Guy v. BCC Basalt

23CA0676 & 23CA1004 Guy v BCC Basalt 10-31-2024

COLORADO COURT OF APPEALS

Court of Appeals Nos. 23CA0676 & 23CA1004
Eagle County District Court No. 22CV30177
Honorable Paul R. Dunkelman, Judge

Theodore K. Guy,

Plaintiff-Appellant,

v.

BCC Basalt, LLC, a Colorado limited liability company, and Town of Basalt, a
Colorado home rule municipality,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE HARRIS
J. Jones and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 31, 2024

Neiley Law Firm, LLC, Richard Y. Neiley, Jr., Glenwood Springs, Colorado, for
Plaintiff-Appellant

Ferguson Schindler Law Firm P.C., Matthew Ferguson, Aspen, Colorado, for
Defendant-Appellee BCC Basalt

Nathan Dumm & Mayer P.C., Nicholas C. Poppe, Denver, Colorado, for
Defendant-Appellee Town of Basalt
¶1 Plaintiff, Theodore K. Guy, appeals the dismissal of his

C.R.C.P. 106(a)(4) action against defendants, the Town of Basalt

and BCC Basalt, LLC, for lack of standing. We affirm.

I. Background

¶2 In August 2022, after a series of public meetings and hearings,

the Town’s council approved BCC Basalt’s rezoning and

development plan permitting the construction of a grocery store and

sixty-five apartments in the Town’s downtown area (the

development project).

¶3 Guy owns, among other properties in the Town, a home at the

end of Swinging Bridge Lane, which is located across the Frying Pan

River from the development project. He sued the Town and BCC

Basalt,1 asserting a claim under C.R.C.P. 106(a)(4) that the Town

council had abused its discretion by approving the redevelopment

project. Guy’s complaint alleged that the development project did

not comply with the Town’s master plan. He claimed a “cognizable

1 Basalt Center Partnership was a defendant in the district court,

but it is not a party to this appeal.
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interest in the litigation” based on his status as a “resident, tax

payer, and property owner.”

¶4 The Town moved to dismiss Guy’s complaint under C.R.C.P.

12(b)(1) for lack of standing. According to the Town, Guy had failed

to allege either a legally protected interest that had been infringed

or any injury particular to him.

¶5 In his response, Guy argued that as a property owner “in the

vicinity of the rezoning” — “550 feet as the crow[] flies” or “1,500

feet driving distance”2 — he had common law standing to challenge

the approval. He identified his probable injuries as follows:

2 An exhibit submitted to the district court shows the approximate

location of Guy’s home vis-à-vis the development project:

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• Because parking for the development project is inadequate,

“there will be resulting parking shortages and congestion,

including in [his] neighborhood.”

• “There will be traffic congestion that will make it more difficult

and time consuming for [him] to drive from [his] residence to

downtown Basalt and other destinations.”

• “Aesthetically[, he] find[s] the design of the [development

project] offensive,” because it is “too tall” and “does not reflect

the historic architecture of the Old Town Basalt surroundings

in which it is located.”

¶6 The district court found that Guy’s alleged injuries were

“unsupported, vague, or speculative” and not sufficiently particular

to him. Thus, it concluded that Guy lacked standing and dismissed

the complaint.

II. Standing

¶7 Guy contends that he sufficiently alleged an injury in fact to a

legally protected interest, and therefore he has standing to

challenge the Town’s approval of the development project. We

disagree.

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A. Legal Principles and Standard of Review

¶8 Standing is a jurisdictional prerequisite to a court’s resolution

of a case on the merits. See Hickenlooper v. Freedom from Religion

Found., Inc., 2014 CO 77, ¶ 7. “If the plaintiff does not have

standing, the case must be dismissed.” Hotaling v. Hickenlooper,

275 P.3d 723, 725 (Colo. App. 2011).

¶9 To establish standing, a plaintiff must demonstrate that (1) he

suffered an injury in fact and (2) the injury is to a legally protected

interest. Wimberly v. Ettenberg, 570 P.2d 535, 539 (Colo. 1977).

¶ 10 The injury-in-fact prong of the test is rooted in separation of

powers principles: because the requirement “guarantees ‘concrete

adverseness,’ it prevents courts from encroaching” into the

legislative sphere. Weld Cnty. Bd. of Cnty. Comm’rs v. Ryan, 2023

CO 54, ¶ 10 (quoting Ainscough v. Owens, 90 P.3d 851, 856 (Colo.

2004)). Thus, a claimed injury must be “direct” and

“individualized,” not “indirect and incidental” to the challenged

action. Freedom from Religion Found., ¶¶ 9, 11 n.10.

¶ 11 The legally-protected-interest prong “reflects prudential

considerations of judicial self-restraint,” Colo. Gen. Assembly v.

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Lamm, 700 P.2d 508, 516 (Colo. 1985), by recognizing that parties

actually protected by some source of substantive law are “generally

best situated to vindicate their own rights,” Freedom from Religion

Found., ¶ 10 (citation omitted). Thus, to show a legally protected

interest, the plaintiff must have “a claim for relief under the

constitution, the common law, a statute, or a rule or regulation.”

Ainscough, 90 P.3d at 856; see also Weld Cnty., ¶ 11 (“To be legally

protected, an interest must derive from the ‘constitution, the

common law, a statute, or a rule or regulation.’”) (citation omitted).

¶ 12 At bottom, “the standing requirement distinguishes ‘those

particularly injured by . . . government action,’ who may present

their controversy for resolution by the courts, from members of the

general public, whose interests are more remote and who ‘must

address their grievances against the government through the

political process.’” Reeves-Toney v. Sch. Dist. No. 1, 2019 CO 40,

¶ 22 (citation omitted).

¶ 13 Whether a plaintiff has standing to sue is a legal question that

we review de novo. Nash v. Mikesell, 2021 COA 148M, ¶ 16.

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B. Guy Did Not Suffer an Injury in Fact to a Legally Protected
Interest

¶ 14 Guy does not contend that he has a claim against the Town

under the constitution, a statute, a rule or regulation, or any Town

code or ordinance. Instead, he says his legally protected interest

derives exclusively from the common law. According to Guy, as a

“neighboring property owner,” he has a right under Colorado case

law to “challenge a rezoning decision that adversely affects him,”

even if his claimed injuries are unrelated to his status as a

neighboring property owner.

¶ 15 We agree that under the common law, a “property owner . . .

has a legally protected interest in insulating [his] property from

adverse effects caused by the legally deficient rezoning” of adjacent

or nearby property. Bd. of Cnty. Comm’rs v. City of Thornton, 629

P.2d 605, 609 (Colo. 1981); see also Snyder v. City Council, 531

P.2d 643, 644 (Colo. App. 1974) (“[L]andowners within a

municipality who are aggrieved by the zoning of property adjacent

to or near their own property have standing to seek judicial review

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of the actions of zoning authorities alleged to be arbitrary and

capricious.”).3

¶ 16 But the “two prongs of the standing test do not exist

independently of one another” — the plaintiff must have suffered

“an injury in fact to a legally protected interest.” Roane v. Elizabeth

Sch. Dist., 2024 COA 59, ¶ 35. “Thus, the scope of the legally

protected interest also informs what constitutes an injury to that

particular interest.” Id. The legally protected interest at issue here

is an interest in protecting nearby property from the adverse effects

of zoning decisions. To establish standing, then, Guy must

demonstrate that the zoning decision will cause specific harm to his

property or his use of it. See Weld Cnty., ¶ 2 (A plaintiff lacks

3 Contrary to Guy’s understanding, “aggrieved” in the standing

context does not mean “feeling distress” or being “offended.”
Rather, “aggrieved” means “the denial to the party of some claim of
right, either of property or of person, or the imposition upon him of
some burden or obligation.” City & Cnty. of Broomfield v. Farmers
Reservoir & Irrigation Co., 235 P.3d 296, 302 (Colo. 2010); see also
Black’s Law Dictionary 80 (12th ed. 2019) (“[A]ggrieved” means
“having legal rights that are adversely affected; having been harmed
by an infringement of legal rights.”). Thus, the holding in Snyder v.
City Council, 531 P.2d 643, 644 (Colo. App. 1974), is a restatement
of the standing test: a nearby landowner has standing to seek
review of zoning actions when the landowner has suffered an injury
or infringement to his legal rights resulting from the zoning action.
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standing to sue even if it has a legally protected interest if it cannot

“demonstrate an injury to that interest.”) (emphasis added).

¶ 17 And while proximity is not decisive, “the distance between the

land subject to the [zoning] decision and the land of the petitioner is

relevant in determining whether an owner has been specially

affected by a land use decision.” 4 Patricia E. Salkin, Am. Law of

Zoning § 42:17 (5th ed. updated May 2024). As the distance

increases, the likelihood of proving an individualized injury from the

rezoning decreases. See, e.g., Bedford v. Bd. of Cnty. Comm’rs, 584

P.2d 90, 91 (Colo. App. 1978) (a plaintiff who lived adjacent to site

rezoned from agricultural to planned unit development had

standing to challenge rezoning based on increased population

density in surrounding area, but plaintiffs who lived three miles

away lacked standing).

¶ 18 As noted, Guy’s claimed injuries are that (1) insufficient

parking at the development project site will potentially lead to more

parking on his street; (2) increased congestion near the

development project site will increase his commute time to

downtown Basalt; and (3) the overall look of the development

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project will cause aesthetic harm. None of these constitutes an

injury in fact to his legally protected interest under the common

law.

1. Parking

¶ 19 Guy alleges that the rezoning decision will result in an

increase in street parking near his property. The district court

found the injury to be vague and speculative because, among other

reasons, Guy did not aver that parking is permitted on his road.

We agree with the district court.

¶ 20 The photographs in the record show that Guy’s property is at

the end of a paved drive that extends off Swinging Bridge Lane. The

drive appears to serve about four homes. Guy did not allege that

parking is permitted on the shared drive or on Swinging Bridge

Lane itself. In his reply brief, Guy says that the Town failed to

“provide evidence that parking [is] prohibited on Swinging Bridge

Lane.”4 But as the plaintiff, Guy has the burden to establish

4 According to the Basalt Municipal Code, parking is prohibited on

the “pavement” on Swinging Bridge Lane. See Basalt Mun. Code
§ 8-4.
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standing. See TABOR Found. v. Colo. Dep’t of Health Care Pol’y &

Fin., 2020 COA 156, ¶ 30.

¶ 21 In any event, Guy does not allege that any increased street

parking will adversely affect him as a property owner. He does not

claim, for example, that he parks on a street or that street parking

would affect his ingress or egress to or from the shared driveway.

Nor does he allege that increased street parking would adversely

affect his property’s value or his safety. To have standing to appeal

a zoning decision, a plaintiff must offer specific facts to establish

perceptible harm. See Rangeview, LLC v. City of Aurora, 2016 COA

108, ¶ 40 (Taubman, J., concurring in part and dissenting in part)

(citing Valcourt v. Zoning Bd. of Appeals, 718 N.E.2d 389, 392

(Mass. App. Ct. 1999)).

¶ 22 Therefore, even if the development project results in an

increase in street parking in his neighborhood, Guy has not

demonstrated an actual and direct injury to his legally protected

interest as a property owner.

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2. Traffic Congestion Near the Development Project

¶ 23 Next, Guy contends that the zoning decision will cause “traffic

congestion” that will increase the driving time from his property to

downtown Basalt and “other destinations.” The district court found

this injury was insufficiently individualized to confer standing.

Again, we agree with the district court.

¶ 24 As noted, to establish an injury in fact, a plaintiff must show

that he suffered an “individualized” injury. Freedom from Religion

Found., ¶ 11 n.10. An “individualized” injury is one that “affect[s]

the plaintiff in a personal and individual way,” Spokeo, Inc. v.

Robins, 578 U.S. 330, 339 (2016) (citation omitted) — i.e., in a way

that is distinct from the harm experienced by the public at large,

see Kolwicz v. City of Boulder, 538 P.2d 482, 483 (Colo. App. 1975)

(The plaintiff lacked standing to challenge city’s failure to approve a

flood plain map because she had “no special interest in the subject

matter of th[e] lawsuit which [wa]s different from a general interest

theoretically shared by the tens of thousands of other residents of

Boulder.”).

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¶ 25 A general complaint about “traffic congestion” cannot

constitute an injury in fact because it merely identifies a harm

suffered by anyone traveling in the general vicinity of the

development project. See, e.g., Concerned Cmty. Involved Dev., Inc.

v. City of Houston, 209 S.W.3d 666, 672 (Tex. App. 2006) (neighbors

lacked standing to challenge zoning decision based on increased

traffic because that injury would be “suffered by the community in

general”); Nickerson v. Zoning Bd. of Appeals of Raynham, 761

N.E.2d 544, 547 (Mass. App. Ct. 2002) (The plaintiff lacked

standing to challenge a zoning decision based on increased traffic

because “the plaintiff’s interest [wa]s not substantially different

from that of all of the other members of the community who [we]re

frustrated and inconvenienced by heavy traffic on Route 44.”).

Under Guy’s theory of standing, anyone who might drive through

downtown Basalt (even non-residents of the Town) would have a

right to challenge the rezoning decision based on an increased

travel time. And, if anything, Guy’s ability to walk into downtown

Basalt in a few minutes suggests that his concerns about traffic at

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the development project site are “far less acute than that of many

other [T]own citizens.” Nickerson, 761 N.E.2d at 548.

¶ 26 Guy’s claim of injury is also too vague and unsupported to

confer standing. At the public hearing in August 2022, the Town’s

planning director explained that BCC Basalt had submitted a traffic

report that anticipated reduced traffic from the proposed mixed use

project versus a larger retail project. (In his public comments, Guy

supported a larger retail project.) A representative of BCC Basalt

said that the study was “reviewed and accepted by [the Colorado

Department of Transportation].”

¶ 27 To state an injury in fact, Guy has to allege some facts to

support his claim of “traffic congestion.” An affidavit that includes

a conclusory and speculative assertion that traffic will worsen is

insufficient to demonstrate an injury. See, e.g., Whittier v. Plan. Bd.

of Town of Ipswich, Case No. 22MISC554, 2023 WL 3841907, *8

(Mass. Land Ct. June 6, 2023) (discussing cases in which courts

denied standing to plaintiffs who failed to support a claim of traffic

congestion in the face of contrary traffic studies).

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3. Aesthetic Concerns

¶ 28 Finally, Guy alleges that the zoning decision offends his sense

of aesthetics and his purported interest in maintaining the Town’s

aesthetic standards.

¶ 29 We conclude that the district court correctly determined that

Guy’s personal distaste for the aesthetics of the development project

does not give him standing to sue. As we have explained, Guy’s

legally protected interest is limited to protecting his property from

the adverse effects of a zoning decision. But he has never said that

the look of the development project will adversely affect his

property. For example, he does not allege that the design of the

development project would decrease his property’s value, that the

height of any building would block a view, or that the overall look

would alter the character of his neighborhood. As the Town points

out, Guy has not even alleged that he can see the development

project from his property.

¶ 30 We disagree with Guy that residents living near a development

site have a free-standing right to enforce their subjective aesthetic

preferences. True, Colorado case law has recognized that the injury

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in fact necessary to establish standing need not be tangible but

“may also be intangible, such as aesthetic issues or the deprivation

of civil liberties.” Ainscough, 90 P.3d at 856. But that does not

mean that Guy has common law standing to challenge every

rezoning that offends his aesthetic sensibilities. He must still show

that the intangible aesthetic injury was to his interest as a property

owner. See Friends of the Black Forest Reg’l Park, Inc. v. Bd. of

Cnty. Comm’rs, 80 P.3d 871, 877 (Colo. App. 2003) (organization

committed to preserving the park and owners of property adjoining

the park had standing to challenge approval of a road easement

that would affect the aesthetics of the park and “erode the property

values of adjoining landowners”).

¶ 31 We do not read Rangeview to establish a different rule. In that

case, the city council approved a development plan that called for

rezoning residential property to allow for the construction of a gas

station and convenience store. Id. at ¶ 3. The plaintiffs, owners of

homes adjacent to the rezoned parcel, challenged the city council’s

approval, alleging, with support from an expert, that the proposed

development would “result in a decrease in home values in adjacent

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neighborhoods.” Id. at ¶ 12. The division concluded that the record

therefore established that the plaintiffs had suffered an injury in

fact. Id. The division also agreed that the plaintiffs had sufficiently

alleged an economic and aesthetic injury from the development

plan’s failure to include an outdoor gathering space. Id. at ¶ 13.

¶ 32 Guy contends that Rangeview stands for the proposition that

aesthetic harm can constitute an injury in fact even if that harm is

not connected to the plaintiff’s property interest. But in our view,

the case merely applies well-established standing principles to

conclude that homeowners who would have had the use of an

outdoor gathering space suffered an aesthetic injury to their

property interest when the outdoor space was excluded from a

development plan. Id. Guy has not alleged any similar aesthetic

harm to the use of his property.

¶ 33 Still, Guy insists that his aesthetic harm argument is not

premised solely on his subjective distaste for the development

project’s design. He says that his injury is also based on the Town’s

failure to comply with its own master plan and other land use

regulations. But this argument fares no better. “A citizen may not

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sue based only on an ‘asserted right to have the Government act in

accordance with law.’” Food & Drug Admin. v. All. for Hippocratic

Med., 602 U.S. 367, 381 (2024) (quoting Allen v. Wright, 468 U.S.

737, 754 (1984)).

¶ 34 Because none of Guy’s alleged injuries constitute an injury in

fact to his legally protected interest as a property owner, he lacks

standing to challenge the Town’s zoning decision. Accordingly, the

district court did not err by dismissing the complaint.

III. Disposition

¶ 35 The judgment is affirmed.

JUDGE J. JONES and JUDGE GOMEZ concur.

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