Colorado’s second-highest court on Wednesday clarified that a developer may bring a ballot initiative in Telluride to rezone part of a planned-unit development for affordable housing despite other lot owners’ objections.

A three-judge panel for the Court of Appeals stressed that the question of whether the zoning change infringes on the rights of homeowners in the development, known as a PUD, is a separate matter to be addressed if the initiative ultimately passes. The immediate question was whether Brighton Properties, LLC could put the issue before voters in the first place.

“Because zoning and rezoning have long been considered legislative matters subject to the initiative power, and because a PUD is a form of zoning or rezoning, we conclude that the rezoning proposed here is a legislative matter subject to the initiative power,” wrote Judge Anthony J. Navarro in the July 3 opinion.

The case revolved around an area in the Butcher Creek PUD known as “Lot A,” an open space that Brighton Properties wishes to rezone to permit affordable housing. Telluride rejected the initiative, claiming an amendment to the PUD agreement needed the approval of the homeowners there.

Brighton Properties filed suit against the town clerk and lot owners in the PUD, seeking a declaration that it was legally allowed to pursue its rezoning via ballot initiative.

Citing prior court decisions that labeled zoning as a legislative act that would normally be subject to the initiative process, District Court Judge Mary E. Deganhart believed Brighton Properties’ case was “more complex than the simple rezoning of a single parcel.”

After a trial, she sided against Brighton Properties, concluding the land use designation for Lot A could not be changed without the consent of the lot owners.

Brighton Properties appealed, arguing that if original zoning decisions are legislative, so are rezoning decisions. Deganhart’s interpretation of the law meant all PUDs would become “a refuge” from citizen-initiated rezoning measures, the developer noted.

The town and the Butcher Creek owners countered that a rezoning within the PUD itself was effectively a contractual change requiring owner consent, along with a public hearing.

The Court of Appeals sided with the developer, agreeing that both zoning and rezoning decisions are the type of legislative actions included in the initiative process. The panel declined to answer whether the legal rights of the other lot owners were implicated, deeming it an issue to be addressed if the initiative ultimately passes.

“If the ordinance is adopted, the other lot owners may assert whatever rights they believe they possess to challenge the validity of the ordinance on its merits,” wrote Navarro.

The case is Telluride Locals Coalition Petitioners’ Committee et al. v. Kavannaugh et al.