SUMMARY

August 12, 2021

2021COA108

No. 20CA1179, Town of Vail v. Village Inn Plaza – Phase V 

Condominium Association — Real Property — Common Interest 

Communities — Colorado Common Interest Ownership Act —

Applicability of Local Ordinances, Regulations, and Building 

Codes

A division of the court of appeals considers whether the antidiscrimination provision of the Colorado Common Interest 

Ownership Act (CCIOA), section 38-33.3-106, C.R.S. 2020, 

invalidates a section within a Town of Vail ordinance that pre-dates 

the CCIOA’s enactment. The division holds that it does. 

Specifically, it finds that (1) because the present-day enforcement of 

the ordinance is an “event[] and circumstance[] occurring on or 

after July 1, 1992,” § 38-33.3-117(1), C.R.S. 2020, the CCIOA and 

its anti-discrimination provision retroactively apply; (2) section 

11(6) of the Town’s ordinance violates the CCIOA’s antiThe summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
discrimination provision because it facially discriminates against 

condominiums; and (3) the CCIOA preempts the Town’s ordinance. 

Based on this holding, the division also finds that the defendant 

condominium association is entitled to attorney fees.
COLORADO COURT OF APPEALS 2021COA108

Court of Appeals No. 20CA1179

Eagle County District Court No. 14CV30259

Honorable Reed W. Owens, Judge

Town of Vail, a Colorado home rule municipality,

Appellant,

v.

Village Inn Plaza-Phase V Condominium Association, a Colorado non-profit 

corporation; Vail Village Inn, Inc., a Colorado corporation; Griffin Development 

LLC, a Texas limited liability company; Karin Wagner, as Trustee for the Karin 

Wagner Revocable Inter Vivos Trust; Meadow Drive Ventures Inc., a Colorado 

Corporation; Potamus Bean LLC, a Texas limited liability company; Staufer 

Commercial LLC, a Colorado limited liability company; VVI, LLC, a Colorado 

limited liability company; Richard L. Liebhaber,

Appellees.

JUDGMENT AFFIRMED AND CASE

REMANDED WITH DIRECTIONS

Division II

Opinion by JUDGE DAVIDSON*

Román and Lipinsky, JJ., concur

Announced August 12, 2021

Hoffman, Parker, Wilson & Carberry, P.C., Kendra L. Carberry, Denver, 

Colorado; Hoffman, Parker, Wilson & Carberry, P.C., J. Matthew Mire, Vail,

Colorado, for Appellant

Miletich, P.C., Walter N. Houghtaling, Denver, Colorado; Frederick G. Aldrich 

LLC, Frederick G. Aldrich, Grand Junction, Colorado, for Appellee Village Inn 

Plaza-Phase V Condominium Association

Porterfield Oliver LLC, Wendell Porterfield, Vail, Colorado, for Appellees Staufer 

Commercial LLC and Vail Village Inn, Inc.
Hale Law LLC, Allan Hale, Steamboat Springs, Colorado, for Appellees Griffin 

Development LLC, Karin Wagner, Meadow Drive Ventures Inc., Potamus Bean 

LLC, Richard L. Liebhaber; and VVI, LLC

Altitude Community Law, P.C., William Short, Azra Taslimi, Lakewood, 

Colorado, for Amicus Curiae Community Associations Institute

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
1

¶ 1 The anti-discrimination provision of the Colorado Common 

Interest Ownership Act (CCIOA), section 38-33.3-106, C.R.S. 2020, 

states that no ordinance may “impose any requirement upon a 

condominium or cooperative which it would not impose upon a 

physically identical development under a different form of 

ownership.” At issue in this appeal is whether a portion of an 

ordinance enacted by the Town of Vail (Town) violates this 

provision. In a declaratory order entered on summary judgment in 

favor of the Village Inn Plaza-Phase V Condominium Association 

(the Association), the district court said it did, and we agree. 

Accordingly, we affirm.

I. Background

A. The Town’s Ordinance, its Restrictions, and the Association’s 

Amended Rules

¶ 2 The Town Code of Vail (Town Code) and its zoning regulations 

allow the City Council to establish Special Development Districts 

through an ordinance. Town Code § 12-9A-4(D). In 1976, the Town 

enacted an ordinance establishing the Village Inn Plaza 

development as Special Development District No. 6 (SDD no. 6). In 

1987, the Town enacted an ordinance modifying the 1976 
2

ordinance to allow for the development of Phase V of the Village Inn 

Plaza development. 

¶ 3 The 1987 ordinance includes several conditions of approval for 

developers building within SDD no. 6. The relevant condition of 

approval here is section 11(6), which states as follows:

Restrictions on any units in Phases IV or V 

which would be condominiumized shall be as 

outlined in Section 17.26.075 of the Vail 

Municipal Code and any amendments thereto.

Section 17.26.075, recodified as section 13-7-8 of the Town Code, 

imposes several restrictions on units converted to condominiums 

prior to February 7, 1995. Town Code § 13-7-8(A).1 The 

restrictions require that condominium units “remain in the short 

term rental market to be used as temporary accommodations 

available to the general public,” Town Code § 13-7-8(B); limit an 

owner’s personal use of their unit during the “high season,” Town 

Code § 13-7-8(B)(1); and impose fines for violations, Town Code 

1 The Town Code defines a “condominium conversion” as the use of 

any property as a condominium project regardless of the present or 

prior use of the property. Town Code § 13-7-2.
3

§ 13-7-8(B)(2). Although the 1987 ordinance has been amended, 

the restrictions remain in the Town Code.

¶ 4 In 1988, the Association, seeking to establish a condominium 

project within Phase V, recorded a condominium declaration. The 

declaration adopted the restrictions for condominiums outlined in 

the 1987 ordinance and section 13-7-8 of the Town Code as section 

21(i) of the declaration. In 2013, the Association adopted Policies, 

Rules, Regulations, and Guidelines. In 2013 and 2014, the 

Association amended its rules to state that the Association would 

no longer enforce section 21(i) of its original condominium 

declaration (i.e., the restrictions from the 1987 ordinance and 

section 13-7-8 of the Town Code). 

B. Procedural History

¶ 5 In 2014, Staufer Commercial, LLC, a commercial owner in 

Phase V, sought a declaratory judgment that the Association’s 

amended rules announcing its refusal to enforce section 21(i) violate 

the Association’s condominium declaration. The Town joined as an 

indispensable party and filed a cross-claim seeking a declaratory 

judgment that section 21(i) of the amended rules violates the 1987 

ordinance and section 13-7-8 of the Town Code. 
4

¶ 6 In January 2015, the Town amended its cross-claim to allege 

that section 21(i) specifically violates section 11(6) of the 1987 

ordinance and section 13-7-8 of the Town Code (i.e., the restrictions 

on condominiums). Subsequently, the Association filed a motion 

for partial summary judgment pursuant to C.R.C.P. 56, seeking 

dismissal of the Town’s cross-claim on the grounds that section 

11(6) of the ordinance violates the anti-discrimination clause of the 

CCIOA. The Town asserted in response that the CCIOA does not 

apply retroactively to the 1987 ordinance and that, even if it does, 

the Association presented no evidence to show discrimination 

against the condominium form of ownership.

¶ 7 In June 2018, the district court granted the Association’s 

motion for partial summary judgment on the amended cross-claim 

based on section 11(6) of the ordinance. It found that (1) although 

the CCIOA applies generally to communities created after July 1, 

1992, it applies here because the Town’s enforcement of the 1987 

ordinance constituted an “event[] and circumstance[]” that permits 

retroactive application of the CCIOA, § 38-33.3-117(1), C.R.S. 2020; 

and (2) the 1987 ordinance is discriminatory as a matter of law 
5

because “the language of Vail’s ordinance applies only to 

condominiums.”

¶ 8 The Town filed an appeal with this court, but, because the 

June 2018 order did not resolve the Town’s second amended crossclaim — a claim for penalties against the Association and 

residential owner defendant Richard L. Liebhaber — we dismissed it 

without prejudice for lack of jurisdiction. On remand, the district 

court granted a motion to dismiss the Town’s second amended 

cross-claim on the same grounds as those set forth in its June 2018 

order. The court then issued a C.R.C.P. 54(b) certification, and we 

are satisfied that we now have jurisdiction to consider the Town’s 

appeal of the district court’s declaratory judgment order dismissing 

the second cross-claim. 

¶ 9 On appeal, the Town argues that the district court’s 

determination that the restriction provision of section 11(6) of the 

1987 ordinance violates the anti-discrimination provision of the 

CCIOA was in error because the CCIOA does not retroactively apply 

to the 1987 ordinance and because the 1987 ordinance is not 

facially discriminatory. It further argues that, in any event, the 
6

CCIOA is inapplicable because it is preempted by section 11(6) as a 

matter of purely local concern.

II. Whether the Anti-Discrimination Provision of the CCIOA 

Retroactively Applies to Section 11(6) of the 1987 Ordinance

¶ 10 Phase V of the development was created in 1988, four years 

before the CCIOA’s effective date. As a threshold matter, the Town 

contends that section 11(6) of the 1987 ordinance cannot violate the 

CCIOA because the statute does not apply retroactively to the 1987 

ordinance. We disagree.

A. Legal Principles

¶ 11 Whether the CCIOA applies in this instance is a question of 

statutory interpretation. We review questions of statutory 

interpretation de novo. Hunsaker v. People, 2015 CO 46, ¶ 11. 

When interpreting a statute, our primary goal is to ascertain and 

give effect to the General Assembly’s purpose and intent in enacting 

it. People v. Cooper, 27 P.3d 348, 354 (Colo. 2001); People v. Sims, 

2019 COA 66, ¶ 33. In doing so, we look first to the statute’s plain 

language, and if that language is clear, we enforce the statute as 

written and “do not need to resort to other rules of statutory 

construction.” Nowak v. Suthers, 2014 CO 14, ¶ 20.
7

B. Analysis

¶ 12 The CCIOA applies to common interest communities “created” 

in Colorado after the CCIOA’s effective date of July 1, 1992. § 38-

33.3-115, C.R.S. 2020. Importantly, however, while the statute 

generally does not apply to communities created before its effective 

date, § 38-33.3-117(3); see also DA Mountain Rentals, LLC v. Lodge 

at Lionshead Phase III Condo. Ass’n, 2016 COA 141, ¶ 28, it 

provides for two exceptions. The first allows associations for preexisting communities to elect to be governed by the CCIOA in its 

entirety. § 38-33.3-118, C.R.S. 2020; DA Mountain Rentals, ¶ 28. 

That exception is not relevant here because the Association did not 

elect to do so. 

¶ 13 The second exception, however, provides that, for certain 

specified statutory provisions, pre-existing communities are subject 

to the CCIOA for “events and circumstances occurring on or after 

July 1, 1992.” § 38-33.3-117(1); see Giguere v. SJS Fam. Enters., 

Ltd., 155 P.3d 462, 469 (Colo. App. 2006) (sections of the CCIOA 

made applicable to pre-existing common interest communities 

apply retroactively pursuant to section 38-33.3-117). Here, the 

parties do not dispute that section 38-33.3-106, the anti-
8

discrimination provision of the CCIOA, is one of the provisions 

covered by section 38-33.3-117(1) for “events and circumstances 

occurring on or after July 1, 1992.” But they disagree whether 

there has been an “event[] and circumstance[]” occurring after July 

1, 1992, triggering section 38-33.3-117(1). 

¶ 14 In its order, the district court concluded that “the present-day 

effect of this ordinance is, of necessity, an ‘event[] and 

circumstance[] occurring on or after July 1, 1992.” We agree. 

¶ 15 “Event” means “something that happens,” or “a noteworthy 

happening.” Merriam-Webster Dictionary, https://perma.cc/4VTGHNPQ. “Circumstance” means “a condition, fact, or event 

accompanying, conditioning, or determining another.” MerriamWebster Dictionary, https://perma.cc/357U-LD8V. Certainly, the 

Town’s current attempt to enforce section 11(6) of the 1987 

ordinance by bringing cross-claims against the Association and the 

residential owners is something that is happening and an event 

with the potential to determine future events. The plain meaning of 

an “event and circumstance,” therefore, unambiguously includes 

the Town’s current actions in seeking to enforce the 1987 

ordinance. As the district court reasoned, “the relevant provisions 
9

of the CCIOA are applicable to common-interest entities created 

before 1992, and those relevant provisions, as a matter of plain 

language, apply to current-day occurrences, with such occurrences 

including the present-day effect of municipal ordinances.” See DA 

Mountain Rentals, ¶ 29 (association exercising its power to amend 

its declaration triggered retroactive application of the CCIOA);

Pagosa Lakes Prop. Owners Ass’n v. Caywood, 973 P.2d 698, 701 

(Colo. App. 1998) (association exercising its power to adopt and 

amend bylaws, rules, and regulations triggered retroactive 

application of the CCIOA); Giguere, 155 P.3d at 467 (retroactive 

application of the CCIOA was imposed after association’s 

declaration was amended); RiverPointe Homeowners Ass’n v. 

Mallory, 656 S.E.2d 659, 660-61 (N.C. Ct. App. 2008) (association’s 

attempt to impose fines and enforce the fines by foreclosure 

constituted an event and circumstance triggering application of the 

North Carolina Planned Community Act); Holloway v. Tanasi Shores 

Owners Ass’n, No. M2018-00932-COA-R3-CV, 2019 WL 1988502, 

at *2 (Tenn. Ct. App. May 6, 2019) (association policy change 

constituted an event and circumstance triggering retroactive 

application of the Tennessee Condominium Act). 
10

¶ 16 Contrary to the Town’s assertion, deeming enforcement of a 

pre-existing ordinance an “event and circumstance” does not lead, 

in the Town’s words, to the “absurd result” that it cannot enforce 

any pre-existing ordinance, including zoning ordinances, against a 

common interest community. 

¶ 17 First, we are not convinced that section 11(6) of the ordinance 

and section 13-7-8 of the Town Code are zoning ordinances.2

¶ 18 In any event, and more importantly, the legislature has 

specified that, if and when events and circumstances warrant, only 

certain parts of the CCIOA could be applied retroactively; that is, 

application of the CCIOA to pre-existing common interest 

communities does not render entire ordinances invalid — just the 

parts that violate prohibitions within section 38-33.3-117. See DA 

Mountain Rentals, ¶ 28; Giguere, 155 P.3d at 469. Indeed, the 

court’s declaratory judgment that section 38-33.3-106(2) of the 

CCIOA invalidates as discriminatory section 11(6) of the ordinance

2 Although the Town asserted in its briefs, and again at oral 

argument, that it treats subdivision regulations the same as zoning 

regulations, it offered no explanation or supporting authority as to 

why. 
11

— regardless of whether it is a subdivision or zoning regulation —

does not affect the remainder of the ordinance.

¶ 19 Accordingly, we agree with the district court and conclude that 

the Town’s actions in attempting to enforce section 11(6) of the 

1987 ordinance are “events and circumstances” triggering 

application of the CCIOA’s anti-discrimination clause under section 

38-33.3-106(2) and further conclude, therefore, that this provision 

of the CCIOA applies retroactively in this instance.3 

III. Whether the Ordinance is Facially Discriminatory 

¶ 20 Alternatively, the Town contends that even if the CCIOA antidiscrimination clause applies, the district court erred by granting 

3 The Town argued for the first time in a motion for reconsideration 

filed in the district court that the court erred by failing to consider 

the legislative history of the Uniform Act on which the CCIOA was 

based. The Association counters that the argument wasn’t properly 

raised and, even if it was, the legislative history supports the court’s 

statutory interpretation. We need not reach those issues, however. 

Any review of legislative history is unnecessary and inappropriate 

because we have determined that the statutory language is plain 

and the result of enforcing the plain language is not absurd. See, 

e.g., Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1190 (Colo. 

2010) (“The legislative history . . . cannot render the plain and 

unambiguous language of [a statutory provision] ambiguous.”).
12

summary judgment for the Association on the grounds that the 

1987 ordinance violates this provision as a matter of law. 

A. Legal Principles

¶ 21 Under C.R.C.P. 56, summary judgment is proper when the 

pleadings, affidavits, depositions, and admissions 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. Civ. Serv. Comm’n v. 

Pinder, 812 P.2d 645, 649 (Colo. 1991). The burden of establishing 

the nonexistence of a genuine issue of material fact is on the 

moving party. C.R.C.P. 56; Cont’l Air Lines, Inc. v. Keenan, 731 P.2d 

708 (Colo. 1987). Once the moving party clears this initial 

evidentiary hurdle, the burden shifts to the nonmoving party to 

present evidence showing a triable issue of fact. Griswold v. Nat’l 

Fed’n of Indep. Bus., 2019 CO 79, ¶ 24. If the nonmoving party 

cannot produce such evidence, the moving party is entitled to 

summary judgment. Cont’l Air Lines, 731 P.2d at 713. 

¶ 22 We review the court’s decision granting summary judgment de 

novo. Credit Serv. Co. v. Dauwe, 134 P.3d 444, 445 (Colo. App. 

2005). 
13

¶ 23 The same rules of construction apply in interpreting 

ordinances as apply in interpreting statutes. City of Colorado

Springs v. Securcare Self Storage, Inc., 10 P.3d 1244, 1248 (Colo. 

2000). Therefore, in construing an ordinance, we look first to its 

plain language, and if we can give effect to the ordinary meaning of 

the words used by the legislative body, we construe it as written. 

Id. at 1249.

¶ 24 We review de novo the district court’s interpretation of the 

ordinance. Asphalt Specialties, Co. v. City of Commerce City, 218 

P.3d 741, 745 (Colo. App. 2009). 

B. Analysis

¶ 25 As set forth above, the anti-discrimination provision of the 

CCIOA states that 

no . . . ordinance . . . may . . . impose any 

requirement upon a condominium or 

cooperative which it would not impose upon a 

physically identical development under a 

different form of ownership. 

§ 33-33.3-106(2) (emphasis added). That is, when an ordinance 

imposes a restriction based on a development being a 

condominium, the ordinance violates the CCIOA’s antidiscrimination clause. 
14

¶ 26 And, as also set forth above, section 11(6) of the Town’s 1987 

ordinance states:

Restrictions on any units in Phases IV or V 

which would be condominiumized shall be as 

outlined in Section 17.26.075 of the Vail 

Municipal Code and any amendments thereto. 

(Emphasis added). By its plain terms, section 11(6) anticipates two 

distinct forms of ownership — condominium ownership and noncondominium ownership — and imposes restrictions on only the 

condominium form of ownership. 

¶ 27 Also in plain terms, section 11(6) further states that the 

restrictions as described in section 17.26.075 of the Town Code 

(now section 13-7-8), which imposes restrictions on units converted

from different types of ownership to condominiums prior to 

February 7, 1995, shall apply to units “which would be 

condominiumized.” Those restrictions, as described in section 13-

7-8, require that the condominium units “remain in the short term 

rental market to be used as temporary accommodations available to 

the general public,” restrict an owner’s personal use of their unit 

during the “high season,” and impose fines for violations. Critically, 

these restrictions do not apply to other forms of ownership. 
15

¶ 28 Because section 11(6) of the ordinance singles out 

condominiums (and section 13-7-8 of the Town Code does so as 

well), it is facially apparent that section 11(6) discriminates against 

the condominium form of ownership in violation of the CCIOA’s 

anti-discrimination provision as a matter of law. Section 11(6) 

imposes the restrictions described in section 17.26.075, now 

section 13-7-8 of the Town Code, on Phase V units only if the units 

would be condominiumized. Conversely, in plain language, if the 

units are not condominiumized, then the restrictions do not apply. 

¶ 29 Similarly, we see no merit in the Town’s argument that the 

court erred by failing to require evidence from the Association to 

demonstrate discrimination — for example, that the developer 

sought to construct Phase V without any condominiums, or that the 

Town would not have imposed the residency restriction for the 

development of physically identical non-condominium dwellings, or 

that other buildings exist that are identical to Phase V and those 

buildings don’t contain condominiums, or that such buildings were 

not subject to the restrictions as a condition of approval. 

¶ 30 What the Town or the developer would do under other 

circumstances is immaterial. It simply does not matter whether 
16

Phase V currently has non-condominiums or whether there are 

plans to have non-condominiums. Regardless of what units exist or 

are ultimately developed, the plain language of the ordinance 

applies the restrictions only to condominiums and, conversely, 

excludes from the restrictions non-condominiums. As the district 

court stated: “The language of Vail’s ordinance applies only to 

condominiums. The ordinance is, on its face, discriminatory. This 

is not a matter of proof — it is a matter of law.” See Town of 

Westerly v. Waldo, 524 A.2d 1117, 1119 (R.I. 1987) (identifying 

condominium ownership as a “use” in the zoning regulations would 

have violated a state statute prohibiting discrimination against 

condominiums); Multi-Fam. Council of Se. Pa. v. City of Philadelphia, 

3 Pa. D. & C.4th 1, 2 (Ct. Com. Pl. 1989) (city tax that singled out 

condominiums violated Pennsylvania’s Uniform Condominium Act 

and its prohibition on discrimination against condominiums). 

IV. Whether the CCIOA Cannot Apply Because Vail is a HomeRule Municipality 

¶ 31 The Town also argues that the CCIOA cannot invalidate the 

ordinance because enforcement of the ordinance’s regulations is a
17

matter of purely local concern reserved for home-rule

municipalities. Again, we disagree. 

A. Legal Background

¶ 32 Article XX, section 6 of the Colorado Constitution grants 

municipalities “home-rule” authority to create or amend charters to 

govern local and municipal matters. The effect of this 

constitutional provision is that on issues of local concern, a homerule city’s law can preempt conflicting state legislation; and on 

matters of statewide concern, state legislation can preempt a homerule city’s conflicting law. See City of Northglenn v. Ibarra, 62 P.3d 

151, 155 (Colo. 2003).

¶ 33 To determine whether a home-rule city or the state has 

plenary authority for purposes of article XX, section 6, we have 

recognized that regulatory matters fall into three broad categories: 

(1) matters of local concern; (2) matters of statewide concern; and 

(3) matters of mixed state and local concern. Ibarra, 62 P.3d at 155 

(citing City of Commerce City v. State, 40 P.3d 1273, 1279 (Colo. 

2002)). In matters of local concern, both the state and home-rule 

city may legislate. Id. If the home-rule city’s regulation conflicts 

with the state statute, the home-rule enactment controls. Webb v. 
18

City of Black Hawk, 2013 CO 9, ¶¶ 16-17 (citing City & Cnty. of 

Denver v. Qwest Corp., 18 P.3d 748, 754 (Colo. 2001)). In matters 

of statewide concern, the state legislature exercises plenary 

authority, and home-rule cities may regulate only if the constitution 

or a statute authorizes such legislation. Ibarra, 62 P.3d at 155. In 

matters involving mixed state and local concern, local enactments 

and state statutes may coexist if there is no conflict. Id. In the 

event of a conflict, however, the state statute supersedes the local 

regulation. Webb, ¶ 18 (citing City & Cnty. of Denver v. State, 788 

P.2d 764, 767 (Colo. 1990)).

¶ 34 To determine whether a matter is local, statewide, or mixed, 

we consider several factors, including (1) the need for statewide 

uniformity of regulation; (2) the extra-territorial impact of local 

regulation; (3) whether the matter has traditionally been regulated 

at the state or local level; and (4) whether the Colorado Constitution 

specifically commits the matter to state or local regulation. Town of 

Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30, 37 (Colo. 

2000). We have also considered legislative declarations as to 

whether a matter is of statewide concern. Ibarra, 62 P.3d at 156 

(first citing City of Commerce City, 40 P.3d at 1280; and then citing 
19

Telluride, 3 P.3d at 37). When considering these factors, we weigh 

the respective interests of the locality and the state in regulating a 

particular matter. Id. At times, we may conclude that a matter is 

of mixed or statewide concern even though there exists a relatively 

smaller, local interest. See id. Thus, even if the locality may have 

an interest in regulating a matter to the exclusion of the state under 

its home-rule powers, such an interest may be insufficient to find 

that the matter is purely local. Id.

B. Analysis 

¶ 35 Applying the four factors, we conclude that the enforcement or 

non-enforcement of the Town’s 1987 ordinance is a matter of mixed 

local and state concern and that, because the ordinance conflicts 

with the CCIOA, the CCIOA preempts it.

1. The Regulation of Common Interest Communities is a Matter 

of Mixed Concern

¶ 36 We first conclude that the regulation of common interest 

communities is a matter of mixed concern, addressing each factor 

in turn.
20

a. Uniformity

¶ 37 When the General Assembly enacted the CCIOA, it intended to 

create a “clear, comprehensive, and uniform framework for the 

creation and operation of common interest communities.” § 38-

33.3-102(1)(a), C.R.S. 2020 (emphasis added) (CCIOA legislative 

declaration). In doing so, the legislature declared “[t]hat it is the 

policy of this state to give developers flexible development rights 

with specific obligations within a uniform structure of development of 

a common interest community that extends through the transition to 

owner control.” § 38-33.3-102(1)(c) (emphasis added). As well, 

section 38-33.3-106, the anti-discrimination clause, is titled 

“Applicability of local ordinances, regulations, and building codes.” 

The section’s goal is clearly to regulate and limit discriminatory 

local ordinances. Because the legislature has indicated a clear 

interest in regulating discriminatory local ordinances and an 

interest in uniformity under the CCIOA generally, we find that the 

CCIOA sets forth a clear need for the uniform regulation of common 

interest communities. See City of Commerce City, 40 P.3d at 1280 

(we may look at legislative declarations to determine the uniformity 

element); Ibarra, 62 P.3d at 160 (“Although uniformity in itself is no 
21

virtue, we have found statewide uniformity necessary when it 

achieves and maintains specific state goals.”) (citations omitted).

b. Extra-Territorial Impact

¶ 38 The extent of the extra-territorial impact of the regulation of 

common interest communities is informed in part by our supreme 

court’s decision in Telluride, 3 P.3d 30. There, the Town of Telluride 

sought to enforce an ordinance that imposed an “affordable 

housing” requirement. The court held, first, that the ordinance was 

at its core a rent control ordinance and, second, that state 

regulations prohibiting rent control preempted the ordinance 

because rent control was a matter of mixed local and statewide 

concern. In coming to that conclusion, the court noted the extraterritorial impact of the ordinance on the state’s objectives and 

other communities:

Managing population and development growth 

is among the most pressing problems currently 

facing communities throughout the state. 

Restricting the operation of the free market with 

respect to housing in one area may well cause 

housing investment and population to migrate to 

other communities already facing their own 

growth problems. Although such a ripple effect 

may well be minimal in Telluride because of its 

geographic isolation, it is absolutely true that 

the growth of other mountain resort 
22

communities has impacted neighboring 

communities greatly. The fact that the 

Telluride ordinance is an affirmative effort to 

mitigate that impact does not change the fact 

that the growth of the one community is tied to 

the growth of the next, thereby buttressing the 

need for a regional or even statewide approach.

Id. at 39 (emphasis added).

¶ 39 Like the rent control ordinance in Telluride, the ordinance here 

restricts the operation of the free housing market in a way that 

could have an extra-territorial ripple effect. Restrictions on the 

condominium form of ownership — especially those requiring

owners to place their units on a short-term rental market — could 

cause housing investment and populations to migrate to 

communities without such restrictions. 

c. Tradition

¶ 40 Although the regulation of housing is sometimes left to local 

bodies, and municipalities certainly have an interest in regulating 

housing, we aren’t convinced that this local interest outweighs the 

state interest in regulating common interest communities so much 

so that we can classify regulating condominiums as a purely local 

matter. See Ibarra, 62 P.3d at 162. For one thing, we aren’t aware 

of any case saying that the regulation of common interest 
23

communities is traditionally a matter of purely local concern. True, 

as the Town points out, we have typically categorized zoning-related 

matters as local for purposes of article XX, section 6. See Securcare 

Self Storage, 10 P.3d at 1247. However, there is also a clear 

statewide interest in regulating common interest communities. As 

explained, the legislature declared such a statewide interest, and 

there is an interest in ensuring that local ordinances don’t have a 

strong extra-territorial impact on the housing market. Thus, 

although there is some local interest in regulating housing, to 

designate the regulation of common interest communities as 

traditionally a matter of purely local concern “fails to capture the 

sweep of this ordinance’s impact upon state” activity in regulating 

common interest communities. See Ibarra, 62 P.3d at 162 

(classifying a matter as traditionally one of purely local concern 

didn’t capture the sweep of the ordinance’s impact on state 

interests).

d. The Constitution

¶ 41 The constitution does not assign the issue of occupancy 

restrictions, the regulation of common interest communities and 
24

condominiums, or economic regulation generally either to the state 

or to localities. See Colo. Const. art. XX, § 6. 

e. Considering These Factors, the Matter is one of Mixed State 

and Local Concern

¶ 42 Although we acknowledge that there is a local interest in 

regulating common interest communities, that interest is 

insufficient to make this matter purely local since there are also 

strong statewide interests in maintaining the uniform regulation of 

common interest communities and avoiding the potential for an 

extra-territorial ripple effect. See Ibarra, 62 P.3d at 156 (citing City 

of Commerce City, 40 P.3d at 1280) (even where there is a local 

concern, the matter can still be classified as a matter of statewide 

concern). Thus, because the regulation of common interest 

communities implicates both state and local interests, we find that 

the matter is one of mixed state and local concern. See Telluride, 3 

P.3d at 37 (similarly classifying rent control regulation as mixed).

2. Because the Ordinance Conflicts with the CCIOA, the CCIOA 

Preempts it

¶ 43 Having determined that this matter is one of mixed state and 

local concern, we next turn to whether there is a conflict between 

the ordinance and the CCIOA.
25

¶ 44 The CCIOA and an ordinance can coexist if there is no conflict

between them. See Ibarra, 62 P.3d at 155. In the event of a 

conflict, however, the CCIOA supersedes the ordinance. Webb, 

¶ 16.

¶ 45 Here, there is a direct conflict between the ordinance and the 

CCIOA. The ordinance discriminates against the condominium 

form of ownership, which is prohibited by the CCIOA. Thus, the 

CCIOA preempts the Town’s ordinance.

¶ 46 Because the CCIOA preempts the ordinance, the Town’s 

argument that the CCIOA cannot apply because it is a home-rule 

municipality fails.

V. Attorney Fees on Appeal

¶ 47 The Association seeks recovery of legal fees and costs incurred 

in defending this appeal and the prior appeal that was dismissed for 

lack of jurisdiction. 

¶ 48 Section 38-33.3-123(1)(c), C.R.S. 2020, states that “[i]n any 

civil action to enforce or defend the provisions of this article or of 

the declaration, bylaws, articles, or rules and regulations, the court 

shall award reasonable attorney fees, costs, and costs of collection 

to the prevailing party.” The provision entitles the prevailing party 
26

to attorney fees and costs for each claim and for “that aspect of [the]

case.” Giguere, 155 P.3d at 472 (citation omitted). Here, the 

Association was the prevailing party and thus is entitled to attorney 

fees encompassing litigation as it relates to these claims, including 

this appeal and the previous appeal.4

¶ 49 However, because the trial court is in a better position to 

determine the amount of reasonable fees incurred by the 

Association on appeal, we exercise our discretion to remand the 

case for further proceedings on that issue. See C.A.R. 39.1. 

VI. Conclusion

¶ 50 The judgment is affirmed, and the case is remanded with 

directions.

4 We note the Town’s unsupported assertion that, because it 

explicitly stated in its cross-claim that the cross-claim “was not

being brought under [the] CCIOA,” the CCIOA doesn’t apply to this 

case and consequently cannot provide support for an award of 

attorney fees. However, we agree with the Association that the mere 

fact that the Town isn’t asserting a claim under the CCIOA doesn’t 

preclude its applicability, including the provisions relating to 

attorney fees. See § 38-33.3-123(1)(c), C.R.S. 2020. Indeed, the 

Town doesn’t direct us to any legal authority supporting its

argument. See C.A.R. 28(a)(7)(B); People v. Simpson, 93 P.3d 551, 

555 (Colo. App. 2003) (declining to address “a bald legal 

proposition” not developed with supporting argument).
27

JUDGE ROMÁN and JUDGE LIPINSKY concur.