COLORADO COURT OF APPEALS                                          2016COA108

Court of Appeals No. 15CA0239
Arapahoe County District Court No. 13CV722
Honorable Frederick T. Martinez, Judge


Rangeview, LLC, a Colorado limited liability company; Pamela Eades; and John
Sellery,

Plaintiffs-Appellants,

v.

City of Aurora, a municipal corporation; City Council of the City of Aurora, a
governing body; and Mitrah Investment and Holdings, LLC, a Colorado limited
liability company.

Defendants-Appellees.


                           JUDGMENT AFFIRMED

                                   Division I
                          Opinion by JUDGE FOX
                              Miller, J., concurs
               Taubman, J., concurs in part and dissents in part

                          Announced July 14, 2016


Foster Graham Milstein & Calisher, LLP, David Wm. Foster, Chip G.
Schoneberger, Melanie MacWilliams-Brooks, Denver, Colorado, for Plaintiffs-
Appellants

Brownstein Hyatt Farber Schreck, LLP, Martha L. Fitzgerald, Carrie E.
Johnson, Denver, Colorado; Wood, Ris & Hames, P.C., Todd E. Mackintosh,
Denver, Colorado, for Defendants-Appellees
¶1   Rangeview, LLC, Pamela Eades, and John Sellery

 (collectively Rangeview) appeal the trial court’s judgment

 affirming, under C.R.C.P. 106(a)(4), the Aurora City Council’s

 approval of a rezoning application submitted by BFR, LLC (BFR)

 and Mitrah Investments and Holdings, LLC (Mitrah). We affirm.

                           I. Background

¶2   BFR owned a rectangular parcel of property located at the

 intersection of Havana Street and Kentucky Avenue in Aurora,

 Colorado (the property). The property consists of 1.894 acres of

 vacant land measuring 300 feet by 275 feet. Mitrah is the

 developer of the property. The site plan was proposed as follows:




                                  1
¶3   Rangeview, LLC owns Rangeview estates — which borders

 the property to the west — and Eades and Sellery each own

 property in the neighborhoods surrounding the property. In

 2012, BFR and Mitrah applied to rezone the property from B-1



                                2
 (business zoning district) on the east side and R-3 (residential

 zoning district) on the west side to Aurora’s new Sustainable Infill

 Redevelopment (SIR) Zoning District. BFR’s and Mitrah’s site

 plan included a proposal to split the property into two lots, the

 first to be developed into a gas station with a convenience store

 and the second to be reserved for a future commercial retail

 building. In February 2013, Aurora’s Planning and Zoning

 Commission denied the application. BFR and Mitrah appealed

 the denial to the Aurora City Council (City Council).

¶4    City Council conducted a hearing and received testimony

 from proponents and opponents of the rezoning application. City

 Council also heard testimony on the goals of SIR zoning and

 considered the potential utility of BFR’s and Mitrah’s

 development plans in the area surrounding the property. City

 Council approved, in a 6-2 vote, BFR’s and Mitrah’s request to

 rezone the property and approved, in a 7-2 vote, the proposed

 site plan for Lot 1.

¶5    Rangeview filed a C.R.C.P. 106(a)(4) action in the district

 court against the City of Aurora, City Council, BFR, and Mitrah

 (collectively rezoning proponents) claiming that City Council


                                   3
 exceeded its jurisdiction and abused its discretion in granting the

 application to rezone the property and approve the proposed site

 plan. During the course of the proceedings, Mitrah purchased

 the property from BFR and the district court dismissed BFR from

 the case. The district court concluded that City Council’s

 decision was reasonably supported by the record and that City

 Council had a reasonable basis for its interpretation of the

 ordinances governing SIR zoning districts. The district court

 thus affirmed City Council’s decision.

¶6   Rangeview appeals the district court’s decision, arguing that

 City Council abused its discretion by (1) approving the site plan

 when the plan did not include an outdoor gathering space that

 meets SIR design standards and (2) rezoning the property to SIR

 zoning when the property does not meet the requirements of an

 “infill development parcel” as defined in the Aurora Municipal

 Code.




                                  4
                              II. Standing

¶7    The parties’ original briefing to this division did not address

 whether Rangeview had standing to challenge City Council’s

 actions, but this panel sua sponte raised the issue.1 See Moody

 v. People, 159 P.3d 611, 616 (Colo. 2007) (appellate courts have

 authority to address standing sua sponte if there is a sufficient

 factual record upon which to resolve the issue). The parties

 supplied additional briefing on the issue of standing,2 and we

 conclude that Rangeview has sufficient standing to proceed with

 its claims on appeal.




 1 This division ordered that the parties submit additional briefing
 addressing: (1) where in the complaint Rangeview alleged they
 would suffer an injury in fact to a legally protected interest because
 the respondents did not include public open space in their proposed
 gas station/convenience store; (2) if not so alleged, should this
 appeal be dismissed for lack of sufficient allegations in the
 complaint regarding standing; (3) where, if at all, do facts
 establishing standing appear in the record; and (4) what authority,
 if any, allows this court to rely on those facts of record — if they
 exist, are uncontroverted, and are not otherwise referenced in the
 complaint — to conclude there is standing and address the
 contentions on appeal.
 2 But the additional briefing did not address the first question of

 this division regarding the lack of a public gathering space.


                                   5
¶8    Standing is a jurisdictional prerequisite that requires a

 named plaintiff to bring suit to protect a cognizable interest.

 Friends of the Black Forest Reg’l Park, Inc. v. Bd. of Cty. Comm’rs,

 80 P.3d 871, 877 (Colo. App. 2003). Whether a plaintiff has

 standing depends on whether the plaintiff has alleged an injury-

 in-fact and, if so, whether the injury is to a legally protected or

 cognizable interest. Bd. of Cty. Comm’rs v. Bowen/Edwards

 Assocs., Inc., 830 P.2d 1045, 1052 (Colo. 1992). In an action

 under the Uniform Declaratory Judgments Law, §§ 13-51-101 to

 -115, C.R.S. 2015, “the injury-in-fact element of standing is

 established when the allegations of the complaint, along with any

 other evidence submitted on the issue of standing, establishes

 that the regulatory scheme threatens to cause injury to the

 plaintiff’s present or imminent activities.” Bowen/Edwards

 Assocs., Inc., 830 P.2d at 1053. Colorado courts provide for

 broad individual standing. Hickenlooper v. Freedom from Religion

 Found., Inc., 2014 CO 77, ¶ 17.

¶9    Colorado case law is inconsistent regarding whether an

 appellate court may look beyond the four corners of the

 complaint and examine the contents of the appellate record to


                                    6
  assess whether a party has proper standing to bring an action.

  Compare Colo. Gen. Assembly v. Lamm, 700 P.2d 508, 516 (Colo.

  1985) (“If the complaint fails to allege injury, the case must be

  dismissed.”), and C M I Corp. v. Bd. of Adjustment, 528 P.2d 409,

  410 (Colo. App. 1974) (not published pursuant to C.A.R. 35(f))

  (courts are not at liberty to go beyond the confines of a pleading

  when evaluating standing), with Marks v. Gessler, 2013 COA

  115, ¶ 88 (“[I]n conducting our de novo standing review, we may

  examine record evidence outside of the complaint.”) (cert. granted

  June 23, 2014), and Bowen/Edwards Assocs., Inc., 830 P.2d at

  1052 (standing is established if the allegations in the complaint,

  along with any other evidence submitted on the issue of

  standing, demonstrate an injury-in-fact), and Coates v. City of

  Cripple Creek, 865 P.2d 924, 926 (Colo. App. 1993) (concluding,

  based on evidence in the appellate record, that plaintiffs had

  standing when plaintiffs alleged, at a city council hearing, that

  their property adjacent to land subject to a rezoning proposal

  would be adversely affected).

¶ 10   We note that the supreme court in Lamm, in articulating the

  relevant standing framework, was not presented with the issue of


                                    7
  whether a court may look outside of the four corners of a

  complaint, or whether a court can look to the record to determine

  standing. See Lamm, 700 P.2d at 515-16. And, more recently,

  the supreme court stated, in Bowen/Edwards, that the injury-in-

  fact component of standing involves an inquiry of the allegations

  in the complaint along with any other evidence submitted in

  support of standing. Bowen/Edwards Assocs., Inc., 830 P.2d at

  1053. Because the framework articulated in Bowen/Edwards is

  more recent and more specific to our present issue than the

  aforementioned cases rejecting the ability to look outside of the

  complaint for evidence supporting standing, we must follow it.

  See, e.g., Keller v. People, 29 P.3d 290, 298 (Colo. 2000) (more

  recent and more specific case controls).

¶ 11   Therefore, along with the allegations in the complaint, an

  appellate court may consider testimony and other documentary

  evidence in the appellate record to determine whether the parties

  have standing. See Bowen/Edwards Assocs., Inc., 830 P.2d at

  1053; Marks, ¶ 88; Durdin v. Cheyenne Mtn. Bank, 98 P.3d 899,

  902-03 (Colo. App. 2004); Coates, 865 P.2d at 926.




                                    8
¶ 12   Rangeview’s complaint never alleges that City Council’s

  approval of the proposed site plan or the request to rezone the

  property will harm Rangeview, LLC, Eades, or Sellery. However,

  Rangeview presented testimony at the hearing before the City

  Council that several homes located in Rangeview Estates are

  located adjacent to the property. Colorado courts have

  recognized that owners of property adjacent to rezoned land have

  standing to challenge rezoning that adversely affects them. See,

  e.g., Bd. of Cty. Comm’rs v. City of Thornton, 629 P.2d 605, 609

  (Colo. 1981); Wells v. Lodge Props., Inc., 976 P.2d 321, 324 (Colo.

  App. 1998); Coates, 865 P.2d at 926. Rangeview also offered

  expert testimony that the proposed site plan would result in a

  decrease in home values in adjacent neighborhoods, including

  Rangeview Estates. Rangeview’s complaint alleges that Eades

  and Sellery own homes in the Rangeview Estates neighborhood.

  Therefore, we conclude that the record supports a showing of an

  injury-in-fact, that Rangeview had standing, and that the trial

  court had jurisdiction to adjudicate the claims before it. See

  Bowen/Edwards Assocs., Inc., 830 P.2d at 1052.




                                    9
¶ 13   Although Rangeview’s complaint could have been more

  complete and specific regarding their alleged injuries relating to

  the absence from the site plan of an outdoor gathering space, the

  record supports the conclusion that the properties surrounding

  the gas station and convenience store would suffer economic and

  aesthetic harm. See Ainscough v. Owens, 90 P.3d 851, 855

  (Colo. 2004) (it is sufficient to allege harm based on aesthetic

  issues); see also Thornton, 629 P.2d at 609 (diminuition in value

  can support standing). Because the record supports such a

  potential injury, we address the issues raised on appeal.

                       III. City of Aurora SIR Districts

                A. Preservation and Review Standards

¶ 14   The parties agree that Rangeview properly preserved its

  claims for appeal.

¶ 15   C.R.C.P. 106(a)(4) provides judicial review of a decision of

  any governmental body or any lower judicial body exercising

  judicial or quasi-judicial functions to determine whether the body

  exceeded its jurisdiction or abused its discretion. Bd. of Cty.

  Comm’rs v. O’Dell, 920 P.2d 48, 49 (Colo. 1996); Canyon Area

  Residents for the Env’t v. Bd. of Cty. Comm’rs, 172 P.3d 905, 907


                                      10
  (Colo. App. 2006). The district court has no factfinding authority

  in such cases, and our review is the same as that exercised by

  the district court. Canyon Area Residents, 172 P.3d at 907. Our

  review is limited to whether City Council exceeded its authority

  or abused its discretion in granting the application to rezone the

  property. Id.

¶ 16   A governmental body abuses its discretion when its decision

  is not supported by any competent evidence in the record. Id.

  “No competent evidence” means that the decision of the

  governing body was “so devoid of evidentiary support that it can

  only be explained as an arbitrary and capricious exercise of

  authority.” Ross v. Fire & Police Pension Ass’n, 713 P.2d 1304,

  1309 (Colo. 1986) (citation omitted). A reviewing court may also

  consider whether the governing body misconstrued or misapplied

  the law. See Canyon Area Residents, 172 P.3d at 907.

¶ 17   Interpretation of a municipal ordinance involves a question

  of law subject to de novo review. MDC Holdings, Inc. v. Town of

  Parker, 223 P.3d 710, 717 (Colo. 2010). The same rules of

  construction apply in interpreting ordinances as in construing

  statutes. Walter G. Burkey Tr. v. City & Cty. of Denver, 2012 COA


                                   11
  20, ¶ 8. We look to the plain language of the ordinance in order

  to give it effect. Id.

                           B. Outdoor Gathering Space

¶ 18   Rangeview argues that City Council abused its discretion by

  approving Mitrah’s site plan because the plan did not include an

  outdoor gathering space as mandated by the SIR design

  standards. We disagree.

                                    1. Law

¶ 19   With regard to SIR districts, the Aurora Municipal Code

  (Code) states that “[t]he design of any proposed development in

  the SIR district . . . shall include an outdoor gathering space that

  is appropriate to the situation and scale of the site.” Aurora

  Mun. Code § 146-736(A)(7). According to the Code, “[t]he

  purpose of the [SIR] district is to allow a compatible mix of

  commercial, civic and residential uses in areas suitable for infill

  development and redevelopment,” and “[t]he SIR district is

  intended to be a flexible zoning district that will support new

  businesses and maximize living choices.” § 146-732(A). The

  Code further provides that “[a]ny development within the SIR

  district shall fully comply with all applicable City Code


                                       12
  requirements, except as may otherwise be specified in this

  division or in the [SIR] handbook.” § 146-733(A); see also

  Garrido v. Dudek, 731 F.3d 1152, 1155 (11th Cir. 2013) (relying

  on relevant portions of Florida Medicaid handbook when

  handbook was incorporated by reference in specific relevant

  regulation).

¶ 20   The SIR Design Handbook states:

            This handbook describes general concepts and
            guidelines for development and principles of
            design that are flexible and predictable to
            implement. Every element described will not
            apply to every development. While the
            handbook is meant to provide guidance to the
            design community and a basis for development
            review for city staff, the city will be open to
            new ideas and flexible in the interpretation of
            these guidelines. These guidelines are not
            intended to be applied exactly or literally when
            such application will inhibit beneficial
            development and redevelopment in the SIR
            Zoning District.

  City of Aurora, Sustainable Infill and Redevelopment Design

  Handbook 3 (April 2012), https://perma.cc/ER35-2XNT. The

  handbook further provides that “development or redevelopment

  projects should plan to provide at least one public space of some

  type.” Id. at 20. However, the handbook’s distinct objective is to



                                   13
  promote development and redevelopment via its flexible guidelines.

  See id. at 3.

                              2. Analysis

¶ 21   Rangeview argues that the term “shall” in the Code

  mandates an open gathering space in every SIR district project.

  See Aurora Mun. Code § 146-736(A)(7). However, the Code

  defaults to the terms of the SIR handbook, which says that

  projects “should” provide a public space. Sustainable Infill and

  Redevelopment Design Handbook at 20. The use of “should” in

  the handbook’s language indicates discretion. See Aurora Mun.

  Code § 146-2000(M) (“The words ‘shall,’ ‘will,’ and ‘must’ are

  always mandatory. The words ‘may’ and ‘should’ are

  discretionary terms.”); see also Sheridan Redevelopment Agency

  v. Knightsbridge Land Co., L.L.C., 166 P.3d 259, 264 (Colo. App.

  2007). The handbook specifies that it is meant to be “flexible”

  and is not to be interpreted literally when such an interpretation

  will inhibit development. Sustainable Infill and Redevelopment

  Design Handbook at 3. And, the Code qualifies its language

  regarding outdoor gathering spaces by specifying that they be

  appropriate to the situation and scale of the site. See Aurora


                                   14
  Mun. Code § 146-736(A)(7). As the rezoning proponents argue,

  the size of the property, its location immediately adjacent to a

  busy street, and the development of a gas station and

  convenience store on the lot do not create an appropriate

  situation for an outdoor gathering space. Because the SIR

  district is a flexible, pro-development guideline, we decline to

  overturn City Council’s decision purely on the basis that the site

  plan did not contain some sort of outdoor gathering space.

¶ 22   In making its decision, City Council heard testimony

  regarding the proximity of the property to the Rangeview Estates

  residential development and the potential traffic impact the site

  plan could generate. The council also heard from a planning

  supervisor who participated in drafting the SIR zoning ordinance

  and recommended that the council approve Mitrah’s application.

  The council heard testimony from several individuals and

  representatives of groups and entities with interests in the area

  surrounding the property and received hundreds of documents

  for and against Mitrah’s proposed rezoning and site plan

  application. City Council considered the following points in favor

  of approving Mitrah’s request:


                                    15
          The site plan provided considerable new landscaping to

            the area, including a line of trees to buffer the

            development from Rangeview Estates.

          A gas station at the property’s location on Havana Street

            would provide a useful refueling option where none

            existed.

          Uses other than a gas station and convenience store

            could create more traffic problems for residents of the

            surrounding neighborhoods.

¶ 23   City Council heard arguments and received supporting

  evidence and documents from proponents and opponents of the

  rezoning and considered all of it before voting to approve the site

  plan. Because City Council’s approval was supported by

  competent evidence, City Council did not abuse its discretion.

  See Canyon Area Residents, 172 P.3d at 907.

             C. SIR Zones and “Infill Development Parcel”

¶ 24   Rangeview argues that City Council abused its discretion in

  rezoning the property to a SIR district when the property does

  not meet the requirements of an “infill development parcel” as

  defined in the Code. We disagree.

                                    16
                          1. Additional Facts

¶ 25   The property’s 300-foot western boundary borders

  Rangeview Estates, which, at the time of City Council’s decision,

  had been developed for less than eight years. This 300-foot

  border comprises 26.1% of the property’s boundaries. The

  parties do not dispute that less than seventy-five percent of the

  property’s boundaries have been developed for at least ten years.

¶ 26   During the pendency of the zoning application process, an

  abandoned building — previously a home and then a medical

  office — occupied the property. That building has since been

  torn down.

                         2. Law and Analysis

¶ 27   The Code states that SIR zoning districts are appropriate “in

  areas suitable for infill development and redevelopment.” Aurora

  Mun. Code § 146-732(A). The Code does not specifically define

  “infill development” or “redevelopment.” Rangeview argues that

  the property does not meet the definition of an “infill development

  parcel” because it does not have at least seventy-five percent of

  its borders adjacent to property that has been developed for at




                                   17
  least ten years. For this reason, Rangeview contends that the

  City Council abused its discretion. We are not persuaded.

¶ 28   The Code defines an “infill development parcel” as “an area .

  . . that . . . includes no more than 20 acres of land, and where

  the land along at least 75 percent of the boundaries of the

  proposed subdivision . . . has been developed for a period of at

  least ten years.” Aurora Mun. Code § 146-2001.

¶ 29   The term “infill development parcel” does not appear in the

  SIR district section of the Code and is only defined in the general

  definitions section applicable to the entire Code. See Aurora

  Mun. Code §§ 146-700 to 146-738. The SIR district section of

  the Code only references “infill development and redevelopment.”

  Aurora Mun. Code § 146-732(A). Had the drafters of the SIR

  zoning ordinance meant for the definition of “infill development

  parcel” to apply to “infill development and redevelopment,” they

  would have included more specific language to that effect in the

  ordinance.3 See Burkey Tr., ¶ 8 (we look to the plain language of



  3Rangeview argues that the term “infill development parcel” does
  not appear in any zoning district ordinances, other than section


                                   18
the ordinance in order to give effect to the drafters’ intent); see

also Gessler v. Doty, 2012 COA 4, ¶ 14 (when two provisions in a

code conflict, the more specific prevails). Without reference in

the SIR section of the Code to “infill development parcel,” the

definition in other sections of the Code is irrelevant to our

interpretation. Rather, as Rangeview admits, the language of the

SIR district ordinance uses the term “infill” as a modifier for

“development and redevelopment.” Generally, infill means “to fill

in.” Webster’s Third New International Dictionary 1159 (2002).

Thus, the SIR district ordinance’s references to development and

redevelopment mean to fill in empty land and does not impose

additional boundary requirements.




146-1101 of the Code, which references the percent of small lots
which can be included in an infill development parcel, and,
therefore, its inclusion in the definitions section is superfluous if it
is not applied to “infill development and redevelopment” as
referenced in the SIR district section. However, the inclusion of the
term in the Code on its own provides purpose for the definition and
does not mean that the definition should be applied to any other
term utilizing similar words. See Rush Creek Solutions, Inc. v. Ute
Mountain Ute Tribe, 107 P.3d 402, 406 (Colo. App. 2004) (we may
affirm on any grounds supported by the record).


                                   19
¶ 30   Because the language’s ordinary meaning does not reference

  any requirement related to the proportions of developed

  boundaries, we cannot say that City Council abused its

  discretion by approving Mitrah’s rezoning request even though

  the property would not meet the definition of an “infill

  development parcel.” See Burkey, ¶ 8.4

                             IV. Conclusion

¶ 31   The judgment is affirmed.

       JUDGE MILLER concurs.

       JUDGE TAUBMAN concurs in part and dissents in part.




  4 Mitrah also argues that, because the property already had a
  building on it, the proposed construction was properly classified as
  redevelopment. Because we conclude that City Council did not
  abuse its discretion in approving the rezoning request, regardless of
  whether the proposed plan included development or redevelopment,
  we need not address this argument.


                                   20
       JUDGE TAUBMAN, concurring in part and dissenting in part.

¶ 32   This case involves the Aurora City Council’s (City Council)

  approval of a rezoning application allowing the development of a

  convenience store/gas station and the challenge to that approval

  by Rangeview Estates and two neighbors, Pamela Eades and

  John Sellery (collectively Rangeview plaintiffs). Rangeview raised

  two issues on appeal, arguing that the City Council abused its

  discretion by rezoning the property without it meeting the

  requirements of an “infill development parcel” as defined in the

  municipal code and by approving the site plan without it

  including an outdoor gathering space required by Aurora’s new

  Sustainable Infill Redevelopment (SIR) zoning district.

¶ 33   Standing is a threshold issue that must be satisfied to

  decide a case on the merits. Ainscough v. Owens, 90 P.3d 851,

  855 (Colo. 2004). To establish standing, a plaintiff must have

  suffered an injury in fact, and this harm must have been to a

  legally protected interest. Id. A legally protected interest

  “emanates from a constitutional, statutory, or judicially created

  rule of law that entitles the plaintiff to some form of judicial




                                    21
  relief.” Bd. of Cty. Comm’rs v. Bowen/Edwards Assocs., 830 P.2d

  1045, 1053 (Colo. 1992).

¶ 34   I agree with the majority’s conclusion that standing may be

  based on information contained in the record, together with the

  allegations of the complaint. See id. Under this approach, I

  conclude that the Rangeview plaintiffs have standing to argue

  that the City Council abused its discretion in rezoning the

  property to an SIR district when the property does not meet the

  requirements of an infill development parcel as defined in the

  Aurora Municipal Code.

¶ 35   As to the outdoor gathering space issue, I agree that the

  Rangeview plaintiffs allege they had a legally protected interest

  because Eades and Sellery live very close to the proposed

  convenience store/gas station, and Rangeview Estates is also

  located nearby. However, I respectfully disagree with the

  majority that the Rangeview plaintiffs have standing to raise the

  issue of the failure to include an outdoor gathering space at the

  convenience store/gas station because the Rangeview plaintiffs

  have not alleged an injury in fact to a legally protected interest.




                                    22
¶ 36   The complaint alleges that the convenience store/gas station

  plan fails to include an outdoor gathering space; however, the

  complaint contains no allegations that the Rangeview plaintiffs

  will be harmed in any way by this failure.

¶ 37   Looking beyond the four corners of the complaint, while

  some testimony at the hearing before City Council noted

  generally that the proposed convenience store/gas station did not

  comply with any of the eight SIR zoning district standards or

  goals, the Rangeview plaintiffs presented no testimony

  whatsoever indicating that they would be harmed by the lack of

  an outdoor gathering space. Although one neighbor of the

  Rangeview plaintiffs testified before the City Council about the

  failure to comply with the outdoor gathering space provision, he

  did not note that any harm would result from the failure of the

  developer to provide an outdoor gathering space. Significantly,

  this issue was not raised at all by the Rangeview plaintiffs at the

  earlier hearing before the zoning commission. Therefore, in my

  view, neither the record nor the complaint contains sufficient

  evidence to accord standing to the Rangeview plaintiffs on this

  issue.


                                   23
¶ 38   Standing is not conveyed by any injury that is overly

  “indirect and incidental” to a defendant’s action. Ainscough, 90

  P.3d at 856 (citation omitted). Although usually injury is alleged

  in terms of physical damage or economic harm, it is sufficient to

  allege harm based on aesthetic issues. Id. In Reeves v. City of

  Fort Collins, 170 P.3d 850, 854 (Colo. App. 2007), a division of

  this court held that an individual living eight blocks from a

  development had standing to challenge a city council’s

  characterization of interior living floors of the development

  project and a rooftop penthouse as mezzanines, thus avoiding

  the height restrictions of the local zoning code. Similarly, in

  Wells v. Lodge Properties, Inc., 976 P.2d 321, 324 (Colo. App.

  1998), a division of this court held that a property owner had

  standing to challenge a development project that she alleged

  would obstruct her views and limit her access to open space. In

  these decisions, unlike the circumstances presented here, there

  was a specific allegation that a property owner would be harmed

  not only by the approval of a development project, but by the

  specific provision that the property owner challenged.




                                    24
¶ 39   Here, the Rangeview plaintiffs could easily have alleged that

  their interest in aesthetic issues in its neighborhood would be

  harmed by the lack of outdoor gathering space. However, they

  did not do so. Neither the Rangeview plaintiffs nor the majority

  points to anywhere in the record where the Rangeview plaintiffs

  allege that they would suffer aesthetic harm, or any type of harm,

  by the lack of outdoor gathering space.

¶ 40   A treatise on zoning notes that “to be an aggrieved person

  one must establish a specific personal and legal interest in the

  subject matter of the decision, as distinguished from a general

  interest that would concern all members of the community.” 4

  E.C. Yokley, Zoning Law and Practice § 24-3(a) (4th ed. 2011).

  Decisions of courts in other jurisdictions have concluded that a

  plaintiff must allege specific harm resulting from a zoning board

  decision. See Valcourt v. Zoning Bd. of Appeals, 718 N.E.2d 389,

  392 (Mass. App. Ct. 1999) (to have standing to appeal a decision

  of the zoning board, a plaintiff must offer specific facts to

  establish perceptible harm); Shelter Island Ass’n v. Zoning Bd. of

  Appeals, 869 N.Y.S.2d 615, 617 (N.Y. App. Div. 2008)

  (petitioner’s generalized allegations of increased traffic and the


                                    25
  effect on the water table resulting from the addition of one or two

  tenants to the subject property are insufficient to establish

  standing); Friends of the Rappahannock v. Caroline Cty. Bd. of

  Supervisors, 743 S.E.2d 132, 138 (Va. 2013) (proximity alone is

  insufficient to plead justiciable interest in appealing land-use

  decision; to demonstrate standing, complaint must also allege

  sufficient facts showing harm to some personal or proprietary

  right different from that suffered by the public generally).

¶ 41   Accordingly, I do not believe that the Rangeview plaintiffs

  alleged that they had suffered any injury in fact. In sum, while I

  agree with the majority’s resolution of the second issue, I would

  dismiss the Rangeview plaintiffs’ first issue for lack of standing.




                                    26
