     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.


                                                                  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
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    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 above-

 captioned 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


                                   1
 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


                                     2
 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


                                    3
 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 already-

 completed sale of a hospital).




                                     4
¶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


                                      5
  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.


                                      6
  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,


                                      7
  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


                                     8
  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.


                                      9
                       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


                                    10
  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




                                    11
  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.



                                     12
  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.


                                    13
  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.



                                    14
¶ 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.


                                     15
¶ 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.


                                   16
  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



                                      17
  . . . 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


                                     18
  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”).




                                            19
¶ 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


                                     20
  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).



                                       21
¶ 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


                                    22
  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




                                     23
  term of a franchise, lease, or right to use shall never exceed twenty-

  five (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.




                                    24
¶ 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




                                    25
  favorable to the landowner [may be] made during the adoption

  process”).

                           V. Conclusion

¶ 64   The judgment is affirmed.

       JUDGE WEBB and JUDGE GRAHAM concur.




                                   26
