District Court, Boulder County, State of Colorado

1777 Sixth Street, Boulder, Colorado 80302

(303) 441-3744

DATE FILED: May 27, 2016 2:13 PM

CASE NUMBER: 2016CV30105

Plaintiff:
CITY OF LONGMONT
v.
Defendant:
DARLENE & MERT KING FAMILY LIMITED
PARTNERSHIP, LLLP

COURT USE ONLY

Case Number: 2016CV30105
Division 2
Courtroom Q

Attorney for Plaintiff: Daniel E. Kramer

Attorney for Defendant: Richard A. Marsh

ORDER RE: PLAINTIFF AND DEFENDANTS MOTIONS FOR PARTIAL

SUMMARY JUDGMENT
This Matter comes before the Court on Plaintiff City of Longmonts (City) Motion for
Partial Summary Judgment filed on March 7, 2016. Defendant Darlene & Mert King Family
Limited Partnership, LLLP (Partnership) filed a Response on March 31, 2016. The City filed a
Reply on April 14, 2016. The Court also herein considers Defendants Motion for Partial
Summary Judgment filed on March 31, 2016. The City filed a Response on April 20, 2016, and
the Partnership filed a Reply on May 4, 2016. Having considered the pleadings and applicable
case law, the Court finds and rules as follows:
I.

BACKGROUND

When viewed in the light most favorable to the non-moving party and drawing all
reasonable inferences in favor of the non-moving party, the Court finds for purposes of summary
judgment the following undisputed facts. The City owns the right of way along Terry Street
north of Ninth Avenue in Longmont, Colorado. The Partnership is a limited liability limited
partnership that owns commercial property adjacent to the Citys right of way. Within the Citys
right of way were six Austrian Pine trees and one American Elm tree (Trees).
The Partnership employed a property manager, Regel & Associates, LLC (Regel).
Regel hired a contractor, Taddiken Tree Company (Taddiken), to remove the subject Trees
from the Citys right of way. The Partnership did not request permission from the City to cut
down the trees, and the City never granted such permission.
On July 28, 2015, the Longmont Director of Public Works and Natural Resources issued
a Notice of Violation to the Partnership setting forth the Longmont Municipal Code (L.M.C.)
provision that makes it unlawful to remove any tree from city property and the compensation due
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to the city for the unlawful removal (Section 13.24.130, L.M.C.). The Notice of Violation
informed the Partnership it may appeal the Notice of Violation within ten days pursuant to
section 13.24.170, L.M.C. The Partnership appealed and a four-hour hearing was held before
City Manager, Harold Dominguez (Hearing Officer), on October 7, 2015. The Hearing
Officer issued a written order on November 5, 2015, Order re: Appeal of Notices of Violations
for Tree Removal in the Vicinity of Terry Street and 9 th Avenue, finding the Partnership violated
the section 13.24.130, L.M.C., upheld the Citys valuation of the Trees, and required the
Partnership to pay the City $35,630.00 for the unlawful removal of the Trees. The Partnership
did not seek judicial review of the Order within 28 days of the decision pursuant to C.R.C.P.
106(a)(4) and (b). The Partnership has not paid the $35,630.00 to the City.
The City filed this action for declaratory judgment, trespass, and conversion to recover
the $35,630.00. The Partnership asserted counterclaims for trespass and unreasonable
interference with use and enjoyment of property, which the Court construes as a nuisance claim.
LEGAL STANDARD

II.

Summary judgment is proper when the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of
law. C.R.C.P. 56(c). Summary judgment permits prompt disposition of actions which lack a
genuine issue of material fact . . . and is designed to permit the parties to pierce the formal
allegations of the pleadings and save the time and expense connected with trial. Grinter v.
Palmer & Co., 585 P.2d 583, 584 (Colo. 1978). Summary judgment is a drastic remedy, and,
therefore, it is only properly entered upon a clear showing that there is no genuine issue as to
any material fact and the moving party is entitled to judgment as a matter of law. Pueblo W.
Metro. Dist. v. Se. Colorado Water Conservancy Dist., 689 P.2d 594, 600 (Colo. 1984). A fact is
material if it will affect the outcome of the case. Peterson v. Halsted, 829 P.2d 373, 375
(Colo. 1992). In determining whether summary judgment is proper, the nonmoving party is
entitled to the benefit of all favorable inferences that may reasonably be drawn from the
undisputed facts, and all doubts must be resolved against the moving party. Id. at 376.
The burden of establishing the nonexistence of a genuine issue of material fact is on the
moving party. Continental Air Lines, Inc. v. Keenan, 731 P.2d 708, 712 (Colo. 1987); see also
C.R.C.P. 56(e). Once a movant makes a convincing showing that genuine issues are lacking,
C.R.C.P. 56(e) requires that the opposing party adequately demonstrate by relevant and specific
facts that a real controversy exists. Grinter, 585 P.2d at 585. Summary judgment is not proper
if under the evidence a reasonable person might reach different conclusions. Morlan v. Durland
Trust Co., 252 P.2d 98, 100 (Colo. 1952).
III.

ARGUMENTS

A. Plaintiff Citys Argument

In the Citys Motion for Partial Summary Judgment, the City argues no disputed issues of
material fact exist and the City is entitled to judgment as a matter of law on its declaratory
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judgment claim because the Hearing Officers administrative decision is final and may not be relitigated where the Partnership failed to pursue judicial review within the time period prescribed
in C.R.C.P. 106(b). The City further argues the defenses raised by the Partnership are barred by
application of collateral estoppel.
B. Defendant Partnerships Argument

The Partnership argues a Declaration of Restrictions and Grant of Easements granted the
Partnership the right to remove the Trees, the Tree Ordinance (section 13.24.130, L.M.C.) does
not create a right to money damages, the Tree Ordinances valuation process is in conflict with
Colorado common law, the Tree Ordinance is unconstitutional for creating a presumption of
value based on the Guide for Plant Appraisal, the administrative appeals process violates due
process, and the Citys differential enforcement of the ordinance preclude summary judgment as
a matter of law. The Partnership argues collateral estoppel does not apply because the
procedures in the administrative hearing are not commensurate with those in a judicial
proceeding. The Partnership also argues the Court lacks jurisdiction to make a declaration
absent joinder of indispensable parties, Regel and Taddiken.
In the Partnerships Motion for Partial Summary Judgment, the Partnership requests
summary judgment on its second affirmative defense that it had the right and duty to maintain
and replace plantings in the landscaped areas of the subject right of way pursuant to the
Declaration of Restrictions and Grant of Easements of its predecessor Safeway.
IV.

ANALYSIS

A. Finality of Judgment and Judicial Review

1. Ordinance Interpretation
The City argues it is entitled to judgment as a matter of law and a declaration that the
Partnership owes the City $35,630.00 for the unlawful removal and destruction of the Trees,
consistent with the Hearing Officers Order. The City argues the Partnership failed to seek
judicial review of the Order within 28 days of the Order, as required by C.R.C.P. 106(a)(4) and
the Longmont Municipal Code. Therefore, the Partnership is precluded from challenging the
factual and legal conclusions of the Hearing Officer in this litigation, and the City is entitled to
enforcement of the administrative decision.
Chapter 13.24 Trees and Plants of Title 13 Streets, Sidewalks and Public Places of
the Longmont Municipal Code provides regulations and establishes policies regarding the
planting, maintaining, and removal of trees, shrubs, and other plants within the city.
13.24.010, L.M.C. The City issued a Notice of Violation for the Partnerships violation of
section 13.24.130, L.M.C., which is entitled Tree preservation, damages and cost recovery and
provides the following:
It shall be unlawful to injure damage, destroy, or remove any tree situated upon
city property. . . .
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B. If the director of public works and natural resources or a designee deems a tree
to be damaged beyond repair, the responsible party shall compensate the city
either the lost monetary value of the tree, as determined by "The Guide for Plant
Appraisal", published by the Council of Landscape Appraisers, or the cost of
replacing the tree, as determined by the director of public works and natural
resources or a designee.
Section 13.24.170, L.M.C., entitled Appeals states:
A. A property owner may file a written appeal within ten days of the effective
date of the notice with the city clerk objecting to the amount of the assessment
and setting forth the reasons why the appeal should be granted.
B. In the event an appeal is filed, the appeal shall be conducted pursuant to
chapter 2.98 of this Code.
Chapter 2.98 of the Code sets forth those ordinances regarding Hearing Officers and
Procedures. Section 2.98.020, L.M.C., states:
Unless the City Charter, this Code, or state or federal constitution or law requires
otherwise, the decision of the hearing officer is final, subject only to judicial
review pursuant to Colorado Rule of Civil Procedure 106(a)(4). No party may
present a defense or objection for judicial review without first presenting it to the
hearing officer before the final decision.
C.R.C.P. 106(a) provides:
(a)(4) Where any governmental body or officer or any lower judicial body
exercising judicial or quasi-judicial functions has exceeded its jurisdiction or
abused its discretion, and there is no plain, speedy and adequate remedy otherwise
provided by law:
(I) Review shall be limited to a determination of whether the body or officer has
exceeded its jurisdiction or abused its discretion, based on the evidence in the
record before the defendant body or officer.
(II) Review pursuant to this subsection (4) shall be commenced by the filing of a
complaint. An answer or other responsive pleading shall then be filed in
accordance with the Colorado Rules of Civil Procedure.
...
(b) . . . If no time within which review may be sought is provided by any statute, a
complaint seeking review under subsection (a)(4) of this Rule shall be filed in the
district court not later than 28 days after the final decision of the body or officer.
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The Court finds as a matter of law based on the plain language of the Longmont
Municipal Code that section 13.24.170, L.M.C., regarding appeals applies to an appeal of an
assessment for a violation of section 13.24.130, L.M.C.
The Court is not persuaded by the Partnerships arguments that an appeal pursuant to
section 13.24.170, L.M.C., is only authorized to appeal an assessment issued pursuant to section
13.24.160, L.M.C., because section 13.24.160, L.M.C., uses the term assessment while section
13.24.130, L.M.C., does not. Assessment is not defined by Title 13 or elsewhere in the
Longmont Municipal Code. The Merriam-Webster dictionary defines an assessment as an
amount that a person is officially required to pay. Section 13.24.130, L.M.C., provides that the
responsible party must compensate the city for either the lost monetary value of the tree or cost
of replacing the tree. Therefore, section 13.24.130, L.M.C., requires a responsible party to
compensate the City and therefore imposes an amount a person is officially required to pay, i.e.,
an assessment.
Further, section 13.24.170, L.M.C., regarding appeals is not specific to an appeal related
to any one provision of Chapter 13.24. Rather, it applies to all appeals taken under Chapter
13.24 to object to an amount of an assessment.
The Court finds section 2.98.020, L.M.C., and by extension C.R.C.P. 106(a)(4), applies
to any appeal to object to the amount a party is required to pay to the City for the lost monetary
value of the tree or cost of replacing the tree for a violation of section 13.24.130, L.M.C.
2. Exclusive Remedy for Judicial Review
The determinative issue is whether the Partnership may assert defenses in this action that
were or could have been raised in the administrative hearing. Pursuant to section 2.98.020,
L.M.C., the decision of the Hearing Officer is final and subject only to judicial review pursuant
to C.R.C.P. 106(a)(4). Where C.R.C.P. 106 is the exclusive remedy for reviewing a quasijudicial decision, all claims that effectively seek such review, whether framed as claims under
C.R.C.P. 106(a)(4) or not, are subject to the filing deadline in C.R.C.P. 106(b). JJR 1, LLC v.
Mt. Crested Butte, 160 P.3d 365, 369 (Colo. App. 2007).
Quasi-judicial administrative action is generally characterized by the following factors:
(1) a local or state law requiring that notice be given before the action is taken; (2) a local or state
law requiring that a hearing be conducted before the action is taken; and (3) a local or state law
directing that the action results from the application of prescribed criteria to the individual facts
of the case. Baldauf v. Roberts, 37 P.3d 483, 484 (Colo. App. 2001). Quasi-judicial action
decides rights and liabilities based upon past or present facts. City & Cty. of Denver v. Eggert,
647 P.2d 216, 222 (Colo. 1982). Quasi-legislative action, on the other hand, is prospective in
nature, is of general application, and requires the balancing of questions of judgment and
discretion. Id.
Here, the appeals process to contest the Notice of Violation and subsequent hearing by
the Hearing Officer was a quasi-judicial proceeding. A local law provided the contesting party a
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right to appeal the Notice of Violation within 10 days and required a hearing to be conducted
before a hearing officer. Local law directed the action that resulted in the application of
prescribed criteria to the individual facts of the case. The October 7, 2015 Hearing decided the
rights and liabilities of the Partnership based upon past or present facts.
In Colorado Dep't of Pub. Health & Env't v. Bethell, 60 P.3d 779 (Colo. App. 2002), the
Colorado Department of Public Health and Environment (CDPHE) served a compliance order
on Bethell, and Bethell did not appeal the order to an administrative law judge. 60 P.3d at 783.
CDPHE brought suit in district court seeking an order requiring compliance and an assessment of
penalties against Bethell. Id. The Court of Appeals affirmed the trial courts grant of summary
judgment in favor of CDPHE because Bethell did not utilize his administrative remedies. Id. In
this case, the Partnership did not pursue judicial review of the Hearing Officers decision.
Analogous to Bethell, both parties failed to timely proceed under their available remedies. As a
result, summary judgment may properly enter against the Partnership.
Where a party has timely sought judicial review, a reviewing court may overturn a quasijudicial determination only if the court finds the governmental body or officer acted in an
arbitrary and capricious manner, made a determination that is unsupported by the record,
erroneously interpreted the law, or exceeded its constitutional or statutory authority. Bethell, 60
P.3d at 783.
The Court finds the following arguments or defenses raised by the Partnership are those
that must have been raised in a complaint for judicial review pursuant to C.R.C.P. 106(a)(4)
alleging an abuse of discretion because they attack the quasi-judicial decision of the Hearing
Officer:
1) The Partnership and not the City had the right and duty to maintain and replace
plantings in landscaped areas in the subject right of way pursuant to a written
agreement, a Declaration Of Restrictions And Grant Of Easements, recorded with the
Boulder County Clerk and Recorder on January 6, 1970, Reception #933109, for which
the Partnership is a successor in interest;
2) the Tree Ordinance (section 13.24.130, L.M.C.) does not create a right to money
damages;
3) the Tree Ordinances valuation process is in conflict with Colorado common law; and
4) the Citys differential enforcement of the ordinance precludes enforcement against the
Partnership.
Each of these arguments or defenses attacks the decision of the quasi-judicial body by asserting
the Hearing Officer acted in an arbitrary and capricious manner, made a determination not
supported by the record, or erroneously interpreted the law.
Whether the Partnership had the right to remove the trees because the trees were located
on Partnership rather than City property or the Partnership had the right to remove the trees
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subject to a written agreement are questions of fact that were determined by the Hearing Officer
and cannot be reviewed in this enforcement action. The Hearing Officer considered both
arguments, considered the evidence including annexation plats and the Declaration of
Restrictions and Grant of Easement, and found the Partnership failed to meet its burden of proof.
Additionally, the arguments raised by the Partnership are ones that should have been
raised to the Hearing Officer or in a complaint for judicial review. Whether section 13.24.130,
L.M.C., creates a right to money damages is a question of ordinance interpretation. In Danielson
v. Zoning Bd. of Adjustment of City of Commerce City, 807 P.2d 541 (Colo. 1990), the Supreme
Court determined that a complaint which involved only the interpretation of an ordinance and
how the ordinance had been applied to the plaintiff was not an action challenging a legislative
capacity but merely sought judicial review of a quasi-judicial action. 807 P.2d at 543. As such,
questions of ordinance interpretation, such as whether the ordinance grants the City the right to
money damages for the Partnerships removal of the trees, attacks the Hearing Officers decision
and should have been raised through timely judicial review. Similarly, whether the valuation
process is in conflict with Colorado common law and the Citys alleged differential enforcement
constitute attacks on the Hearing Officers decision and such defenses should have been raised
through timely judicial review.
The Partnership failed to seek timely judicial review to assert the aforementioned
arguments and defenses and is precluded from arguing the same in this enforcement action. It
defies logic that a party who fails to challenge a quasi-judicial decision through the exclusive
remedy to pursue such a challenge can do so in a later enforcement action. Such is an
impermissible collateral attack that would defeat the purpose of C.R.C.P. 106(4)(a) and judicial
review of administrative decisions. See Bethell, 60 P.3d at 784-85 (courts have concluded that
allowing a defendant to assert a defense which could have been, but was not, raised in the
underlying administrative proceeding would constitute an impermissible collateral attack on the
administrative order.).
The Partnership argues it is permitted to assert its defense based on a written agreement,
the Declaration of Restrictions and Grant of Easements also referred to as the Safeway
Development Documents, notwithstanding its failure to seek timely judicial review because
section 13.24.020(D), L.M.C., permits a written agreement to establish responsibility for trees in
a public right of way to an adjacent property owner and C.R.C.P. 106(a)(4) does not preclude a
defense based on a written agreement.
The Partnership cites Julesburg Sch. Dist. No. RE-1, In Sedgwick Cty. v. Ebke, 562 P.2d
419 (Colo. 1977), Montez v. Bd. of Pueblo Cty. Commrs, 674 P.2d 973 (Colo. App. 1983), and
Tri-State Generation and Transmission Co. v. Thornton, 647 P.2d 670 (Colo. 1982). However,
these cases are inapposite and do not support that the Partnership can re-litigate the issues
decided by the Hearing Officer in a subsequent enforcement action where the Partnership is not
asserting any separate and distinct claims for breach of contract based on the written agreement.
In Julesberg, the Supreme Court found the teachers claims for back pay and injunctive
relief should not be disposed of on summary judgment because the Teacher Tenure Act created a
contract by law for which the teachers could assert a claim for breach of contract. 562 P.2d at
Page 7 of 12

420-21. Therefore, granting summary judgment for failure to file a mandamus action within 30
days under C.R.C.P. 106(b) was in error. Id. at 421. The Court explained the fact that C.R.C.P.
106 also provides relief to the teachers does not destroy their contract action, and relief in the
nature of mandamus is to be employed only when no other adequate remedy is available. Id.
In Montez, the plaintiff county employees brought suit for breach of contract under the
Pueblo County Personnel Policy providing that layoffs and rehiring be effected according to
seniority and other factors. 674 P.2d at 974. The Court of Appeals concluded the grievance
procedure established by the Policy was not a quasi-judicial proceeding because it was not
enacted pursuant to state or local law. Id. at 975. Therefore, the plaintiffs claims were not
brought under C.R.C.P. 106 for which the time limitation in subsection (b) applies, but were
standalone claims for breach of contract. See id.; see also Julesburg, 562 P.2d at 421 (the
restriction set down in Rule 106(b) [Limitations as to Time] deals only with certiorari or other
writs taken from quasi-judicial proceedings.).
Unlike Julesberg and Montez, the Partnership has asserted no standalone claims based on
the Safeway Development Documents that are separate and distinct from the quasi-judicial
hearing and this enforcement action. None of these cases support that a defense based on a
contract may be asserted in a later enforcement action where the decision of the governmental
body or officer is final for failure to seek timely judicial review pursuant to C.R.C.P. 106(a)(4).
Tri-State supports this Courts analysis. In that case, the plaintiffs timely sought judicial
review through C.R.C.P. 106 of the city councils approval of a rezoning ordinance and Planned
Unit Development application, but the trial court dismissed the C.R.C.P 106 claim for plaintiffs
failure to join the city council as an indispensable party. 647 P.2d at 673-74. The plaintiffs also
brought claims for breach of protective covenants and constitutional injury. Id. at 674. The
Court of Appeals in Tri-State affirmed that claims to challenge the decision of the government
body or officer (e.g., city council or hearing officer) must be brought under C.R.C.P. 106 and are
subject to the limitations regarding time and joinder in the rule. Id. at 677. However, a party
may assert claims for constitutional injury or separate claims for relief based upon a contract,
which claims are separate and distinct from the judicial review available under C.R.C.P. 106. Id.
at 677-78.
The Partnership failed to seek timely judicial review through C.R.C.P. 106 and may not
now assert defenses that attack the quasi-judicial decision of the Hearing Officer in this
enforcement action. (This Court does consider the Partnerships constitutional challenges herein,
see Section IV.B.) The Court finds, however, that no independent legal claim based on a written
agreement that is separate and distinct from claims subject to C.R.C.P. 106 judicial review has
been asserted by the Partnership. Though the Partnership has asserted counterclaims for trespass
and nuisance based on substantial damage alleged to have been caused by the roots of the Trees
to the Partnerships parking lot, these counterclaims are not related to any written agreement.
The Partnerships second affirmative defense is not a claim for relief or distinguishable
from the defenses properly asserted in a complaint for judicial review pursuant to C.R.C.P. 106.
The Hearing Officer considered the Partnerships arguments regarding whether there was an
agreement between the City and the Partnerships predecessor in interest, whether the subject
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Trees were included in the plat, and whether the Partnership was permitted to remove the trees
according to the language of the Safeway Development Documents. The affirmative defense
attacks the quasi-judicial decision of the Hearing Officer and therefore is barred by failure to
seek timely judicial review pursuant to C.R.C.P. 106.
3. Indispensable Parties

The Partnership also asserts this Court is without jurisdiction to make any declaration
absent joinder of indispensable parties. C.R.C.P. 57 provides: When declaratory relief is
sought, all persons shall be made parties who have or claim any interest which would be affected
by the declaration, and no declaration shall prejudice the rights of persons not parties to the
proceeding.
Here, the Partnership argues Regel and Taddiken are indispensable parties and failure to
join the parties exposes the Partnership to the risk of sole liability for the claimed damages
without the right to seek contribution from other culpable persons. However, this argument is
null because the Partnership failed to seek timely judicial review of the Hearing Officers
decision. The Hearing Officer concluded the following in regards to the Responsible Party:
The City issued the NOVs to the King Family Partnership, Edward Regel,
Regel & Associates, and Taddiken. Each entity played a culpable role in the
unlawful removal of the Subject Trees: Taddiken performed the actual work to
remove the subject trees, Regel & Associates contracted with Taddiken for the
removal of the Subject Trees, Edward Regel directed the tree removal work, and
the King Family Partnership is the property owner and has respondent superior
liability for its employee Regel & Associates acting within its scope of
employment. Accordingly, the Hearing Officer finds that Taddiken, Regel &
Associates, and the King Family Partnership violated LMC 13.24.130.
...
With respect to assigning responsibility to pay for the value of the trees,
neither party submitted any evidence that would provide a rational basis for
equitable allocation of the $35,630. As a result, the Hearing Officer is left with
no choice but assign the responsibility to a single party. In light of the facts
presented in this appeal, the owner of the property has the ultimate responsibility
to make sure that the entities they hire to manage the property and the businesses
that maintain the property are following all of the relevant ordinances. Therefore,
the Hearing Officer finds that the King Family Partnership is solely responsible
for the $35,630 total value of the trees removed in violation of LMC 13 .24.130.
The Hearing Officer notes that the King Family Partnership may have a right of
contribution from the other Appellants, however, that issue is beyond the scope of
this Order.
Exhibit F, Plaintiffs Motion for Partial Summary Judgment.
The Partnerships challenge is ultimately that it should not be solely responsible for the
$35,630.00 assessment. However, such was the decision of the Hearing Officer, and the
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Partnership did not seek timely judicial review of that decision. Therefore, the Hearing Officers
decision is final, and the Partnership is precluded from challenging the Hearing Officers
determination that the Partnership is solely responsible for the total value of the trees.
Because the Hearing Officers decision is final, the parties whose interests will be
affected by the declaratory relief sought are Plaintiff and Defendant. Contrary to the
Partnerships assertion, it is not without a right to seek contribution from Regel or Taddiken and
may do so through other legal action. However, the Partnership is solely liable to the City for the
value of the trees pursuant to the final order of the Hearing Officer. Further, there is no risk of
piecemeal or conflicting decisions regarding the fact or degree of the culpability of the
Partnership, Regel, or Taddiken because the Hearing Officers decision is final and not
reviewable by this Court.
This Court does not lack jurisdiction to grant declaratory relief to the City for failure to
join indispensable parties, as the Partnership failed to raise this issue, which was previously
determined by the Hearing Officer, in a judicial review pursuant to C.R.C.P. 106.
4. Collateral Estoppel
Having concluded the Hearing Officers decision is final and Defendant may not now
challenge the decision of the quasi-judicial body, the Court does not reach the issue of collateral
estoppel, raised by the parties.
B. Constitutionality of Hearing Procedures
While the Partnership may not assert claims or defenses that challenge the quasi-judicial
decision, the Partnership may still pursue a facial constitutional challenge to a city ordinance
because a constitutional challenge does not attack the decision of the quasi-judicial body.
Garcia v. Harms, --- P.3d ----, 2014 COA 154 9 (Rule 106 does not apply to facial
constitutional challenges to administrative policies and regulations because such actions attack
the quasi-legislative actions of a governmental body rather than the exercise of its quasi-judicial
powers); TriState, 647 P.2d at 677 (a facial constitutional challenge to a city ordinance did not
attack a decision of a quasi-judicial body, and therefore did not fall under Rule 106(a)(4));
Bethell, 60 P.3d at 785 (administrative agencies lack jurisdiction to decide the constitutionality
of statutes or regulations. . . . Thus, defendant did not have to exhaust his administrative
remedies [by appealing or seeking judicial review] before raising issues of facial
unconstitutionality in the trial court [enforcement action].).
The Court considers the Partnerships constitutional challenges that: 1) the appeals
process or rather hearing procedures as stated in section 2.98.020, L.M.C., creates a
presumption of liability and damages by placing the burden of proof on the appellant to disprove
the Citys Notice of Violation, which violates due process, and 2) the Tree Ordinance creates a
presumption of value based on the Guide for Plant Appraisal, which violates fundamental
fairness and due process.

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The Code is a legislative enactment and is presumed valid. JJR 1, LLC v. Mt. Crested
Butte, 160 P.3d 365, 372 (Colo. App. 2007). The Colorado Constitution protects individuals
from arbitrary governmental intrusion on liberty and property interests. Colo. Const. art. II, 25.
Procedural due process requires an opportunity to be heard before the state deprives an
individual of a constitutionally protected liberty or property interest. Bethell, 60 P.3d at 786.
Three factors must be weighed in determining what procedures are required by due process in a
particular situation: (1) the importance of the individual interest at stake; (2) the weight of the
governmental interest in retaining challenged procedures, including the interest in avoiding
increased administrative and physical burdens; and (3) the risk of an erroneous deprivation of
liberty or property through the procedures used and the degree to which proposed procedures
will lessen risk of erroneous decision. Mathews v. Eldridge, 424 U.S. 319, 335, (1976); People
v. Kibel, 701 P.2d 37, 43 (Colo. 1985). In administrative adjudications turning on questions of
fact, due process requires that parties be afforded a reasonable opportunity to confront adverse
witnesses and to present evidence and argument in support of their positions. Ortega v. Indus.
Claim Appeals Office of State, 207 P.3d 895, 899 (Colo. App. 2009). Due process is a flexible
standard that calls for no specific procedure as long as the basic opportunity for a hearing and
judicial review is present. Id.
Here, the Hearing Officers decision was a state action, and the Partnership had a
constitutionally protected property interest. The Court conducts the balancing test prescribed in
Mathews, and finds the importance of the Partnerships interest in a monetary assessment does
not outweigh the governmental interest and the risk of an erroneous deprivation. The Partnership
was afforded an opportunity to be heard. The Partnership was permitted to file position
statements in advance of the hearing, to obtain counsel for the hearing, cross examine witnesses
at the hearing, present evidence, obtain a written ruling, and pursue judicial review. While the
Partnership bore the burden to disprove the Notice of Violation, such burden was by a
preponderance of the evidence. The Court finds no violation of due process in placing the
burden in a civil matter on the party appealing the Notice of Violation. That the Partnership was
only permitted to inspect the Guide for Plant Appraisal at the Citys offices and not permitted to
interview City witnesses prior to the Hearing also does not deprive the Partnership of due
process. When weighing and balancing the procedures afforded against the property interest
involved, the Court finds the Longmont Municipal Code Appeals and Hearing Procedures
afforded Defendant due process of law.
The Court is also not persuaded that the Guide for Plant Appraisal deprived the
Partnership of due process or fundamental fairness. The Guide is a national publication
published by the Council of Tree and Landscape Appraisers, a professional organization with no
affiliation to the City. The Partnership fails to demonstrate how the Guide is fundamentally
unfair in its valuation methods and conclusions. The Partnership was permitted to inspect the
Guide at the City Offices prior to the Hearing. The Hearing Officer considered the Partnerships
challenge to how the trees were classified based on health and condition but concluded the
Partnership failed to fulfill their burden to demonstrate the valuation of the trees was erroneous.
The Court finds, as a matter of law, the hearing procedures in chapter 2.98, L.M.C., and
the use of the Guide for Plant Appraisal in section 13.24.130, L.M.C., do not violate due process.

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V.

CONCLUSION

The Court hereby GRANTS Plaintiffs March 7, 2016 Motion for Partial Summary
Judgment and DENIES Defendants March 31, 2016 Motion for Partial Summary Judgment.
The Court enters declaratory judgment in favor of Plaintiff that Defendant must
compensate Plaintiff $35,630.00 pursuant to the November 6, 2015 Order re Appeal of Notices
of Violation for Tree Removal in the Vicinity of Terry Street and 9th Avenue.
DATED: May 27, 2016.
BY THE COURT
Judith L. LaBuda
District Court Judge

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