The Colorado Supreme Court appeared wary on Wednesday of allowing rezonings of planned-unit developments to occur through a vote at the ballot box, rather than a municipality’s detailed review process that accounts for specific factors.

In contrast to traditional, or “Euclidean,” zoning that separates land uses by type, planned-unit developments are based on negotiated agreements on the types of land uses within a defined area. The Supreme Court held in 1981 that traditional zoning and rezoning decisions are legislative in nature and therefore can be subject to ballot initiatives.

But what about changes to PUDs after the plan is approved?

“What’s to stop the electorate from undoing the entire PUD?” asked Chief Justice Monica M. Márquez during oral arguments.

“It feels like you’re changing the terms of an agreement” between the developer and the municipality, added Justice Brian D. Boatright.

The case from Telluride centers on an area in the Butcher Creek PUD known as “Lot A,” an open space that owner Brighton Properties seeks to rezone to permit affordable housing. The town rejected a proposed ballot initiative to that effect, claiming an amendment to the 30-year-old PUD agreement needed the approval of the homeowners there.

Brighton Properties sued the town clerk, seeking a declaration that it is legally permitted to pursue rezoning through a ballot initiative.

Citing court precedent that labeled zoning a legislative act normally subject to the initiative process, then-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.

A three-judge Court of Appeals panel sided with the developer, agreeing that both zoning and rezoning decisions are the type of legislative actions included in the initiative process. However, 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 passed.

“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 then-Judge Anthony J. Navarro.

Telluride, in appealing to the Supreme Court, received support from the Colorado Municipal League, which argued “substantial public resources are wasted” in conducting a rezoning vote, only for neighboring property owners to later invalidate the results by asserting their own rights. The league also noted zoning decisions made by localities are quasi-judicial and apply facts to legal criteria — which does not happen in a popular election.

“Holding an elected governing body to different standards is both confusing and nonsensical if the decision to be made is the same,” the league argued.

“This feels like somewhat of a ‘hostile zoning’,” said Justice Richard L. Gabriel during the arguments.

Nicholas C. Poppe, representing Telluride, argued the Butcher Creek PUD was a “very complex property,” with 30-degree slopes in a designated “geologic hazard area.”

With a PUD, “we’re gonna apply the municipality’s expertise as to such things as geology, water, transit, engineering, and we’re gonna bargain with the developer. That somewhat has been missing in this case,” he said.

Brighton Properties’ attorney, Patricia A. Mellen, said it is possible to educate voters about the technical aspects of a rezoning, and there was no reason to limit their rights when a rezoning initiative happens to focus on a PUD.

“It is simply a different means to an end. It’s a valid option for a party to seek a ballot initiative in the same way it is to seek approval through the town itself,” she said.

Yet, some justices frowned upon the seeming political maneuvering at the bottom of the case.

“This is a contract that was entered into by the elected officials, and this feels to me like an end-run around the contract and the land-use code,” said Justice Carlos A. Samour Jr.

“What do we do with the fact that it seemed like for the better part of 30 years, when Brighton wanted an amendment, it went to the town and did it through the PUD process, not by initiative?” asked Gabriel. “And it changed procedure here. What do we make of that? Seemed like Brighton understood what was supposed to happen, then it changed its mind when it didn’t get what it wanted.”

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