HomeMy WebLinkAbout20060554.tiff COLORADO COURT OF APPEALS
Court of Appeals No.: 04CA2002
Weld County District Court No. 03CV955
Honorable Roger A. Klein, Judge
CSDWeld, LLC, a Colorado limited liability company. and Duane Leise,
Plaintiffs-Appellants,
v.
Board of County Commissioners of Weld County. Colorado. a body corporate
and politic, and Lifebridge Christian Church.
Defendants-Appellees.
APPEAL DISMISSED
Division V
Opinion by: JUDGE WEBB
Russel and Hawthorne, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(f)
Announced: February 2, 2006
Bendelow Law Firm, P.C., Peter H. Ziernke, Denver, Colorado, for Plaintiffs-
Appellants
Bruce 1'. Barker, County Attorney, Lee D. Morrison, Assistant County Attorney,
Greeley, Colorado, for Defendant-Appellee Board of County Commissioners of
Weld County. Colorado
Otten, Johnson, Robinson, Neff& Ragonetti, P.C., Munsey L. Ayers, Jr., Amy L.
Nafziger, Denver, Colorado, for Defendant-Appellee Lifebridge Christian Church
(r.?: P p
FEB 02mfi '
3i
Li
WELL;COL NTY
ATTORNEY'S
OFFICE
Cy'u'v ALit l(° C-h S 2006-0554
2—I 7 z ! ZC)c)
In this land use dispute, plaintiffs, CSDWeld, LLC, and Duane
Leise, appeal the trial court's judgment in favor of defendants,
Board of County Commissioners of Weld County and Lifebridge
Christian Church. We dismiss the appeal as moot.
In 2002, the Church submitted a "Planned Unit Development
Change of Zone Application" (First Application) to the Board to
rezone an agricultural use parcel as a planned unit development
(PUD) in order to construct a mega-church complex. Following
public hearings before the Planning Commission and the Board, the
First Application was approved on July 9, 2003.
On appeal, plaintiffs contend the Board lacked jurisdiction to
approve the First Application because of failure to comply with
numerous Weld County Code notice requirements.
On November 9, 2005, the Board approved a second "Planned
Unit Development Change of Zone Application" (Second Application)
submitted by the Church. Plaintiffs did not appeal the Board's
approval of the Second Application.
This court ordered the parties to file supplemental briefs
addressing (1) whether this case is now moot and (2) whether this
1
case should be remanded to the trial court for an evidentiary
hearing on mootness.
Neither party requested a remand for an evidentiary hearing
on mootness. Plaintiffs asserted that the case is not moot.
However, we agree with defendants that approval of the Second
Application superseded the zoning action at issue, thus rendering
this appeal moot.
Appellate courts will not render opinions on the merits of
appeals when issues presented in litigation have become moot
because of later events. Am. Drug Store, Inc. v. City & County of
Denver, 831 P.2d 465 (Colo. 1992). A case is moot when a
judgment, if rendered, would have no practical legal effect on the
existing controversy. Van Schaack Holdings. Ltd. v. Fulenwider,
798 P.2d 424 (Colo. 1990).
Colorado recognizes two exceptions to the mootness doctrine:
(1) when the controversy is capable of repetition, yet evading review:
or (2) when the matter involves a question of great public
importance or an allegedly recurring constitutional violation.
Campbell v. Meyer, 883 P.2d 617 (Colo. App. 1994).
2
Here, plaintiffs assert that the appeal is not moot because the
Second Application "relied upon the validity of the [First
Application] and sought an amendment to that PUD." However,
plaintiffs present no factual support for this assertion.
Defendants argue that the Second Application "has become
the operative document that will be the basis for final plan design
and Board consideration of those final plans," and was not merely
an amendment to the First Application. The exhibits attached to
defendants' supplemental briefs, which are copies of public records,
support this position.
The Second Application reinitiated the PUD application
process for the same property described in the First Application.
This submittal included a new PUD sketch plan, which was
reviewed and commented on by referral agencies. Hearings were
held before the Planning Commission and the Board. The Board's
resolution approving the Second Application did not refer to or rely
on the First Application.
We discern no basis for concluding that the Second
Application was merely an amendment to the First Application.
Further, plaintiffs have cited no authority, and we have found none
3
in Colorado, holding that a procedural dispute over initial rezoning
survives a later rezoning of the same parcel.
Thus, because the property was approved for rezoning under
the Second Application, any decision rendered on a notice
deficiency in the First Application approval process would have no
practical legal effect on the property at issue. See, e.g., City &
County of Denver v. Denver Buick, Inc., 136 Colo. 482, 319 P.2d
490 (1957)(whether adequate public notice was given prior to
passing a zoning ordinance was moot because a new zoning
ordinance was adopted); Bd. of Adjustment v. lwerks, 135 Colo.
578, 316 P.2d 573 (1957)(controversy based on the zoning status of
property became moot when the property was rezoned).
Plaintiffs do not argue that any exceptions to the mootness
doctrine apply, and we perceive no reason for applying them sua
sponte. This case involves alleged departures from specific
procedural requirements in the zoning code that thus are not likely
to be repeated; the alleged irregularities do not create constitutional
issues; and the case does not involve a question of great public
importance. Cf. Ctr. Land Co. v. Bd. of County Comm'rs. 44 Colo.
App. 523, 619 P.2d 782 (1980)(substantial compliance with notice
4
provisions). Any future controversy over notice requirements
arising from another rezoning application can be reviewed under
C.R.C.P. 106(a)(4).
We also note that in their opening brief plaintiffs essentially
request the court to vacate the First Application, which would
require the Church to start the PUD application process over. In
our view, the Church did so with the filing of the Second
Application, of which plaintiffs have not sought review under
C.R.C.P. 106(a)(4). See C.R.C.P. 106(b) (a complaint seeking
judicial review under C.R.C.P. 106(a)(4) must be filed in the district
court "not later than thirty days after the final decision of the body
or officer").
Accordingly, the appeal is dismissed.
JUDGE RUSSEL and JUDGE HAWTHORNE concur.
5
Hello