Because Chaffee County never definitively represented to a landowner that she would be able to maintain a kennel and foxhunting operation on her property, the county did not violate her rights when it found her in violation of its land-use code, the federal appeals court based in Denver ruled on Tuesday.

However, a three-judge panel of the 10th U.S. Circuit Court of Appeals made clear that Chaffee County was not blameless in the dispute, as the evidence could have shown planning manager Jon Roorda repeatedly failed to give Alison Brown a clear answer about what the county expected.

“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,” wrote Judge Timothy M. Tymkovich in the panel’s July 18 order.

Brown’s lawsuit against Chaffee County was rife with allegations that county officials targeted her, rewriting policies specifically to affect the foxhunting club she ran on her Salida property. But the question before the 10th Circuit was narrow: When counties tell people they can use their property in a certain way, how clear must they be to trigger the owner’s entitlement to that use?

Case: Brown v. Chaffee County Board of County Commissioners

Decided: July 18, 2023

Jurisdiction: U.S. District Court for Colorado

Ruling: 3-0

Judges: Timothy M. Tymkovich (author)

David M. Ebel

Robert E. Bacharach

Background: Jordan-Arapahoe v. Board of County Commissioners (2011)

Brown purchased a rural piece of land in Chaffee County to operate a foxhunting club. She kept foxhounds and other livestock, and eventually sought to build a guesthouse for the person taking care of the hounds and the property. Roorda reviewed her plans and suggested changes to enable the building to bypass the more rigorous review given to certain types of structures.

In August 2016, Roorda indicated Brown’s proposal would have to undergo the procedurally intensive “limited impact review” after all because her foxhunting operation could be an “outfitting facility.” The “aggregate use” of Brown’s property required such a review.

Although it was undisputed Roorda signed off on a building permit for Brown, the parties did not agree whether he only approved of the building’s construction or if he endorsed the building plus Brown’s use of her land for a kennel and a foxhunting club. Roorda did not respond to Brown’s email seeking clarification.

As Brown was constructing her guesthouse, Roorda informed her she was running a commercial outfitting facility and kennel in violation of the land-use code. Chaffee County would not issue a certificate of occupancy on the completed building until she resolved the violation.

Brown sued the county, alleging she had a vested – meaning unconditional – right to her property’s use, and Chaffee County had infringed on that right without due process of law.

In June 2022, U.S. District Court Judge Regina M. Rodriguez found no constitutional violation because the county did not give permission for Brown to operate a foxhunting club and kennel without undergoing a review.

“Brown argues that the County made certain representations to her regarding her land use that established her vested property rights in those uses; however, she has failed to set forth facts establishing that the County made the representations she contends,” Rodriguez wrote.

In the 10th Circuit’s opinion, Tymkovich acknowledged the purpose of vested property rights is to ensure fairness for those who rely on the government’s statements.

“If the government tells a landowner he can use his property in a certain way, and he invests in that use to his detriment, the government cannot then pull the rug out from under him,” Tymkovich wrote.

However, under Colorado courts’ existing interpretation of the law, counties must actively confirm a property owner has the right to a certain land use before the owner is entitled to rely on that promise. Preliminary approval is not enough, as Tymkovich also wrote in a 2011 decision involving an Arapahoe County zoning change that prevented a car dealership from moving in. There was no vested right there because the land was only governed under a “preliminary” plan.

Brown’s case was similar, in that there was no final confirmation she had the right to operate her foxhunting club and kennel.

The “interactions between the parties were rife with obvious misunderstandings and poor communication,” Tymkovich explained. “Under the stringent Colorado standard, no jury could find the representations clear, and no jury could find the reliance reasonable.”

He added that Brown was “met with silence” from Roorda on multiple occasions, and suggested the county did not follow its own procedures “at each step.” Nonetheless, Tymkovich concluded, the county’s statements about Brown’s land use “must amount to functional approval,” which never came.

Earlier this year, a state trial judge determined in a separate lawsuit that Chaffee County abused its discretion or otherwise acted arbitrarily when denying Brown’s other permits, including authorization to operate a kennel. In 2022, Brown ran unsuccessfully as a Republican candidate for county commissioner, where she condemned “extreme over-regulation.“

The case is Brown v. Chaffee County Board of County Commissioners.