HomeMy WebLinkAbout20042612.tiff District Court, Weld County, State of Colorado
Court Address: 901 9th Avenue, Greeley, CO 80631
Mailing Address: P.O. Box 2038, Greeley, CO 80632-2038
Phone Number: (970) 351-7300
Plaintiff(s): CDSWeld,LLC; DUANE LEISE
* COURT USE ONLY
vs.
Defendant(s): BOARD OF COUNTY COMMISSIONERS Case Number: 2003CV955
OF WELD COUNTY,COLORADO; LIFEBRIDGE
CHRISTIAN CHURCH Division: 1
ORDER
Plaintiffs CDSWeld, LLC ("CDS") and Duane Leise, (hereinafter collectively referred to
as "Plaintiffs")brought this action pursuant to C.R.C.P. 106(a)(4), against the Board of County
Commissioners ("Board") and Lifebridge Christian Church("Lifebridge") with regard to the
Board's granting of a Planned Unit Development("PUD") change of zone application submitted
by Lifebridge. The court has considered the record certified to the court and the briefs submitted
by the parties.
I. Issues
A. Notice. Plaintiffs' amended complaint asks the court to vacate the Board's approval of
the PUD and asserts the Board exceeded its jurisdiction and abused its discretion in granting the
application because it did not comply with the notice requirements of Colorado law and the Weld
County Code. The Board and Lifebridge ask that the amended complaint be dismissed because
there was substantial compliance with state and county procedural requirements.
B. Standing. The Board asserts in its answer to the amended complaint and brief that the
Plaintiff CDS lacks standing to bring this review because it lacked the legal capacity as of the
date the injury was alleged to have occurred
With regard to the standing issue,the requirements for real parties in interest are set forth
in C.R.C.P. 17. It is this court's experience that issues of standing are raised in pretrial motions
and are determined before trial. There is inadequate evidence before the court and inadequate
recitation of legal authority for this court to make a determination with regard to the standing of
the Plaintiff CDS and therefore the court declines to dismiss it as a party at this time.
II. Findings of Fact
e e: fg- ,r-040 2004-2612
A. Hearing by the Commission
On December 22, 2002 Lifebridge applied for a PUD change of zone for certain
designated uses of the subject property. The application was scheduled for a hearing before the
County Planning Commission("Commission")on March 18, 2003,to be held at the Southwest
Weld Service Center. This was a regularly scheduled Commission meeting. Notice of the
hearing was sent to property owners within 500 feet of the subject property by letter dated
February 3, 2003, and to owners and lessees of the mineral estate. The record reflects that prior
to the March 18th , Commission meeting,notice was posted in several locations on the subject
property.
On March 18, 2003 the Commission's staff determined that no newspaper publication of
the notice of the Lifebridge hearing had taken place. Furthermore, the Commission lacked a
quorum as only one commissioner attended the meeting. The meeting was continued until April
1s`the date of the next regularly scheduled Commission meeting. On April 1, 2003, the hearing
was continued to April 22,2003. Notice of the April 22"d hearing was published in the
newspaper on April 10, 2003. Substantial written materials and other documents from the
general public were submitted to the Commission before the hearing. An all day hearing took
place at the Southwest Weld Services Center, which is in close proximity to the subject property.
Approximately 110 members of the public were present. Thirty-five attendees signed the list to
to speak. Applicant Leise was present during the hearing. Based on references to the record,no
objections to notice defects with regard to the Commission hearing were raised at the April 22"d
Commission hearing. The Commission announced its decision approving the application shortly
after 5:00 p.m. the day of the hearing.
2. Hearing by the Board
The Board previously authorized the setting of a hearing on May 7, 2003. Notice of the
May 7th hearing was published on April 17, 2003 in a newspaper of general circulation. The May
7th Board hearing took place after notice was sent by regular first class mail to Leise and other
interested parties on April 14, 2003. At least 59 members of the public attended the Board
hearing. The hearing began at 10:00 a.m. and continued until 9:22 p.m. When it was not
completed, the hearing was continued to July 9. 2003.
An additional full day hearing was conducted on July 9, 2003 and the interested parties
were sent notice of the continuance date by regular mail. It appears from the references to the
record the first objection to the notice defects with regard to the Commission hearing,but not the
Board hearing, were raised at the July 9th hearing. Numerous witnesses,including Leise,
testified at the July 9th hearing that was conducted between 10:00 a.m. and 4:58 p.m. At the
conclusion of the July 9th hearing,the Board voted unanimously to approve the PUD change of
zone, subject to certain conditions.
II. Standard of Review and Analysis
A. Judicial Review of Administrative Action
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Decisions of an administrative body may be appealed to the district court under
C.R.C.P.106. Pursuant to Rule 106(a)(4)(I), "[r]eview shall be limited to a determination of
whether the body or officer has exceeded its jurisdiction or abused its discretion,based on the
evidence in the record before the defendant body or officer". Thus, Rule 106(a)(4)requires
district courts to set aside final orders of an administrative agency if the agency exceeds its
jurisdiction or abuses its discretion. See City and County of Denver v. Eggert, 647 P.2d 216
(Colo. 1982).
However, the decision of an agency"will not be reversed as an abuse of discretion
unless, given the totality of the factual circumstances at the time of the decision, the [agency's]
decision exceeded the bounds of reason". Rosenberg v. Board of Education, 710 P.2d 1095,
1098-99 (Colo. 1985). Finally, an administrative agency's decision is presumed to be correct
such that the burden of showing reversible error is on the plaintiff. See Anderson v. Colo. State
Dept. of Personnel, 756 P.2d 969 (Colo. 1988).
B. Relevant Statutes
1. The PUD Act
The statutory basis for the PUD application process is set forth in § 24-67-101, C.R.S., et
seq.("The PUD Act"). The PUD Act requires that local government designate a board to review
the PUD applications ". . . which may be a commission,board, or the governing body of the
county or municipality."Section 24-67-104(1)(e), C.R.S. requires that the board conduct at least
one public hearing prior to approval of a PUD and that public notice of the public hearing shall
be given in a manner prescribed by § 30-28-116, or § 31-23-304, C.R.S., whichever is
applicable.
2. The Weld County Code
The review procedures for change of zone are set forth in § 27-6-120 of the Weld County
Code. ("Code"). § 27-6-120(B)provides in pertinent part that the Planner shall:
1. Set a Planning Commission hearing date not less than forty-five (45) days nor more
than sixty(600) days after the complete application has been submitted.
3. Arrange for legal notice of said hearing to be published once in the newspaper
designated by the Board of County Commissioners for publication of notices. The
date of publication shall be at least fourteen(14) days prior to the hearing.
4. Give notice for the proposed change of zone and the public hearing date to those
persons listed in the application as owners of property located within five (500) feet
of the parcel under consideration, and owners and lessees of the mineral estate on or
under the parcel under consideration. Such notification shall be mailed, first class,
not less than fifteen (15) days before the scheduled public hearing. Such notice is not
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required by state statute and is provided as a courtesy to the owners and lessees of the
mineral estate on or under the parcel. Inadvertent errors by the applicant in supplying
such list or the Board of County Commissioners in sending such notice shall not
create a jurisdictional defect in the hearing process even if such error results in the
failure of a surrounding property owners and lessees of mineral estate to receive such
notification.
5. The Department of Planning Services shall post a sign for the applicant on the
property under consideration for a PUD rezoning. The sign shall be posted adjacent
to and visible from a publicly maintained road right-of way.
If the Commission recommends approval,
2. The Secretary of the Planning Commission shall forward the official recommendation
of the Planning Commission and the information contained in the official record,
which includes the Department of Planning Services case file, to the Board of County
Commissioners within fifteen(15) days after said recommendation has been made.
C.R.S. § 27-6-120(C).
After receipt of the Commission's recommendation,the Board shall hold a public
hearing to consider an application for a change of zone to a PUD Zone District. Section 27-6-
120(D) outlines the duties of the Board and are set forth below.
1. Set a Board of County Commissioners public hearing to take place not less than
fifteen(15) days and not more than forty-five(45) days after receipt of the Planning
Commission's recommendation for consideration of the proposed change of zone.
2. Arrange for legal notice of said hearing to be published once in the newspaper
designated by the Board of County Commissioners for publication of notices. . . .The
date of publication shall be at least fifteen(15) days prior to the hearing.
3. Arrange for the Department of Planning Services to post a sign on the property under
consideration for the PUD plan according to the requirements of Paragraph B.5.
Above.
4. Give notice for the proposed change of zone and the public hearing date to those
persons listed in the application as owners of property located within five (500) feet
of the parcel under consideration,and owners and lessees of the mineral estate on or
under the parcel under consideration. Such notification shall be mailed, first class,
not less than fifteen(15) days before the scheduled public hearing. Such notice is not
required by state statute and is provided as a courtesy to the owners and lessees of the
mineral estate on or under the parcel. Inadvertent errors by the applicant in supplying
such list or the Board of County commissioners in sending such notice shall not
create a jurisdictional defect in the hearing process even if such error results in the
failure of a surrounding property owners and lessees of mineral estate to receive such
notification.
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5. The Board of County Commissioners shall hold a public hearing to consider the
application and to take final action hereon. In making a decision on the proposed
change of zone, the Board shall consider the recommendation of the Planning
Commission, the facts presented at the public hearing and the information contained
in the official record, which includes the Department of Planning Services case file.
3. Arguments and Analysis
Plaintiffs do not assert that the evidence presented does not support the granting of the
application. Plaintiffs assert that the Commission and Board failed to comply with their own
procedural requirements in several ways:
• There was no published notice for the March 18th Commission hearing.
• There was not adequate posting for the March 18th Commission hearing.
• There was no published,mailed or posted notice of the April lst, Commission hearing.
• There was no mailed or posted notice of the April 22nd Commission hearing.
• The published notice of the April 22,2003 hearing was published two days late.
• The May 7th Board hearing was set less than 15 days after the Board received the
recommendation for approval from the Commission.
• The defects in procedures applicable to the May 7th hearing deprived the Board of the
authority to continue the hearing to July 9th.
• There was no published notice and no signs were posted for the July 9,2003 hearing.
Plaintiffs argue that these procedural defects deprived the Commission and the Board of
jurisdiction to recommend and approve the PUD application. Holly Development v. Arapahoe,
342 P.2d 1032 (Colo. 1959); Whatley v. Summit County Board of County of Commissioners, 77
P.3d 793 (Colo. App. 2003); and Russell v. Central City, 892 P.2d 432 (Colo. App. 1995).
In Holly the Colorado Supreme Court found that notice of an amendment to a zoning plan
"was insufficient, ambiguous and misleading, and unintelligible to the average citizen who might
be affected by it." 342 P.2d at 102. The court stated that". . . notice which does not warn of the
nature of the proposed amendments is no notice . . ."Id. Of note is that the court dismissed the
county's argument that the plaintiffs waived their challenge to the validity of notice stating that
"this is not a mere irregularity in the service of personal notice which may on proper showing,be
deemed to have been waived."Id.
In Russell, the Court of Appeals invalidated an amendment to a general zoning ordinance
when it attempted to give notice of two hearings—one site specific and one applicable to the
general zoning ordinance. The court found that such notice failed to give adequate warning of
the amendment to the zoning ordinance that had general application; although it did give
adequate notice of the site specific special use review. However, the use by special review was
invalidated because it was dependent upon approval of the general ordinance. Citing Holly, the
court held that failure to give adequate notice was jurisdictional when the substance of the notice
was inadequate.Id., 892 P. 2d at 438. In Whatley,the court held, in pertinent part, that a PUD
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could not be modified without notice to owners of property within the PUD as required by state
law and county ordinance.
In Center Land Co. v. Board of County Commissioners of Adams County, 619 P.2d 782
(Colo. App. 1980)the Court of Appeals found that the Board of County Commissioners had
jurisdiction to determine a rezoning application where the only defect in notice applied at the
planning commission level and not the board hearing. Similar to this case, where the planning
commission notice may not have complied with the county regulations,the court held that the
only state requirement for notice was set forth in § 30-28-116, C.R.S. The court found that
because the county complied with this statute at the board level and there was substantial,but not
strict, compliance at the planning commission level where only recommendations can be given,
the board had jurisdiction to determine the rezoning application.
None of these cases deal directly with the subsequent complaint by an interested party who
appears and participates in a public hearing without objection. Furthermore,none of the
aforementioned cases address the failure to provide a sufficient time period between the required
notice and the hearing. The only reference in the briefs to objection to adequacy of notice for the
Commission hearing were raised at the Board's July 9t hearing by a participant not a party to
this action.
D. Due Process and Administrative Hearings
The Court of Appeals in Nichols ex rel.Nichols v. DeStefano, 70 P.3d 505, 507 (Colo.
App. 2002),recited the due process standards that apply in administrative hearings:
Administrative hearings need not be overly strict or unduly rigid in matters of procedure.
National Heritage, Inc. v. Pritza, 728 P.2d 737 (Colo.App.1986). Yet, the relaxed
procedure is not a license to violate fundamental fairness. See deKoevend v. Board of
Education, 688 P.2d 219 (Colo.1984); Sclavenitis v. City of Cherry Hills Village Board of
Adjustment&Appeals, 751 P.2d 661 (Colo.App.1988). To insure the fairness of these
hearings, due process requires, at a minimum,notice and an opportunity to be heard in a
meaningful manner. Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729,42 L.Ed.2d 725 (1975)
With regard to certain administrative proceedings,failure to give sufficient advance
notice of the hearing does not constitute a jurisdictional defect and may be waived if the
participant appears and does not object to the statutorily defective notice. Mattingly v. Charnes
700 P.2d 927 (Colo. App 1985). One who is notified, appears, and participates in a hearing
cannot later be heard to complain as to the sufficiency of the notice he received Id at 928. If the
statutory noncompliance is non jurisdictional the reviewing court may not reverse the
administrative action unless the substantial rights of the participant are prejudiced by the
violation. Alford v. Tipton, 822 P.2d 513 (Colo. App 1991);Mattingly, 700 P.2d at 927.
This court recognizes that each of these cases involve an individual licensee's rights at an
administrative hearing which would not have the impact on the general public as does a rezoning
decision; however, this distinction should not totally discount the precedent of these cases.
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III. Conclusion
The record is sufficient to establish that there was adequate posting of the notice and
delivery to the property owners but not publication before the March 18th Commission hearing.
The March 18th hearing was postponed because of the lack of publication and because of a lack
of a quorum. Anyone of the parties who received notice of the March 18th hearing would have
learned of the continuance dates by their attendance at that hearing or by subsequent reasonable
inquiry. The notice of the April 22"d Commission hearing was published only 12 days in
advance of the hearing instead of the 14 days, as required by the Code. There is no evidence that
any member of the public or the Plaintiffs objected to lack of notice or to inadequacy of time to
prepare for the April 22"d Commission hearing. The evidence is insufficient to show that the
Board received notice of the recommendation of the approval by the Commission at least 15
days before the commencement of the May 7th Board hearing, as required by the Code.
The only defects alleged with regard to the Board hearings conducted on May 7th and
July 9th are that(1) the Board did not have jurisdiction to proceed because the Commission
proceedings were defective; (2)the Board did not receive the recommendation for approval at
least 15 days before its hearing date; and(3)the Board did not republish its July 9th hearing date.
It is clear that the newspaper notice of the May 7th hearing was published, signs were
posted, and the surrounding property owners were given appropriate notice sufficiently in
advance of the hearing. Looking at the notice procedures employed for the Board hearing, this
court does not find that these purported defects were jurisdictional. Although the Code clearly
requires that the Board receive the recommendation at least 15 days prior to Board hearing,there
is inadequate showing that the substantial rights of the parties were affected by not providing the
recommendation after that time frame,particularly in light of the need to continue the hearing for
more than two months to complete the hearing. Whether this 15 day requirement exists to give
the public the opportunity to prepare or to allow the Board to have adequate time to review the
contents of the Commission's recommendation,both of these purposes were served by
conducting the hearings on May 7th and July 9th.
There is no evidence before the court that anyone objected to the proceeding on May 7th
or that anyone was prejudiced by proceeding on May 7th. Furthermore,there is no evidence that
whatever harm that may have been caused by the early setting would not have been cured by the
two month continuance of the hearing. Although the Board went to the trouble of resending mail
notices before the July 9th hearing,this court finds no requirement under the state statutes or the
Code that resending mail notices or republication in the newspaper is required when a hearing
has to be continued for additional time after it was properly commenced. Thus, with regard to
the Board hearings,this court does not find that the Plaintiffs have established that their rights
were substantially affected by the Board hearing conducted over two days.
The primary issue that the Plaintiffs raise is that the Board did not have jurisdiction to
proceed because of the defects in the Commission proceedings. There is no question that the
Commission could not have proceeded on March 18th for failure to publish. This was cured by
the eventual resetting of the hearing to April 22"d. Regular mail notices were not resent after the
March 18th hearing was continued twice. Furthermore,publication of the notice took place
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onlyl2 days in advance of the April 22nd hearing instead of 14 days. The property owners who
received notice who wanted to attend the March 18th hearing would have been notified of the
continuance dates by reasonable inquiry, such as checking the record. The briefs submitted do
not indicate that any of the 110 people attending the Commission hearing objected to the late or
inadequate notice. No member of the public who did not receive notice and who did not attend
the hearing has intervened in this action.
Based upon the authority cited above,this court concludes that the defects at the
Commission level in this case are not jurisdictional. The Commission's recommendation is only
a recommendation and not binding on the Board. The Board conducted what appears to be a de
novo review with substantial input from the public. The enabling act requires only that the
county conduct one public hearing. The Plaintiffs had more than ample opportunity to appear
and be heard. There was substantial compliance by the Commission with the requirements of the
Code. Because the defects are not jurisdictional, there must be evidence that the substantial
rights of the parties are affected by the defects at the commission and board level. Plaintiffs have
not met their burden in this regard.
Therefore, it is hereby ordered that the requests for relief set forth in Plaintiffs first
amended complaint are denied and judgment is entered in favor of the Defendants.
Dated: August 20, 2004
IRo er MKlein
District Court Judge
This order was filed electronically pursuant to Rule 121,§1-26. The original signed order is in the court's file.
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