Colorado Community Coalition Offers Amendment to HB24-1107 & Other Bills The power of a statewide coalition. United, we are strong.

In addition to offering critical changes to HB24-1296, the Vexatious Persons Bill, CCC has been hard at work testifying on many of the developer-backed dangerous density bills. We are also lobbying to get HB24-1343, Evacuation Modeling Pilot Program, passed so ALL citizens of Colorado know their evacuation time, evacuation route maps with safe areas identified for when they get trapped in a dire fire and impact of development on evacuation times, we just submitted an important amendment to the Developers Rule bill, HB24-1107. Below is a summary of that amendment in layman's language:

The Colorado Community Coalition (CCC) supports an amendment to HB24-1107 being considered by the Colorado Senate and would bring some fairness to an extremely unfair bill.  HB24-1107 currently mandates an award of the government’s attorney fees against any plaintiff who challenges granting a residential land use application involving five homes per acre or more, when the plaintiffs does not prevail in the legal challenge. HB24-1107 does not impose an award of attorneys fees upon developers who appeal or the government if either of them loses. 

The proponents claim frivolous cases are blocking housing development all over the state and must be stopped. However, in the last two years of the approximately six such cases filed each year, most of these cases were decided in plaintiffs’ favor or are still pending. We believe the proponents' goal is to prevent as many valid cases as possible by scaring potential plaintiffs with the risk of paying unlimited attorney fees incurred by the government.  

While CCC believes HB24-1107 is a solution looking for a problem, the proposed amendment at least focuses on actual frivolous cases, and we support the amendment. It requires the assigned judge for the appeal to set a hearing after the parties file their initial pleadings. The hearing would be non-binding and allow the judge to indicate whether the matter may be frivolous under current and existing standards of the law.  

The existing standard for a frivolous action is found in CRS § 13-17-102, preventing filing any action that “lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment.” A lack of “substantial justification” is where "the judgment by the tribunal below was so plainly correct and the legal authority contrary to appellant's position so clear that there is really no appealable issue," the appeal is held to be ‘frivolous as filed.’”  See Castillo v. Koppes-Conway, 148 P. 3d 289 - Colo: Court of Appeals, 5th Div. 2006. In short, it means there is no possible legal manner in which Plaintiff can win. 

Under the proposed amendment, if the court gives an advisory opinion, the case may be frivolous; the plaintiff may still continue the action but will be assessed the government’s attorney fees if they lose.  However, if the court finds there is “substantial justification” for the case (i.e., a plausible possibility of winning), no attorney fees will be assessed against Plaintiffs for filing the case. The amendment also clarifies that HB24-1107 only applies to cases filed after its enactment date. 

CCC supports this amendment because it allows the plaintiffs to get a “heads-up” from the assigned judge on the case. If the assigned judge believes the case may well be frivolous, plaintiffs have a real incentive to drop the case and stop the bleeding of attorney fees. Defendants also have a chance to see if the judge finds there are real issues with the decision below, which could help defendants understand their risk better early on.  

This amendment would not punish those cases in which Plaintiffs make a valid claim but not quite enough to convince the judge. The current version of the law has the obvious, unintentional, or intentional result of scarring plaintiffs from filing valid cases due to the risk of unlimited attorney fees. This is not fair. 

CCC asks for your support in this amendment, which would bring some measure of fairness to this extremely unfair bill as currently written. 

Sadly, these efforts cost money. Your donation is both needed and appreciated.