Editor’s Note: This is the first of a three-part guest opinion explaining the constitutional basis for a case that is slowly wending its way through Federal Court.
For more than two years, Dr. Alison Brown has been fending off a series of legal attacks by some neighbors and Chaffee County officials to shut down her Headwater Hounds foxhunting club at 11600 Antelope Road. In March, she took the initiative by suing the County for damages for violations of her rights under the 14th Amendment Ref.1 of the US constitution. (See AVV, 4/8/2019) Should Brown win, she will most likely be able to also operate her foxhunting club on her property going forward.
Brown sued Chaffee County, its Board of Commissioners and Board of Review, its Director of Development Services, Dan Swallow, and its Planning Manager, Jon Roorda, in Colorado’s 11th District Court. These defendants (the “county”) responded to her suit by “removing” the case to the United States District Court in Denver (see AVV, 5/15/19), which is their right when sued on claims based on federal law. The law involved is 42 U.S.C. §1983Ref.2, aka the Civil Rights Act of 1871. This law accounts for the most civil actions filed in federal courts.
A trial, which would be held in federal court in Denver, would be at least 18 months. to two years away. The damages Brown seeks include damages for her loss of the use of her property, and her claim will increase until the case is resolved or the county allows her to resume operations. A final judgment in this case is likely to affect the county’s treatment of other property owners going forward.
The Chaffee County Attorney’s office appears confident that any damages awarded Brown in the lawsuit, as well as the county’s defense costs, will be covered by insurance from the Colorado Counties Casualty and Property Pool (CAPP), of which it and 50 other smaller Colorado Counties are members. Under CAPP coverage, the first $250,000 is paid by the pool, then up to $10,000,000 by the excess liability insurance policy purchased by the pool.
It should be pointed out, however, that there is a risk that some or all of the damages could be excluded from coverage under an “eminent domain” exclusion in the policy; which includes damages for a “taking” of property, or the deprivation of the right to use property, by zoning regulation. If all damages are excluded, the county could end up first paying a $125,000 deductible, with the pool paying the next $250,000, then the county could pay anything above that, which could be several million dollars. This is because, when a government purchases property, the purchase price is not covered by insurance. Compensation for property taken, or appropriated, is a form of acquisition of property that is similarly not covered by insurance.
Brown began the Headwater Hounds Club on her property in 2014 and operated her club for three seasons. During that time, she constructed supporting facilities for her Club operations, obtained a building permit for and constructed a residence, and received representations from county officials, on which she claims she relied, that her declared use of the property was in compliance with the county’s land use code.
It was not until new neighbors moved adjacent her property in 2016 and objected to her fox hunting operation, that the county began applying its land use code and regulations to shut down Brown’s fox hunting club activities. These facts and others alleged by Brown are set forth in the Amended Complaint she filed in federal court.
Responding to the complaining neighbors, the county took several steps to enforce its land use code against Brown. It first identified its regulations of outfitting facilities and kennels to apply to her foxhunting club. It then amended, redefined or reinterpreted these regulations while attempting to enforce them against her. Brown claims that in doing so the county has denied her liberty and property without due process of law.
Retroactive action by a government that makes it illegal to continue an ongoing, formerly-legal use of property, is often held by courts to be a “taking” of property, requiring compensation to the property owner under the due process clause of the 14th Amendment. Brown also claims in her suit that she was denied equal protection of the law by county officials for intentionally singling her out for enforcement of the county land use code in a way the county has not applied to other landowners in the county; those who engage in activities covered by the same broad definitions in the code. The county says it relies on the complaints of neighbors in deciding which property owners or activities against which to enforce its code. (See AVV, 6/15/2018.)
Damages claimed by Brown include those that stem from her being rendered homeless by the county in Dec. 2017 when it denied her a certificate of occupancy for her newly constructed home, based not on a violation of the building code with which she complied, but instead on charged violations of the zoning code. In a Planning Commission work session on June 7, 2018, defendant Swallow added that it was due to her being “defiant” in challenging the county’s application of the zoning code against her.
In the pending lawsuit, U.S. Magistrate Scott Varholak has set a discovery cutoff of June 5, 2020, a motion deadline of August 4, 2020, and a final pre-trial hearing for October 19, 2020. A pending Motion to Dismiss filed by the Chaffee County defendants will be decided first, after a hearing on October 17th. That motion, Brown’s Response, and the county’s Reply lay out the initial legal issues, which are the subject of Part II of this article.
The 14th Amendment of the Constitution of the United States provides, in part, that:
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
42 U.S.C. 1983 of the United States Code provides that:
“Every person who, under color of any * * * [law] of any State * * *, subjects, or causes to be subjected, any citizen of the United States * * * to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress * * *.”
Editor’s Note: Alison Brown is an investor in Ark Valley Voice.