SUMMARY 

February 8, 2018 

2018COA18

No. 17CA0043, Save Cheyenne v City of Colorado Springs — 

Municipal Law — Real Property — Conveyances — Land 

Exchange — Home Rule Cities 

In this proceeding, a division of the court of appeals considers 

whether, in the course of a land exchange, the City of Colorado 

Springs had the power to convey away a portion of a public park 

that the City purchased more than a century ago. Because there 

was no statutory dedication of the park for public use, and any 

dedication at common law has been abrogated by ordinance, the 

division concludes that the City had the power to convey the land in 

question. 

Further, because of the City’s status as a home rule 

municipality under the Colorado Constitution, the division rejects 

appellant’s contention that the City had an obligation to hold an 

The 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. 
election under state law to approve the conveyance. The division 

also concludes that the land exchange and resulting conveyance of 

parkland did not amount to an unconstitutional gift to a private 

corporation under article XI, section 2 of the Colorado Constitution, 

and rejects a challenge to the conveyance under sections 10-10 and 

10-60 of the Charter of the City of Colorado Springs. Finally, the 

division concludes that appellant’s zoning challenge is unripe. 

Accordingly, the division affirms the ruling of the district 

court.
COLORADO COURT OF APPEALS 2018COA18

Court of Appeals No. 17CA0043 

El Paso County District Court No. 16CV32101 

Honorable Michael P. McHenry, Judge 

Save Cheyenne, a Colorado non-profit corporation, 

Plaintiff-Appellant, 

v. 

The City of Colorado Springs, Colorado; the City Council of the City of Colorado 

Springs; John W. Suthers, in his official capacity as the Mayor of the City of 

Colorado Springs; and Ronn Carlentine, in his official capacity as the Real 

Estate Services Manager of the City of Colorado Springs, 

Defendants-Appellees, 

and 

Manitou and Pike’s Peak Railway Company; COG Land & Development 

Company; PF, LLC; and Broadmoor Hotel, Inc., 

Intervenors-Appellees. 

JUDGMENT AFFIRMED 

Division III 

Opinion by JUDGE TERRY 

Webb and Graham, JJ., concur 

Announced February 8, 2018 

Norton & Smith, P.C., Charles E. Norton, Kristin N. Cisowski, Denver, 

Colorado, for Plaintiff-Appellant 

Wynetta P. Massey, City Attorney, Thomas J. Florczak, Assistant City Attorney, 

Anne H. Turner, Assistant City Attorney, Colorado Springs, Colorado, for 

Defendants-Appellees 
Hogan Lovells US LLP, John W. Cook, Colorado Springs, Colorado; Hogan 

Lovells US LLP, Mark D. Gibson, Denver, Colorado; Hogan Lovells US LLP, 

Catherine E. Stetson, Washington, D.C., for Intervenors-Appellees 

Murray Dahl Kuechenmeister & Renaud LLP, Gerald E. Dahl, Lakewood, 

Colorado, for Amicus Curiae Colorado Municipal League
1 

¶ 1 Does the City of Colorado Springs have the power to convey 

away a portion of a public park that was purchased by the City and 

has been used as a park for more than a century? Under the 

circumstances of this case, we conclude that the answer to this 

question is “yes.” The original ordinance creating the park 

permitted its conveyance and did not effect a statutory dedication of 

the park for public use. Any dedication of the park at common law 

was abrogated by the ordinance. And, as a home rule municipality, 

the City had no obligation to hold an election under a state statute 

before conveying the land. We also reject challenges to the 

conveyance under sections 10-10 and 10-60 of the Charter of the 

City of Colorado Springs, and conclude that the zoning challenge of 

plaintiff, Save Cheyenne, is unripe. We therefore affirm the district 

court’s judgment dismissing the complaint against the abovecaptioned defendants and intervenors. 

I. Background 

¶ 2 The parties’ dispute concerns a Colorado Springs City Council 

resolution approving a land exchange between the City, on the one 

hand, and the Broadmoor Hotel, Inc.; the Manitou and Pike’s Peak 

Railway Company; the COG Land & Development Company; and 
2 

PF, LLC (collectively, the Broadmoor), on the other hand. The most 

notable feature of the land exchange concerns a 189.5-acre parcel 

within Cheyenne Park. The parcel, known locally as “Strawberry 

Fields,” was transferred to the Broadmoor for the construction of a 

private equestrian center on an 8.5-acre building envelope within 

the parcel. As a condition of the transfer, the Broadmoor is 

required to allow continued public access to Strawberry Fields, with 

the exception of land within the building envelope. 

¶ 3 In exchange for the City’s conveyance of Strawberry Fields and 

a City-owned parking lot, the Broadmoor transferred to the City 

more than 300 acres of land and trail easements, which are to be 

added to the City’s park system. 

¶ 4 Plaintiff, a local non-profit corporation, filed suit, seeking (1) a 

declaration that the resolution authorizing the exchange is null and 

void and (2) injunctive relief preventing the land exchange. It also 

alleged a zoning violation. The City and the Broadmoor moved to 

dismiss the complaint under C.R.C.P. 12(b)(5), asserting that 

plaintiff had failed to state any claims, and under C.R.C.P. 12(b)(1), 

arguing that the court lacked jurisdiction over the zoning challenge 

because it was unripe. In a lengthy, thorough, and well-reasoned 
3 

order, the district court granted the motion and entered judgment 

against plaintiff. 

II. Mootness 

¶ 5 We begin by rejecting defendants’ motion to dismiss plaintiff’s 

appeal based on mootness. Defendants contend that the case is 

moot because the land exchange closed shortly after the district 

court entered judgment, and plaintiff failed to seek a temporary 

restraining order, preliminary injunction, or stay of the district 

court’s judgment. We disagree. 

¶ 6 A court will generally not render an opinion on the merits of 

an appeal when issues presented in the litigation become moot 

because of subsequent events. United Air Lines, Inc. v. City & Cty. 

of Denver, 973 P.2d 647, 652 (Colo. App. 1998), aff’d, 992 P.2d 41 

(Colo. 2000). “A case is moot when a judgment would have no 

practical effect upon an existing controversy, or would not put an 

end to any uncertainty.” Id. 

¶ 7 A judgment against defendants would have a practical effect 

on the parties’ controversy. If the City Council did not have the 

power to authorize the land exchange, our ruling would result in a 

declaration that the resolution and subsequent exchange are null 
4 

and void, and thus the transaction could be unwound. See 

Centennial Props., Inc. v. City of Littleton, 154 Colo. 191, 205-06, 

390 P.2d 471, 478 (1964) (voiding a property transfer where a city 

lacked the power to enter into such an agreement); cf. Muckleshoot 

Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 815 (9th Cir. 1999) 

(A property transaction may be voided where necessary, and 

“[w]here the actions involved in a title transfer can be undone, [a] 

court will not find meritorious the defense of mootness.”). 

¶ 8 We are not persuaded by the City’s argument that, because 

plaintiff did not seek a temporary restraining order, preliminary 

injunction, or stay of the district court’s judgment, plaintiff is 

precluded from obtaining the relief it seeks in this action. See, e.g., 

Zoning Bd. of Adjustment v. DeVilbiss, 729 P.2d 353, 359 (Colo. 

1986) (the fact that the plaintiff failed to seek preliminary injunctive 

relief or a stay of the court’s judgment factored into an analysis of 

whether a zoning variance challenge was moot); Putnam v. 

Fortenberry, 589 N.W.2d 838, 844 (Neb. 1999) (case was moot 

because a declaratory judgment could not undo the alreadycompleted sale of a hospital). 
5 

¶ 9 Plaintiff filed a notice of lis pendens in accordance with section 

38-35-110, C.R.S. 2017. That filing is, as the statute provides, 

sufficient to give “notice to any person thereafter acquiring, by, 

through, or under any party named in such notice, [that] an 

interest in the real property described in the notice . . . [might] be 

affected by the action described in the notice.” § 38-35-110(1); see 

Top Rail Ranch Estates, LLC v. Walker, 2014 COA 9, ¶ 76 (notice of 

lis pendens remains in effect while an appeal affecting interests in 

the described property is pending). Therefore, the filing of the lis 

pendens is sufficient to preserve plaintiff’s rights while the appeal is 

pending. 

¶ 10 Defendants’ reliance on the mootness analysis in DeVilbiss, 

729 P.2d at 358-60, is unavailing. The supreme court specifically 

limited its holding to “the particular facts of [that] case,” id. at 360, 

and the facts here are dissimilar from those that drove the supreme 

court’s ruling. There, an appellate ruling in favor of the plaintiff 

would have required the destruction of a fifty-five-foot-tall, $7.7 

million coal loading facility that already employed 250 people. Id. at 

354-55, 360. The prospect of such destruction was an important 

factor in the supreme court’s mootness analysis. Id. at 358-60. No 
6 

such concerns are present here. We therefore proceed to consider 

the merits of the appeal. 

III. C.R.C.P. 12(b)(5) Dismissal of Claims 

A. Standard of Review 

¶ 11 A C.R.C.P. 12(b)(5) motion to dismiss tests the sufficiency of 

the complaint. In assessing a motion under that rule, a court must 

accept all matters of material fact in the complaint as true and view 

the allegations in the light most favorable to the plaintiff. BRW, Inc. 

v. Dufficy & Sons, Inc., 99 P.3d 66, 71 (Colo. 2004). Such a motion 

should only be granted when the plaintiff’s factual allegations 

cannot support a claim as a matter of law. Id.

¶ 12 We review de novo the district court’s order dismissing under 

C.R.C.P. 12(b)(5) plaintiff’s claims for violation of a dedication of the 

land for park use, violation of the city charter, violation of a state 

statute, and violation of the Colorado Constitution. State Farm Fire 

& Cas. Co. v. Weiss, 194 P.3d 1063, 1065 (Colo. App. 2008). 

B. Statutory or Common Law Dedication 

¶ 13 Plaintiff first contends that the resolution authorizing the land 

exchange was an ultra vires act of the City Council because 

Cheyenne Park had previously been dedicated as a public park. 
7 

According to plaintiff, the dedication was effectuated either by 

statute or by operation of the common law. Plaintiff argues that, as 

a consequence of the alleged dedication, the City holds the park in 

trust for the public and cannot convey the land within the park. 

We are not persuaded. 

¶ 14 Once a common law or statutory dedication occurs, title vests 

in the government body “in its governmental capacity in trust for 

the use of the public.” City & Cty. of Denver v. Publix Cab Co., 135 

Colo. 132, 139, 308 P.2d 1016, 1020 (1957); Denver & S.F.R. Co. v. 

Domke, 11 Colo. 247, 250, 17 P. 777, 778 (1888). 

¶ 15 Though the complaint alleges that “Strawberry Fields cannot 

be alienated in any fashion,” it is unclear based on the law of 

Colorado whether a common law or statutory dedication could 

theoretically bar a municipality from conveying the land so 

dedicated. Compare Publix Cab Co., 135 Colo. at 139, 308 P.2d at 

1020 (holding that “[o]nce [a] common law dedication occurred[,] the 

title to the [airport’s] concourse vested in the City in its 

governmental capacity in trust for the use of the public,” but not 

discussing rights to alienate such property), and McIntyre v. Bd. of 

Comm’rs, 15 Colo. App. 78, 84, 61 P. 237, 239 (1900) (stating that, 
8 

where a parcel was dedicated to public use, the City of Colorado 

Springs could not “alienate the ground”), with § 31-15-713(1)(a), 

C.R.S. 2017 (providing that municipalities have power to “sell and 

dispose of . . . real property used or held for park purposes” after 

approval in an election), and City of Longmont v. Colo. Oil & Gas 

Ass’n, 2016 CO 29, ¶ 62 (rejecting a claim that the state must hold 

natural resources in trust for the people because “we [have not] 

seen . . . any applicable Colorado case law adopting the public trust 

doctrine in this state”). 

¶ 16 Even assuming that such a bar on alienation might exist, we 

conclude that no valid statutory dedication of Cheyenne Park 

occurred, and that any common law dedication was abrogated. 

C. Creation of Cheyenne Park 

¶ 17 On August 21, 1885, the Colorado Springs City Council 

passed an ordinance appropriating funds for the acquisition of what 

would become Cheyenne Park, Col. Springs, Col., Ordinance (Aug. 

21, 1885), and the City then acquired the site by warranty deed. 

The City Council passed an additional ordinance on October 5, 

1885, titled “Relating to and for the government of public parks,” 

which gave the legal description of the park and said that “[t]he 
9 

property above named is hereby dedicated as a public park . . . 

known as and called Cheyenne park.” Col. Springs, Col., Ordinance 

Relating to and for the Government of Public Parks pmbl. & § 1 

(Oct. 5, 1885). 

D. Interpretation of Statutes and Ordinances 

¶ 18 We use the same rules of construction to interpret state 

statutes and local ordinances. Asphalt Specialties, Co. v. City of 

Commerce City, 218 P.3d 741, 745 (Colo. App. 2009). 

¶ 19 In interpreting a statute or ordinance, our primary goals are to 

discern and give effect to the drafters’ intent. Krol v. CF & I Steel, 

2013 COA 32, ¶ 15 (discussing statutory interpretation). We look 

first to the language of the statute or ordinance, giving the words 

and phrases used therein their plain and ordinary meanings. See 

id. We read the language in the dual contexts of the statute or 

ordinance as a whole and any comprehensive legislative scheme, 

giving consistent, harmonious, and sensible effect to all of the 

language in the statute or ordinance. See id. After doing this, if we 

determine that the statute or ordinance is not ambiguous, we 

enforce it as written and do not resort to other rules of statutory 

construction. See id. 
10 

E. No Statutory Dedication 

¶ 20 Statutory dedication of land is accomplished by dedicating 

land for a particular use in compliance with a statute. See City of 

Leadville v. Coronado Mining Co., 37 Colo. 234, 240-41, 86 P. 1034, 

1036 (1906). 

¶ 21 Plaintiff contends that the City effected a statutory dedication 

of Cheyenne Park in accordance with section 19 of the Act of April 

10, 1885, 1885 Colo. Sess. Laws 379-80. That statute provides 

authority for any incorporated city to purchase land to be used as a 

public park. But nothing in that statute addresses any “statutory 

dedication.” 

¶ 22 In contrast, the April 4, 1877, dedication statute specified that 

parks had to be designated for public use “on the map or plat of any 

city or town,” and the map or plat had to be filed with the clerk and 

recorder for both the affected city and county. An Act in Relation to 

Municipal Corporations, ch. 100, §§ 2647, 2648, 1877 Colo. Gen. 

Laws 876. It is undisputed that no such designation of Cheyenne 

Park was made in accordance with the 1877 statute. Therefore, 

plaintiff cannot establish that there was a statutory dedication of 

the land as a park. This is the same defect that caused our 
11 

supreme court to rule, in Coronado, 37 Colo. at 240-41, 246, 86 P. 

at 1036, 1038, that the statutory dedication of a public street failed 

because, “to constitute a statutory dedication [under the April 4, 

1877, dedication statute,] the requirements of the statute must be 

complied with.” Cf. State Dep’t of Highways v. Town of Silverthorne, 

707 P.2d 1017, 1020 (Colo. App. 1985) (no statutory dedication of a 

street was effected where the dedication on the plat omitted 

mention of the street in question). 

¶ 23 Because strict compliance with the dedication statute is 

required, see Coronado, 37 Colo. at 240-41, 86 P. at 1036, there 

was no statutory dedication of Cheyenne Park. 

F. Abrogation of any Common Law Dedication 

¶ 24 Whether a common law dedication has occurred is a question 

of fact involving an examination of whether the unambiguous acts 

and conduct of the owner demonstrated an unequivocal intent to 

make a public dedication. Publix Cab Co., 135 Colo. at 139, 308 

P.2d at 1019-20; Silverthorne, 707 P.2d at 1020. 

¶ 25 Because plaintiff alleged in the complaint that a common law 

dedication occurred, we must accept that allegation of material fact 
12 

as true, solely for the purpose of reviewing the district court’s 

dismissal of the case. See BRW, 99 P.3d at 71. 

¶ 26 But the October 5, 1885, ordinance that created Cheyenne 

Park represents an exercise of the City’s power to abrogate any 

common law dedication of the park that might have occurred. See 

Friends of Denver Parks, Inc. v. City & Cty. of Denver, 2013 COA 

177, ¶ 44. The ordinance also contradicts plaintiff’s claim that 

Colorado Springs effected a statutory dedication of the park. The 

ordinance gave the City Council the power to convey all or any 

portion of the park. 

¶ 27 Section 1 of the ordinance created Cheyenne Park by 

proclaiming that the land described in the ordinance was “hereby 

dedicated as a public park.” Ordinance for the Government of 

Public Parks § 1. 

¶ 28 Most relevant to our analysis, section 4 says: 

The defacing or injuring of any of the 

buildings, bridges or other property of said city 

of whatsoever name or description within any 

of the said parks, is hereby prohibited; 

provided always, that the City Council may 

direct any act or thing to be done concerning 

said parks, which they may deem best for 

improvement of said parks.
13 

Id. § 4 (emphasis added). 

¶ 29 Plaintiff points to the language preceding “provided always.” 

According to plaintiff’s reading, section 4 means only that, while “it 

was a prohibited offense to damage a fixture within the park, the 

City Council retained the authority to demolish or construct such 

improvements.” Given the specific language of section 4, taken 

together with the language of the ordinance as a whole, we reject 

this argument. 

¶ 30 If the drafters had intended the phrase beginning with 

“provided always” to allow only the modification of buildings, 

bridges, and other property within a park, then the ordinance 

would have specifically included such a restriction. Instead, the 

provision’s broad language indicates the intent to grant expansive 

power to the City Council to take any action the council deems best 

for the improvement of the park system. 

¶ 31 Plaintiff also argues that to read this provision as giving the 

City a broader power to convey Cheyenne Park would make section 

1, which created Cheyenne Park, superfluous. But the ordinance, 

entitled “Relating to and for the government of public parks,” does 

not just govern Cheyenne Park; it covers other city parks, as well. 
14 

Various sections of the ordinance reference conduct that is 

prohibited “within any of the parks belonging to” the City. See, e.g., 

id. §§ 2, 3, 8, 9, 10. 

¶ 32 Therefore, we conclude that a logical reading of the “provided 

always” clause in section 4 gives the City Council discretion to take 

any action it might deem best for the park system in general, as 

well as for the benefit of any given park. Such discretion would 

include the land exchange at issue in this case. 

¶ 33 Here, as did the plaintiffs in Wetter v. City of Indianapolis, 226 

N.E.2d 886 (Ind. 1967), plaintiff places undue emphasis on the 

language “dedicating” the park. The Indiana Supreme Court deftly 

explained why such dedication language was not dispositive: 

Appellants emphasize the word “dedicated.” It 

does not, in our judgment, have by necessary 

implication the legal significance of 

“irrevocable” and “in perpetuity.” Generally 

speaking, we “dedicate” a bridge, park, public 

auditorium or other governmental works to the 

purpose for which they were constructed. Yet 

this does not mean that they are placed 

irrevocably and in perpetuity to such purpose 

and use and that the state has lost control 

thereafter to alter such use as time and 

change require. 

Id. at 888-89. 
15 

¶ 34 Given plaintiff’s view here that a common law dedication 

would not permit anything to be done that would contradict the 

dedication, such as conveyance of the parkland so dedicated, 

section 4 abrogates by clear implication any putative common law 

dedication that might preclude conveyance of the parkland. See 

Friends of Denver Parks, ¶ 44 (a local legislative body may modify or 

abrogate common law, as long as the legislative body manifests its 

intent to abrogate the common law “either expressly or by clear 

implication” (quoting Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 

2004))). 

G. Distinguishing McIntyre

¶ 35 According to plaintiff, it is not “sensible” to read section 4 “as 

abrogating the restrictions in McIntyre against the alienation of a 

public park.” In McIntyre, another division of this court held that 

the City of Colorado Springs could not convey parkland to the 

county for use as a courthouse, because the land had been 

dedicated by a third party to the City for use as a public park. 15 

Colo. App. at 84-88, 61 P. at 239-41. The division reasoned that 

the construction of a courthouse was inconsistent with the use for 

which the land had originally been dedicated. Id. 
16 

¶ 36 We are not bound by the prior division’s ruling in McIntyre. 

See City of Steamboat Springs v. Johnson, 252 P.3d 1142, 1147 

(Colo. App. 2010). In any event, that case is inapplicable to the 

land exchange here. 

¶ 37 McIntyre involved a grant from a private party to the City of 

land that was set apart for use as public parkland. 15 Colo. App. at 

80, 61 P. at 238. But here, the land for Cheyenne Park was 

purchased outright by the City. In McIntyre, the parties conceded 

that there was either a statutory or common law dedication to 

public use of the disputed parkland. Id. at 84, 61 P. at 239. In 

contrast, here (1) there was never a statutory dedication of 

Cheyenne Park and (2) any putative common law dedication that 

might have been made as to Cheyenne Park was abrogated by the 

October 5, 1885, ordinance. 

H. Power to Convey Parkland 

¶ 38 Because the October 5, 1885, ordinance creating Cheyenne 

Park abrogated any common law restrictions on conveyances, and 

there was no statutory dedication of the parkland, we conclude that 

the City Council had the power to convey Strawberry Fields when it 

authorized the land exchange. 
17 

I. Conflict Between City’s Home Rule Status and Statute Requiring 

Public Election 

¶ 39 Plaintiff next contends that, under section 31-15-713(1)(a), no 

conveyance of the parkland could be made unless it was authorized 

by a vote in a public election. We disagree. 

¶ 40 The Colorado Constitution designates Colorado Springs as a 

home rule city in article XX, section 6, which provides, in part, “[a]ll 

provisions of the charter[] of the city . . . of . . . Colorado Springs 

. . . , which provisions are not in conflict with this article, . . . are 

hereby ratified, affirmed and validated as of their date.” 

¶ 41 That section of the constitution recognizes the sovereignty of 

Colorado Springs as a home rule city, see City of Longmont, ¶ 16, by 

providing that a home rule city’s charter and local ordinances 

“supersede within the territorial limits and other jurisdiction of said 

city or town any law of the state in conflict therewith.” Colo. Const. 

art. XX, § 6. Therefore, “in matters of local concern, a home-rule 

ordinance supersedes a conflicting state statute.” City of Longmont, 

¶ 17. 

¶ 42 The state statute in question here, section 31-15-713(1)(a), 

provides that a municipality has the power to “sell and dispose of 
18 

. . . real property used or held for park purposes,” but that “[b]efore 

any such sale is made, the question of said sale and the terms and 

consideration thereof shall be submitted at a regular or special 

election.” For purposes of considering plaintiff’s argument, we will 

construe the land exchange transaction as a sale. 

¶ 43 But the statute runs headlong into section 7.7.1803 of the 

Colorado Springs City Code. The code requires that when acquiring 

or disposing of real property interests, the City “shall follow the 

procedures set forth” in the City’s Real Property Procedure Manual. 

Contradicting the election requirement in the state statute, the 

manual says that “‘land exchanges’ must be reviewed by City 

Council and approved by resolution.” 

¶ 44 The two provisions cannot be reconciled. So which applies? 

¶ 45 “[T]he General Assembly has no power to enact any law that 

denies a right specifically granted by the Colorado Constitution.” 

City of Thornton v. Farmers Reservoir & Irrigation Co., 194 Colo. 526, 

535, 575 P.2d 382, 389 (1978). 

¶ 46 Section 1 of article XX, as made applicable to the City by 

section 6, allows the City to “purchase, receive, hold, and enjoy or 

sell and dispose of, real . . . property,” without any stipulation for 
19 

holding an election before it can do so. Colo. Const. art. XX, § 1; id. 

§ 6 (cities including Colorado Springs “shall have the powers set out 

in section[] 1 . . . of this article”). 

¶ 47 Because the City has adopted specific procedures for 

purchasing and disposing of real estate to exercise its rights under 

article XX, and the constitution designates the City as a home rule 

city, the city code provision supersedes the conflicting state statute 

requiring an election before a city can dispose of park property — a 

type of real property. See also § 31-1-102(1), C.R.S. 2017 (“[I]t is 

the intent of the general assembly that the provisions of this title 

shall apply to home rule municipalities except insofar as 

superseded by charter or ordinance passed pursuant to such 

charter . . . .”); Town of Telluride v. San Miguel Valley Corp., 185 

P.3d 161, 168-69 (Colo. 2008) (noting that the Colorado Supreme 

Court has “recognize[d] that land use policy traditionally has been a 

local government function,” and “that municipalities, neighboring 

counties, and the state have traditionally acted on the presumption 

that land planning for open space and parks is a local government 

function”). 
20 

¶ 48 Because the constitution specifically grants these powers to 

home rule cities, we need not determine whether this is an issue of 

statewide concern. Cf. City of Longmont, ¶¶ 18-20 (setting forth 

factors to be used to determine whether an issue is a matter of 

statewide concern for purposes of home rule preemption). 

¶ 49 Thus, the City’s code provision applies, and the City was not 

required to hold an election before making the land transfer.

J. Article XI, Section 2 of the Colorado Constitution 

¶ 50 We next consider and reject plaintiff’s argument that the 

resolution and resulting land exchange violate article XI, section 2 

of the Colorado Constitution, which prohibits a city from making 

“any donation or grant to, or in aid of . . . any corporation or 

company or a joint owner with any person, company, or 

corporation.” 

¶ 51 “The purpose of [article XI, section 2] is to prohibit a 

municipality from transferring public funds to a private company or 

corporation without receiving any consideration in return.” City of 

Aurora v. Pub. Utils. Comm’n, 785 P.2d 1280, 1288 (Colo. 1990) 

(emphasis added). Consequently, any transfer of city property 

without consideration is prohibited. Id. While plaintiff may dispute 
21 

the value of the land that Colorado Springs received in return for 

Strawberry Fields, there is no doubt — even construing all of the 

allegations in plaintiff’s complaint as true — that the City received 

at least some consideration. 

¶ 52 Plaintiff relies on Tamblyn v. City & County of Denver, 118 

Colo. 191, 195-96, 194 P.2d 299, 301 (1948), to argue that an 

article XI, section 2 violation arises if the value of the city property 

conveyed greatly exceeds the sales price. In that case, the supreme 

court concluded that the district court erred in granting summary 

judgment because there were issues of material fact that required a 

trial. In passing, the court said: 

If, for instance, on trial of the cause, it shall 

appear that the property does not greatly 

exceed in value the price fixed in the contract, 

courts have no right, under the above 

authorities, to interfere; on the other hand, 

if the property greatly exceeds in value the 

contract price, or is worth, as alleged, in excess 

of two million dollars, it follows that the 

officers of the city not only have abused their 

discretion, but also, if the sale is 

consummated, will have made a gift to 3978 

Corporation of $1,181,400, contrary to, and in 

violation of, section 2, article XI, of the state 

Constitution. 

Id. (emphasis added). 
22 

¶ 53 This language from Tamblyn is dictum, as it appears to be an 

example of what might be shown if the case were to proceed to trial. 

The Tamblyn court had already decided the issue on appeal — 

namely, that summary judgment was improperly granted. 

Therefore, the court’s gratuitous comment about article XI, section 

2 is not binding and need not be followed as precedent. See Griffith 

v. SSC Pueblo Belmont Operating Co., 2016 CO 60M, ¶ 12 & n.3 

(obiter dictum from a Colorado Supreme Court decision is not to be 

followed as precedent). 

¶ 54 Moreover, Tamblyn conflicts with the supreme court’s more 

recent decision in City of Aurora, which indicated that any 

consideration is sufficient. City of Aurora, 785 P.2d at 1288. The 

court in City of Aurora said that “[t]he term ‘donation’ obviously 

means a gift — that is, a voluntary transfer of property to another 

without consideration.” Id.

¶ 55 To the extent that the City of Aurora analysis conflicts with 

Tamblyn, the later supreme court case impliedly overruled Tamblyn. 

¶ 56 Because the City received consideration for the exchange, we 

conclude that the resolution and land exchange do not violate 

article XI, section 2. See City of Aurora, 785 P.2d at 1288; see also 
23 

In re Interrogatory Propounded by Governor Roy Romer on House Bill 

91S–1005, 814 P.2d 875, 882 (Colo. 1991) (“[A]rticle XI, section 2 of 

the Colorado Constitution does not prohibit a municipality from 

conferring a monetary benefit on a private company in 

consideration of the company’s undertaking a project . . . as long as 

the expenditure by a municipality furthers a valid public purpose.” 

(quoting City of Aurora, 785 P.2d at 1289)).

K. Sections 10-10 and 10-60 of the City Charter 

¶ 57 Plaintiff next contends that the City Council’s resolution 

approving the land exchange violates sections 10-10 and 10-60 of 

the Charter of the City of Colorado Springs, which limit the granting 

of leases and franchises on city parks. We disagree. 

¶ 58 Section 10-10 of the city charter defines a “franchise” as a 

“special right or privilege granted by vote of the electorate of the City 

of Colorado Springs to any person, firm, or corporation to erect, 

construct, operate, carry on, or maintain . . . business activity 

affective of the public interest which permanently occupies and 

obstructs the public streets, rights-of-way, alleys, or properties 

. . . .” Section 10-60 provides that for city-owned parklands, “the 
24 

term of a franchise, lease, or right to use shall never exceed twentyfive (25) years.” 

¶ 59 The plain terms of sections 10-10 and 10-60 indicate that they 

only regulate granting franchises and leases on public property and 

city-owned parklands. The transaction here did not create a lease 

or franchise on property owned by the City. Instead, the City 

conveyed ownership of Strawberry Fields to the Broadmoor as part 

of the land exchange, and that land ceased to be public property. 

Thus, these city charter provisions do not apply to the conveyance. 

IV. C.R.C.P. 12(b)(1) Dismissal of Zoning Challenge 

¶ 60 Finally, we conclude that plaintiff’s claim of zoning violations 

resulting from the land exchange is not yet ripe for review, and that 

the district court therefore properly dismissed that claim under 

C.R.C.P. 12(b)(1). 

¶ 61 We apply a mixed standard of review to a district court’s 

dismissal of a claim under C.R.C.P. 12(b)(1) for lack of subject 

matter jurisdiction. Auxier v. McDonald, 2015 COA 50, ¶ 9. We 

review factual findings for clear error and legal conclusions de 

novo. Id.
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¶ 62 Plaintiff references the Broadmoor’s acquisition of an 8.5-acre 

building envelope in Strawberry Fields, which it can potentially use 

to exclude the public. According to plaintiff, such a potential use is 

incompatible with the requirement in the City Council’s resolution 

that all uses within Strawberry Fields must be compatible with the 

City’s PK zoning. 

¶ 63 “The doctrine of ripeness recognizes that courts will not 

consider uncertain or contingent future matters because the injury 

is speculative and may never occur.” DiCocco v. Nat’l Gen. Ins. Co., 

140 P.3d 314, 316 (Colo. App. 2006). Plaintiff does not point to 

anywhere in the record demonstrating that a final zoning decision 

has been made regarding the permitted uses of Strawberry Fields. 

Nor does plaintiff allege that a zoning violation currently exists on 

the property. Therefore, we conclude that the issue of zoning is 

unripe. See G & A Land, LLC v. City of Brighton, 233 P.3d 701, 711-

12 (Colo. App. 2010) (noting that ripeness is a concern in zoning 

and land use cases because the “final zoning or land use 

regulations may not adversely affect a landowner, or the impact 

may be mild because a waiver or variance is granted or changes 
26 

favorable to the landowner [may be] made during the adoption 

process”). 

V. Conclusion 

¶ 64 The judgment is affirmed. 

 JUDGE WEBB and JUDGE GRAHAM concur.