Alpenhof, LLC, v. City of Ouray, 2013COA9 (January 17, 2013)

Nature causes disasters; humans just fail to prevent them. Case in point: Hurricane Katrina. So, when Ouray reviewed the plans of a Developer to build in an area prone to flooding from a diverted natural waterway, it found the risk to be a “geologic condition” or a “natural hazard.” They required Developer to take significant mitigation measures to which Developer objected and then challenged in court under CRCP 106. The court of appeals rejected Developer’s challenge because Ouray had the authority and discretion to enforce a code requiring flood mitigation to preserve the public’s health, safety and welfare, even though some risk came from a structure built by Ouray. As a matter of municipal litigation practice, the court also made a specific point about not taking judicial notice of ordinances not included in the record. Ouray’s denial of Developer’s application was upheld.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0500-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8803&courtid=1

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