictions require that condominium units "remain in the short term rental market to be used as temporary accommodations available to the general public," Town Code § 13-7-8(B); limit an owner's personal use of their unit during the "high season," Town Code § 13-7-8(B)(1); and impose fines for violations, Town Code § 13-7-8(B)(2). Although the 1987 ordinance has been amended, the restrictions remain in the Town Code.

¶ 4 In 1988, the Association, seeking to establish a condominium project within Phase V, recorded a condominium declaration. The declaration adopted the restrictions for condominiums outlined in the 1987 ordinance and section 13-7-8 of the Town Code as section 21(i) of the declaration. In 2013, the Association adopted Policies, Rules, Regulations, and Guidelines. In 2013 and 2014, the Association amended its rules to state that the Association would no longer enforce section 21(i) of its original condominium declaration (i.e., the restrictions from the 1987 ordinance and section 13-7-8 of the Town Code).

B. Procedural History

¶ 5 In 2014, Staufer Commercial, LLC, a commercial owner in Phase V, sought a declaratory judgment that the Association's amended rules announcing its refusal to enforce section 21(i) violate the Association's condominium declaration. The Town joined as an indispensable party and filed a cross-claim seeking a declaratory judgment that section 21(i) of the amended rules violates the 1987 ordinance and section 13-7-8 of the Town Code.

¶ 6 In January 2015, the Town amended its cross-claim to allege that section 21(i) specifically violates section 11(6) of the 1987 ordinance and section 13-7-8 of the Town Code (i.e., the restrictions on condominiums). Subsequently, the Association filed a motion for partial summary judgment pursuant to C.R.C.P. 56, seeking dismissal of the Town's cross-claim on the grounds that section 11(6) of the ordinance violates the anti-discrimination clause of the CCIOA. The Town asserted in response that the CCIOA does not apply retroactively to the 1987 ordinance and that, even if it does, the Association presented no evidence to show discrimination against the condominium form of ownership.

¶ 7 In June 2018, the district court granted the Association's motion for partial summary judgment on the amended cross-claim based on section 11(6) of the ordinance. It found that (1) although the CCIOA applies generally to communities created after July 1, 1992, it applies here because the Town's enforcement of the 1987 ordinance constituted an "event[ ] and circumstance[ ]" that permits retroactive application of the CCIOA, § 38-33.3-117(1), C.R.S. 2020; and (2) the 1987 ordinance is discriminatory as a matter of law because "the language of Vail's ordinance applies only to condominiums."

¶ 8 The Town filed an appeal with this court, but, because the June 2018 order did not resolve the Town's second amended cross-claim — a claim for penalties against the Association and residential owner defendant Richard L. Liebhaber — we dismissed it without prejudice for lack of jurisdiction. On remand, the district court granted a motion to dismiss the Town's second amended cross-claim on the same grounds as those set forth in its June 2018 order. The court then issued a C.R.C.P. 54(b) certification, and we are satisfied that we now have jurisdiction to consider the Town's appeal of the district court's declaratory judgment order dismissing the second cross-claim.

¶ 9 On appeal, the Town argues that the district court's determination that the restriction provision of section 11(6) of the 1987 ordinance violates the anti-discrimination provision of the CCIOA was in error because the CCIOA does not retroactively apply to the 1987 ordinance and because the 1987 ordinance is not facially discriminatory. It further argues that, in any event, the CCIOA is inapplicable because it is preempted by section 11(6) as a matter of purely local concern.

II. Whether the Anti-Discrimination Provision of the CCIOA Retroactively Applies to Section 11(6) of the 1987 Ordinance

¶ 10 Phase V of the development was created in 1988, four years before the CCIOA's effective date. As a threshold matter, the Town contends that section 11(6) of the 1987 ordinance cannot violate the CCIOA because the statute does not apply retroactively to the 1987 ordinance. We disagree.

A. Legal Principles

¶ 11 Whether the CCIOA applies in this instance is a question of statutory interpretation. We review questions of statutory interpretation de novo. Hunsaker v. People , 2015 CO 46, ¶ 11, 351 P.3d 388. When interpreting a statute, our primary goal is to ascertain and give effect to the General Assembly's purpose and intent in enacting it. People v. Cooper , 27 P.3d 348, 354 (Colo. 2001) ; People v. Sims , 2019 COA 66, ¶ 33, 457 P.3d 719. In doing so, we look first to the statute's plain language, and if that language is clear, we enforce the statute as written and "do not need to resort to other rules of statutory construction." Nowak v. Suthers , 2014 CO 14, ¶ 20, 320 P.3d 340.

B. Analysis

¶ 12 The CCIOA applies to common interest communities "created" in Colorado after the CCIOA's effective date of July 1, 1992. § 38-33.3-115, C.R.S. 2020. Importantly, however, while the statute generally does not apply to communities created before its effective date, § 38-33.3-117(3) ; see also DA Mountain Rentals, LLC v. Lodge at Lionshead Phase III Condo. Ass'n , 2016 COA 141, ¶ 28, 409 P.3d 564, it provides for two exceptions. The first allows associations for pre-existing communities to elect to be governed by the CCIOA in its entirety. § 38-33.3-118, C.R.S. 2020; DA Mountain Rentals , ¶ 28. That exception is not relevant here because the Association did not elect to do so.

¶ 13 The second exception, however, provides that, for certain specified statutory provisions, pre-existing communities are subject to the CCIOA for "events and circumstances occurring on or after July 1, 1992." § 38-33.3-117(1) ; see Giguere v. SJS Fam. Enters., Ltd. , 155 P.3d 462, 469 (Colo. App. 2006) (sections of the CCIOA made applicable to pre-existing common interest communities apply retroactively pursuant to section 38-33.3-117 ). Here, the parties do not dispute that section 38-33.3-106, the anti-discrimination provision of the CCIOA, is one of the provisions covered by section 38-33.3-117(1) for "events and circumstances occurring on or after July 1, 1992." But they disagree whether there has been an "event[ ] and circumstance[ ]" occurring after July 1, 1992, triggering section 38-33.3-117(1).

¶ 14 In its order, the district court concluded that "the present-day effect of this ordinance is, of necessity, an ‘event[ ] and circumstance[ ] occurring on...