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The United States Court of Appeals for the 10th Circuit issued a decision this week in the case of Brown versus the Chaffee County  Board of Commissioners. In it, Circuit Judges Tymkovich, Ebel, and Bacharach considered only one property use claim. They ruled that Dr. Alison Brown had no vested property right to fulfill her intended uses of her property, under Colorado’s unusually strict standard.

Not only was the decision a narrow one, the ruling, which is related to 1983 Colorado property rights standards, goes out of its way to confirm its narrowness.

Brown expressed disappointment at the decision saying: “I filed this case because I strongly believe that agricultural operations are entitled to protection under the 14th Amendment for permitted uses. The Court’s ruling, where they concurred with the County’s argument that only uses approved under building permits received this protection does not, in my opinion, comply with the intent of the 14th Amendment in protecting citizen’s property rights.”

“I am optimistic that the ongoing case in state District Court where the judge has already affirmed multiple land use abuses by Chaffee County will result in a successful outcome,” she added. “I had hoped that the 1983 filing would provide a precedent to provide better protection for other citizens against similar abuses by local government. I am saddened that this is now not the case.”

Brown with her American Foxhounds in 2019. Photo by Sandy Hobbs.

The case involved the interpretation of property rights for a rural-zoned parcel of land purchased by Brown in 2014 just north of the city of Salida and U.S. 291. Her usage intent included a residence, a horse barn, and indoor riding arena, as well as kennels for her American foxhounds.

While the case names the BoCC as defendants, it was county staff who were involved in the situation. It evolved into different understandings of Brown’s use of her property; as county communications kept changing: While approvals were understood as covering the entire plan, it would latter be discovered that they covered pieces of her plan. Approvals were known to change.

Brown always understood her communications to include a residence, a barn, an indoor arena, and kennels, and her (noncommercial) activity as part of a voluntary hunting club to go out to follow and move predators such as coyotes away from ranching operations.

But county staff, involved in the review of her property building plans, the inspection of her construction, the post-action revising of the Chaffee Land Use Code, and enforcing what Brown has described as “the traumatic” removal of her fox hounds, disagreed. Far into construction, staff instead required her to submit to a new  “rigorous form of land use review.” Interestingly enough, that county staff is no longer employed by the county.

Her federal district court case revolved around the understanding that she possessed a vested right to use her property (as the functional equivalent of a “kennel” and “outfitting facility”) without submitting to the special land use review process the county said would now apply. Her reason; that she had relied upon the previously-obtained approvals from the county that she could use her land as she had presented it to them.

The district court disagreed and granted summary judgment for the county and the federal appeals court affirmed the district court.

The court pointed out that, “Even construed in a light most favorable to Dr. Brown, the facts are stitched with confusion. In one breath, the County suggested that physical alterations to a guest house would free Dr. Brown from Limited Impact Review for a kennel. In the next, the County changed course—and then changed course again, and then fell silent … Colorado law demands representations marked by certainty before finding a vested property right. The communications between the parties here were marred with uncertainty such that no rational jury could find that reasonable reliance arose from the circumstances.”

The appeals court wrote in its decision:

“Under Colorado property law, the County had to clearly and unambiguously communicate the content of Dr. Brown’s claimed rights. Otherwise, Dr. Brown could not reasonably rely on those representations. Because the communications from the County do not meet this standard, Dr. Brown has not established vested rights to develop the kennel and outfitting facility.”

It could be pointed out that the use of the term in the decision “outfitting facility” has been brought into question in prior court decisions. But that had no bearing on this appeal. In this case, the context of use has again been interpreted to mean something Brown doesn’t and didn’t intend; a commercial outfitting operation with her American foxhounds. As she pointed out repeatedly during the years of litigation, her intent was the sort of personal recreational use with friends in a riding club type of format with potential beneficial use to the county’s ranchers of distancing predators from their ranches.

The decision makes a point that it does not include the extensive conflict between Brown and the county over zoning or permitting, “Because we consider only whether Colorado property law vested Dr. Brown with the claimed property rights, we recount only the facts relevant to that argument.”

The court went on to write:

“In Colorado ‘property rights vest in a particular land use after a building permit has been issued and the landowner acts in reliance on it.’ (Jordan-Arapahoe,  LLC v. Bd. of Cnty. Comm’rs of Arapahoe, 633 F.3d 1022, 1029 (10th Cir. 2011) Property owners typically invoke the doctrine when they want to continue to use their land in a way once permitted by the government that has since come under scrutiny. But if the property owner did not “take substantial steps to exercise those rights in reliance on the permit before the effective date of any new legislation that may affect those rights.”

Upcoming and as yet unanswered questions: are there any legal options left to Brown, and does this decision have any impact on other pending or possible claims Brown might pursue.