District Court, Larimer County, State of Colorado
201 LaPorte Avenue, Suite 100
Fort Collins, CO 80521-2761
(970) 494-3500
Thompson Area Against Stroh Quarry, Inc., a Colorado
nonprofit corporation, Dani Korkegi, an individual,
Gregory Martino, an individual, Monique Griffin, an
individual, Cristi Baldino, an individual, Victoria Good, an
individual, and Arlene Libby, an individual,
Plaintiffs,

DATE FILED: August 12, 2019
CASE NUMBER: 2018CV30371

▲ COURT USE ONLY ▲
Case Number: 2018CV30371

v.
The Board of County Commissioners of Larimer County,
Colorado (including Commissioner Lew Gaiter and
Commissioner Tom Donnelly, in their official capacities),
the governing body of a political subdivision of the state
of Colorado and Coulson Excavating Company, Inc., a
Colorado corporation,

Courtroom: 3B

Defendants.
ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND
GRANTING IN-PART AND DENYING IN-PART DEFENDANT BOARD’S
MOTION FOR SUMMARY JUDGEMENT AND DENYING DEFENDANT
COULSON’S MOTION FOR SUMMARY JUDGMENT
Just as no man is allowed to be a judge in his own cause, similar fears of bias can
arise when—without the consent of the other parties—a man chooses the judge in
his own cause.
Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 886 (2009).
Plaintiffs Thompson Area Against Stroh Quarry, Inc., Dani Korkegi, Gregory Martino,
Monique Griffin, Cristi Baldino, Victoria Good, and Arlene Libby (collectively, “Thompson”), and
Defendants Coulson Excavating Company, Inc. (“Coulson”), and Board of County Commissioners
of Larimer County, Colorado (“Board”) each filed cross-motions for summary judgment regarding
Thompson’s claims under Colo. R. Civ. P. 57.

 In its motion for summary judgment, Thompson argues that it is entitled to judgment as a
matter of law on its as-applied due process challenge to the Larimer County Land Use Code’s
(“Code”) recusal rule under Colo. R. Civ. P. 57.1 The Board and Coulson filed cross-motions for
summary judgment arguing that they are entitled to summary judgment on the same as-applied claim
raised by Thompson, and the Board further contends that it is entitled to summary judgment on
Thompson’s claims that the USR criteria are unconstitutionally vague, and that the Code’s conflict
of interest regulation is unconstitutionally vague.
This action involves a dispute about the Board’s decision to approve Coulson’s use by
special review application to operate a gravel-pit mine in Johnstown, Colorado, on a parcel that is
zoned for agricultural use and which is surrounded by residential neighborhoods comprised of
approximately 1,000 single-family homes. While the application was pending, Commissioner
Donnelly accepted $10,000 in campaign contributions from Ken and Dick Coulson, owners of
Coulson, representing a significant and disproportionate amount of the contributions Commissioner
Donnelly received during the 2016 election cycle. Commissioner Donnelly went on to win that
election, and in March 2018, he participated in the Board’s decision, casting the deciding vote on
Coulson’s application.
The Court concludes that, under those circumstances, Commissioner Donnelly’s
participation and vote on Coulson’s application violated Thompson’s due-process rights under the
Colorado Constitution, and deprived Thompson’s right to a fair and impartial decision-maker. The

Following briefing on the merits and oral argument by both parties, the Court construed the
substance of Thompson’s claim to involve both a facial due-process challenge to the recusal rule and
an as-applied due-process challenge under Colo. R. Civ. P. 57 to the same rule. The Court addressed
this construction in its Order Vacating In-Part June 19, 2018, Order issued December 14, 2018 and
its Order Denying Motion to Reconsider, issued February 28, 2019. Given the disposition of
Thompson’s Rule 57 due-process claim, the Court doesn’t reach the merits of the Rule 106 claims.
1

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 Court also concludes that neither Larimer County’s USR process nor the Code’s conflict of interest
rules are facially unconstitutional.
Accordingly, the Board’s motion for summary judgment is granted as to Thompson’s facial
challenges to the Code, and the motion is denied as to Thompson’s as-applied due process claim.
Coulson’s motion for summary judgment is also denied. Thompson’s motion for summary
judgment is granted as to the Rule 57 as-applied challenge to Commissioner Donnelly’s conflict of
interest. The Board’s decision is hereby vacated, and the matter is remanded to the Board with
instructions to hold another hearing on Coulson’s application with Commissioner Donnelly recused,
consistent with the Code.
I.

Factual Background

The following facts, unless otherwise indicated, are not in dispute.
A. The Property.
In 1993, Coulson purchased property located at 260 SE Frontage Road in unincorporated
Larimer County (the “Property”). Compl., ¶ 14, ¶ 28; Coulson Ans., ¶ 14, ¶ 28; Board Ans., ¶ 1. The
Property is zoned for agricultural uses within the “FA-Farming” zone. Compl., ¶ 43; Coulson Ans.,
¶ 43; Board Ans., ¶ 1. Section 4.1.2 of the Code provides that lands designated as “FA-Farming” are
to be principally used for “agricultural” uses. Vol. V at 104–05. Under the Code, mining is expressly
described as an “industrial” use. Code § 4.1.1. To engage in mining with the FA-Farming zone, a
landowner must receive approval from Larimer County for a use-by-special-review (“USR”). Code §
4.5.1.
B. The USR Process.
To obtain a USR permit, the applicant must submit an application to the Larimer County
Planning Department (“Planning Department”). Vol. I, at 281. After receiving a USR application,
the Planning Department sends it to referral agencies and other county departments for review and

3

 comment. Id. If a referral agency or department identifies any issues with a USR application, the
applicant must resolve those issues with the agency before the application can proceed. Id.
Once a USR applicant resolves all referral agency and Planning Department comments and
issues, the Planning Commission provides notice to the general public of the USR application and
holds a hearing in which the public will have the opportunity to submit written comments in
advance and be heard at the hearing. Id. at 119–22. After the public hearing, the Planning
Commission recommends approval or denial of the application to the Board, and forwards the
matter to the Board for its consideration. Id. at 281, 864. In turn, the Board holds a hearing on the
USR application, providing public notice of the hearing and allowing the public to submit written
comments or to testify at the hearing. Id. at 114–17.
C. Coulson’s USR Applications.
In 2002, Coulson first applied for a USR permit to operate an industrial sand and gravel pit
mine at the Property (“Proposed Mine”). Compl., ¶ 30; Coulson Ans., ¶ 30; Board Ans., ¶ 30. The
parties disagree what happened between 2002 and 2008, but it’s undisputed that the application was
not approved during that time. In 2008, Larimer County required Coulson to submit a new USR
application, which Coulson did in 2009. Compl., ¶ 31; ¶ 32; Board Ans. ¶ 1.
Coulson apparently began resolving referral agency concerns immediately upon submitting
its new application. In October 2009, for example, Coulson completed an air displacement modeling
study. Vol. I 1302–1673. By August 31, 2010, Coulson also completed a noise study indicating that
the proposed mine could be operated in compliance with applicable ordinances and statutes, so long
as certain mitigation methods were used. Vol. I at 961, 1675–1701.
After that noise study, however, Coulson’s application virtually lay dormant from 2010 to
2015. Coulson apparently didn’t think it economically feasible to move forward with the application
during that period. As Ken Coulson, one of Coulson’s owners, explained at the Planning

4

 Commission hearing, because of the “recession in 2008, [Coulson] decided they had adequate
reserves and had other pits that they were mining at the time” and that “[t]he permitting process
started back up in 2015 with new analyses and reports.” Vol. I at 434. Peter Wayland of Weiland,
Inc., an engineering consulting firm representing Coulson, noted that a noise study was conducted in
2015. Id. at 434–35.
In September 2016, nearly one year after Coulson completed the 2015 noise study and two
months after completing a floodplain review, Coulson submitted a status update with the Planning
Department. Vol. I. at 393. The status update from Coulson’s land use consultant explained that
“there have only been changes made to the project to reduce impacts and insure [sic] public safety
with regard to potential flood issues.” Vol I. at 390–92. Specifically, the letter noted that “the only
significant change to the site plan is to specify a conveyor system instead of overland haul roads …
in response to Larimer County Health’s suggestion … to reduce dust emissions and noise.” Id. at
393. In addition, “the PM10 and Crystalline Silica Air Dispersion Modeling Report has been
updated” based on the use of the conveyor system. Id. at 387, 394. Coulson also noted that a
condition of the floodplain review board’s approval included “placement of soil cement on the west
slope of the east pit for the purpose of protecting the pipeline which runs between the two pits. Id.
About the same time as the status update, Coulson “request[ed] that the Community
Development Team schedule[] the application for a hearing” before the Planning Commission. Vol.
I at 433. As will be explained more fully below, at about the same time, Richard and Ken Coulson
made their sizeable contributions to Commissioner Donnelly’s reelection campaign. Coulson’s Resp
to Rog. 1.
More than one year elapsed between Coulson’s request and the hearing before the Planning
Commission. In November 2017, the Planning Commission held a public hearing on Coulson’s
USR application. Vol. I, at 431–63, 864–68; Vol. II, at 29:16–24. (By this time, Commissioner

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 Donnelly had won re-election). The Planning Commission recommended approval of Coulson’s
USR application to the Board. Vol. I, at 431–63; Vol. IV, at 1.
At approximately the same time (November 2017), Thompson initially raised the issue of
conflicts of interest. On November 10, 2017, Thompson wrote to Robert Helmick of the Larimer
County Community Development Commission, specifically requesting that Larimer County “ensure
that all potential conflicts of interest of the various decisionmakers [be] disclosed as part of the
administrative record and that any decisionmakers with conflicts of interest recuse themselves from any further
action on [Coulson’s] Application.” Vol. I at 326 (emphasis added). At that time, Thompson identified
one such conflict, requesting that “Planning Commissioner Gary Gerrard be formally recused from
participating in the Planning Commission’s consideration of the Application.” Id. But Planning
Commissioner Gerrard didn’t recuse himself.2 See id. at 432 (Planning Commission meeting minutes
noting that Commissioner Gerrard was “present”).
In the same correspondence, Thompson also requested that the Board adhere to all
regulations regarding “conflicts of interest,” specifically citing Code §§ 2-71 and 2-67(10). Vol. I., at
326-30; see also Vol. V, at 26, 28. Those provisions require a commissioner to (a) act with
“unconflicted loyalty” regarding the interests of the citizens in Larimer County, a loyalty that
supersedes the commissioner’s personal interests or those of any advocacy and interest groups; and
(b) recuse himself if the commissioner believes that he has a conflict of interest or that the
commissioner cannot make a fair and impartial decision.
On February 26, 2018, the Board held a public hearing on Coulson’s USR application. Vol.
II at 2. As part of its consideration of the application, the Board invited and received written
evidence and took testimony at the hearing. Vol. IV at 1. At the conclusion of the hearing, the Board

2

The nature of Commissioner Gerrard’s conflict is unclear, but Thompson didn’t press a dueprocess violation from the commissioner’s participation at the hearing.
6

 voted 2-1 in favor of the application, with Commissioner Donnelly voting in favor of it. Id. at 213–
14.
Almost a month after the Board’s hearing, but before the Board issued its findings and
decision, Thompson sent a letter on March 19, 2018, to the County Attorney, Jeannine Haag,
indicating that Ken and Dick Coulson had contributed to Commissioner Donnelly’s campaign
committee and requesting that he recuse himself from further involvement in the proceedings. Vol.
I at 298–99. One day later, on March 20, 2018, the Board issued its Findings and Resolution
Approving The Petition of Coulson Excavating Company, Inc. Vol. IV at 1–13.
D. Commissioner Donnelly.
By trade, Commissioner Donnelly is a private land surveyor, a profession he engaged in
between 1994 to January 2008, in Loveland, Colorado. He worked for a company called CDS.
Coulson’s Supp. Resp. to Rog. 1; Board’s Resp. to Rog. 1.
In that capacity, Commissioner Donnelly had a professional relationship with Coulson,
performing surveyor work for the company for several years. The relationship began in 1999, when
Loveland Commercial Builders hired both Coulson and CDS to perform work on a subdivision
called Frank Farms. Id. Commissioner Donnelly estimated that Coulson hired him to conduct land
surveys on approximately “10 projects during [his] 14 years as a surveyor” Rog. 1. While
Commissioner Donnelly didn’t recall the exact number of projects, id., Coulson states that between
1999 and 2005, it and CDS worked on five projects together.3 Coulson Resp. to Rog. 1.

3

Thompson’s attempt to dispute the extent of Commissioner Donnelly’s work history with Coulson
is nothing more than argument, which can’t create a material factual dispute at summary judgment.
See § II, infra (discussing cases that a party can’t use pretense, or apparent formal controversy to
avoid summary judgment); Ginter v. Palmer & Co., 585 P.2d 583, 585 (Colo. 1978) (Colo. R. Civ. P.
56(e) requires that the opposing party adequately demonstrate by relevant and specific facts that a
real controversy exists). As set forth in the body, Coulson provided concrete projects and facts
figures, which Thompson failed to dispute.
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 Commissioner Donnelly wasn’t Coulson’s employee and Coulson didn’t hire him Donnelly
directly.4 Id. During the time frame that Donnelly was a surveyor, Coulson and its owners, Dick and
Ken Coulson, never had any conversations with Donnelly other than about the surveying work he
performed. Id.
The Coulson-CDS surveying projects, which ended in 2005, represent the extent of
Commissioner Donnelly’s professional relationship with Coulson or its principals, Ken and Dick
Coulson (the “Coulsons”). Id. Commissioner Donnelly and the Coulsons have never been friends or
had a social relationship. Id.; see also Ex. 3. As far as the Coulsons recollect, their last personal
interaction between them and Commissioner Donnelly occurred in 2008 during Commissioner
Donnelly’s 2008 election campaign, in which he sought a campaign contribution from them.
Coulson’s Resp. and Board’s Resp. to Rog. 1.
Commissioner Donnelly won the 2008 election and became a Larimer County
Commissioner in January 2008; he was re-elected in 2012 and 2016. Official Larimer County
Election Results, www.larimer.org/clerk/elections/records-data/past-info/results, follow the
“General Election Summary” hyperlinks for 2008, 2012 and 2016 elections.
The breakdown of Commissioner Donnelly’s campaign contributions during the 2012 and
2016 election cycles is as follows. During the 2012 candidate four-year election cycle (designated as
12/5/2008 – 12/6/2012 by the Colorado Secretary of State) (“2012 election”), Commissioner
Donnelly’s campaign committee received $31,726.19 in campaign contributions. Board MSJ at Ex.
B. Of that amount, Dick and Ken Coulson each contributed $500, for a combined total of $1,000.
Id. Commissioner Donnelly’s opponent was Karen Stockley, whose campaign committee received

4

For the same reasons cited above, Thompson cannot create a dispute merely by argument, but
must present evidence to demonstrate that a dispute exists. See S.N., 329 P.3d at 282. The Court
concludes no such dispute exists here.
8

 campaign contributions totaling $21,237.20. Id. at Ex. C. Commissioner Donnelly won that reelection.
For Commissioner Donnelly’s 2016 campaign, his candidate committee reported total
contributions of $53,580, which it raised between March and October 2016. Ex. 3 Board’s Am. Ans.
and Ans. to Req. to Admit No. 6. The committee also spent a total of $56,342.16 during the 2016
election. Coulson MSJ at Ex. 2.
For the 2016 election, Commissioner Donnelly didn’t personally seek campaign
contributions from the Coulsons. Instead, a representative from Commissioner Donnelly’s political
party stopped by Coulson’s offices to solicit a donation. Coulson’s Resp to Rog. 1. Shortly after, in
August and September 2016, Dick Coulson and Ken Coulson each contributed $5,000 to
Commissioner Donnelly’s campaign committee, respectively, for a combined total of $10,000. Id.
The Coulsons’ campaign contributions amounted to 18.6% of Commissioner Donnelly’s total new
contributions for the 2016 election and 17.7% of the total money his committee spent on that
election. Id.
Notably, the Coulsons’ contributions for the 2016 election represented a 10-fold increase from
their contributions in the 2012 election. At the time of the Coulsons’ 2016 election contributions, it’s
undisputed that Coulson’s application was pending before Larimer County and that Coulson was
still working on agency and planning department issues related to the application. Vol. I at 331–33,
348–89, 431–63, 864–68.
But the Coulsons weren’t the only high-dollar contributors to Commissioner Donnelly’s
campaign committee. During the 2016 election, the campaign committee received the following
campaign contributions of $5,000 or more:
a. $10,000 from Ken Coulson and Dick Coulson ($5,000 each);
b. $7,500 combined from the Lind family (Martin and Viki) and Vima Partners, LLC;

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 c. $5,000 combined from the Gerrard family (Gary, Mary, Nathan);
d. $5,000 combined from the McWhinney family (Chad and Troy); and
e. $5,000 from Lori Graves.
The 2016 election featured a rematch between Commissioner Donnelly and Karen Stockley.
For her part, she received campaign contributions totaling $19,027.10. Board MSJ at Ex. F. As the
above campaign-contribution figures show, Commissioner Donnelly outraised Ms. Stockley by a
ratio of almost 3-to-1. Commissioner Donnelly won the 2016 election for County Commissioner by
a margin of 55.16% (99,191 votes) to 44.84% (80,647 votes). Board MSJ Ex. G.
When Coulson’s application came before the Board on February 26, 2018, Commissioner
Donnelly subjectively believed that he could make a fair and impartial decision based on the review
standards and evidence. Ex. 3, Board’s Ans. Req. to Admit No. 9.
II.

Applicable Legal Standards.

Under Colo. R. Civ. P. 56(c), summary judgment shall enter when “there is no genuine issue
as to any material fact and … the moving party is entitled to a judgment as a matter of law.” “The
paramount purpose of summary judgment is to expedite litigation by avoiding needless trials where
no genuine issue exists as to any material fact and the movant is entitled to judgment as a matter of
law.” Dubois v. Myers, 684 P.2d 940, 943 (Colo. App. 1984).
A party seeking summary judgment bears the initial burden of establishing that there is no
dispute regarding material facts. Pueblo W. Metro. Dist. v. Se. Colo. Water Conservancy Dist., 689 P.2d
594, 600 (Colo. 1984). A factual dispute is “material” if it’d affect the outcome of the case. W.
Innovations, Inc. v. Sonitrol Corp., 187 P.3d 1155, 1158 (Colo. App. 2008). To meet that burden, the
moving party may rely on “pleadings, depositions, answers to interrogatories, … admissions on file,
[and] affidavits.” Colo. R. Civ. P. 56(c). While “the form of the evidence, such as an affidavit, need

10

 not be admissible at trial, the content or substance of the evidence must be admissible.” People ex rel
S.N. v. S.N., 329 P.3d 276, 282 (Colo. 2014).
The moving party may satisfy its burden by showing the absence of evidence in the record to
support the nonmoving party’s case. Id. If the moving party demonstrates no disputed material facts
exist, the burden shifts to the nonmoving party to demonstrate the existence of a disputed material
fact. Id.
The Court must give the nonmoving party all favorable inferences that reasonably may be
drawn from the evidence. Id. But the nonmoving party can’t use “pretense, or apparent formal
controversy,” to avoid summary judgment. Id. Similarly, the nonmoving party cannot “merely
assert[] a legal conclusion without evidence to support it. Id. When faced with an affidavit
affirmatively showing the absence of a triable issue of material fact, the nonmoving party cannot rely
on allegations or denials in the pleadings to avoid summary judgment. Id. Nor may the nonmoving
party raise a genuine issue of material fact “simply by means of argument.” Id. An affirmative
showing of specific facts, uncontradicted by any counter affidavits, leaves a trial court with no
alternative but to conclude that no genuine issue of material fact exists. Civil Service Com’n v. Pinder,
812 P.2d 645, 649 (Colo. 1991).
Further, evidence introduced to defeat or support a motion for summary judgment must be
sworn, competent and based on personal knowledge, and set forth facts that would be admissible at
trial. Colo. R. Civ. P. 56(e). A “court must disregard documents referred to in a motion for summary
judgment that are not sworn or certified.” Cody Park v. Harder, 251 P. 3d 1, 4 (Colo. App. 2009); see
also Struble v. Am. Family Ins. Co., 172 P.3d 950, 955 (Colo. App. 2007).

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 III.

Conclusions of Law.

Under Colo. R. Civ. P. 57 the Court “shall have power to declare rights, status, and other
legal relations whether or not further relief is or could be claimed.” Colo. R. Civ. P. 57(a). Such
declaration has the force and effect of a final judgment. Id.
When “mere review of the record under [Colo. R. Civ. P.] 106(a)(4) would not afford
adequate relief to the aggrieved party, a declaratory judgment action under [Colo. R. Civ. P.] 57 is
available and may be joined with a proceeding for [Colo. R. Civ. P.] 106(a)(4) review.” Two G’s, Inc. v.
Kalin, 666 P.2d 129, 133–34 (Colo. 1983). Thus, where review of the record is an insufficient
remedy, “the plaintiff is not limited to the record, but may introduce other evidence relevant to the
issues presented. Tepley v. Pub. Employees Ret. Ass'n, 955 P.2d 573, 582 (Colo. App. 1997) (citing Colo.
R. Civ. P. 57(i) and (m)).
The parties seek summary judgment on Thompson’s Rule 57 claims that: (1) the Code’s USR
criteria are unconstitutionally vague; (2) the Code’s conflict of interest rule is unconstitutionally
vague and permits unlawful spot zoning; and (3) the Code’s conflict of interest rule violate due
process as-applied to the circumstances of this case. Naturally, the Board and Coulson disagree with
Thompson. The Court addresses each claim in turn.
A.

Larimer County’s Special Review Criteria are Facially Constitutional.

Thompson mounts a facial constitutional challenge on the Code’s USR criteria on the
ground that they’re unconstitutionally vague because critical terms are undefined in the Code.
Thompson also contends that the Board’s approval of Coulson’s USR application is akin to
upzoning a parcel for the narrow interests of a single land owner, at the detriment of all surrounding

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 neighbors.5 The Board argues that because there is no factual dispute regarding the meaning and
understanding of the USR criteria, Thompson’s argument fails. The Court agrees with the Board.
1. Vagueness Challenge.
The two provisions in the USR criteria that Thompson believes are unconstitutionally vague
are set forth in § 4.5.3. The provisions at issue state:
A.

D.

The proposed use will be compatible with existing and allowed uses
in the surrounding area and be in harmony with the neighborhood;
***
The proposed use will not result in a substantial adverse impact on
property in the vicinity of the subject property.

Code § 4.5.3(A), (D).
Facial challenges to statutes are extremely difficult to prevail on. As the United States
Supreme Court has put it, “[a] facial challenge to a legislative Act is, of course, the most difficult
challenge to mount successfully, since the challenger must establish that no set of circumstances
exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).
“Municipal ordinances, like statutes, are presumed constitutional.” Kruse v. Town of Castle
Rock, 192 P.3d 591, 597 (Colo. App. 2008) (citing E–470 Public Highway Authority v. Revenig, 91 P.3d
1038, 1041 (Colo. 2004)). A party challenging the ordinance must prove beyond a reasonable doubt
that the Code is unconstitutionally vague in all possible applications. Id. at 597–98.

5

Thompson objects to the Board’s motion for summary judgment on the ground that it
impermissibly seeks to reopen argument regarding Thompson’s Colo. R. Civ. P. 57 facial challenge
to Larimer County’s conflict of interest rules. Coulson similarly states that it understands the Court’s
December 14, 2018 and March 11, 2019 orders as requiring briefing only on the as-applied dueprocess challenge. Thompson and Coulson are incorrect, as the Court stated that it “expects the Rule
57 claims to be resolved via cross-motions for summary judgment” and that “a discovery schedule to
adjudicate plaintiffs’ Colo. R. Civ. P. 57 claims is appropriate.” March 11, 2019 Case Mgmt. Ord., at
1, 6 (emphasis added). Thus, the Court will consider such claims by relying on the parties’ existing
briefing on those claims.
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 “A statute or ordinance is unconstitutionally vague … if persons of common intelligence
must necessarily guess as to its meaning and differ as to its application.” Id. (internal citations
omitted) (citing Watso v. Colo. Dep't of Social Servs., 841 P.2d 299, 309 (Colo. 1992)). The ordinance
must therefore provide “fair notice and set forth sufficiently definite standards to ensure uniform,
nondiscriminatory enforcement.” Id.
“A law is void for vagueness where its prohibitions are not clearly defined.” People v. Baer,
973 P.2d 1225, 1233 (Colo. 1999) (citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972);
Rickstrew v. People, 822 P.2d 505, 506–07 (Colo. 1991)). “Vague laws offend due process because they
(1) fail to give fair notice of the conduct prohibited, and (2) do not supply adequate standards for
those who apply them in order to prevent arbitrary and discriminatory enforcement.” Id. (citing
People v. Holmes, 959 P.2d 406, 414 (Colo. 1998).
Broad terms and generalities are not equivalent to vagueness and need not be defined with
“mathematical precision” to withstand a vagueness challenge, so long as the ordinance lends itself to
alternative—constitutional—constructions. Kruse, 192 P.3d at 597 (citing Stamm v. City & County of
Denver, 856 P.2d 54, 56 (Colo. App. 1993)). Moreover, there’s no mandate that each word in an
ordinance be specifically defined, and the Court may look to dictionaries and case law to determine
the probable legislative intent. Id.
The Court has a duty to give language used in regulations its generally accepted meaning and
to interpret language “in a reasonable and practical manner so as to impart a rational and cogent
meaning to it.” Id. Thus, the Court may not adopt hyper-technical readings of statutes where a fair
outcome can be achieved through “[a] common sense reading of the statute.” Americans United for
Separation of Church & State Fund, Inc. v. State, 648 P.2d 1072, 1086 (Colo. 1982) (quoting People v.
Garcia, 595 P.2d 228, 231 (Colo. 1979)).

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 Thompson contends that the Code is unconstitutionally vague in permitting and
encouraging de facto spot zoning through an unreasonably subjective and ill-defined USR process.
Specifically, Thompson argues that the terms “be in harmony with the neighborhood,” “will not
result,” “substantial adverse impact,” and “in the vicinity” aren’t defined in the Code and are so
ambiguous and subjective to the extent that they give the Board unchecked discretion. In
considering all of the applications of the language in question, the Court is left with the firm
conclusion that the language passes constitutional muster.
Here, the § 4.5.3 standards aren’t constitutionally vague for several reasons. First, while the
terms aren’t specifically defined in the Code, substantially similar language frequently appears in
regulations, which have been found constitutionally definite. See C & M Sand & Gravel, Div. of C &
M Ready Mix Concrete Co. of Boulder v. Bd. of Cty. Comm'rs of Boulder Cty., 673 P.2d 1013, 1018 (Colo.
App. 1983). In C&M, the Court of Appeals held that a zoning regulation setting out general
standards for special use requirements were sufficient, including: “(1) [the use] will be in harmony and
compatible with the character of the surrounding areas and neighborhood; … (4) will not have a
material adverse effect on community capital improvement programs; … (6) will not result in undue traffic
congestion or traffic hazards; (7) will not cause significant air, water, or noise pollution; … and (9)
will not otherwise be detrimental to the health, safety, or welfare of the present or future inhabitants
of the county.” Id. (emphasis added).
Second, the challenged terms aren’t unconstitutionally vague because any party may look to a
term’s generally accepted meaning if it is not specifically defined in a code to glean definiteness.
Kruse, 192 P.3d at 599. Doing so here renders the terms at issue sufficiently definite. “Harmony,” for
instance, means “in agreement or accord; or conformity.” Harmony, BLACK'S LAW DICTIONARY
(10th ed. 2014). Read in context with the accompanying language of § 4.5.3, being in harmony with
the neighborhood means that the use is in conformity or in agreement with the neighborhood. For

15

 “will not result” the Court need look no further than the plain meaning of the words to understand
them. See St. Vrain Valley Sch. Dist. RE-1J v. A.R.L. by & through Loveland, 325 P.3d 1014, 1019 (Colo.
2014) (the Court gives “effect to the statute’s plain and ordinary meaning when the language is
unambiguous.”).
While such terms are undoubtedly “somewhat uncertain in the abstract, [they] may be
upheld when shown to be sufficiently definite in the context of actual application.” Wilkinson v. Bd. of
Cty. Comm'rs of Pitkin Cty., 872 P.2d 1269, 1278 (Colo. App. 1993). In Wilkinson, the Court of
Appeals found a zoning ordinance wasn’t impermissibly vague because “the contested county
policies [were] sufficiently definite to be upheld in view of evidence presented to support their
application. Id. Those policies, which dealt with, among others, compatibility with existing adjacent
neighborhoods, were sufficiently definite when the trial court determined the record contained data
on the potential impact of the proposed development to wildlife, recreation, and neighboring land.
Id.
Here, as in Wilkinson, the general terms “in the vicinity” and “substantial adverse impact” are
also sufficiently definite upon review of the Board’s Findings and Resolution. 872 P.2d at 1278. The
Board effectively demonstrates that “in the vicinity” involves the property which is or may be
impacted by the proposed use. See Vol. IV at 6–7. For instance, the Board considered the
professional noise study’s conclusion that the noise generated from the Proposed Mine “will be less
than 55dba at any surrounding residential property line.” Id. at 7. The Board also considered that
“[f]urther review of the application indicted the technical standards required for the approval of this
application and demonstrated that it will not result in a substantial adverse impact.” Id. Thus,
sufficient evidence exists in the record to further clarify the meaning of “in the vicinity” and
“substantial adverse impact” and to render it constitutionally definite.

16

 Accordingly, the Court concludes that the challenged terms aren’t unconstitutionally vague
and judgment will enter in the Board’s favor on this claim.
2. Spot Zoning.
Thompson argues that the Board’s decision amounted to unlawful spot zoning. Thompson’s
argument doesn’t hold water. Colorado law prohibits unlawful spot zoning which “creates a small
island of property with restrictions on its use different from those imposed on the surrounding
property.” Whitelaw v. Denver City Council, 405 P.3d 433, 445 (Colo. App. 2017) (citing Little v.
Winborn, 518 N.W.2d 384, 387 (Iowa 1994)). “Property owners have the right to rely on existing
zoning regulations when there has been no material change in the character of the neighborhood
which may require re-zoning in the public interest.” Clark v. City of Boulder, 362 P.2d 160, 163 (Colo.
1961).
As applied here, Clark does no more than state that the property owners could rely on the
existing zoning regulations to understand what uses were permissible on the property. As noted
above, the existing use is FA – Farming, which has multiple uses by right, but it also permits other
uses by special review. Code § 4.1.1; Compl., ¶ 43; Coulson Ans., ¶ 43; Board Ans., ¶ 1. Thus, the
Code makes clear that no rezoning is occurring, the land is still FA – Farming. While the changed
circumstances of land surrounding the site might warrant a rezoning, no such proceeding was
undertaken. Indeed, the record is clear that over the course of the application’s life, there were
repeated notices that the land was likely to be mined.
Accordingly, given the undisputed material facts, the Court concludes that the USR
provisions in question are not unconstitutionally vague, and that the decision doesn’t amount to
unlawful spot zoning, therefore the Board is entitled to judgment as a matter of law on this issue.

17

 B.

Larimer County’s Voluntary Conflict of Interest Rule is Facially
Constitutional.

Thompson next contends that the County’s conflict of interest regulation set forth in the
Code is unconstitutionally vague and violated Thompson’s due-process rights by permitting
Commissioners to subjectively determine whether they have a conflict of interest.6 The Board and
Coulson disagree, arguing principally that the Code section is constitutionally valid.
The legal principles from the preceding subsection apply here, too. As with § 4.5.3, the
conflict-of-interest provision (Code § 2-67(10)) is unconstitutional only if it provides no standard of
conduct at all. See Rocky Mountain Retail Mgmt., LLC v. City of Northglenn, 393 P.3d 533, 539 (Colo.
2017). The Court gives language used in regulations its generally accepted meaning, id., and begins
with the presumption that the Code is constitutional. Dolan v. Fire and Police Pension Ass’n, 413 P.3d
279, 286 (Colo. App. 2017). Thus, for Thompson to succeed on its facial challenge that the
provision is void for vagueness, they must show, beyond a reasonable doubt, that there is no
application in which it’s constitutional—something they can’t do. See Kruse, 192 P.3d at 598.
Because the constitutional vagueness challenge also depends on the interpretation and
meaning of § 2-67(10), the Court will apply canons of statutory interpretation. When statutory
interpretation is at issue, the Court’s “primary objective is to ascertain and effectuate the intent of
the General Assembly.” Specialty Rests. Corp. v. Nelson, 231 P.3d 393, 397 (Colo. 2010). To do so, the
Court’s initial task is “to determine whether the statutory language has a plain and unambiguous
meaning.” Fischbach v. Holzberlein, 215 P.3d 407, 409 (Colo. App. 2009). The Court gives “effect to
the statute’s plain and ordinary meaning when the language is unambiguous.” St. Vrain Valley, 325

6

As with the previous claim, Thompson objects to the Board’s motion for summary judgment
arguing that the motion impermissibly seeks to reopen argument regarding Thompson’s Colo. R.
Civ. P. 57 facial challenge to Larimer County’s conflict of interest rules. The Court overrules that
objection for the same reasons cited above.
18

 P.3d at 1019. So, “if the statutory language is clear,” the Court applies it as written. Denver Post Corp.
v. Ritter, 255 P.3d 1083, 1089 (Colo. 2011).
The Court determines a provision’s plain meaning by considering “the language itself, the
specific context in which that language is used, and the broader context of the statute as a whole.”
Sheep Mountain All. v. Bd. of Cty. Comm’rs, Montrose Cty., 271 P.3d 597, 601 (Colo. App. 2011). The
Court may look to the dictionary for assistance in understanding the plain meaning of the terms
used. People v. Voth, 312 P.3d 144, 149 (Colo. 2013). Moreover, the Court gives effect to legislative
intent by construing all parts of a statute as consistent, harmonious, and sensible. St. Vrain Valley,
325 P.3d at 1019.
The Code prohibits a commissioner’s participation—thus requiring recusal—in any quasijudicial determination in which he determines that he cannot be fair and impartial or in which he has
a conflict of interest:
A member of the board of county commissioners who, in their sole opinion, believe
they have a conflict of interest or for any other reason believes that they cannot
make a fair and impartial decision in a legislative or quasi-judicial decision, will recuse
themselves from the discussion and decision. Any recusal will be made prior to any
board discussion of the issue and the board member will leave the room for the
remainder of the discussion of the issue.
Code § 2-67(10).
The Court is troubled that the Code has failed to define the key terms “conflict of interest,”
“fair,” or “impartial” and, as if that weren’t enough, it has failed to provide any further guidance to a
commissioner on how to interpret those seemingly crucial terms.7 Such a deficiency appears to leave

7

Contrast the Code’s minimally sufficient approach with the Colorado Code of Judicial Conduct’s
provisions on recusal or disqualification. While the Court understands that Code of Judicial Conduct
doesn’t apply to commissioners, a comparison is useful for present purposes. For instance, the Code
of Judicial Conduct is exceedingly thorough in prescribing the instances in which a judge must
disqualify himself from a case. See C.J.C.R. 2.11(A) (“A judge shall disqualify himself or herself in
any proceeding in which the judge’s impartiality* might reasonably be questioned, including but not
limited to the following circumstances…”). That provision lists at least five areas in which
19

 a commissioner to his or her own devices when considering recusal. Indeed, the Code doesn’t even
direct the commissioner to seek legal advice on the issue. But the Supreme Court directs that this
Court supply the common meaning of those terms to determine whether the provisions are
unconstitutionally vague. Voth, 312 P.3d at 149.
The terms’ plain and ordinary meanings demonstrate the provisions are not
unconstitutionally vague. A “conflict of interest” is a “real or seeming incompatibility between one's
private interests and one's public or fiduciary duties.” Conflict of Interest, BLACK'S LAW DICTIONARY
(11th ed. 2019). “Fair” means “[c]haracterized by honesty, impartiality, and candor; just; equitable;
disinterested” or “[f]ree of bias or prejudice”. Fair, BLACK’S LAW DICTIONARY (11th ed. 2019).
“Impartial” means “[n]ot favoring one side more than another; unbiased and disinterested;
unswayed by personal interest.” Impartial, BLACK’S LAW DICTIONARY (11th ed. 2019). Thus, a
commissioner has a “conflict of interest” when she has a real or seeming incompatibility of personal
interests and public duty. The commissioner cannot remain “fair and impartial” when he or she
cannot act honestly, impartially, justly or in an equitable and disinterested manner and cannot avoid
favoring one side more than another or being swayed by personal interest.
Another nearby provision of the Code related to the same subject provides insightful
language and direction to a commissioner who may be considering recusal. Subsection 2-71(1)
provides that commissioners must represent with “unconflicted loyalty” the interests of all the
citizens of the county and that such loyalty supersedes any conflicting loyalty to anyone else,
including the commissioner’s own personal interest:
Members of the board of county commissioners must represent unconflicted loyalty
to the interests of the citizens of the entire county. This accountability supersedes
any conflicting loyalty such as that to any advocacy or interest groups, or
disqualification must occur, defines each of the terms with an asterisk, and then provides additional
comments on each specific ground for disqualification. By contrast, the Code offers no such
guidance to a commissioner who’s considering recusal.
20

 membership on other boards or staffs. This accountability also supersedes the
personal interest of any board member acting as an individual consumer of the
county government’s services. Members of the board of county commissioners must
avoid any fiduciary conflict of interest, ex-parte communication or nepotism
conflicts.
Vol. V, p. 28 (citing Code § 2-71(1), (2)).
Both provisions are related to the same subject matter and the Court construes them in pari
materia. While § 2-67(10) deals with a commissioner’s recusal due to a conflict of interest or her
inability to be fair and impartial, § 2-71(1) prescribes a general mantra with which a commissioner
must approach all of her official duties: with “unconflicted loyalty” to her constituents. Statutes
“pertaining to the same subject matter are to be construed in pari materia to ascertain legislative intent
and to avoid inconsistencies and absurdities.” Walgreen Co. v. Charnes, 819 P.2d 1039, 1043 (Colo.
1991) (citing Darnall v. City of Englewood, 740 P.2d 536, 537 (Colo. App. 1987)). “The legislature is
also presumed to intend that the various parts of a comprehensive scheme are consistent with and
apply to each other, without being required to incorporate each by express reference in the other.”
BP America Prod. Co. v. Patterson, 185 P.3d 811, 813 (Colo. 2008).
Read together, §§ 2-67(10) and 2-71(1) provide definite—albeit minimal—guidance to a
commissioner who’s considering recusal and render the conflict of interest provision not
unconstitutionally vague. Notwithstanding Thompson’s contentions that the conflicts ordinance is
vague, § 2-67(10) lends itself to constitutional constructions, which the Court must adopt. See Kruse,
192 P.3d at 597 (citing People ex rel. City of Arvada v. Nissen, 650 P.2d 547, 550 (Colo. 1982)).
When the provisions are construed in pari materia, several constitutional applications present
themselves. Let’s say, for example, that a commissioner’s spouse filed an application for USR for
certain land under county jurisdiction. Every reasonable commissioner who considered §§ 2-67(10)
and 2-71(10) would easily conclude that he’d have a conflict of interest given his close relationship
to the applicant. Undoubtedly, in this hypothetical, the commissioner couldn’t reasonably “make a

21

 fair and impartial decision in a … quasi-judicial capacity,” Code § 2-67(10), because doing so would
improperly place his personal interest in the matter above his “unconflicted loyalty” to the county’s
citizens. Id. § 2-71(10).
Let’s take another example closer to the present circumstances. Assume that another
applicant—unrelated to our conflicted commissioner—with a different application pending before
the county, donated 100% of the total campaign contributions for the commissioner’s re-election
campaign. Let’s also assume that the commissioner won the election. Again, every reasonable
commissioner who considered both provisions of the Code would conclude that she couldn’t make
a fair and impartial decision on the application and would recuse herself. Because the commissioner
would seemingly owe, in large part, her victory to the applicant’s campaign contributions, the
commissioner would violate her duty of “unconflicted loyalty” to the county’s citizens by
participating in, or voting on, the application from her generous campaign donor.
In both hypothetical scenarios, the commissioner determined based on his or her “sole
opinion” that she has a conflict of interest and thus recuses herself from participating in the
proceeding. That commissioner, in the Court’s view, acted reasonably. While generally that’s a poor
approach to follow because the Code provides virtually no guidance, it nonetheless passes, by a hair,
constitutional muster because of the key terms’ plain meaning. Of course, that leaves all the
unreasonable hypothetical commissioners out there, who may not recuse themselves when
presented with such stark scenarios. But solely because § 2-67(10) “might be insufficient in some
particular circumstances,” Salerno, 481 U.S. at 751, it doesn’t follow that the provision is facially
unconstitutional.8

8

The Court urges the Board to adopt a more precise recusal provision that includes both specific
definitions for each of the key terms in § 2-67(10) and an objective—rather than a subjective—
standard that relies solely on the “sole opinion” of the commissioner who faces a potential conflict
of interest.
22

 Moreover, that the decision rests in the commissioner’s “sole opinion” doesn’t render the
provision unconstitutionally vague. That’s not unlike a disqualification decision for a judge, who
must herself decide whether recusal is necessary. Indeed, if the Commissioner does have a conflict,
the Commissioner must recuse him or herself. The Code language itself provides that the
Commissioner “will recuse themselves from the discussion and decision.” Code § 2-67(10) (emphasis
added). The Court construes “will” as “must” in this context. And, at a minimum, “will” is the
equivalent of “shall” here, meaning that the commissioner is required or is obligated to recuse himself.
Plains Metro. Dist. v. Ken-Caryl Ranch Metro. Dist., 250 P.3d 697, 699 (Colo. App. 2010).
Further, it’s wrong, as Thompson contends, that no recourse exists to a commissioner’s
refusal to recuse even in the most blatant of circumstances. Indeed, the Constitution itself provides
the necessary “floor” by which to determine whether a commissioner violated a party’s due-process
rights in making a quasi-judicial decision. See City of Manassa v. Ruff, 235 P.3d 1051, 1057 (Colo.
2010). When a commissioner acts as a quasi-judicial decision-maker, as is the case here, “the
fundamental protections of neutrality and fairness [ ] apply.” Id. It is also conceivable that Colo. R.
Civ. P. 106(a)(4) might provide a similar backstop in instances where a record sufficiently addresses
a conflict of interest issue.
In sum, the language of Code § 2-67(10) and case law are specific enough to provide a
person of common intelligence with notice of when that particular code provision may be violated.
See People v. Shell, 148 P.3d 162, 173 (Colo. 2006) (citing People v. Hickman, 988 P.2d 628, 644 (Colo.
1999)). Accordingly, the conflict of interest provision is not facially void for vagueness and judgment
will enter in the Board’s favor on this claim.
C.

Larimer County’s Voluntary Conflict of Interest Rule As-Applied to the
circumstances of this case violated Thompson’s Due Process Right.

While § 2-67(10) is facially constitutional, Thompson also challenges on due-process
grounds Commissioner Donnelly’s failure to recuse himself from participating in Coulson’s
23

 application. Because the undisputed material evidence establishes beyond a reasonable doubt that
Commissioner Donnelly’s failure to recuse posed a risk of actual bias or prejudgment on Coulson’s
application, Thompson has shown a due-process violation and is entitled to judgment as a matter of
law. Accordingly, judgment shall enter in Thompson’s favor on this claim. The Board’s decision is,
therefore, vacated and the matter is remanded to the Board to hold another hearing on Coulson’s
application with Commissioner Donnelly recused.
The Court’s analysis of Thompson’s as-applied challenge begins with two threshold issues
raised by Coulson and the Board. They jointly argue that the campaign contributions didn’t violate
Thompson’s due process rights because (1) Thompson waived its objection on the issue of bias
related to the campaign contribution, removing the Court’s authority to review the claim; and (2)
that the campaign contributions are not a direct, personal, substantial, or pecuniary interest in the
pending matter. The Court rejects these contentions, each of which is addressed in turn.
1. Thompson did not waive its objection on the issue of bias related to the
campaign contribution.
The Board treads old ground, arguing that Thompson waived its objection on the issue of
bias related to campaign contributions, thus depriving the Court of jurisdiction to review the claim.
Thompson responds that the Court has already ruled on this issue, concluding that Thompson
properly preserved the issue. The Court sees no reason to amend its prior ruling.
The Court construes the Board’s argument as seeking reconsideration of a prior Order.
While the request is untimely, the Court will nevertheless consider it. Motions for reconsideration
are “disfavored.” Colo. R. Civ. P. 121, § 1-15(11). “A party moving to reconsider must show more
than a disagreement with the court’s decision. Such a motion must allege a manifest error of fact or
law that clearly mandates a different result or other circumstance resulting in manifest injustice.” Id.
The Board failed to make the required showing under Rule 121 § 1-15(11). Reconsideration
isn’t appropriate because there’s no error of law that mandates a different result nor will manifest
24

 injustice result. As the Court discussed in its prior Order Denying Defendants’ Motion For
Summary Judgment, Thompson timely raised the issue of Commissioner Donnelly’s potential
conflict of interest three months before the Board’s hearing and final decision on Coulson’s
application:
It’s undisputed that Thompson Area raised the conflicts issue well in advance
of the Board’s hearing and requested that any decisionmaker with a conflict recuse
himself. And Thompson Area did so again, two days before the formal decision, by
pointing to Commissioner Donnelly’s potential conflict.
Order at 13–15; see also Vol. I at 298–99; 326.
That ruling is supported by the record evidence and is correct. Accordingly, the Board’s
request is denied.
2. Thompson’s Complaint Includes an As-Applied Due Process Challenge to
Code § 2-67(10).
Coulson levies another attack against Thompson’s as applied due-process challenge to § 267(10), stating that the challenge must fail as a matter of law because the Code “mirrors due
process” and the recusal requirement is not voluntary. Coulson contends that the claim at issue here
is not an as-applied constitutional challenge because it is a “factual determination [which] resulted in a
constitutional violation, which is not an as-applied challenge to the statute itself.” Coulson Mtn. at
10. As the argument goes, merely asserting that someone misapplied the statute is not an as-applied
challenge to the statute itself. Coulson’s arguments are without merit.
Generally, to succeed in a facial challenge, the plaintiff must show that there are no
circumstances under which the statute can be applied in a constitutional manner. People v. Trujillo,
369 P.3d 693, 696 (Colo. App. 2015). By contrast, as-applied challenges allege “the statute is
unconstitutional as to the specific circumstances under which a defendant acted.” Id. (citing People v. Gardner,
250 P.3d 1262, 1268 (Colo. App. 2010)).

25

 Here, while the Court concluded that § 2-67(10) wasn’t facially unconstitutional, that
conclusion doesn’t preclude the Court from determining the statute might be unconstitutional asapplied to a particular set of facts. See Trujillo, 369 P.3d at 697. Nevertheless, Coulson contends that
because the recusal rule—Code § 2-67(10)—is consistent with due process, it can’t be
unconstitutional as-applied. That argument is plainly illogical.
For one, solely because a statute is facially valid, meaning that it’s constitutional in at least
one application, it doesn’t follow that the same statute will be valid as applied against a different
factual scenario. While a statutory provision “might be insufficient in some particular
circumstances,” Salerno, 481 U.S. at 751, a court shouldn’t strike down the provision in toto when at
least some constitutional applications exist—that is, don’t throw out the baby with the bath water.
Besides, if Coulson were correct, it would render all as-applied challenges meaningless, at the
expense of the general policy that favors hearing as-applied challenges over facial ones. See e.g., Indep.
Inst. v. Coffman, 209 P.3d 1130, 1136 (Colo. App. 2008) (citing Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449–52 (2008)) (a provision may be unconstitutional on its face or asapplied, but “[f]acial challenges are disfavored because (1) courts may be forced to rely on
speculation, (2) there is a risk of premature statutory interpretation, (3) courts may have to anticipate
questions of constitutional law when unnecessary, (4) courts may have to formulate constitutional
rules broader than those required by the precise facts to which they would be applied, and (5) they
may prevent the implementation of laws that embody the will of the people”). Indeed, Coulson
admits as much, citing caselaw for the premise that the as-applied constitutional challenge requires
the party to establish that “the statute is unconstitutional under the circumstances in which the plaintiff
has acted or proposes to act.” Coulson Mtn. at 9 (citing Maxwell, 401 P.3d at 520). Thus, a challenge
may be brought to the constitutionality of a statute as it was applied under the circumstances of this
case.

26

 Here, Thompson contends that even if the statute is generally constitutional, it operated
unconstitutionally as to Thompson because of the circumstances in which Commissioner Donnelly
failed to recuse himself. This is consistent with an as-applied constitutional challenge. See Trujillo, 369
P.3d at 696. It’s plausible to assert an as-applied due-process violation under circumstances when, as
here, a decisionmaker has an objective conflict of interest—notwithstanding that decision-maker’s
subjective belief to the contrary—and the rule does nothing to stop that a commissioner from
continuing to participate in the decision. Such an outcome falls below the constitutional floor
required by the Due Process Clause. See City of Manassa, 235 P.3d at 1057.
Coulson’s contentions to the contrary are unpersuasive for two reasons. First, the case
Coulson cites to General Outdoor Advertising Co. v. Goodman doesn’t directly addressed as-applied
challenges, and instead only deals with a facial attack. 262 P.2d 261, 263 (Colo. 1953). Second,
Coulson’s arguments that governments need not enact legislation which is duplicative of protections
afforded by the constitution are correct, but inapposite. As the Court concludes below, the Code asapplied in this circumstance fell below the constitutional floor. Thus, the Court rejects Coulson’s
argument that Thompson’s as-applied due-process challenge fails as a matter of law.
3. Coulson’s campaign contributions to Commissioner Donnelly created a
significant risk of bias under the circumstances.
“To prevail on an as-applied constitutional challenge, the challenging party must establish
that the statute is unconstitutional under the circumstances in which the plaintiff has acted or
proposes to act.” People v. Maxwell, 401 P.3d 518, 520 (Colo. App. 2017) (citing Qwest Servs. Corp. v.
Blood, 252 P.3d 1071, 1085 (Colo. 2011). In holding a statute unconstitutional as applied, its future
application in a similar context is prohibited, but it does not render the statute inoperative.” Id.
A statute is presumed constitutional, and the party challenging the statute has the burden of
proving unconstitutionality beyond a reasonable doubt. People v. Baer, 973 P.2d 1225, 1230 (Colo.

27

 1999). The principle applies regardless of whether the challenge is facial or as-applied to a specific
set of circumstances. Trujillo, 369 P.3d at 696.9
Under Colorado law, a local government’s land-use determinations are considered quasijudicial for the purposes of judicial review. Margolis v. Dist. Court, In & For Arapahoe Cty., 638 P.2d
297, 305 (Colo. 1981). Those serving in quasi-judicial capacities are presumed to act with integrity,
honesty, and impartiality. Scott v. City of Englewood, 672 P.2d 225, 227 (Colo. App. 1983).
A quasi-judicial proceeding violates due process only if the presumption of honesty and
integrity is overcome by a showing of a conflict of interest on the part of the decision-maker. Id.
What constitutes a conflict of interest reflects different policy considerations based on the context.
City of Manassa, 235 P.3d at 1055. Such conflicts arise where the decision-maker has a personal,
financial, or official stake in the outcome of the matter, Scott, 672 P.2d at 227–28, or when the
decision-maker’s interest “poses such a risk of actual bias or prejudgment that the practice must be
forbidden if the guarantee of due process is to be adequately implemented.” Caperton, 556 U.S. at
884.
The burden of rebutting this presumption rests on the party challenging the quasi-judicial
decision. Scott, 672 P.2d at 227. A party challenging a quasi-judicial decision must show substantial
prejudice which invalidates the agency action to rebut the presumption. Whitelaw, 405 P.3d at 438.
Nevertheless, quasi-judicial decision-makers are not held to the same disqualification standards as
judges, City of Manassa, 235 P.3d at 1057, and most matters regarding judicial disqualification do not

9

Colorado appellate decisions are divided on the burden of proof necessary as-applied constitutional
challenges. Cf. Sanger v. Dennis, 148 P.3d 404, 410–11 (Colo. App. 2006) (as applied challenges must
show only a reasonable probability that the statute is unconstitutional); with People v. Slaughter, 439
P.3d 80, 83 (Colo. App. 2019); Trujillo, 369 P.3d at 696 (the burden of proof for as-applied
challenges is beyond a reasonable doubt). The Court concludes that the burden of proof is beyond a
reasonable doubt.

28

 rise to a constitutional level. Caperton, 556 U.S. at 876 (citing FTC v. Cement Institute, 333 U.S. 683,
702 (1948)).
The Due Process Clause of the Colorado Constitution protects people from a deprivation of
“life, liberty or property, without due process of law.” COLO. CONST. art. II, § 25. The fundamental
protections of neutrality and fairness provided by the Due Process Clause apply to decision-makers
acting in quasi-judicial capacities. City of Manassa, 235 P.3d at 1057; Scott, 672 P.2d at 227. It’s a
longstanding principle that a fundamentally fair trial in a fair tribunal is a basic requirement of due
process. In re Murchison, 349 U.S. 133, 136 (1955). That requirement of fairness and neutrality “in
adjudicative proceedings entitles a person to an impartial and disinterested decision-maker.” City of
Manassa, 235 P.3d at 1056.
In City of Manassa, the Colorado Supreme Court adopted the test under Caperton. Under that
test, the decision-maker must recuse him or herself when “a direct, personal, substantial, pecuniary
interest” exists in a case before that decision-maker. Caperton, 556 U.S. at 876. Thus, the decisionmaker cannot have an interest in the outcome based on the circumstances and relationships
involved. See In re Murchison, 349 U.S. at 136.
Yet, it’s not necessary for the Court to determine whether the decision-maker is in fact
influenced by those circumstances or relationships; instead, due process requires an objective inquiry
into whether under all the circumstances “would offer a possible temptation to the average ... judge
to ... lead him not to hold the balance nice, clear and true.” Caperton, 556 U.S. at 879, 885 (citing
Tumey v. State of Ohio, 273 U.S. 510, 532 (1927)). Thus, the Court “asks not whether the judge is
actually, subjectively biased, but whether the average judge in his position is ‘likely’ to be neutral, or
whether there is an unconstitutional ‘potential for bias.’” Id. at 881.
“The ultimate due process question is whether, under a realistic appraisal of psychological
tendencies and human weakness, the interest poses such a risk of actual bias or prejudgment that the

29

 practice must be forbidden if the guarantee of due process is to be adequately implemented.” City of
Manassa, 235 P.3d at 1057 (internal quotations omitted) (citing Caperton, 556 U.S. at 129).
A serious risk of actual bias occurs, based on objective and reasonable perceptions, when a
person with a personal stake in the case has a significant and disproportionate influence in placing
the judge on the case by raising funds when the case is pending or imminent. Caperton, 556 U.S. at
884. Several factors go into this inquiry in the election context. “The inquiry centers on the
contribution’s relative size in comparison to the total amount of money contributed to the
campaign, the total amount spent in the election, and the apparent effect such contribution had on
the outcome of the election.” Id. But the temporal relationship between the campaign contributions,
the justice’s election, and the pendency of the case are also critical. Id. at 886 (“It was reasonably
foreseeable, when the campaign contributions were made, that the pending case would be before the
newly elected justice”).
The Court concludes that the undisputed material evidence establishes beyond a reasonable
doubt that Commissioner Donnelly’s failure to recuse himself in Coulson’s application posed a
serious risk of actual bias or prejudgment and that Thompson has shown a due-process violation,
entitling it to judgment as a matter of law.10 Several reasons support that conclusion.
First, the undisputed material evidence shows that Coulson’s campaign contributions
objectively had a significant and disproportionate influence on Commissioner Donnelly’s re-election,

10

The Court declines to wade into the actual-bias waters. See Caperton, 556 U.S. at 882. It’s
undisputed that Commissioner Donnelly conducted his own determination of whether he had an
impermissible conflict and, subjectively, he found none. (It’s unclear whether, in reaching that
determination, Commissioner Donnelly considered his “uncontested loyalty” to the county citizens.)
Moreover, the parties agree that no evidence presented demonstrates actual bias on the part of
Commissioner Donnelly. Thompson Resp. at 13; Board Mtn at 20–21; Coulson Reply at 6. Instead,
the question before the Court is an objective one: would an average commissioner in Commissioner
Donnelly’s position likely have been neutral or did the commissioner’s participation in and vote on
Coulson’s application presented an unconstitutional risk of actual bias? Caperton, 556 U.S. at 881.
30

 placing him in a position to vote on the USR application of his largest donors’ company. See id. at
884. In August and September of 2016, the Coulsons, who own Coulson, contributed a total of
$10,000.00 to Commissioner Donnelly’s re-election campaign. Those contributions amounted to
18.6% of Commissioner Donnelly’s $53,580.00 total new election contributions in the 2016 election
cycle, and 17.7% of the total amount his committee spent on his bid for re-election. The Coulsons’
contributions, by themselves, allowed Commissioner Donnelly to raise more than half of the total
funds raised by his opponent in the 2016 election.11 While it’s undisputed that Commissioner
Donnelly had other large contributions, including a combined donation of $7,500 and several others
of $5,000 per family, none of those individuals (or entities) had a matter “pending or imminent”
before the Board. See Caperton, 556 U.S. at 884. Coulson was the only entity that did have such a
matter.
Second, the temporal relationship between the Coulsons’ campaign contributions in 2012
and 2016, Commissioner Donnelly’s 2016 election, and the status of the application all support a
conclusion of a serious risk of actual bias or prejudgment. Id. at 886 (“It was reasonably foreseeable,
when the campaign contributions were made, that the pending case would be before the newly
elected justice”). It’s undisputed that Coulson didn’t actively pursue its refiled USR application
between 2010 and 2015.12 Coulson’s first communication in almost six years with the Larimer

11

Commissioner Donnelly’s opponent was Karen Stockley, who received campaign contributions
totaling $19,027.10.
12
During that time period, Coulson completed a noise study in 2015 and a flood plain analysis in the
fall of 2016. Vol. I at 433. Ken Coulson admitted that because of the “recession in 2008, [Coulson]
decided they had adequate reserves and had other pits that they were mining at the time” and that
“[t]he permitting process started back up in 2015 with new analyses and reports.” Vol. I at 434
(Peter Wayland noted that a noise study was conducted in 2015, consistent with Ken Coulson’s
statement). Considering the evidence in favor of Coulson, People ex rel S.N., 329 P.3d at 282, the only
evidence is that the application was dormant from 2010 and 2015, and that the application was
pursued in earnest following the status update which coincided with their campaign contributions to
Commissioner Donnelly.
31

 County Planning Department was in September 2016, when it submitted a status update to the
county. Vol. I at 390–92. At about the same time—in August and September of 2016—the
Coulsons jointly contributed $10,000.00 to Commissioner Donnelly’s re-election bid. Vol. I at 300,
303. Commissioner Donnelly ultimately won reelection in November 2016. Thus, it was reasonably
foreseeable, at the time the Coulsons made their respective contributions, that the renewed
application would come before the Board, and Commissioner Donnelly in particular, should he win
reelection. Indeed, within 18 months from date of the Coulsons’ contributions, Commissioner
Donnelly provided the deciding vote to approve the application.13
Third, the Coulsons’ campaign contributions and their timing in making them, created an
objective and reasonable perception of bias by seeking to ensure that Commissioner Donnelly
remain as a decision maker the USR application. See Caperton, 556 U.S. at 884. Several undisputed
facts show that objective and reasonable perception. For one, Commissioner Donnelly knew
Coulson well, having performed surveying work for the company for nearly six years. And, between
the Coulsons’ 2012 election contributions and the 2016 election contributions to Commissioner
Donnelly, there was a 10-fold increase in those contributions ($1,000 in 2012 and $10,000 in 2016).
Temporally, the one material difference is that at a time that Coulson didn’t actively pursue its
application with the county, the Coulsons contributed $1,000 ($500 each) to Commissioner
Donnelly’s campaign. But for the 2016 election, when Coulson sought a hearing before the Planning
Commission (a pre-requisite before the application going to the Board), the Coulsons together
donated $10,000 to Commissioner Donnelly.

13

The Board contends that this characterization is inaccurate because the order of voting is mere
happenstance. The Court rejects the Board’s facetious attempt to hide the obvious. Commissioner
Donnelly’s vote was the “deciding” vote not because of the order in which he voted, but because
the USR permit wouldn’t have been granted but for Commissioner Donnelly’s vote. Code § 2-67(7)
(suggesting that Board decisions require majority vote).
32

 Fourth, the Coulsons’ influence on the election, given all circumstances, would offer a
temptation to the average commissioner not to “hold the balance nice, clear, and true.” See Caperton,
556 U.S. at 885. While the Court need not divine whether the Coulsons’ contributions were a
necessary and sufficient cause of Commissioner Donnelly’s victory, it’s undisputed that
Commissioner Donnelly won, receiving 99,191 votes compared with 80,647 votes for his opponent
Karen Stockley.
Commissioner Donnelly was the incumbent entering the 2016 election cycle. But as he
acknowledged, “my [2012] reelection race was very close and I need[ed] to run a strong campaign to
win again.” Ans. Rog No. 1. Thus, re-election was not assured, and it was essential for
Commissioner Donnelly to obtain more support. Indeed, Commissioner Donnelly raised well over
twice the amount of Karen Stockley, and he won the 2016 election for County Commissioner by 10
percentage points—55.16% (99,191 votes for Donnelly) to 44.84% (80,647 votes for Karen
Stockley). Considering Coulson’s proportionally large contribution, the timing of that contribution
in relation to the election, and the relatively close margin of victory the Court finds that the totality
of the circumstances demonstrates a significant and disproportionate effect on re-electing
Commissioner Donnelly.
Fifth, important policy considerations support campaign-contribution limits in local
elections, and those considerations align with the Court’s conclusion here. See City of Manassa, 235
P.3d at 1055 (“conflict of interest” is a term of art “reflecting a host of different policy
determinations, depending on the context in which it operates”). In particular, the Colorado General
Assembly recently passed, and the Governor signed, HB19-1007 which creates campaigncontribution limits of $1,250 for certain county-wide elections. Previously, no campaigncontribution limits existed for county elections. HB19-1007 (revising Colo. Rev. Stat. § 1-45-103.7;
and adding Colo. Rev. Stat. § 30-10-113). One of the chief concerns the bill sought to address was

33

 contributions in county commissioner elections. Representative Emily Sirota, the sponsor of the bill,
stated that it’s “probably unwise that we don’t have any limits … in our county races,” and that “we
regularly see contributions of $5,000 dollars, and many examples of extremely large contributions, in
particular, in our county commissioner races in the amounts of $10,000, $30,000, even $40,000.”14
House Chambers Discussion of HB 19-1007 (Feb. 14, 2019) at 1:26:57. Thus, the purpose of the bill
was to preserve integrity of electoral process, keep candidates accountable, and avoid the appearance
of quid pro quo or impropriety. Id. Those are salutary goals.
In sum, given the Coulson’s significant and disproportionate influence in Commissioner
Donnelly’s re-election and the temporal relationship between those contributions, the election, and
the pending application, the average commissioner would have been tempted “not to hold the
balance nice, clear and true.” Caperton, 556 U.S. at 885.
Coulson presses several points in opposition to Thompson’s motion, but none of them has
merit. Initially, it contends that the standard in Caperton was only met there because (1) the $3 million
donations exceeded the judge’s total other campaign contributions by 300%; (2) the $3 million
exceeded by $1 million both candidates’ campaigns combined; and (3) the donations helped unseat
an incumbent in a close election and place a new judge on the court just before it heard the donor’s
appeal.” Coulson Mtn. at 18. But that argument misstates the holding in Caperton, which isn’t limited
to its facts. Indeed, Caperton didn’t set a specific dollar figure or percentage to reach, or require that
the campaign contributions result in the ousting of an incumbent, in order to establish a due-process
violation. Instead, each of the facts that Coulson presents were relevant in establishing that an

14

Moreover, an earlier version of the bill was introduced in 2017, HB17-1260 passed the house, but
was suspended indefinitely in the Senate’s State, Veterans, & Military Affairs Committee. At the
Committee hearing, the concern of very large contributions to county commissioners was cited as a
primary concern, which could create “an appearance of quid pro quo corruption.”
34

 objective conflict of interest existed and weren’t meant to be sine qua non requirements in other cases.
Caperton, 556 U.S. at 886.
Coulson also points the Court to several cases that distinguish the circumstances in Caperton
and attempt to establish a baseline in Colorado. The Court finds these cases distinguishable from the
circumstances here for several reasons. For one, in City of Manassa the Colorado Supreme Court
found that a decision-maker receiving 25% of his income from the insurer of one of the parties
didn’t amount to an exceptional circumstance creating an unconstitutional risk of bias. City of
Manassa, 235 P.3d at 1052–53. But while City of Manassa effectively ties Caperton to Colorado law, the
specific circumstances in that case are distinguishable.
In City of Manassa, a non-elected licensed physician bound by separate regulatory and
professional requirements, was hired by Pinnacol to render independent medical examination
opinions in workers’ compensation cases. Id. at 1053. The Supreme Court concluded that the
physician didn’t have an objective conflict of interest in large part because highly restrictive
safeguards existed with which the physician had to comply. See id. at 1053–54. Those safeguards
included a rule of procedure in workers’ compensation cases that “prohibits a physician from
evaluating a claimant if there is even the appearance of a conflict of interest.” Id. at 1054. And that
rule contained multiple guidelines to determine whether a conflict or the appearance of a conflict of
interest existed. Id. at 1054 n.3. Those guidelines are analogous to the Code of Judicial Conduct’s
disqualification provisions. Compare C.J.C.R. 2.11(A) and comments, with Div. of Workers’
Compensation R. of P. 11–2(H).
By contrast, here no such safeguards exist to protect against an objective conflict of interest
by a commissioner. As the Court noted above, Code § 2-67(10) has constitutionally bare minimum
requirements and offers little, if any, guidance to determine whether a commissioner has a conflict
of interest.

35

 The Court also rejects Coulson’s contention that its application wasn’t “pending or
imminent” because it didn’t resolve the referral agency and planning department issues until
November 2017 and it wasn’t before the Board at the time of the Coulsons’ campaign contributions.
Caperton itself rejects Coulson’s overly narrow construction. All that’s required is a reasonable
foreseeability that the case will end up before the decision maker. In Caperton, the state supreme court
didn’t hear the case until November 2007, almost three years after Blankenship made his contributions
that resulted in the unconstitutional risk of bias. See Caperton, 556 U.S. at 872 (Blankenship made his
contributions in the 2004 judicial elections, after the initial jury verdict but before filing the appeal).
Thus, merely because the case is not set for a hearing before the Board, it doesn’t mean the case was
not pending or imminent. Moreover, even when necessary pre-requisites haven’t been met—such as
the filing of an appeal—the case may still be pending or imminent when it is reasonably foreseeable
that it will be heard by the decision-maker. Id. at 886.
Here, Coulson’s application was pending or imminent because it was reasonably foreseeable
that the Board, and Commissioner Donnelly in particular, would eventually hear it at the time the
Coulsons made their 2016 election contribution. Based on Coulson’s own status update in
September 2016, it requested that a hearing be scheduled with the Planning Commission because
most of the preliminary work or studies to get the matter before that commission had been
completed. Vol I. at 390–92; Vol. I at 433. The parties agree that once the USR applicant resolves
referral agency and Planning Department comments, the case proceeds to a hearing before the
Planning Commission which, regardless of whether it recommends approval or denial of the
application, forwards the application to the Board. Thus, at the time of the Coulsons’ campaign
contributions, Coulson actively pursued its application, which was in the middle of a process whose
natural and reasonably foreseeable conclusion would be a vote by a commissioner whose re-election
the Coulsons helped secure. Caperton, 556 U.S. at 886 (“Although there is no allegation of a quid pro

36

 quo agreement, the fact remains that [the donor’s] extraordinary contributions were made at a time
when he had a vested stake in the outcome [of the election].”).
Indeed, as noted above, between the 2012 to the 2016 election cycle, the Coulsons’
contributions dramatically increased. In the 2012 election, it was 3.15% of Commissioner Donnelly’s
total new contributions, while in the 2016 election it was 18.66%. That represents an almost 500%
increase in the percentage the Coulsons gave in proportion to Commissioner Donnelly’s total
campaign contributions. It’s undisputed that Commissioner Donnelly knew of the contributions by
the time he voted in favor of the application at the February 26, 2018, hearing. Board Rog. at 5 (“On
February 26, 2018, I … voted to approve Coulson’s USR application. I did not believe that I had a
conflict of interest … simply because Coulsons had supported my campaign.” (emphasis added)). Thus, given
the timing of the contributions in the lifetime of the application, it was reasonably foreseeable that
Commissioner Donnelly would vote on Coulson’s application.
Coulson also contends that its First Amendment rights would be infringed if Commissioner
Donnelly were disqualified merely because he received campaign contributions. That argument
misses the mark, the applicable legal standard, and the Court’s holding above. The Supreme Court
has stated that, “[s]pending large sums of money in connection with elections, but not in connection with
an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption.
Nor does the possibility that an individual who spends large sums may garner ‘influence over or
access to’ elected officials or political parties.” McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 208
(2014) (emphasis added) (citing Citizens United v. Federal Election Comm’n, 558 U.S. 310, 359 (2010)).
While it’s generally impermissible to restrict campaign contributions, the government has a
legitimate interest in restricting such contributions when they’re made “in connection with an effort
to control the exercise of an officeholder’s official duties.” Id.

37

 But, “ay, there’s the rub,” to quote the Dane. William Shakespeare, Hamlet act 3, sc. 1.
Because the Court determined that the Coulsons’ contributions had a significant and
disproportionate impact on placing Commissioner Donnelly in a position where he’d vote on
Coulson’s application, it thus created a significant risk of bias in violation of Thompson’s dueprocess rights. Caperton, 556 U.S. at 884. That is, in the parlance of McCutcheon, the Coulsons spent
“large sums of money in connection with an effort to control the exercise of an officeholder’s
official duties.” 572 U.S. at 208. And the First Amendment doesn’t protect such conduct.
Coulson also points to California and Hawaii Supreme Court decisions for the principle that
the mere receipt of funds for a political campaign doesn’t create a conflict of interest, and that to
hold otherwise infringes upon the First Amendment. See Woodland Hills Residents Assn., Inc. v. City
Council, 609 P.2d 1029, 1032–33 (Cal. 1980); see also Life of the Land, Inc. v. City Council of City & Cty. of
Honolulu, 606 P.2d 866, 902 (Haw. 1980). The Court finds those decisions generally inapposite, but
notes that much like McCutcheon, the California Supreme Court acknowledged campaign
contributions can serve as grounds for disqualification when the evidence shows bribery or a conflict
of interest. Woodland Hills Residents Assn., Inc., 609 P.2d at 1032 (“Absent a showing of bribery or conflict of
interest, the law does not render it improper for members of (the council) to vote on projects of
developers who have given campaign contributions to committees controlled by those members”
(emphasis added)). As our Supreme Court noted, the term “conflict of interest” is a term of art
“reflecting a host of different policy determinations, depending on the context in which it operates.”
City of Manassa, 235 P.3d at 1055. Thus, the Court perceives no First Amendment concerns in its
ruling.
Accordingly, the Court concludes that Thompson’s due-process rights were violated when
Code § 2-67(10) as-applied under the circumstances failed to protect Thompson from
Commissioner Donnelly’s objective serious risk of bias.

38

 The Court’s decision in no way prevents Coulson or the Coulsons from making campaign
contributions to their preferred political candidate. They may continue to do so, consistent with the
applicable campaign-contribution limits. But when their chosen candidate—who is generally a
legislator (making laws)—acts as a quasi-judge (making adjudicative decisions), the Due Process
Clause requires that candidate to be “an impartial and disinterested decision-maker,” free of bias and
a conflict of interest. City of Manassa, 235 P.3d at 1056. Indeed, no party may “choose[] the judge in
his own cause.” Caperton, 556 U.S. at 886.
IV.

Conclusion.

For the reasons set forth above, the Board’s motion for summary judgment is granted as to
Thompson’s facial attacks on §§ 2-67(10) and 4.5.3 of the Code. Judgment shall enter in the Board’s
favor and against Thompson on these claims.
The Board and Coulson’s motion for summary judgment, however, is denied as to
Thompson’s Rule 57 as-applied due-process challenge. Thompson’s motion seeking judgment as to
that claim is granted and judgment shall enter in Thompson’s favor. The Court concludes that
because Commissioner Donnelly participated in both the hearing and discussions related to
Coulson’s application, that participation violated Thompson’s due-process rights to an impartial
decision-making body.
Accordingly, the Board’s decision approving Coulson’s application is vacated and this matter
is remanded to the Board to hold the hearing on Coulson’s application again. Commissioner
Donnelly will be recused from participating in any part of that hearing or decision-making process
under Code § 2-67(10).15

15

The Court’s decision to remand is a final judgment. Scott, 672 P.2d at 226 (citing Cline v. City of
Boulder, 532 P.2d 770 (Colo. App. 1975)).
39

 SO ORDERED on August 12, 2019.
BY THE COURT:

_______________________________
JUAN G. VILLASEÑOR
District Court Judge

40