Colorado § 38-33.3-210 - Exercise of development rights.

§ 38-33.3-210. Exercise of development rights.

(1) To exercise any development right reserved under section 38-33.3-205 (1)(h), the declarant shall prepare, execute, and record an amendment to the declaration and, in a condominium or planned community, comply with the provisions of section 38-33.3-209. The declarant is the unit owner of any units thereby created. The amendment to the declaration must assign an identifying number to each new unit created and, except in the case of subdivision or conversion of units described in subsection (3) of this section, reallocate the allocated interests among all units. The amendment must describe any common elements and any limited common elements thereby created and, in the case of limited common elements, designate the unit to which each is allocated to the extent required by section 38-33.3-208.

(2) Additional development rights not previously reserved may be reserved within any real estate added to the common interest community if the amendment adding that real estate includes all matters required by section 38-33.3-205 or 38-33.3-206, as the case may be, and, in a condominium or planned community, the plats and maps include all matters required by section 38-33.3-209. This provision does not extend the time limit on the exercise of development rights imposed by the declaration pursuant to section 38-33.3-205 (1)(h).

(3) Whenever a declarant exercises a development right to subdivide or convert a unit previously created into additional units, common elements, or both:

(a) If the declarant converts the unit entirely to common elements, the amendment to the declaration must reallocate all the allocated interests of that unit among the other units as if that unit had been taken by eminent domain; and

(b) If the declarant subdivides the unit into two or more units, whether or not any part of the unit is converted into common elements, the amendment to the declaration must reallocate all the allocated interests of the unit among the units created by the subdivision in any reasonable manner prescribed by the declarant.

(4) If the declaration provides, pursuant to section 38-33.3-205, that all or a portion of the real estate is subject to a right of withdrawal:

(a) If all the real estate is subject to withdrawal, and the declaration does not describe separate portions of real estate subject to that right, none of the real estate may be withdrawn after a unit has been conveyed to a purchaser; and

(b) If any portion of the real estate is subject to withdrawal, it may not be withdrawn after a unit in that portion has been conveyed to a purchaser.

(5) If a declarant fails to exercise any development right within the time limit and in accordance with any conditions or fixed limitations described in the declaration pursuant to section 38-33.3-205 (1)(h), or records an instrument surrendering a development right, that development right shall lapse unless the association, upon the request of the declarant or the owner of the real estate subject to development right, agrees to an extension of the time period for exercise of the development right or a reinstatement of the development right subject to whatever terms, conditions, and limitations the association may impose on the subsequent exercise of the development right. The extension or renewal of the development right and any terms, conditions, and limitations shall be included in an amendment executed by the declarant or the owner of the real estate subject to development right and the association.

Source: L. 91: Entire article added, p. 1723, § 1, effective July 1, 1992. L. 93: (5) amended, p. 648, § 13, effective April 30. L. 98: (2) amended, p. 481, § 7, effective July 1.

ANNOTATION

Compliance with this section required for annexation of property. Annexation of property, which adds real estate to a common interest community, is a development right as defined in § 38-33.3-103, and compliance with this section is thus required. Ryan Ranch Cmty. Ass'n v. Kelley, 2014 COA 37M, 409 P.3d 375, aff'd, 2016 CO 65, 380 P.3d 137.

Subsection (1) of this section applies only when a development right is reserved under § 38-33.3-205 (1)(h). Under subsection (1) of this section, a declarant must prepare an amendment to exercise any development right reserved under § 38-33.3-205 (1)(h), which section describes what a declaration must contain and specifies that it must include a description of any development rights and other special declarant rights reserved by the declarant. Ryan Ranch Cmty. Ass'n v. Kelley, 2014 COA 37M, 409 P.3d 375, aff'd, 2016 CO 65, 380 P.3d 137.

The term "amendment" is not defined under the Colorado Common Interest Ownership Act. The term "amendment" is generally understood to mean a formal revision or addition proposed or made to a statute, constitution, pleading, order, or other instrument; specifically, a change made by addition, deletion, or correction. Ryan Ranch Cmty. Ass'n v. Kelley, 2014 COA 37M, 409 P.3d 375, aff'd on other grounds, 2016 CO 65, 380 P.3d 137.

Amendments necessary for annexation must also comply with § 38-33.3-217. Ryan Ranch Cmty. Ass'n, Inc. v. Kelley, 2016 CO 65, 380 P.3d 137.

Subsections (4)(a) and (4)(b) impose parallel restrictions on the right of withdrawal depending on whether a declaration divides the real estate into separate portions subject to that right. Subsection (4)(a) applies only if the declaration does not describe separate portions. Subsection (4)(b) thus applies if the declaration does describe separate portions that are subject to withdrawal. "Portion", as used in subsection (4)(b), must therefore refer to a described portion as used in subsection (4)(a). Vista Ridge Master Homeowners Ass'n v. Arcadia Holdings at Vista Ridge, LLC, 2013 COA 26, 300 P.3d 1004.