Agenda - Planning Commission - 05/05/2011

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March 25, 2011 ' Volume 5 1 No. 6 Zoning Bulletin Jordan -Arapahoe sued. It claimed that the County's rezone deprived it of a protected property interest without due process in violation of the 14th Amendment of the United States Constitution. More specifically, Jordan=Arapahoe argued that it had a vested property interest to use its land for "automotive sales and repair" under: (1) Colorado's Vested Property Rights Act ("VPRA"); and (2) Colorado common law. Jordan - Arapahoe alleged that the VPRA prevented the County from changing the zoning once it had already approved a PDP. It also alleged that it had a vested right under Colorado common law by virtue of its detrimental reliance on the original zoning classification. The district court disagreed with Jordan -Arapahoe. It held that Jor- dan -Arapahoe had failed to show a protected property interest under Colorado law since its development proposal had not yet become suf- ficiently final, or vested. Jordan -Arapahoe appealed. DECISION: Affirmed. The United States Court of Appeals, Tenth Circuit, held that, under Colorado law, a property owner does not obtain a vested property right unless: (1) there was approval of a site specific development plan; or (2) the landowner substantially and detrimentally relied on representations and affirmative actions by local government. The court found neither condition was met here. The court explained that, generally, "a landowner's protected inter- est in a particular zoning decision depends on `whether there is discre- tion in the [local zoning authority] to deny a zoning or other applica- tion."' If discretion is limited so that properly followed procedures re- quire a particular outcome, then a property interest exists. On the other hand, "where the governing body retains discretion and the outcome of the proceeding is not determined by the particular procedure at issue, no property interest is implicated." Here, then, to succeed, Jordan -Arapahoe had to show that the county had limited discretion to change the zoning and to disapprove Jordan- Arapahoe's final development plan. The court concluded that Jordan - Arapahoe failed to make that showing and thus had not demonstrated a protected vested property interest. In so concluding, the court rejected Jordan-Arapahoe's allegation that the VPRA prevented the County from changing the zoning once it had already approved a PDP. The VPRA provided that: "A vested property right shall be deemed established with respect to any property upon the approval, or conditional approval, of a site specific development plan ...." Under County law, an applicant could seek approval of a "vested property right" either: (1) by approval of a site specific development plan; or (2) by approval of a development agreement relating to the pro- posed development. Here, Jordan -Arapahoe did not receive approval of 6 © 2011 Thomson Reuters