No. 91CA2096Colorado Court of Appeals.
Decided February 11, 1993. Opinion Modified, and as Modified Rehearing Denied March 11, 1993. Certiorari Denied August 30, 1993 (93SC235).
Appeal from the District Court of Pueblo County Honorable Eugene T. Halaas, Judge
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Frank Finger, P.C., Thomas Frank; Susemihl, Lohman, Kent, Carlson
McDermott, P.C., Stanley C. Kent, for Plaintiffs-Appellants.
Greengard Senter Goldfarb Rice, Paul E. Collins; Raso and Sutterlin, P.C., Garry Raso, for Defendants-Appellees.
Division I.
Opinion by JUDGE DAVIDSON.
[1] Plaintiffs, Colorado Manufactured Housing Association (CMHA), Champion Enterprises, Inc., d/b/a Champion Home Builders Company (builder), and George C. Seeger d/b/a Seeger Homes (dealer), initiated this action against defendants Pueblo County, the Pueblo County Board of Commissioners, Sollie Reso, Pueblo County Commissioner Chairman, George Amaya and James Brewer, Pueblo County Commissioners, Pueblo County Department of Planning and Development, and Charles Finley, Director of the Pueblo County Department of Planning and Development (Pueblo). The trial court dismissed the action on the basis of lack of standing and plaintiffs appeal. We reverse and remand. [2] This action arises out of Pueblo’s refusal to approve a property owner’s application for a building permit to install his newly purchased manufactured home on his Pueblo County property, which is zoned single-family residential (R-2). [3] The property owner’s manufactured home was built by plaintiff builder in conformity with construction and safety standards developed and promulgated by the Federal Department of Housing and Urban Development (HUD), pursuant to the National Manufactured Housing Construction and Safety Standards Act of 1974 (Manufactured Housing Act), 42 U.S.C. § 5401, et seq. (1988). [4] Pueblo’s denial was in accordance with a local zoning resolution which, as is pertinent here, allows manufactured homes which are built to the standards of the Uniform Building Code (UBC) or its equivalent to be installed on R-2 property as of right, but which requires a building permit to install all other manufactured homes. It is undisputed that the relevant UBC standards are more stringent than the analogous HUD standards. Since the property owner’s manufactured home did not meet UBC standards, Pueblo refused to approve installation. [5] After Pueblo denied his request for a permit, the property owner, who is not a party to this action, rescinded the sales contract with the manufactured home dealer. [6] Thereafter, builder, dealer, and CMHA brought suit alleging economic injury from loss of this and future sales. They claimed that the zoning resolution is invalid because, as it applies to manufactured homes, it is in conflict with the commerce clause and also because it is preempted by the Manufactured Housing Act and, thus, is violative of the supremacy clause. Plaintiffs additionally asserted a claim of violation of its right to due process and a claim under 42 U.S.C. § 1983 (1988) based onPage 510
Pueblo’s alleged violation of the commerce clause and other of plaintiffs’ federal rights.
[7] Plaintiffs sought declaratory judgment, compensatory damages for their loss of sale, and an injunction, inter alia, preventing defendants from denying permits on HUD-manufactured homes for R-2 property. [8] Finding that plaintiffs had failed sufficiently to allege injury-in-fact, the trial court dismissed plaintiffs’ claims for lack of standing. Further, it concluded that, even if their allegations were sufficient to establish injury-in-fact, such injury was not to any legally protected interests. It did not specifically address plaintiffs’ § 1983 claim. [9] The property owner moved to intervene as a plaintiff, but the trial court did not rule on his motion before dismissing the action. I.
[10] We will consider separately CMHA’s contentions and address first the contention by builder and dealer that the trial court erred by determining that they have no standing to bring this action. We agree with that contention.
(Colo. 1984) (required showing of demonstrable injury is somewhat relaxed in declaratory judgment actions). [13] If the complaint fails to allege injury, the case must be dismissed; if the plaintiff does allege sufficient injury, the question whether the plaintiff is protected by law from the alleged injury must be answered Colorado General Assembly v. Lamm, supra. [14] In determining whether a plaintiff has asserted a sufficient injury to satisfy the test of standing, the court must accept the averments of the complaint as true, Colorado General Assembly v. Lamm, supra, and must view the allegations in the light most favorable to the plaintiff. Dunlap v. Colorado Springs Cablevision, Inc., 829 P.2d 1286 (Colo. 1992).
A.
[15] Builder and dealer contend that the trial court erred by determining that they had not alleged injury-in-fact. We agree.
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778 P.2d 648, 653 (Colo. 1989); see Cloverleaf Kennel Club, Inc. v. Colorado Racing Commission, 620 P.2d 1051 (Colo. 1980) (petitioners did not expressly allege direct economic losses or injuries traceable to the commission’s action).
[19] Here, plaintiffs allege that what happened once — loss of a sale as a result of Pueblo’s enforcement of the challenged resolution — will continue until plaintiffs receive declarative and injunctive relief. Thus, plaintiffs allege that the injury is direct. Moreover, if, as plaintiffs request, Pueblo is enjoined from restricting HUD manufactured homes from locations on which UBC manufactured homes are permitted as of right, then their injury will be redressed by a favorable judicial decision. [20] We therefore conclude that plaintiffs’ allegations of threatened injury are sufficient for purposes of standing. See O’Bryant v. Public Utilities Commission, supra, at 653 (plaintiff’s injuries, “while arguably not severe” were not “so indeterminate, indirect, or trivial as unlikely to be redressed by a favorable judicial decision”). [21] We note that in its order, the trial court, although it acknowledged the plaintiffs’ allegation that they suffered actual injury when they lost the sale of the manufactured home to the property owner, concluded that plaintiffs’ injury “occurred as a direct result of private contract obligations” and not from Pueblo’s decision to deny the property owner a permit. However, the question whether the injury resulted from the alleged action of the defendant is not part of the inquiry on standing, but instead “is properly reserved for the trier of fact and is the primary question to be resolved on the merits.” Wimberly v. Ettenberg, supra, at 539. B.
[22] The second prong of the test requires that plaintiffs’ injury be to a legally protected interest in the context of their claims for relief. See Wimberly v. Ettenberg, supra (the broad question is whether the plaintiff has stated a claim for relief which should be entertained in the context of a trial on the merits).
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[28] Hence, builder and dealer have alleged economic injury to their interest to be free of state regulations which discriminate against interstate commerce. Since such interest is legally protected by the commerce clause, we conclude that they have standing to pursue the action under this claim. C.
[29] Builder and dealer also contend that they have standing to challenge the validity of the zoning ordinance on the grounds that it is preempted by the Manufactured Housing Act and, thus, violates U.S. Const. art. 6, cl. 2 (supremacy clause). We agree.
(1989). [32] Accordingly, builder and dealer assert that the Manufactured Housing Act is the source of their right to be free from enforcement of the zoning resolution which they allege is preempted by and in derogation of that Act. [33] The Manufactured Housing Act, in a paragraph entitled “Supremacy of Federal standards,” expressly provides that no state shall have the authority “to establish, or to continue in effect, [any] standard regarding construction or safety applicable to the same aspect of performance of such manufactured home which is not identical to the federal manufactured home construction and safety standard.” 42 U.S.C. § 5403(d) (1988). [34] Thus, by its express language, the Manufactured Housing Act preempts local regulations which impose standards of construction and safety different from those set forth in the Act. See Scurlock v. City of Lynn Haven, Florida, 858 F.2d 1521 (11th Cir. 1988) (the Act precludes states from imposing construction and safety standards upon manufactured homes that differ in any respect from standards developed by HUD). [35] An injured party has the right to “assert an immunity from state or local regulation on the ground that the Constitution or a federal statute, or both, allocate the power to enact the regulation to the National Government, to the exclusion of the States.” Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 113, 110 S.Ct. 444, 452-453, 107 L.Ed.2d 420, 433 (1989). [36] Hence, plaintiffs have a legally protected interest to be free from regulations which are arguably preempted by federal law. [37] Here, builder and dealer assert that, as a requirement for a home to be located on R-2 property in Pueblo County, the zoning resolution imposes construction and safety standards which are inconsistent with standards developed by HUD. Plaintiffs allege injury from Pueblo’s enactment and enforcement of the illegal zoning resolution and request relief from any locally-imposed standards which are covered by the Manufactured Housing Act. [38] Taking their allegations as true, we conclude that they have sufficiently alleged injury to a legally protected interest and, thus, also have standing to challenge the resolution as a violation of the preemption provisions of the Manufactured Housing Act under the supremacy clause.
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D.
[39] Insofar as Pueblo argues that plaintiffs, in order to challenge the zoning resolution, must be owners of property affected by the zoning resolution and must have sustained injury to some interest in real property, we do not agree.
(1975), the supreme court considered the standing of certain nonproperty owners, who asserted standing as persons of low or moderate income, to challenge an exclusionary zoning ordinance. Standing was denied, but that denial was not because plaintiffs were not property owners, but rather because they had failed to allege any injury to their protected interests resulting from the ordinance, as required by the test for standing. Thus, the proper inquiry is whether the requirements of standing have been met, not the status of plaintiffs as property owners. [41] Moreover, the cases relied on by Pueblo do not support its argument that, to challenge this resolution, plaintiffs must own property. Standing in the referenced cases was denied to plaintiffs for other reasons. See Brown v. Board of County Commissioners, 720 P.2d 579 (Colo.App. 1985) (zoning resolution in question permitted change in authorized use of land only by county or by person with an interest in the land and thus granted no legally protected interest in nonproperty owners); Theobald v. Board of County Commissioners, 644 P.2d 942 (Colo. 1982) (plaintiffs asserted only property interests, to which there was no actual injury). [42] Here, plaintiffs assert that the zoning resolution is constitutionally infirm as violative of the commerce and the supremacy clauses. They have alleged injury-in-fact to legally protected economic interests, and therefore, under Wimberly v. Ettenberg, supra, they have standing regardless of their status, or lack thereof, as property owners.
E.
[43] Builder and dealer further contend that they asserted a valid cause of action under 42 U.S.C. § 1983 for violation of rights secured by the commerce clause. Although the trial court did not address this issue, because it may arise on remand, we address it here and conclude that plaintiffs do have standing.
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note that our determination that plaintiffs have standing to challenge the zoning resolution is based on their allegations and is not equivalent to a holding on the merits of the plaintiffs’ claims. See Board of County Commissioners v. Bowen/Edwards Associates, Inc., supra, at 1053 (determination of standing “does not amount to an adjudication on the merits of the case, but rather means simply that the party seeking judicial relief has stated a claim by demonstrating the existence of a legal right or interest which has been arguably violated by the conduct of the other party”).
II.
[49] Finally, we consider the contention of CMHA that the trial court erred by denying it standing to assert the identical claims asserted by builder and dealer. In the complaint, CMHA alleged that its members, including manufacturers, wholesalers, and retailers of HUD Code manufactured homes, “are being precluded from the lawful sale of their products in Pueblo [by] these policies, laws and actions.” We infer, although CMHA does not use the term, that CMHA is asserting associational standing for these members. The trial court denied CMHA standing on the same grounds it denied standing for builder and dealer without considering additional requirements of associational standing. We remand for the trial court to do so.