     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
                                                          September 6, 2018

                               2018COA134

No. 17CA1616 Barrett Corp. v. Lembke — Government —
Special Districts — Inclusion of Territory — Material
Modification of Service Plan; Civil Procedure — Injunctions —
Preliminary Injunctions

      This case addresses denial of a preliminary injunction, for

failure to show a reasonable probability of success on the merits, to

prevent a special district from taxing minerals held by owners of a

severed mineral estate and extracted by their surface lessees. The

division agrees with the trial court that section 32-1-401(1)(a),

C.R.S. 2017, of the Special District Act does not require consent of

mineral estate owners and their lessees to expand the boundaries of

a special district. The division also agrees that the special district’s

power to tax was not limited by an overlap in services with another

district.
     However, the division concludes that a reasonable probability

of success was shown as to the special district’s failure to obtain

the board of county commissioners’ approval of a material change

in its service plan as required by section 32-1-207(2)(a), C.R.S.

2017, of the Special District Act. The case is remanded for the trial

court to make further findings under the other Rathke factors and

to reconsider whether a preliminary injunction should be entered.
COLORADO COURT OF APPEALS                                      2018COA134


Court of Appeals No. 17CA1616
Adams County District Court No. 17CV68
Honorable Jaclyn C. Brown, Judge


Bill Barrett Corporation and Bonanza Creek Energy, Inc.,

Plaintiffs-Appellants,

and

Noble Energy, Inc.,

Intervenor-Appellant,

v.

Robert Lembke; 70 Ranch L.L.C.; South Beebe Draw Metropolitan District,
f/k/a Bromley Park Metropolitan District No. 1; and United Water and
Sanitation District,

Defendants-Appellees.


                  JUDGMENT AFFIRMED, ORDER VACATED,
                  AND CASE REMANDED WITH DIRECTIONS

                                  Division A
                          Opinion by JUDGE WEBB
                         Berger and Nieto*, JJ., concur

                         Announced September 6, 2018


Davis Graham & Stubbs, LLP, R. Kirk Mueller, Paul D. Swanson, Denver,
Colorado, for Plaintiffs-Appellants

Hogan Lovells US, LLP, Elizabeth H. Titus, Lacy G. Brown, Denver, Colorado,
for Intervenor-Appellant

Shook, Hardy & Bacon, LLP, S. Kirk Ingebretsen, Denver, Colorado, for
Defendants-Appellees Robert Lembke and 70 Ranch L.L.C.
Brown Dunning Walker PC, Douglas W. Brown, David C. Walker, Drew P. Fein,
Denver, Colorado; Wass Campbell Rivera Johnson Velasquez LLP, Darrell G.
Waas, Mikaela V. Rivera, Denver, Colorado, for Defendant-Appellee South
Beebe Draw Metropolitan District

Hamre Rodriguez Ostrander Dingess PC, Donald M. Ostrander, Richard F.
Rodriguez, Joel M. Spector, Denver, Colorado; Wass Campbell Rivera Johnson
Velasquez LLP, Darrell G. Waas, Mikaela V. Rivera, Denver, Colorado, for
Defendant-Appellee United Water and Sanitation District


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1    Plaintiffs Bill Barrett Corporation and Bonanza Creek Energy,

 Inc., and intervenor Noble Energy, Inc., (collectively, lessees) appeal

 the trial court’s order denying their motion for a preliminary

 injunction to prevent defendant South Beebe Draw Metropolitan

 District (South Beebe) from taxing oil and gas that lessees produce

 from the mineral estate underlying an approximately 13,000-acre

 tract (the 70 Ranch) located in unincorporated Weld County.

 Defendants Robert Lembke and 70 Ranch L.L.C. (the L.L.C.) own

 the surface estate, where all of lessees’ well heads are located.1

 Lessees also appeal the court’s entry of summary judgment on one

 of their claims.

¶2    We affirm the entry of summary judgment, vacate the denial of

 the motion for preliminary injunction, and remand for further

 findings consistent with this opinion.

                    I. Nature and Course of Proceedings

¶3    On appeal, lessees raise three challenges to South Beebe’s

 taxing authority. The trial court entered summary judgment on the

 1The exact role of defendant United Water and Sanitation District
 was not developed at the hearing, but according to the amended
 complaint, “tax revenue collected from [lessees] by [South Beebe]
 have [sic] been spent and/or channeled to Defendant United
 Water.”

                                    1
 first of these issues.

      Under section 32-1-401, C.R.S. 2017, the severed mineral

       estate2 underlying the 70 Ranch could not be included within

       South Beebe because all the owners and lessees of that estate

       did not petition for and consent to inclusion.

      By including the 70 Ranch within its boundaries to further its

       regional operations in several counties, South Beebe modified

       its service plan, but did not obtain statutorily required

       approval from the board of county commissioners (BOCC) in

       each of the affected counties.

      By including the 70 Ranch within its boundaries, South Beebe

       violated section 32-1-107(2), C.R.S. 2017, because its services

       overlapped with those of Sand Hills Metropolitan District

       (Sand Hills).

¶4     Preservation of these contentions is undisputed.

¶5     Lessees obtained a temporary restraining order in the Weld

 County District Court that prohibited the Weld County Treasurer,

 who had collected the disputed taxes, from disbursing the monies

 2 “[A] conveyance which severs a mineral interest from the surface
 estate creates a separate and distinct estate.” Notch Mountain Corp.
 v. Elliott, 898 P.2d 550, 556 (Colo. 1995).

                                    2
 to South Beebe. Venue was transferred to the Adams County

 District Court. That court held an evidentiary hearing on lessees’

 motion for a preliminary injunction. Finding that lessees had not

 shown a reasonable probability of success on the merits, the court

 denied the motion for a preliminary injunction and dissolved the

 temporary restraining order. Later, the court entered a final

 judgment under C.R.C.P. 54(b) and 56(h) against lessees on their

 section 32-1-401 claim.

¶6    Lessees appealed. They requested that this court preserve the

 status quo by enjoining the treasurer from disbursing taxes

 collected to South Beebe. A motions division of this court granted

 the requested relief, expedited briefing, and ruled that the appeal

 would be decided without oral argument.

                            II. Background

¶7    In 2009, Sand Hills included the 70 Ranch within its

 boundaries and began assessing ad valorem taxes on the oil and

 gas extracted from the mineral estate. Much as lessees have done

 in this case, they challenged the taxes levied by Sand Hills and

 obtained summary judgment in Weld County District Court. Both

 sides appealed.


                                   3
¶8    In Bill Barrett Corp. v. Sand Hills Metropolitan District, 2016

 COA 144, the division agreed with the district court that when Sand

 Hills included the 70 Ranch, the combination of its change in

 purpose and its complete shift in geography constituted a material

 departure from its 2004 service plan under section 32-1-207(2)(a),

 C.R.S. 2017. Id. at ¶¶ 21, 23, 30. The division also agreed that this

 material modification of the existing service plan required — but

 Sand Hills had not obtained — approval from the Weld County

 BOCC. Id. at ¶ 32. For these reasons, the division held that Sand

 Hills lacked taxing authority after 2009. Id. at ¶ 37.

¶9    Following the entry of summary judgment and before the Sand

 Hills appeal was filed, Lembke and the L.L.C. petitioned South

 Beebe to include the 70 Ranch. Lessees were not notified of this

 action. South Beebe resolved to include the 70 Ranch, agreed to

 assume development and construction of the regional water

 infrastructure commenced by Sand Hills, and committed to provide

 services to the 70 Ranch. The Adams County District Court

 approved inclusion of the 70 Ranch into South Beebe, as required

 by section 32-1-401(1)(c)(I), which states that “[i]f a petition [for

 inclusion] is granted [by the district’s board] . . . , the board shall


                                     4
  . . . file [an order] with the clerk of the court, and the court shall

  thereupon order the property to be included in the special district.”

  (Emphasis added.)3

                                   III. Law

                     A. Preliminary Injunction Standard

¶ 10     “Preliminary injunctive relief is an extraordinary remedy

  designed to protect a [party] from sustaining irreparable injury and

  to preserve the power of the district court to render a meaningful

  decision following a trial on the merits.” Rathke v. MacFarlane, 648

  P.2d 648, 651 (Colo. 1982).

¶ 11     Preliminary “injunctive relief should not be indiscriminately

  granted”; rather, it should be granted sparingly, cautiously, and

  with the trial court’s full conviction of the urgent necessity for the

  relief. Id. at 653. Before granting relief, the trial court must find

  that the moving party has shown:

               (1) a reasonable probability of success on the
               merits;

               (2) a danger of real, immediate, and irreparable
               injury which may be prevented by injunctive
               relief;


  3   The order is not at issue in this appeal.

                                       5
             (3) that there is no plain, speedy, and adequate
             remedy at law;

             (4) that the granting of a preliminary
             injunction will not disserve the public interest;

             (5) that the balance of equities favors the
             injunction; and

             (6) that the injunction will preserve the status
             quo pending a trial on the merits.

  Id. at 653-54 (citations omitted). If the moving party fails to

  establish any criterion, injunctive relief is not available. Id. at 654.

                          B. Special District Act

¶ 12   The General Assembly enacted the Special District Act (the

  Act) with the intent that special districts “promote the health,

  safety, prosperity, security, and general welfare” of their inhabitants

  and of the State of Colorado. § 32-1-102(1), C.R.S. 2017; see also

  Sand Hills, ¶ 15; Todd Creek Vill. Metro. Dist. v. Valley Bank & Tr.

  Co., 2013 COA 154, ¶ 37. Special districts are political

  subdivisions of the state that possess proprietary powers. Todd

  Creek, ¶ 38. But they possess only those powers expressly

  conferred on them. Sand Hills, ¶ 15.

¶ 13   Once established, a special district must conform to its service

  plan “so far as practicable.” § 32-1-207(1). Any material


                                      6
  modifications to the service plan must be approved by the

  appropriate governing authority. § 32-1-207(2)(a).

                         IV. Standard of Review

¶ 14   Statutory interpretation is a question of law subject to de novo

  review. See, e.g., Jefferson Cty. Bd. of Equalization v. Gerganoff,

  241 P.3d 932, 935 (Colo. 2010). Likewise, appellate courts review

  de novo the application of law to undisputed facts. See Camp Bird

  Colo., Inc. v. Bd. of Cty. Comm’rs, 215 P.3d 1277, 1281 (Colo. App.

  2009). And the de novo standard applies to review of summary

  judgments. Rocky Mountain Expl., Inc. v. Davis Graham & Stubbs

  LLP, 2018 CO 54, ¶ 27.

¶ 15   “The grant or denial of a preliminary injunction lies within the

  sound discretion of the trial court.” MDC Holdings, Inc. v. Town of

  Parker, 223 P.3d 710, 716 (Colo. 2010). Generally, the conclusion

  reached by the trial court will be not overturned unless it is

  manifestly unreasonable, arbitrary, or unfair. Evans v. Romer, 854

  P.2d 1270, 1274 (Colo. 1993). “If, however, the issue being

  reviewed concerns only legal, rather than factual questions, a trial

  court’s preliminary injunction ruling is subject to de novo appellate

  review.” State ex rel. Salazar v. Cash Now Store, Inc., 31 P.3d 161,


                                     7
  164 (Colo. 2001). The same is true when the ruling rested only on

  stipulated facts or documentary evidence. MDC Holdings, 223 P.3d

  at 716.

¶ 16   On review of a preliminary injunction, the trial court’s factual

  findings will be upheld unless they are so clearly erroneous as to

  find no support in the record. Phoenix Capital, Inc. v. Dowell, 176

  P.3d 835, 846 (Colo. App. 2007).

¶ 17   Whether a special district’s action constitutes a “material

  modification” of the service plan presents a question of law. Indian

  Mountain Corp. v. Indian Mountain Metro. Dist., 2016 COA 118M,

  ¶¶ 59, 61-62. A court looks to the language of the service plan and

  gives effect to its plain and ordinary meaning. See Todd Creek,

  ¶¶ 10-11.

¶ 18   The standard of review as to whether material modifications

  were approved by the appropriate BOCC is unresolved. But in

  Friends of the Black Forest Regional Park, Inc. v. Board of County

  Commissioners, the division noted, “[t]he application of particular

  facts to a statute involves a mixed question of fact and law.” 80

  P.3d 871, 882 (Colo. App. 2003). Because whether the requisite

  approval was obtained will turn on particular facts, the mixed


                                     8
  question standard of review applies. See also Hawes v. Colo. Div. of

  Ins., 65 P.3d 1008, 1017 (Colo. 2003) (case-by-case issue is mixed

  question). In mixed-question cases, an appellate court reviews the

  district court’s factual findings for clear error and its legal

  conclusions as to those facts de novo. Sheridan Redevelopment

  Agency v. Knightsbridge Land Co., 166 P.3d 259, 262 (Colo. App.

  2007).

¶ 19   According to South Beebe, because the trial court’s denial of a

  preliminary injunction is not a final judgment on the merits, review

  of the second and third issues can be only for an abuse of

  discretion. To the extent that some of the court’s conclusions

  rested on documentary evidence or undisputed facts, however, we

  review de novo. And in any event, “[a] trial court abuses its

  discretion when it . . . misapplies the law.” Clubhouse at Fairway

  Pines, L.L.C. v. Fairway Pines Estates Owners Ass’n, 214 P.3d 451,

  456 (Colo. App. 2008).

                               V. Discussion

   A. Application of Section 32-1-401(1)(a) to Owners and Lessees of
                        Severed Mineral Estates
¶ 20   According to lessees, without their consent — as “fee owners”



                                      9
  — and that of the other mineral estate owners, the 70 Ranch — or

  at least the underlying mineral estate — could not have been

  included within South Beebe. South Beebe responds that because

  the mineral and surface estates are severed, only the surface

  owners needed to petition for and consent to inclusion, and all of

  them did.4 Alternatively, South Beebe asserts that because lessees’

  well heads are located on the 70 Ranch, it could tax lessees’ oil and

  gas production for that reason alone.

¶ 21   The following facts are undisputed. The mineral estate

  underlying the 70 Ranch has been severed from the surface estate.

  Lembke and the L.L.C. owned some but not all of the mineral

  estate. No other mineral estate owner petitioned for or consented to

  including this property within South Beebe. Nor did lessees.

¶ 22   In resolving this issue against lessees, the trial court found

  that the services provided by South Beebe did not benefit the

  subsurface mineral estate. Lessees do not challenge this finding.

¶ 23   First, we address whether mineral estate owners and lessees


  4Lembke and the L.L.C., South Beebe, and United Water and
  Sanitation District filed separate but similar answer briefs. To the
  extent that their arguments differ, breaking arguments out by party
  would be purposeless.

                                    10
  are “fee owners.” We answer affirmatively only as to mineral estate

  owners. Because the parties agree — and the record supports —

  that not all of the mineral estate owners consented to the 70

  Ranch’s inclusion, we next consider whether South Beebe’s services

  can benefit the mineral estate. But since lessees do not argue that

  the mineral estate can benefit, we further conclude that lack of

  consent by all mineral estate owners does not preclude South Beebe

  from taxing lessees.

                                 1. Law

¶ 24   Section 32-l-401(1)(a) provides:

            The boundaries of a special district may be
            altered by the inclusion of additional real
            property by the fee owner or owners of one
            hundred percent of any real property capable
            of being served with facilities of the special
            district filing with the board a petition in
            writing requesting that such property be
            included in the special district. The petition
            shall set forth a legal description of the
            property, shall state that assent to the
            inclusion of such property in the special
            district is given by the fee owner or owners
            thereof, and shall be acknowledged by the fee
            owner or owners in the same manner as
            required for conveyance of land.




                                   11
  The parties have not cited Colorado authority, nor have we found

  any, applying this section in the context of severed mineral estate

  owners or the interests of mineral lessees.

                              2. Application

       a. Is an Owner or a Lessee of a Severed Mineral Estate a “Fee
                       Owner” Under the Statute?
¶ 25    Answering this question — which the trial court decided

  against lessees — involves statutory interpretation and application

  of law to undisputed facts, both subjects of de novo review. We first

  conclude that an owner of a severed mineral estate is a “fee owner.”

¶ 26    “[W]hile in place, minerals are real property.” Smith v. El Paso

  Gold Mines, Inc., 720 P.2d 608, 609 (Colo. App. 1985).

  Unsurprisingly, then, our supreme court has concluded that “[a]n

  estate in oil and gas may be severed from the remainder of the

  realty, and as severed owned in fee simple.” Corlett v. Cox, 138

  Colo. 325, 333, 333 P.2d 619, 623 (1958); accord Clevenger v. Cont’l

  Oil Co., 149 Colo. 417, 420, 369 P.2d 550, 551 (1962) (“Oil, gas and

  other mineral rights in lands may be severed and held by other

  than the owner of the surface, and a fee simple title thereto may

  vest in the person to whom said rights are granted.”).



                                    12
¶ 27   South Beebe’s attempt to distinguish Corlett, on which

  Clevenger relied, as limited to interpreting the phrase “reserves 1/2

  of the usual 1/8 royalty” in a deed, falls short. After all, the

  supreme court framed the issue as follows:

               Does the Holcomb-Hamilton deed reserve an
               estate in fee simple to 1/16% of the oil and gas
               under the land in question, as found by the
               trial court, or do these words merely reserve
               the right to share in such oil and gas after it
               has been severed from the land and reduced to
               possession?

  Corlett, 138 Colo. at 329, 333 P.2d at 621 (emphasis added). Then

  it rejected a request to overrule Simson v. Langholf, 133 Colo. 208,

  217, 293 P.2d 302, 307 (1956), which noted, “an estate in fee

  simple is thus created.”

¶ 28   Of course, we are bound by our supreme court’s case law.

  Bernal v. Lumbermens Mut. Cas. Co., 97 P.3d 197, 203 (Colo. App.

  2003). And in any event, South Beebe cites no contrary Colorado

  authority.

¶ 29   South Beebe’s reliance on statutes other than the Act, where

  the legislature supposedly “distinguishes between fee owners and

  mineral interest owners,” is misplaced. “[D]efinitions of somewhat

  similar terms in other, generally unrelated statutes . . . do not


                                      13
  assist in deciding what the Legislature meant in this specific

  context.” Coal. of Concerned Cmtys., Inc. v. City of Los Angeles, 101

  P.3d 563, 566 (Cal. 2004); see also Bertrand v. Bd. of Cty. Comm’rs,

  872 P.2d 223, 228 (Colo. 1994) (“[T]he interpretation of one statute

  by reference to an unrelated statute is an unreliable means of

  ascertaining legislative intent.”).

¶ 30   For example, South Beebe cites section 24-65.5-101, C.R.S.

  2017. But that section is limited to “surface development.” And in

  any event, section 24-65.5-102(4), C.R.S. 2017, describes a

  “mineral estate” as an “interest in real property.”

¶ 31   True, for purposes of municipal annexations, section

  31-12-103(6), C.R.S. 2017, also cited by South Beebe, limits

  “landowner” to “the owner in fee of an undivided interest in the

  surface estate.” But this subsection also recognizes an “undivided

  interest in the mineral estate” as being owned “in fee.” Id.

¶ 32   Nor does South Beebe’s parade of horribles that would

  supposedly flow from treating a severed mineral interest as fee

  ownership under section 32-1-401(1)(a) persuade us to read Corlett

  and Clevenger narrowly. Owners of the severed mineral estate

  underlying property to be included in a special district can be


                                        14
  identified through title examination and given notice. If the

  positions of surface and subsurface owners on inclusion diverge,

  the Act provides a remedy. See, e.g., § 32-1-401(2)(a) (notice to all

  affected property owners, public hearings, and petitions to be

  excluded); § 32-1-401(3) (board of county commissioners decides

  petitions for exclusion based on the best interests of the district).5

¶ 33   In contrast, our supreme court has not addressed whether a

  severed mineral estate lessee also holds a fee simple interest. We

  conclude that such a lessee does not.

¶ 34   Lessees rely on Maralex Resources, Inc. v. Chamberlain, 2014

  COA 5, ¶ 14, where the division acknowledged that “interests in oil

  and gas leases [are] characterized as interests in real property.”

  However, the division did not reach the fee simple question, instead

  merely declining “to consider an oil and gas lessee’s interest under

  common law landlord-tenant principles.” Id. at ¶ 16. And in any

  event, the division held only that the lessee had standing to seek a

  prescriptive easement.

¶ 35   Still, lessees assert that a majority of states — or at least those


  5Of course, marching this parade before the General Assembly
  could produce a legislative solution.

                                     15
  in the West — hold mineral interest leaseholds to be fee interests of

  the mineral estate. Yet, they cite cases from only three states. See

  Somont Oil Co. v. A & G Drilling, Inc., 49 P.3d 598, 604 (Mont. 2002)

  (“[O]il and gas leases transfer to the lessee a fee simple

  determinable estate with the lessor retaining a possibility of

  reverter.”), overruled on other grounds by Johnson v. Costco

  Wholesale, 152 P.3d 727 (Mont. 2007); Maralex Res., Inc. v.

  Gilbreath, 76 P.3d 626, 630 (N.M. 2003) (“The typical oil and gas

  lease grants the lessee a fee simple determinable interest in the

  subsurface minerals . . . .”); Anadarko Petroleum Corp. v. Thompson,

  94 S.W.3d 550, 554 (Tex. 2002) (“A Texas mineral lease grants a fee

  simple determinable to the lessee.”).

¶ 36   South Beebe responds that a broad reading of Maralex is

  foreclosed by Coquina Oil Corp. v. Harry Kourlis Ranch, 643 P.2d

  519, 522 (Colo. 1982) (holding that a federal oil and gas lessee

  cannot assert the power of condemnation under Colorado

  Constitution article II, section 14 and section 38-1-102(3), C.R.S.

  2017). Distinguishing lessees from owners, the supreme court

  explained that giving lessees condemnation powers “creates the

  possibility that the [property owners] will be subjected repeatedly to


                                     16
  the disruptive effect and expense of litigation as successive lessees

  attempt to secure a temporary right-of-way.” Id. By contrast,

  “condemnation of a right-of-way by the fee owner of the landlocked

  estate does not create the same potential for a multiplicity of

  lawsuits. If the fee owner condemns the right-of-way, the taking is

  permanent and the appropriate compensation for the interests

  condemned is established in one proceeding.” Id. The court added,

  “[w]hile the lessee’s concern for both the leased property and the

  surrounding lands is limited in both subject matter and duration,

  the fee owner of the property will consider the broader implications

  of his actions over a more extensive period.” Id. at 523; cf. Precious

  Offerings Mineral Exch., Inc. v. McLain, 194 P.3d 455, 455 (Colo.

  App. 2008) (rejecting easement claims by owner of unpatented

  mining claims).

¶ 37   The Coquina rationale is persuasive here. Because a mineral

  estate lessee’s interest is temporary, its perspective on being

  included in a special district would be short term and potentially

  myopic. As well, a special district would possibly have to secure

  consent from each successive lessee. Thus, we agree that Maralex

  cannot be read as broadly as lessees assert.


                                    17
¶ 38     Given all this, we decline to treat mineral lessees as fee owners

  for purposes of the statute.6 Still, our conclusion that each owner

  of the severed mineral estate beneath the 70 Ranch is a “fee owner”

  under the statute does not end the inquiry.

        b. Does a Severed Mineral Estate Constitute “Real Property
       Capable of Being Served With Facilities of the Special District”
                            Under the Statute?
¶ 39     Answering this question — which the trial court decided

  against lessees — also involves application of law to undisputed

  facts. Specifically, on appeal lessees do not dispute the trial court’s

  finding that

              [m]ineral estates, located far beneath the
              surface, are not real property capable of being
              served with the facilities of the special district.
              Practically, the district cannot provide water
              and sanitary sewer[,] . . . park and recreation
              services[,] or any other services authorized by
              C.R.S. § 32-1-103(10) to the subsurface estate.
              The surface estate is the only real property in
              need of and capable of being provided the
              district’s services.7



  6 Having decided this question against lessees, we need not address
  the numerous administrative and other practical problems that
  would allegedly ensue if mineral lessees are fee owners, which in
  any event are implied from the policy concerns in Coquina.
  7 Because lessees do not dispute this finding, we express no opinion

  on whether a district’s services could actually benefit subsurface
  mineral estates.

                                      18
¶ 40   Instead, they argue, first, that by statute only property capable

  of being benefitted by the special district may be taxed; and,

  second, that taxing property that cannot benefit from tax-funded

  services violates due process, citing Landmark Towers Ass’n v. UMB

  Bank, N.A. for support. 2018 COA 100, ¶ 29 (“Colorado law makes

  clear that imposing a special assessment on property that doesn’t

  specially benefit from the funded improvements violates those

  property owners’ rights to due process.”). We address, and reject,

  each argument in turn.

¶ 41   Lessees’ first argument focuses on the phrase, “real property

  capable of being served with facilities of the special district.”

  § 32-1-401(1)(a). But this argument ignores that “capable of being

  served” modifies “fee . . . owners of . . . any real property.” Id.

  Thus, the phrase tells special districts which owners must petition

  for inclusion. It does not limit what property may be included.

¶ 42   Lessees essentially ask us to read the statute as: “The

  boundaries of a special district may be altered by the inclusion of

  additional real property capable of being served with the facilities of

  the special district.” Yet, “[a]bsent constitutional infringement, it is

  not our province to rewrite the statutes.” Dove Valley Bus. Park


                                     19
  Assocs., Ltd. v. Bd. of Cty. Comm’rs, 945 P.2d 395, 403 (Colo. 1997).

¶ 43   Turning to lessees’ due process argument, they do not provide

  a record reference to where they raised this issue in the trial court.

  And in any event, they did not mention it in their written closing

  argument, nor did the trial court rule on it.8 See McGihon v. Cave,

  2016 COA 78, ¶ 16 (“[I]n civil cases . . . ‘[w]e do not consider

  constitutional issues raised for the first time on appeal.’” (quoting

  City & Cty. of Broomfield v. Farmers Reservoir & Irrigation Co., 239

  P.3d 1270, 1276 (Colo. 2010))). And even if an appellate court may

  choose to take up such an unpreserved issue as a matter of

  discretion, we need not do so here. See Tyra Summit Condos. II

  Ass’n v. Clancy, 2017 COA 73, ¶ 8 (“Whether we address

  unpreserved constitutional challenges is always a matter of

  discretion.”). However, the following observations may be relevant

  to the merits of the trial.

¶ 44   First, even were we to take up this unpreserved argument,

  under the injury-in-fact test, whether lessees would have standing

  8 Although Landmark was decided after the hearing, and after
  lessees had filed their opening brief, the decision lists several cases
  holding that property owners’ due process rights are violated when
  their property does not benefit from special assessments.
  Landmark Towers Ass’n v. UMB Bank, N.A., 2018 COA 100, ¶ 29.

                                     20
  to raise this issue on behalf of owners of the severed mineral estate

  is at best doubtful. This is not a case implicating unconstitutional

  spending, which can contribute to injury-in-fact. Conrad v. City &

  Cty. of Denver, 656 P.2d 662, 668 (Colo. 1982).

¶ 45   Second, assuming lessees have standing, this due process

  argument does not limit true ad valorem taxes. See Landmark, ¶ 31

  (distinguishing such taxes from special assessments, which “fund

  local improvements that benefit particular property”).

¶ 46   Third, Landmark involved a special assessment on one small

  area to benefit another small area. In contrast, South Beebe’s

  service area encompasses thousands of acres and its water projects

  will benefit many inhabitants. See Millis v. Bd. of Cty. Comm’rs, 626

  P.2d 652, 659 (Colo. 1981) (“A water district is organized not for the

  improvement of land or to benefit only landowners.”); see also

  Friends of Chamber Music v. City & Cty. of Denver, 696 P.2d 309,

  321 (Colo. 1985) (“As long as the proceeds are devoted to public and

  governmental purposes, otherwise valid taxes may be imposed upon

  a group of people who will not necessarily benefit from the funds

  collected.”).

¶ 47   So, while ownership of a mineral estate is a fee simple interest,


                                    21
  we further conclude that it is not “real property capable of being

  served with facilities of the special district” under the statute.

  Therefore, the owners of the severed mineral estate underlying the

  70 Ranch did not have to petition for or consent to the inclusion.

       c. Do Other Statutes Provide a Separate Basis for Ad Valorem
                                Taxation?
¶ 48     Having rejected lessees’ challenge to the 70 Ranch’s inclusion

  based on the lack of all mineral estate owners’ consent, we need not

  address other statutes that South Beebe advances as alternative

  bases for taxing lessees. See § 32-1-1101(1)(a), C.R.S. 2017;

  § 39-7-101(1), C.R.S. 2017.

                               3. Conclusion

¶ 49     The petition’s failure to show consent of all severed mineral

  estate owners did not preclude including the 70 Ranch within the

  boundaries of South Beebe and did not invalidate South Beebe’s

  taxing authority. Thus, we affirm the trial court’s entry of summary

  judgment as to lessee’s section 32-1-401(1)(a) claim.

       B. Application of Section 32-1-207(2)(a) to a Change in South
                       Beebe’s Original Service Plan
¶ 50     The trial court held that lessees had not shown a reasonable

  probability of successfully establishing that South Beebe had



                                     22
  violated section 32-1-207(2)(a) by failing to obtain BOCC approval

  for a material change in its original service plan. The court found

  that although South Beebe had continued to provide the same

  services, it had materially modified its service plan in 2013 by

  describing a regional role in its revised service plan. Even so, the

  court concluded that South Beebe had secured the requisite

  approval from the Adams County Planning & Development

  Department (planning commission). As for including the 70 Ranch

  in 2015, the court found that a material change had not occurred.

¶ 51   Lessees challenge both rulings. We conclude that South

  Beebe did not comply with section 32-1-207(2)(a). However, we

  agree with the trial court that including the 70 Ranch did not

  constitute a material modification.

                        1. Additional Background

                    a. Expansion of Services in 2013

¶ 52   The trial court first found that South Beebe had not made any

  “addition to the types of services provided by the special district,”

  an event that categorically qualifies as a material modification

  under section 32-1-207(2)(a). It made the following subsidiary

  findings, with record support.


                                     23
¶ 53   South Beebe was organized, along with other districts, in 1985

  under a “Consolidated Service Plan” (original service plan). The

  original service plan outlined the proposed service area as “the

  proposed development known as ‘Bromley Park’ . . . located in

  northern Adams County, Colorado, generally between the City of

  Brighton and Interstate 76.” The original service plan contemplated

  that the districts would enter into intergovernmental agreements to

  “effectively and efficiently provide the services and/or facilities

  outlined” in the original service plan.

¶ 54   Bromley Park Metropolitan District #1, South Beebe’s former

  name, proposed to provide “[t]he sanitary sewer, storm drainage

  and surface and flood control, street, water and park and recreation

  plans for the District.”

¶ 55   Since its formation, South Beebe has expanded its geographic

  scope and purpose. In 2003, the district changed its name to South

  Beebe to better describe the regional nature of the services and

  facilities the district provided. In 2013, South Beebe prepared an

  “Updated and Revised Service Plan” (revised service plan) that

  reflected many of these changes.

¶ 56   At that time, the property located within the boundaries of


                                     24
  South Beebe was much smaller — less than one acre in Adams

  County. But the revised service plan contemplated adding other

  property so that, as development progressed, South Beebe could

  provide regional service to those developments and for operation

  and maintenance of South Beebe’s overall storm drainage system.

¶ 57   Then the court turned to whether South Beebe’s providing

  services beyond the geographic boundaries of Bromley Park to the

  larger South Beebe Draw area constituted a change of a basic or

  essential nature. The court found, again with record support, that

  the revised service plan anticipated including property in both

  Adams and Weld Counties. Although the services that South Beebe

  contemplated providing were of a type for which the district had

  been originally formed, the benefitted residents of Adams and Weld

  Counties far exceeded those within the district’s original

  geographical boundaries.

¶ 58   The court concluded:

            South Beebe’s shift in purpose, from providing
            facilities and services for the proposed Bromley
            Park residential and commercial development
            located near Brighton, Colorado to a regional
            district reaching beyond Brighton and
            providing benefits to Adams County (and
            contemplating providing services to Weld


                                    25
             County) constituted a change to the basic and
             essential nature of the 1985 Original Service
             Plan.

  South Beebe does not challenge this conclusion.

¶ 59   Next, the court concluded that the revised service plan

  constituted a material modification requiring approval by the

  Adams County BOCC. The court relied on Sand Hills, which stated

  that “the district’s shift in purpose, reflected in the 2013 plan, from

  a localized district providing for residential and commercial

  development in Lochbuie to a regional district reaching beyond

  Lochbuie and providing regional benefits to the county constituted

  a change to the basic and essential nature of the 2004 plan.” ¶ 23.

  South Beebe does not challenge this conclusion either.

¶ 60   Then the court turned to whether South Beebe had obtained

  the requisite approval. It found that in response to South Beebe’s

  submitting the revised service plan to the planning commission for

  approval, South Beebe had received a letter from the planning

  commission.9 According to this letter, Adams County had




  9South Beebe points us to two other sources of approval from
  Adams County — statements from the Adams County Attorney and
  a separate letter from the Adams County Community and Economic

                                    26
  determined that South Beebe was not seeking a material

  modification. But the letter continued:

            [South Beebe] has expressly stated that it does
            not wish to do any of those things that would
            constitute a material modification under State
            Statute. Rather, the district simply would like
            to replace its current Service Plan in its
            entirety, to describe their ongoing and future
            services to users of the District’s
            infrastructure. So long as the replacement
            Service Plan does not contemplate anything
            constituting a material modification, then the
            County is without the authority to approve it.

¶ 61   The court noted that under section 32-1-202(1)(a), C.R.S.

  2017, a service plan must be “referred to the planning commission,”

  if required by the policy of the county. However, because at the

  preliminary injunction hearing no party had called a witness from

  the planning commission or the Adams County BOCC, the court

  recognized that it did not know whether Adams County has such a

  policy, whether the planning commission had actually reviewed the

  revised service plan, or whether (as might be inferred from the

  letter) it had relied only on the representation by South Beebe that

  the district was not doing “any of those things that would constitute



  Development Director. The trial court made no findings as to either
  source.

                                   27
  a material modification under State Statute.”

¶ 62   Despite these reservations, the court further concluded, “it

  appears that South Beebe sought approval from the appropriate

  governing authority10 for the 2013 Revised Service Plan.” The court

  explained that in this way, this case was distinguishable from Sand

  Hills. So, it ruled that lessees had failed to show a reasonable

  probability of success on the merits.

                       b. Including the 70 Ranch

¶ 63   The court also considered whether including the 70 Ranch in

  2015, if effective, was a material modification of the revised service

  plan requiring approval from both the Adams and Weld County

  BOCCs. It found that no such modification had occurred. The

  court made the following findings, again with record support.

¶ 64   In 2013, South Beebe and Weld County entered into an

  “Intergovernmental Agreement Concerning Inclusion of Property”

  (IGA), which recognized the expanded regional scope of the district’s

  facilities and services. As acknowledged by the IGA, and not

  disputed at the hearing, South Beebe received petitions to include

  10Because South Beebe had not yet expanded into Weld County,
  only Adams County BOCC approval was required for the 2013
  revised service plan.

                                    28
  certain property located in unincorporated Weld County to be used

  for storm drainage ponds and facilities to serve anticipated

  development in the area.

¶ 65   The IGA recitals provide:

            D. South Beebe has no other property within
            its boundaries that lies in unincorporated
            Weld County, therefore, pursuant to statute,
            South Beebe advised the County of the
            petitions and requested that the County find
            that the inclusions do not constitute material
            modifications of the South Beebe service plan.
            E. The County is willing to consent to the
            inclusion of property into South Beebe within
            Weld County pursuant to this IGA.
¶ 66   In paragraph 2 of the IGA, Weld County conditioned its

  consent to including land in the county on the following:

            a. South Beebe receives a petition from a
            landowner for such inclusion;
            b. South Beebe acts in accordance with the
            provisions of § 32-1-207, [C.R.S.], with regard
            to overlapping special districts;
            c. South Beebe acts in conformance with the
            provisions of § 32-1-207(2)(b)-(d), [C.R.S.], with
            regard to the provision of service in
            unincorporated Weld County and, in
            particular, South Beebe shall not impose
            extraterritorial fees on any landowner in
            unincorporated Weld County without the
            written consent of such landowner; and



                                   29
            d. South Beebe does not attempt to include
            property without the consent of the landowner
            utilizing the provisions of § 32-1-401(2),
            [C.R.S.].
¶ 67   With respect to material modification, paragraph 3 provides:

            South Beebe Draw agrees that if the inclusion
            of property into its boundaries that lies within
            unincorporated Weld County occurs in
            contravention of any of the provisions of
            paragraph 2 above, such action shall
            constitute a material modification of its service
            plan and South Beebe shall be subject to a
            service plan amendment process with the
            County and the inclusion of property which
            triggers such service plan amendment shall be
            ineffective until such time as the [BOCC] of
            Weld County approve such service plan
            amendment.
¶ 68   But South Beebe did not petition to include any Weld County

  property in 2013 or 2014, after the IGA was executed. Then on

  April 1, 2015, South Beebe told the Weld County BOCC that it had

  received a petition for inclusion of Weld County property from

  Highland Equities, L.L.C. Weld County responded by noting that no

  further action was required in light of the IGA. On that basis,

  South Beebe motioned the Weld County District Court and received

  an order for inclusion of the Highland Equities property on April 17,

  2015. No party at the preliminary injunction hearing argued that

  the Highland Equities property was not properly included in South

                                   30
  Beebe.

¶ 69   On April 5, 2015, in response to the trial court’s summary

  judgment against Sand Hills, Lembke and the L.L.C. petitioned to

  include the 70 Ranch in South Beebe. South Beebe did not give

  Weld County notice of the petition. On April 28 and 29, 2015,

  South Beebe motioned the court to add more Weld County property

  to the district — including the 70 Ranch. The court granted the

  motions on April 29, 2015.

¶ 70   The trial court recognized that while section 32-1-207(1)

  requires the “facilities, services, and financial arrangements” of the

  special district to conform to the approved service plan, that section

  does not mention the “geographic boundaries” of a special district.

  The court also noted that section 32-1-207(2)(a) indicates approval

  for modification “shall not be required . . . for changes in the

  boundary of the special district.” Still, “inclusion of property that is

  located in a county . . . with no other territory within the special

  district may constitute a material modification of the service plan.”

  § 32-l-207(2)(a).

¶ 71   The statute also prescribes the procedure to include property

  located in a county having no other property within the special


                                     31
  district. If a special district changes its boundaries

             to include territory located in a county . . .
             with no other territory within the special
             district, the special district shall notify the
             [BOCC] of such county . . . of such inclusion.
             The [BOCC] . . . may review such inclusion
             and, if it determines that the inclusion
             constitutes a material modification, may
             require the governing body of such special
             district to file a modification of its service plan
             in accordance with the provisions of this
             subsection (2).

  § 32-1-207(2)(a) (emphasis added).

¶ 72   Based on these statutes and the IGA, the court further found

  that South Beebe had notified Weld County of its original intent to

  include Weld County property within its boundaries in 2013 and

  Weld County had the opportunity to determine whether that

  inclusion constituted a material modification. As reflected in the

  IGA, Weld County determined that the proposed inclusion was not a

  material modification, so South Beebe could include the property

  without formal service plan modification approval, subject to the

  conditions identified in the IGA.

¶ 73   When South Beebe first included Weld County property in

  2015, Weld County did not require formal approval at that time,

  referencing the IGA. And once South Beebe had Weld County


                                      32
  property within its boundaries, including more Weld County

  property, specifically the 70 Ranch, presumptively was not a

  material modification under section 32-1-207(2)(a). On this basis,

  the court concluded that the case was distinguishable from Sand

  Hills.

¶ 74       For these reasons, the court ruled that lessees did not have a

  reasonable probability of success on the merits as to their claim

  that South Beebe’s including the 70 Ranch was an unapproved

  material modification of the service plan.

                                  2. Law

¶ 75       As set forth above, the Act determines most questions

  involving material modifications to service plans and the requisite

  approvals. The Act defines “material modifications” as

                changes of a basic or essential nature,
                including but not limited to the following: Any
                addition to the types of services provided by
                the special district; a decrease in the level of
                services; a decrease in the financial ability of
                the district to discharge the existing or
                proposed indebtedness; or a decrease in the
                existing or projected need for organized service
                in the area.

  Indian Mountain, ¶ 61 (quoting § 32-1-207(2)(a)). And if South

  Beebe made such a modification without obtaining the requisite


                                       33
  approval, then it “did not have taxing authority.” Sand Hills, ¶ 37.

  And a court may enjoin action constituting a material modification.

  § 32-1-207(3)(a).

                               3. Application

                      a. Expansion of Services in 2013

¶ 76   South Beebe does not challenge the trial court’s finding,

  discussed in Part V.B.1.a, supra, that “the district’s provision of

  services beyond the geographic boundaries of Bromley Park to the

  larger South Beebe Draw area constituted a change of a basic or

  essential nature,” and thus materially modified its service plan.

  This finding means that South Beebe had to obtain BOCC approval.

  § 32-1-207(2)(a). The only question, then, is whether — as the

  court concluded — actions by the planning commission, the Adams

  County Attorney, and the Community and Economic Development

  Director satisfied this requirement. We conclude that they did not.

¶ 77   The facts as found by the trial court are undisputed. South

  Beebe submitted the revised service plan only to the planning

  commission. The planning commission responded that the district

  “is not seeking a material modification.” But the BOCC did not take




                                    34
  any action.11

¶ 78   In support of its argument that the planning commission’s

  letter was sufficient approval, South Beebe relies on section

  32-1-202(1)(a) — “the service plan shall be referred to the planning

  commission.” But this statute affords South Beebe no shelter for at

  least three reasons.

¶ 79   First, because the parties did not offer any evidence that

  Adams County had a policy of referring service plans to the

  planning commission, the trial court found its existence

  indeterminable for the purposes of the preliminary injunction.

  Second, section 32-1-202(1)(a) requires the planning commission to

  make a recommendation to the BOCC, which did not happen. And

  third, the BOCC never set, much less held, a public hearing — the

  final requirement in section 32-1-202(1)(a).

¶ 80   Given these procedural defects, South Beebe seeks to rely on

  the Adams County Attorney’s purported determination that the

  revised service plan was not a material modification. But the


  11Contrast this total lack of Adams County BOCC action with the
  IGA the Weld County BOCC entered into with South Beebe, in
  which Weld County acknowledged South Beebe’s proposed
  inclusions and determined they were not material modifications.

                                   35
  county attorney did not testify, and the trial court made no such

  finding. As well, the testimony cited by South Beebe concerning

  purported action by the Adams County Attorney is double hearsay

  and conflates such action with the letter discussed in the following

  paragraph.

¶ 81   South Beebe also refers to a letter from the Community and

  Economic Development Director saying that, as to the revised

  service plan, “we do not find the need to process these changes

  through any formal Adams County review process.” But the statute

  does not allow the director to act for the BOCC. § 32-1-207(2)(a)

  (“[M]aterial modifications . . . may be made . . . only by petition to

  and approval by the board of county commissioners . . . . ”)

  (emphasis added); UMB Bank, N.A. v. Landmark Towers Ass’n, 2017

  CO 107, ¶ 22 (courts do not add to or subtract words from a

  statute).

¶ 82   Based on supposed action by the Adams County Attorney and

  the letter from the director, South Beebe asserts that, “[i]n essence,

  the Adams County [BOCC] exercised its discretion . . . consistent

  with the permissive language of C.R.S. § 32-1-207(2)(a).” This

  assertion misses the mark, both factually and legally.


                                     36
¶ 83   First, whatever South Beebe means by “in essence” is unclear.

  The statute requires ultimate, not delegated, action by the BOCC.

  § 32-1-207(2)(a) (“[M]aterial modifications . . . may be made . . . only

  by petition to and approval by the [BOCC] . . . .”) (emphasis added);

  see also Weitz Co. v. Mid-Century Ins. Co., 181 P.3d 309, 313 (Colo.

  App. 2007) (“‘[O]nly’ is a term of limitation.”). And that did not

  occur.

¶ 84   Second, South Beebe conflates two separate provisions of this

  section. A special district may make a material modification “only

  by petition to and approval by the [BOCC].” § 32-1-207(2)(a). Still,

  approval is not required “for changes in the boundary of the special

  district,” although “[t]he [BOCC] . . . may review such inclusion.”

  Id. (emphasis added). The latter discretionary language applies only

  to boundary changes; it does not change the approval mandated for

  other changes. And the boundary change question is addressed

  separately below.

¶ 85   But even accepting all of South Beebe’s arguments, the trial

  court still found, albeit only for purposes of the preliminary

  injunction, that the revised service plan was a material

  modification. True, “findings made by a trial court after a


                                     37
  preliminary injunction hearing are not determinative of the ultimate

  merits of the case.” Phoenix Capital, 176 P.3d at 839. But we do

  not understand, nor does South Beebe explain, why a similar

  finding after a trial on the merits would not trump contrary

  determinations by the county attorney, if any, and the director.

¶ 86   The trial court also noted that under the revised service plan,

  South Beebe would submit any potential material modification to

  “the County Planning and Development staff for determination of

  whether the modification is material.” But section 32-1-207(2)(a)

  does not refer to action by a county planning commission. It

  mandates “approval by the [BOCC].” South Beebe cites no

  authority, nor are we aware of any in Colorado, holding that a party

  subject to a statutory requirement can somehow unilaterally dilute

  that requirement.

¶ 87   Finally, South Beebe’s assertion that “because the Trial Court

  found that the District properly sought approval from the Adams

  County [BOCC], the Trial Court did not abuse its discretion” misses

  the mark in two ways.

¶ 88   First, the court referred to “the appropriate governing

  authority,” not to “the Adams County BOCC.” If the court


                                   38
  considered the planning commission to be “the appropriate

  governing authority,” it made an error of law.

¶ 89   Second, and more importantly, to the extent that the court

  focused on South Beebe’s having “sought approval,” the statutory

  requirement of BOCC approval is not measured by a special

  district’s efforts to obtain that approval. § 32-1-207(2)(a) (“by

  petition to and approval by the [BOCC]”) (emphasis added); UMB

  Bank, ¶ 22. In other words, even if in good faith South Beebe had

  perceived the planning commission as a stand in for the BOCC,

  South Beebe made a legal error. And the trial court’s analysis

  overlooked it.

¶ 90   For all of these reasons, we conclude that lessees have a

  reasonable probability of success in establishing that South Beebe

  did not obtain the requisite Adams County BOCC approval.12

  Because the trial court dissolved the temporary restraining order

  and denied a preliminary injunction on this ground alone, without

  reaching the other Rathke factors, we remand the case to the court

  12 Our holding is limited to the particular facts presented. We
  express no opinion on the outcome under other scenarios, such as
  if the planning commission had gone to the BOCC and been told
  there was no material modification or if a BOCC refuses to take
  further action on a proper application by a special district.

                                     39
  to consider the other Rathke factors, make findings as to those

  factors, and reconsider whether a preliminary injunction should be

  entered. See Anderson v. Applewood Water Ass’n, 2016 COA 162,

  ¶ 1.

                       b. Inclusion of the 70 Ranch

¶ 91     Lessees also assert that the trial court erred in concluding that

  South Beebe’s including the 70 Ranch was not a material

  modification. We reject this assertion.

¶ 92     Because section 32-1-207(2)(a) exempts “changes in the

  boundary of the special district” from the BOCC approval

  requirement for material modifications, boundary changes alone are

  presumptively not material modifications. See Beeghly v. Mack, 20

  P.3d 610, 613 (Colo. 2001) (“[T]he inclusion of certain items implies

  the exclusion of others.”).

¶ 93     In contrast, a change that involves “inclusion of property that

  is located in a county . . . with no other territory within the special

  district may constitute a material modification.” § 32-1-207(2)(a)

  (emphasis added). In this latter situation, the district must give the

  county notice; but the county need not approve the inclusion. Id.

  (“The [BOCC] . . . may review such inclusion . . . .”) (emphasis


                                     40
  added). And “‘may’ denotes a grant of discretion.” Gerganoff, 241

  P.3d at 937. And as for including additional property in a county

  that the special district already occupies, the statute does not even

  require that the district give notice.

¶ 94   Lessees push back on the presumption that boundary changes

  are not material modifications. As they see it, Sand Hills held that

  an inclusion of “substantial acreage” — such as the 70 Ranch’s

  13,000 acres — is in and of itself a material modification. But Sand

  Hills does not bear the weight lessees place on it.

¶ 95   Granted, the division did say that the “geographic shift in

  2009 to include the 70 Ranch property . . . was . . . a material

  modification,” and that “inclusion of the 70 Ranch property . . .

  changed [Sand Hills’] basic or essential nature, because new,

  substantial acreage (13,000 acres)” was added. Sand Hills,

  ¶¶ 32-33. But the division did not rest its conclusion solely on the

  fact or size of the inclusion. Rather, it focused on three aspects of

  the district’s conduct: “the 2009 addition of the 70 Ranch property,”

  “the 2011 complete geographic shift to the 70 Ranch property

  (removing all Lochbuie property),” and “the district’s shift from a

  local focus with the purpose of providing local necessities for the


                                     41
  construction of the Altamira Development to a regional focus

  providing services beyond Lochbuie’s boundaries.” Id. at ¶ 20.

¶ 96   The 70 Ranch property was the same when South Beebe later

  included it. But unlike Sand Hills, South Beebe did not have only a

  “local focus,” limited to servicing the needs of a particular

  development, before it included the 70 Ranch. Rather, as the trial

  court found,

             [o]ver the many years since its formation,
             South Beebe entered into a number of
             intergovernmental agreements and expanded
             its geographic scope and purpose. In 2003,
             the district changed its name to South Beebe
             to better describe the regional nature of the
             services and facilities being provided.

¶ 97   As well, the trial court concluded that South Beebe’s 2013

  revised service plan described “a shift in purpose” from a local to a

  regional service provider. On this basis, Sand Hills is

  distinguishable. Unlike in Sand Hills, South Beebe’s shift from a

  local to a regional service provider was incremental, beginning in

  2003 — long before the 70 Ranch was included. But Sand Hills

  remained a local provider until it included the 70 Ranch. Thus, the

  mere size of the 70 Ranch did not make its inclusion a material

  modification; rather, the inclusion changed the “basic or essential


                                     42
  nature” of Sand Hills. In contrast, because South Beebe had

  already taken on a regional role, the inclusion simply expanded the

  region South Beebe served.

¶ 98   Still persisting, lessees argue that the exemption from BOCC

  approval should be limited by the word “only.” See § 32-1-207(2)(a)

  (“Approval for modification shall not be required for changes

  necessary only for the execution of the original service plan or for

  changes in the boundary of the special district . . . .”) (emphasis

  added). In other words, according to lessees, boundary changes

  could be material modifications requiring BOCC approval if those

  changes necessarily encompass other changes, particularly “[a]ny

  addition to the types of services provided.” Id.

¶ 99   To bolster this interpretation, lessees explain that along with

  including the 70 Ranch, South Beebe undertook other projects

  begun by Sand Hills that found no mention in South Beebe’s

  original service plan, such as “construction of a 6,000 acre foot

  reservoir” located on the 70 Ranch. And lessees assert that this

  undertaking added to the types of services South Beebe provided, a

  modification the statute explicitly labels as material. See § 32-1-

  207(2)(a).


                                    43
¶ 100   To begin, the word “only” in section 32-1-207(2)(a) modifies the

  phrase “for the execution of the original service plan,” not “for

  changes in the boundary of the special district.” See Holliday v.

  Bestop, Inc., 23 P.3d 700, 705 (Colo. 2001) (“Words and phrases [in

  our statutes] shall be . . . construed according to the rules of

  grammar and common usage.” (quoting § 2-4-101, C.R.S. 2017))

  (alteration in original).13

¶ 101   Even so, we perceive no basis on which to interpret the

  exemption clause — “[a]pproval for modification shall not be

  required . . . ” — as precluding application of the prior sentence

  requiring approval for certain identified material modifications —

  “approval of modifications shall be required [as to] . . . changes of a

  basic or essential nature, including but not limited to the following:

  . . . .” § 32-1-207(2)(a); see also City of Aurora ex rel. Util. Enter. v.

  Colo. State Eng’r, 105 P.3d 595, 608 (Colo. 2005) (“Exceptions to the

  general laws should be narrowly construed. The legislature, not the

  court, should expand these exceptions if desirable.”) (citation


  13 Although we have not found a Colorado case dealing with a
  similar grammatical structure, in comparing the two phrases, each
  describes a separate category of change; and “only” appears in the
  first category, but not the second.

                                       44
  omitted). In other words, we agree with lessees to the extent that if

  a boundary change also resulted in other changes of “a basic or

  essential nature,” BOCC approval would be required.

¶ 102   Still, this interpretation leads to the question whether South

  Beebe added to its types of services when it took over projects

  previously proposed by Sand Hills for the 70 Ranch. The trial court

  expressly found that South Beebe had not added to the types of

  services provided. The record supports this conclusion.

¶ 103   Sand Hills’ 2013 revised service plan — which lessees argue

  was applicable to the 70 Ranch — proposed to provide

  “construction, acquisition and installation of local and regional

  public improvements, including street and traffic signals, and

  water, sewer, storm drainage and park and recreation facilities.”

  Likewise, South Beebe’s 2013 revised service plan proposed

  “construction, acquisition, installation and maintenance of streets

  and safety control, street lighting, landscaping, storm drainage,

  television relay, water, sanitary sewer, transportation, mosquito

  control, and park and recreation improvements and facilities.”

¶ 104   Every type of service Sand Hills had proposed was also

  proposed by South Beebe. By including the 70 Ranch, South Beebe


                                    45
  did not propose any services beyond what Sand Hills had proposed.

  And to the extent minor variations in the proposed services

  language exist, the court’s conclusion is still consistent with the

  definition of “type.” See State v. Kalman, 887 A.2d 950, 955 (Conn.

  App. Ct. 2006) (“According to the American Heritage Dictionary of

  the English Language (New College Ed. 1981), the word ‘type’ is

  defined as: ‘1. A group of persons or things sharing common traits

  or characteristics that distinguish them as an identifiable group or

  class; a kind; category.’”).

¶ 105   Lessees attempt to shift the focus away from types of services

  to specific projects Sand Hills planned on completing. This

  argument falls short. The statute does not address — and the trial

  court properly did not consider — the addition of specific projects.

¶ 106   Given all this, we agree with the trial court that because South

  Beebe’s including the 70 Ranch was not a material modification, no

  BOCC approval was required. And unlike in Sand Hills, because

  South Beebe had previously included other property in Weld

  County, it did not even have to provide notice to Weld County before

  including the 70 Ranch.

¶ 107   Lessees assert that in the IGA, Weld County had improperly


                                    46
  given advance consent to a material modification — which ripened

  when South Beebe included the 70 Ranch. But the trial court

  found that in the IGA, South Beebe had given Weld County notice of

  its intent to include property located in that county. As well, South

  Beebe gave specific notice of its intent to include the Highland

  Equities property. The county responded that no further action

  would be necessary. These findings are undisputed. Nor have

  lessees raised any procedural defects in the Highland Equities

  property inclusion.

¶ 108   For these reasons, this assertion need not be resolved. And

  because the IGA is not in play, we also need not decide whether

  South Beebe failed to comply with the IGA by acting on a petition

  that did not include all owners of the mineral estate underlying the

  70 Ranch.

¶ 109   In the end, we conclude that because including the 70 Ranch

  was not a material modification, the trial court acted within its

  discretion in ruling that lessees had not shown a reasonable

  probability of success in challenging inclusion of the 70 Ranch as

  an unapproved material modification.




                                    47
   C. Application of Section 32-1-107(2) to Possible Overlap of South
        Beebe’s and Sand Hills’ Services Within the 70 Ranch
¶ 110   Lastly, lessees contend that under section 32-1-107(2), South

  Beebe cannot levy and collect taxes to support services if those

  services are already being provided by another special district.

  Specifically, they continue, because the 70 Ranch property remains

  within Sand Hills, South Beebe is unlawfully taxing them to provide

  some of the same services that Sand Hills provides.

                        1. Additional Background

¶ 111   The trial court concluded that lessees had not shown a

  reasonable probability of success on the merits of this claim for two

  reasons.

¶ 112   First, the trial court considered the Sand Hills division’s

  conclusion that because the 2009 geographic shift from a local to a

  regional service provider was a material modification, the attempted

  inclusion of 70 Ranch into Sand Hills without the approval of the

  Weld County BOCC violated the Act. The court explained that “[a]

  natural reading of the Court of Appeals’ decision is that inclusion of

  70 Ranch was ineffective absent appropriate approval. Thus, it is

  unclear to the Court whether the 70 Ranch property is within or



                                     48
  without the geographic boundaries of Sand Hills.”

¶ 113   Second, the court read section 32-1-107(2) as “not necessarily

  preclud[ing] one district from including property within the

  boundaries of another district; rather the statute prohibits one

  district from providing the same service as another district.” Then

  the court observed “it was not controverted at the preliminary

  injunction hearing that Sand Hills currently is not developing or

  constructing the regional water infrastructure or providing the

  regional water services South Beebe intends to provide.”

¶ 114   Lessees assert that the 70 Ranch remained in Sand Hills and

  that they raised with the trial court whether South Beebe provided

  services overlapping those of Sand Hills.

                                  2. Law

¶ 115   Under section 32-1-107(2), subject to an exception not

  relevant to this case, “no special district may be organized wholly or

  partly within an existing special district providing the same service.”

  (Emphasis added.) This section “prohibits the creation of a new

  district within an overlapping geographical area being served by an

  existing district rendering similar services.” Jefferson Ctr. Metro.

  Dist. No. 1 v. N. Jeffco Metro. Recreation & Park Dist., 844 P.2d


                                    49
  1321, 1325 (Colo. App. 1992) (emphasis added); see also Plains

  Metro. Dist. v. Ken-Caryl Ranch Metro. Dist., 250 P.3d 697, 702

  (Colo. App. 2010) (“That Act prevents a district from organizing

  within the boundaries of ‘an existing special district providing the

  same service,’ unless various approvals are received.”) (emphasis

  added) (citation omitted). The parties have not cited, nor have we

  found, any other authority interpreting this statute.

                              3. Application

¶ 116   As to the trial court’s first reason, the Sand Hills division did

  not say whether Sand Hills’ violation of section 32-1-207(2)(a) — by

  adding the 70 Ranch property without notice to or approval by Weld

  County — voided the inclusion of that property. The division’s

  silence on this point is consistent with the parties’ claims, which

  dealt only with the district’s legal authority to collect taxes and a

  possible refund.

¶ 117   Recall, under section 32-1-207(3)(a), a court may enjoin action

  constituting a material modification. But the Act neither empowers

  a court to void a material modification for lack of approval nor

  provides that such a modification made without the required BOCC

  approval is void. The parties do not cite, nor have we found,


                                     50
  Colorado authority answering this question.

¶ 118   In Upper Bear Creek Sanitation District v. Board of County

  Commissioners, 715 P.2d 799, 802 (Colo. 1986), the court said “[a]s

  a special district organized pursuant to the 1965 Act, the District’s

  modified service plan required approval of the Board before the

  changes contemplated therein could be implemented.” Like the Act,

  the supreme court could have said that the modified service plan

  was void for lack of approval, but it did not do so.

¶ 119   For these reasons, we decline the invitation to decide whether

  the Sand Hills decision voided the 70 Ranch’s inclusion into Sand

  Hills. Thus, because, at the time of the preliminary injunction

  hearing, the 70 Ranch could have remained in Sand Hills, we turn

  to the trial court’s second reason.

¶ 120   Beginning where the trial court did, we also read section

  32-1-107(2) as prohibiting overlapping services, not merely

  overlapping territory. As to the court’s finding that overlapping

  services was not raised at the preliminary injunction, an appellate

  court “is obligated to search the record for evidence to support the

  findings of fact.” Bockstiegel v. Bd. of Cty. Comm’rs, 97 P.3d 324,

  328 (Colo. App. 2004). And we will decline to consider an issue


                                    51
  raised for the first time on appeal. See, e.g., State of Colo. Dep’t of

  Health Care Policy & Fin. v. S.P., 2015 COA 81, ¶ 29.

¶ 121   The question of overlapping services was raised before the

  hearing. Intervenor Noble Energy’s reply in support of the motion

  for a preliminary injunction noted, “South Beebe attempts to argue

  that it is not providing overlapping services in violation of C.R.S.

  § 32-1-107(2).” However, the thrust of this argument was whether

  the 70 Ranch remained in Sand Hills: “the Weld County District

  Court’s orders make clear that South Beebe may not include and

  provide services for [the] 70 Ranch while it is still within Sand Hills,

  which is organized to provide the same services.” Noble Energy’s

  reply brief did not discuss any evidence of overlapping services.

  And as noted above, lessees’ written closing argument did not

  mention overlapping services.

¶ 122   True, after the hearing, lessees filed a notice of supplemental

  authority “relevant to Plaintiffs’ argument that the same property

  cannot be included within two districts providing the same

  services.” Defendants objected to the supplemental authority,

  arguing in part:




                                     52
             Given that Sand Hills [lost] its taxing authority
             and ability to receive revenue, it is
             indisputable that Sand Hills can no longer
             provide services. Thus, there can be no
             overlapping services with South Beebe and
             exclusion of [the] 70 Ranch from Sand Hills is
             immaterial to whether the inclusion of [the] 70
             Ranch into South Beebe is proper.

¶ 123   But none of these filings called the trial court’s attention to

  services that were — or were not — overlapping. Instead, the

  parties alerted the trial court to the legal question of whether the 70

  Ranch remained in Sand Hills. And no party asked the court to

  resolve the factual question of overlapping services.

¶ 124   Therefore, we conclude that the question of whether services

  overlapped is not properly before us. See Qwest Servs. Corp. v.

  Blood, 252 P.3d 1071, 1087 (Colo. 2011) (To preserve an issue for

  appeal, the attorney must present arguments that “alert[] the trial

  judge to the impending error.” (quoting Am. Family Mut. Ins. Co. v.

  DeWitt, 218 P.3d 318, 325 (Colo. 2009))).

                              VI. Conclusion

¶ 125   The trial court’s entry of summary judgment on the lessees’

  claim under section 32-1-401(1)(a) is affirmed. The court’s order

  denying lessees’ motion for a preliminary injunction is vacated



                                     53
  based on our holding that the lessees established a reasonable

  likelihood of success on the merits as to whether South Beebe

  violated section 32-1-207(2)(a) by failing to obtain Adams County

  BOCC approval.

¶ 126   On remand, the trial court must consider the remaining

  Rathke factors, make findings of fact on each of those factors, and

  reconsider whether to enter a preliminary injunction. The

  temporary injunction previously entered by this court, subject to

  compliance with any bonding orders entered by the trial court, will

  remain in effect until the trial court enters its renewed ruling on the

  motion for preliminary injunction. The temporary injunction

  entered by this court will automatically dissolve upon the entry of

  the trial court’s order on remand granting or denying the motion for

  preliminary injunction.

        JUDGE BERGER and JUDGE NIETO concur.




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