Development & Rule 106

The local entitlement approval process for a development project can take months and can cost tens, or even hundreds, of thousands of dollars. It often culminates with a vote by a local governing body, such as a city council or board of county commissioners. There is a natural tendency to think of a vote of approval as the end of the line in the entitlement process. However, one more hurdle remains: approvals are not truly “final” until litigation challenging the approval is no longer a risk.

Many local government land use decisions can be challenged in court pursuant to Rule 106(a)(4) of the Colorado Rules of Civil Procedure. Rule 106 allows an interested party to appeal the decision of a lower body (like a city council or board of county commissioners). Opponents of development projects often bring Rule 106 cases seeking a court order overturning approvals granted to the project they oppose. Even if an approval is ultimately upheld, it can take a year or more before receiving a decision from the trial court, and two to three more if the plaintiff pursues all possible appeals. While a Rule 106 case is pending, uncertainty hangs over the validity of the approval. This can make it difficult for developers to obtain financing necessary to move the project forward. As a result, the mere filing of a Rule 106 case can significantly delay a project.

This potential for delay is often the biggest problem for developers facing a Rule 106 challenge. The standard in a Rule 106 case is deferential to the local government. However, these challenges sometimes do succeed. Rule 106 cases are unique, in that the only evidence the courts review is the evidence that was put in the record before the lower body. So, it is important to prepare for the possibility of a Rule 106 case well before the case is filed.

Rule 106 challenges are becoming more and more common as a part of the land use process. As a result, it is critical for the proponents of projects to understand this threat, and how to navigate it. Otten Johnson attorneys have significant experience in the following areas:

• assisting with local land use approvals for a wide variety of projects
• counseling clients on the potential risks of litigation challenging project approvals
• counseling clients on how to prepare for litigation, and posturing cases to maximize the chances of success
• representing landowners in all phases of a Rule 106 challenge, including on appeal

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