Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 5, 2026 Get Citation Alerts Download PDF Add Note

In the Matter of Fred L. Maxwell

Colorado Court of Appeals

• Citations: None known
• Docket Number: 25CA0323

• Precedential Status: Non-Precedential

• Opinion

• Authorities (29)

• Cited By (0)

• Summaries (0)

• Similar Cases (9.7K)

• PDF

Combined Opinion

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
March 5, 2026

2026COA10

No. 25CA0323, In the Matter of Fred L. Maxwell, deceased —
Real Property — Restraints on Alienation; Wills and Trusts —
Charitable Gifts — Reformation — Release or Modification of
Restriction on Management, Investment, or Purpose — Cy Pres

A division of the court of appeals holds that, although the

donee of a charitable gift of real property is not entitled to

declarations that restrictions on alienation and use of that property

are void, it is entitled to reformation of the will under which the gift

was made to allow the property to be sold, with the proceeds to go

toward activities consistent with the donor’s purpose in making the

gift, or encumbered in a way consistent with that purpose. In so

holding, the division applies various principles of real property and

trusts and estates law, some for the first time in a published

opinion by a Colorado appellate court.
COLORADO COURT OF APPEALS 2026COA10

Court of Appeals No. 25CA0323
Larimer County District Court No. 24PR30498
Honorable Sarah B. Cure, Judge

In the Matter of Fred L. Maxwell, deceased.

Colorado State University Research Foundation, d/b/a CSU STRATA,

Appellant.

ORDER AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE J. JONES
Lum and Meirink, JJ., concur

Announced March 5, 2026

Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Thomas J. Ragonetti,
Andrew L.W. Peters, Noah R. Grolnick, Denver, Colorado, for Appellant

Philip J. Weiser, Attorney General, Michael D. McMaster, Assistant Solicitor
General, Denver, Colorado, for Amicus Curiae Board of Governors of the
Colorado State University System
¶1 In 1945, Fred L. Maxwell executed his last will and testament

(Will). He died in 1956. In his Will, Maxwell devised 9,733 acres of

land in Larimer County, Colorado, and Albany County, Wyoming —

known as Maxwell Ranch — to a nonprofit foundation affiliated with

Colorado State College of Agriculture and Mechanic Arts, now

known as Colorado State University (CSU). The Will prohibits the

foundation from selling Maxwell Ranch (the sale restriction) and

restricts its use to “experimental purposes in connection with

[CSU]” (the use restriction). The foundation — now known as CSU

STRATA — took title to Maxwell Ranch in 1975.

¶2 In 2024, CSU STRATA petitioned the Larimer County District

Court to declare the sale and use restrictions void or, alternatively,

to reform the Will to allow a sale of the property with the proceeds

to go toward CSU’s agricultural research efforts. Further in the

alternative, CSU STRATA sought declarations that, consistent with

the use restriction, Maxwell Ranch may be encumbered by a

conservation easement and can be leased for wind energy

production purposes. The district court denied CSU STRATA’s

petition in all respects.

1
¶3 We conclude, based on the undisputed facts, that while the

sale and use restrictions of Maxwell Ranch aren’t void, the Will

should be reformed to allow CSU STRATA to encumber the

property, in a way consistent with Maxwell’s intent that the ranch

be used for experimental research purposes, or to sell the property,

with the net proceeds of any such sale to be used by CSU STRATA

to fund experimental research by CSU at such locations as CSU

STRATA and CSU deem consistent with CSU’s educational and

research missions. We also conclude that, like the district court,

we don’t have enough information to determine whether a

conservation easement would be consistent with the use restriction

and therefore affirm the district court’s order insofar as the court

denied declaratory relief relating to that use of Maxwell Ranch.

Lastly, we conclude that CSU STRATA is entitled to a declaration

that it may lease Maxwell Ranch for wind energy production if it

does so for experimental research purposes.

I. Background

¶4 As relevant to this case, Maxwell’s Will provided that, upon his

death,

2
my said executor and trustee shall transfer,
assign, convey, and deliver unto the Colorado
Agricultural Research Foundation[,] a non-
profit Colorado corporation, and its successors
and assigns, all of the remaining assets of my
estate, and the transfer of said assets to said
Colorado Agricultural Research Foundation
shall be upon the condition that said assets
shall be used exclusively for experimental
purposes in connection with the Colorado
State College of Agricultural and Mechanic
Arts, and that the real estate shall never be
alienated, sold, or disposed of by said
beneficiary or its successors or assigns.

¶5 The next paragraph of the Will provided as follows:

And in connection with the experimental work
which I require to be done by the Colorado
Agricultural Research Foundation, its
successors and assigns, it is my will that my
said lands shall be used for a study of the
nutritive value of mountain meadows and
grasses and include experimentation with
means of renovating and improving meadows
and pastures, and a study of animal nutrition
and diseases under range conditions, and also
to be set up a practical course in range and
ranch management, including experimental
work in breeding livestock. It is understood,
however, that the particular purposes in this
paragraph set forth are not in the way of
limitation, but merely as a suggestion, and
that said ranch properties which shall become
vested in Colorado Agricultural Research
Foundation, its successors and assigns, may
be used for such other experimental purposes
as said Foundation may deem advisable.

3
¶6 Maxwell’s wife and sisters outlived him, but they had all died

by 1972. In that year, the Larimer County District Court directed

the trustee of Maxwell’s estate to distribute what remained of the

estate. Consistent with the Will’s terms, in 1975, CSU STRATA

received the deeds to Maxwell Ranch.1

¶7 In 2007, CSU STRATA filed a declaratory judgment action in

Larimer County District Court seeking a declaration that allowing

Maxwell Ranch to be leased for the purpose of allowing a company

to “construct[] facilities and windmills or turbines on the Ranch to

convert wind energy into electrical energy” would be consistent with

the Will’s use restriction. CSU STRATA alleged that the purposes of

the anticipated lease included determining the feasibility of wind

energy conversion, undertaking meteorological studies, and using

the facilities for educational and research purposes. The district

court granted the requested declaratory relief. But that lease was

never entered into.

1 One deed was for the portion of the property in Larimer County,

Colorado. The other was for the portion of the property in Albany
County, Wyoming.

4
¶8 In 2024, CSU STRATA filed a petition in Larimer County

District Court to remove the Will’s restrictions on the sale and use

of Maxwell Ranch.2 The petition’s five claims for relief sought

1. a declaration that the Will’s sale restriction is void as an

unreasonable restraint on alienation;

1. a declaration that the Will’s use restriction is void as an

unreasonable restraint on alienation;

1. in the alternative to claims 1 and 2, reformation of the

Will under either the doctrine of equitable deviation or

the doctrine of cy pres (as codified in part at section

15-1-1106(c), C.R.S. 2025) to allow the sale of Maxwell

Ranch free of the sale and use restrictions, with the

proceeds of any sale to be used to fund agricultural

research at other locations that CSU STRATA and CSU

2 CSU STRATA notified the Attorney General of its petition because,

under section 15-1-1106(c), C.R.S. 2025, when an institutional
fund believes a restriction on use in a charitable gift instrument has
become “unlawful, impracticable, impossible to achieve, or
wasteful,” and it asks a court to modify the restriction in a way
consistent with the gift’s purpose, the fund must notify the Attorney
General, and the Attorney General must then have an opportunity
to be heard. The Attorney General didn’t object to CSU STRATA’s
petition.

5
deem consistent with CSU’s educational and research

missions (CSU STRATA subsequently indicated that it

also sought the right to encumber the ranch consistently

with that purpose and those missions);

1. a declaration that, notwithstanding the sale and use

restrictions, CSU STRATA may encumber Maxwell Ranch

with a conservation easement, and that such use of the

property isn’t inconsistent with the Will’s restrictions;

and

1. a declaration that a wind energy production lease is

consistent with the purposes for which Maxwell devised

Maxwell Ranch to CSU STRATA and that CSU STRATA

may grant a wind energy production lease on the

property.

¶9 Dr. Ajay Menon, the President and Chief Executive Officer of

CSU STRATA, submitted an affidavit to the court in support of the

petition. He said that for several decades CSU STRATA had

attempted to use Maxwell Ranch consistently with the Will’s use

restriction. Since receiving the deeds in 1975, CSU STRATA had

used the Maxwell Ranch to (1) establish a commercial cow and calf

6
operation; (2) give opportunities for students and interns to learn

about the day-to-day operations of a cattle ranch; (3) give access to

graduate students to study seismic activities and fault lines;

(4) supply cows to CSU for teaching purposes and animal breeding

classes; (5) allow the use of cull cows for embryo transfer work;

(6) undertake various studies relating to locoweed (a poisonous

plant); (7) conduct various studies with Colorado Parks and Wildlife;

(8) undertake artificial versus natural colostrum studies with

newborn calves; and (9) enter into grazing leases, mineral leases,

and leases “to research and develop electrical power through the

use of wind energy.” But he noted that CSU

currently has few activities at the Ranch and
no future engagement activities are planned
because continuing to perform research at the
Ranch had proven impractical. Despite its
best efforts over multiple decades to make the
Ranch a functional outpost, the Ranch has
ultimately proven to be an ineffective and
impracticable vehicle for CSU STRATA’s
research pursuits.

¶ 10 Dr. Menon said that performing research in line with the Will’s

use restriction remained “ineffective and impracticable . . . due to

inherent characteristics of [Maxwell Ranch’s] landscape and

ecosystems,” which he then described, and lack of necessary

7
infrastructure, which CSU couldn’t afford to build. He also said

that other locations are more suitable for CSU’s research efforts,

particularly given the current federal and state funding and grant

priorities, which favor types of research for which Maxwell Ranch

isn’t well suited.

¶ 11 No one opposed the petition. At a hearing on the petition, the

district court considered the history of the Will, Maxwell Ranch’s

historical uses, and Dr. Menon’s affidavit. The court denied CSU

STRATA’s requests to void the sale restriction and reform the Will,

finding that it was “bound . . . by the intent of the testator” and “[i]t

is somewhat slightly unbelievable, somewhat disheartening, that

. . . with the information that I’ve been provided that the petition

claims that selling the ranch and using the proceeds would actually

elevate the impact of his original gift.” The court also referred to

court records from the 2007 case in which a previous foundation

president and the foundation’s legal counsel had indicated “the

importance of the alienation restriction in the will.” As for CSU

STRATA’s argument that it was impractical or impossible to use the

property as Maxwell intended, the court said, “I simply disagree.”

8
¶ 12 The district court also rejected CSU STRATA’s request to

declare the use restriction void, finding that “it’s not an

unreasonable restraint. It’s not void.” The court prefaced that

finding with the observation that the petition described “the wide

array of experimental educational uses of this ranch — which is

incredible.” Despite Dr. Menon’s uncontroverted representation,

the court said, “I’m not entirely sure where the petition indicates

that the ranch has very few activities and no future engagement

activities.” Then the court said that if Maxwell Ranch isn’t suited

for high impact activities because of its landscape, CSU knew that

when it received the property.

¶ 13 The district court also rejected CSU STRATA’s fourth and fifth

claims for relief — which requested declarations that use of the

property for a conservation easement and wind energy development

was permissible under the Will — but indicated some openness to

revisiting those two claims if given “more specific information.”

¶ 14 CSU STRATA’s attorney asked the court to hear more from Dr.

Menon, but the court refused, characterizing the petition as nothing

more than “complaints” about “management issues” that weren’t

9
Maxwell’s fault. The court concluded that CSU “had shown [itself]

to be creative . . . [a]nd I believe [it] can do it again.”

¶ 15 The district court later incorporated its findings at the hearing

into a written order denying CSU STRATA’s petition. That order

didn’t include any additional findings.

II. Discussion

¶ 16 CSU STRATA contends that the district court erred by denying

each of the five claims in its petition. We disagree with CSU

STRATA that the district court erred by denying the first two claims

for relief. Because the gift of Maxwell Ranch was a charitable gift,

the Will’s sale and use restrictions aren’t void. But we agree with

CSU STRATA that the court erred by denying its third claim

because, based on the undisputed facts, the Will should be

reformed to allow the property to be (1) sold free of those

restrictions, provided the proceeds are used by CSU STRATA for

experimental purposes, consistent with Maxwell’s intent; and (2)

encumbered in a way consistent with such purposes. As for claims

four and five, we conclude that the record isn’t sufficient to

determine whether a conservation easement would be consistent

with the use restriction. Therefore, we affirm the district court’s

10
order on the fourth claim. But we reverse the order on the fifth

claim: CSU STRATA is entitled to a declaratory judgment that it

may enter into a wind energy production lease encumbering the

ranch if doing so furthers Maxwell’s intent that the ranch be used

for experimental research.

A. Applicable Law

¶ 17 “A restraint on alienation is, in common vernacular, a

limitation on the right to transfer or convey property or a property

right.” Teal Trading & Dev., LP v. Champee Springs Ranches Prop.

Owners Ass’n, 534 S.W.3d 558, 574 n.5 (Tex. App. 2017) (citing

Alienate, Black’s Law Dictionary 80 (8th ed. 2004)), aff’d, 593

S.W.3d 324 (Tex. 2020). Restraints on alienation are typically

categorized as either direct or indirect restraints. Restatement

(Third) of Prop.: Servitudes §§ 3.4, 3.5 (A.L.I. 2000); accord Lamar

Advert. v. Larry & Vickie Nicholls, L.L.C., 2009 WY 96, ¶¶ 12-16, 213

P.3d 641, 644-45. “A direct restraint on alienation is a provision in

a deed, will, contract, or other instrument which, by its express

terms, or by implication of fact, purports to prohibit or penalize the

exercise of the power of alienation.” Spanish Oaks, Inc. v. Hy-Vee,

Inc., 655 N.W.2d 390, 399 (Neb. 2003); see also Restatement (Third)

11
of Prop.: Servitudes § 3.4 cmt. b (“Direct restraints include absolute

prohibitions on some or all types of transfers . . . .”).

Unlike a direct restraint, an indirect restraint
does not place express limitations on the
owner’s right to convey the property. An
indirect restraint on alienation “arises when an
attempt is made to accomplish some purpose
other than the restraint of alienability, but
with the incidental result that the instrument,
if valid, would restrain practical alienability.”

Lamar Advert., ¶ 15, 213 P.3d at 644 (quoting Smith v. Osguthorpe,

2002 UT App 361, ¶ 27, 58 P.3d 854, 860).

An otherwise valid servitude is valid even if it
indirectly restrains alienation by limiting the
use that can be made of property, by reducing
the amount realizable by the owner on sale or
other transfer of the property, or by otherwise
reducing the value of the property. . . . A
servitude that lacks a rational justification is
invalid.

Id. at ¶ 15, 213 P.3d at 644 -45 (quoting Restatement (Third) of

Prop.: Servitudes § 3.5(1), (2)).

¶ 18 Generally speaking, “[t]he law does not permit restraints to be

imposed upon the alienation of an estate in fee simple.” Cronk v.

Shoup, 197 P. 756, 757 (Colo. 1921); see Potter v. Couch, 141 U.S.

296, 318 (1891); see also 3 Thompson on Real Property § 29.02,

at 759 (David A. Thomas ed., 3d ed. 2012) (direct restraints on

12
alienation are generally considered invalid). “[H]owever, a restraint

is invalid only if it is unreasonable in view of the justifiable interests

of the parties.” Carpenter v. Winn, 566 P.2d 370, 371 (Colo. App.

1977) (citing Malouff v. Midland Fed. Sav. & Loan Ass’n, 509 P.2d

1240 (Colo. 1973)); accord Atl. Richfield Co. v. Whiting Oil & Gas

Corp., 2014 CO 16, ¶ 24 (“The rule against unreasonable restraints

‘is applied by considering the reasonableness of the restraint.’”

(quoting Metro. Transp. Auth. v. Bruken Realty Corp., 492 N.E.2d

379, 281 (N.Y. 1986))); see also Restatement (Third) of Prop.:

Servitudes § 3.4 (“A servitude that imposes a direct restraint on

alienation of the burdened estate is invalid if the restraint is

unreasonable.”).

¶ 19 “The rules against unreasonable restraints on alienation

generally aim to keep assets available for commerce by applying

different types of limits depending on the nature of the property, the

purpose of the restraint, and its potential for harm.” Atl. Richfield

Co., ¶ 24 (citing Restatement (Third) of Prop.: Servitudes § 3.4 cmt.

a); id. at ¶ 23 (The rules attempt to “avoid fettering real property

with future interests dependent upon contingencies unduly remote

which isolate the property and exclude it from commerce and

13
development for long periods of time, thus working an indirect

restraint upon alienation.” (quoting First Nat’l Bank & Tr. Co. of

Okla. City v. Sidwell Corp., 678 P.2d 118, 127 (Kan. 1984)));

Atchison v. City of Englewood, 463 P.2d 297, 301 (Colo. 1969) (the

purpose of the rule against unreasonable restraints on alienation is

“to keep property freely alienable” or to prevent “the withdrawal of

property from commerce”).

¶ 20 But somewhat different rules apply to charitable gifts, such as

the gift at issue in this case.3 While the general rule described

above discourages or prohibits direct and indirect restraints on

alienation deemed unreasonable, “[a] donor of property for a

charitable use may impose such conditions as he may choose,

including a restraint on alienation. This right is an exception to the

prohibition against restraint on alienation.” Sisters of Mercy of

Cedar Rapids v. Lightner, 274 N.W. 86, 92 (Iowa 1937); see 5

Herbert Tiffany, Real Property § 1347, Westlaw (3d ed. database

updated Sept. 2025) (“[A]n exception to the general rule [prohibiting

3 A gift for educational purposes is considered a charitable gift.
See
Smith v. U.S. Nat’l Bank of Denv., 207 P.2d 1194, 1200-01 (Colo.
1949).

14
restraints on alienation] exists in the situation in which real

property is transferred to a charitable group for charitable

purposes.”). Indeed, it appears that most jurisdictions recognize an

exception to the general rule when, as in this case, real property is

transferred to a charitable group for charitable purposes. Atlanta

Dev. Auth. v. Clark Atlanta Univ., Inc., 784 S.E.2d 353, 356 (Ga.

2016); Girl Scouts of S. Ill. v. Vincennes Ind. Girls, Inc., 988 N.E.2d

250, 256-57 (Ind. 2013) (Restrictions on alienation are allowed “in

charitable conveyances in order to encourage philanthropy.”);

Wachovia Bank & Tr. Co. v. John Thomasson Constr. Co., 168 S.E.2d

358, 364 (N.C. 1969) (“The general rule is that a condition against

alienation in a gift for a charitable trust is not invalid or void.”);

Ohio Soc’y for Crippled Child. & Adults, Inc. v. McElroy, 191 N.E.2d

543, 546 (Ohio 1963) (“[W]here land is devised upon condition that

the devisee shall not sell it, such a restraint is void as repugnant to

the devise and contrary to public policy. However, such a restraint

on alienation of property conveyed to a trustee to be held for

charitable or other public uses will usually be given effect.”

(citations omitted)); see also Restatement (Third) of Prop.:

Servitudes § 3.4 cmt. i (“The social utility of devoting property to

15
conservation, historic preservation, and charitable purposes is

strong enough to justify severe restraints on alienation that are

reasonably necessary or convenient to assure that the property will

be used to carry out the intended purposes.”); id. at cmt. c (same);

id. § 3.5 cmt. d (“Limitations on use of property to serve various

governmental and charitable purposes are also generally valid so

long as the limitations are rationally related to serving a legitimate

purpose.”).4

¶ 21 But be that as it may, many jurisdictions, including Colorado,

allow a court to relieve the grantee of a charitable gift from a

restriction on the gift’s alienation or use in certain circumstances.

Indeed, three Colorado statutes deal with bequests containing such

restrictions, two of which we apply in this case.5 As noted above,

section 15-1-1106(c) provides that,

4 Colorado has long treated charitable gifts as not subject to the

rule against perpetuities, a close relative of the rule prohibiting
unreasonable restraints on alienation. See, e.g., In re Schleier’s
Estate, 13 P.2d 273, 274 (Colo. 1932) (collecting cases).
5 Section 15-5-412, C.R.S. 2025, essentially codifies the doctrine of

equitable deviation, which allows a court to change the way that a
trust is administered because of unanticipated changed
circumstances. We don’t need to consider the application of that
doctrine to the sale and use restrictions because of our conclusion
that the cy pres doctrine justifies reformation of the Will.

16
[i]f a particular charitable purpose or a
restriction contained in a gift instrument on
the use of an institutional fund becomes
unlawful, impracticable, impossible to achieve,
or wasteful, the court, upon application of an
institution, may modify the purpose of the
institutional fund or the restriction on the use
of the institutional fund in a manner
consistent with the charitable purposes
expressed in the gift instrument.

And section 15-5-413(1)(c), C.R.S. 2025, similarly provides that, “if

a particular charitable purpose becomes unlawful, impracticable,

impossible to achieve, or wasteful[,] . . . [t]he court may apply cy

pres to modify or terminate the trust by directing that the trust

property be applied or distributed, in whole or in part, in a manner

consistent with the settlor’s charitable purposes.”

¶ 22 These two statutes codify, in part, the common law cy pres

doctrine (explicitly referred to in section 15-5-413) long applied in

Colorado. See, e.g., Dunbar v. Bd. of Trs. of George W. Clayton Coll.,

461 P.2d 28, 29-30 (Colo. 1969); In re Estate of Vallery, 883 P.2d

24, 28 (Colo. App. 1993).6 And importantly for our purposes, that

doctrine isn’t applicable only to funds or express trusts; it may be

6 “Cy pres” means “as near as.” Cy pres, Black’s Law Dictionary
487 (12th ed. 2024).

17
applied to charitable gifts generally. In re Estate of Vallery, 883

P.2d at 28; see also Restatement (Third) of Trs. § 67 (A.L.I. 2003)

(articulating the cy pres doctrine).

A purpose becomes “impracticable” under the
cy pres doctrine when it appears that under
the circumstances the application of the
property to that designated purpose would fail
to accomplish the general charitable intention
of the testator. Such difficulty need be only a
reasonable one and not such as to make the
donor’s plan a physical impossibility.

In re Estate of Vallery, 883 P.2d at 28 (citation omitted); accord

Dunbar, 461 P.2d at 30; see Restatement (Third) of Trs. § 67 cmt. c.

¶ 23 If a court determines that it has become impractical or

wasteful to use the property for the donor’s intended purpose or

impossible to achieve that purpose, the usual remedy seems to be

to modify the gift instrument to allow for a sale of the property, with

the proceeds to be used in accordance with the donor’s general

intended charitable purpose: Declaring the restriction void

ordinarily isn’t a remedy. See §§ 15-1-1106(c), 15-5-413(1)(c);

Dunbar, 461 P.2d at 30; In re Estate of Vallery, 883 P.2d at 28; Rolfe

& Rumford Asylum v. Lefebre, 45 A. 1087, 1088 (N.H. 1898);

Wachovia Bank & Tr. Co., 168 S.E.2d at 363-65; Ohio Soc’y for

18
Crippled Child. & Adults, 191 N.E.2d at 546-47; see also Henshaw

v. Flenniken, 191 S.W.2d 541, 544 (Tenn. 1945) (applying the

equitable deviation doctrine); Restatement (Third) of Trs. § 67 cmt. d

(the property must be applied in a way falling within the grantor’s

general charitable purpose; it need not be applied to the nearest

possible purpose).

¶ 24 With these principles in mind, we turn to CSU STRATA’s

claims for relief.

B. Analysis

1. The Sale and Use Restrictions Aren’t Void

¶ 25 Whether a property interest violates the rule against

unreasonable restraints is a mixed question of law and fact. Atl.

Richfield Co., ¶ 22. “‘Where there is a mixed question of law and

fact, the reviewing court will give deference to the trial court’s

factual findings, absent an abuse of discretion,’ but will

independently review questions of law.’” In re Estate of Owens,

2017 COA 53, ¶ 19 (quoting Sheridan Redevelopment Agency v.

Knightsbridge Land Co., 166 P.3d 259, 262 (Colo. App. 2007)).

“When, as in this case, the controlling facts are undisputed,

however, the legal effect of those facts constitutes a question of

19
law.” DeJean v. Grosz, 2015 COA 74, ¶ 15 (citing Lakeview Assocs.,

Ltd. v. Maes, 907 P.2d 580, 583-84 (Colo. 1995)); accord Atl.

Richfield Co., ¶ 22.

¶ 26 The absolute prohibition of the sale of Maxwell Ranch is

clearly a direct restraint on alienation. And we conclude, based on

the record, that the use restriction is an indirect restraint on

alienation because it is of a nature that in all likelihood limits the

class of prospective buyers to such an extent that the sale of the

property subject to the use restriction would be virtually impossible.

Who would buy such a property if it could only be used for the

specified research purposes as directed and administered by CSU?

Probably no one, especially given CSU STRATA’s undisputed

evidence that it hasn’t been able to make such use of the property

in an economically viable or educationally productive way for the

past fifty years. Cf. Godoy v. Linzner, 327 Cal. Rptr. 3d 323, 333

(Ct. App. 2024) (concluding that a restraint on alienation was

unreasonable because it limited a sale of the property to two

possible purchasers); Taormina Theosophical Cmty., Inc. v. Silver,

190 Cal. Rptr. 38, 43-44, 44 n.7 (Ct. App. 1983) (a restrictive

covenant limiting the sale of property to theosophists older than 50,

20
which significantly limited the number of potential purchasers to

about 6,000 persons, was an unreasonable restraint on alienation).

¶ 27 But that doesn’t mean the restrictions are void. This is

because they are appurtenant to a charitable gift and, as previously

discussed, restraints on alienation in charitable gifts are ordinarily

enforceable. Therefore, we conclude that the district court didn’t

err by denying CSU STRATA’s first two claims for relief. See Est. of

Schiola v. Colo. Dep’t of Health Care Pol’y & Fin., 51 P.3d 1080,

1083 (Colo. App. 2002) (we may affirm the lower court on a ground

different than that relied on by the lower court).7

1. The Will Should Be Reformed

¶ 28 This leads us to CSU STRATA’s third claim — for reformation

of the Will — which meets a different fate.

¶ 29 This claim turns on application of the cy pres doctrine. “The

exercise of the cy pres doctrine involves a large measure of

discretion.” In re Estate of Vallery, 883 P.2d at 29; see Fisher v.

7 CSU STRATA’s arguments for voiding the sale and use restrictions

fail to account for the charitable nature of the gift. We don’t hold
that restraints on alienation appurtenant to charitable gifts can
never be voided; we hold only that CSU STRATA hasn’t persuasively
argued why the restrictions in this case should be voided under
principles applicable to charitable gifts.

21
Minshall, 78 P.2d 363, 364 (Colo. 1938). But in this case, the

district court based its decision only on the papers submitted,

counsel’s argument, and part of the record of the 2007 proceedings.

The court wasn’t called on to make any credibility determinations or

evaluate conflicting evidence. We are therefore in as good a position

as the district court to determine whether the evidence presented —

all of which was undisputed — supports modification of the Will

under the cy pres doctrine. So our review is de novo. See Battle N.,

LLC v. Sensible Hous. Co., 2015 COA 83, ¶ 61.

¶ 30 As noted, CSU STRATA asked the district court to reform the

Will to allow CSU STRATA to sell Maxwell Ranch free of the sale and

use restrictions, with the net proceeds of any such sale or lease to

be used by CSU STRATA to fund experimental research “consistent

with the educational and research missions of the University,” or to

allow it to encumber the ranch subject to the same limitation. It

asserted that this would “effectuate Maxwell’s intent.” On appeal,

CSU STRATA contends that “[a]llowing the proceeds from a sale or

encumbrance to flow toward [agricultural] research would further

Maxwell’s testamentary aims.” We agree with CSU STRATA that it

has demonstrated that continued attempts to use Maxwell Ranch in

22
the manner limited by the Will would be impractical, impossible to

achieve, and wasteful. CSU STRATA is therefore entitled to

reformation of the Will.

¶ 31 Dr. Menon’s affidavit, which, again, isn’t controverted,

establishes the following:

• CSU has tried for several decades to put Maxwell Ranch

to various uses consistent with Maxwell’s intent.

• These efforts have proved unsuccessful for several

legitimate reasons.

• Under current circumstances, and those reasonably

foreseeable, continuing to attempt to use Maxwell Ranch

for the purposes of experimental agricultural research

would be largely unworkable and financially unfeasible.

• Other locations that CSU uses for such research are

suitable for such research.

¶ 32 The district court’s rejection of this claim was based on its

hope that CSU STRATA could come up with some viable,

economical use of the property. But no record evidence supports

the district court’s assertion that CSU STRATA can use Maxwell

23
Ranch in practical, economically feasible ways consistent with

Maxwell’s intent merely by trying harder or being more creative.

¶ 33 It therefore follows that the Will should be reformed (or

“modified,” see §§ 15-1-1106(c), 15-5-413(1)(c)), to provide that

Maxwell Ranch (1) may be sold free of the sale and use restrictions,

with any resulting proceeds used to fund CSU’s experimental

research operations at other locations as CSU STRATA, in

consultation with CSU, sees fit;8 or (2) may be encumbered in a way

consistent with Maxwell’s intent that the ranch be used for

experimental research.9

1. The Claim for a Declaration that a Conservation Easement Would Be Consistent with the Use Restriction Fails

¶ 34 As noted, the district court determined that CSU STRATA

hadn’t provided enough information for the court to make an

8 At oral argument, CSU STRATA’s counsel asked that the Will also

be reformed to generally allow encumbrances on Maxwell Ranch.
But consistent with the cy pres doctrine and the governing statutes,
any modification of a will must be consistent with the charitable
purposes expressed in the gift instrument. See §§ 15-1-1106(c), 15-
5-413(1)(c), C.R.S. 2025. Thus, counsel’s request was overly broad.
9 Though the Will expressed Maxwell’s preference that the ranch be

used for particular agricultural purposes indicated therein, that
was “merely [his] suggestion.” His more general intent was that the
ranch be used for “experimental purposes.”

24
informed decision whether imposing a conservation easement on

the property would be consistent with the Will’s use restriction. We

agree with that assessment. It isn’t readily apparent that a

conservation easement would constitute a use of the ranch for

“experimental purposes.” Thus, CSU STRATA isn’t entitled to the

declaratory relief requested by its fourth claim.

1. CSU STRATA Is Entitled to a Declaration that Leasing Maxwell Ranch for Wind Energy Production Purposes Would Be Consistent with the Use Restriction (Subject to an Important Caveat)

¶ 35 The district court also denied CSU STRATA’s request for

declaratory relief on its fifth claim based on a lack of information.

But unlike a conservation easement, it is readily apparent to us

that leasing the ranch for wind energy production purposes would

be consistent with the use restriction — if any such lease also

required CSU to use such development for experimental research

purposes.

¶ 36 In 2007, the Larimer County District Court granted

declaratory relief to CSU STRATA on virtually the same claim. The

differences between that claim and CSU STRATA’s fifth claim in this

case are (1) the 2007 claim sought a declaration as to a particular

25
lease that had already been negotiated, whereas no such lease was

identified in this case; and (2) the lease at issue in the 2007

proceeding expressly allowed CSU to use the facilities constructed

under the lease for research purposes.

¶ 37 In our view, a wind energy production lease containing the

same terms as the lease at issue in 2007 would be consistent with

Maxwell’s intent that the ranch be used for “experimental

purposes.” Therefore, CSU STRATA is entitled to a declaration that

it may enter into a wind energy production lease (or leases)

encumbering Maxwell Ranch so long as any such lease expressly

provides that CSU will use the facilities constructed pursuant to the

lease for experimental research.

III. Disposition

¶ 38 We affirm the district court’s order on CSU STRATA’s first,

second, and fourth claims. We reverse the district court’s order on

CSU STRATA’s third and fifth claims and remand the case with

instructions to reform the Will and grant CSU STRATA declaratory

relief consistent with this opinion.

JUDGE LUM and JUDGE MEIRINK concur.

26