HomeMy WebLinkAbout881333.tiff Appeal from the District Court of Weld , Colorado, to the Colorado
Court of Appeals . Opinion issued & judgment entered November 17 ,
1988, before Jones , Babcock and Criswell , JJ .
COURT OF APPEALS , STATE OF COLORADO
2 East Fourteenth Avenue, Suite 300
Denver, Colorado 80203
(303) 837-3785
MANDATE
Court of Appeals No. 86CA1281
Trial Court No . 85CV1065
DECHANT, et al. v. BOARD OF COUNTY COMMISSIONERS , et al.
This cause came to be heard on the record on appeal from the District
Court of the County of Weld and was argued by counsel, on
consideration thereof, it is ordered that the Judgment of said Court
is AFFIRMED.
DATE: December 05, 1988 GARY SONKE
Clerk of Court
by : Robbie O 'Connell
Deputy Court Clerk
COURT OF APPE2.AL3
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COLORADO COURT OF APPEALS
No . 86CA1281
ALVIN DECHANT, JOSEPHINE )
DECHANT, ALICE PEHR, and )
WILLIAM PEHR, )
Plaintiffs-Appellants , )
) Not Selected for Publication
THE BOARD OF COUNTY )
COMMISSIONERS , WELD COUNTY, )
COLORADO ; FREDA DREILING; MYRNA)
SLABASZEWSKI; FRONT RANGE SAND )
AND GRAVEL; and FRONT RANGE )
SAND AND GRAVEL CO. , a Colorado)
corporation, )
Defendants-Appellees. )
Appeal from the District Court of Weld County
No. 85CV1065
Honorable Robert A. Behrman, Judge
DIVISION IV JUDGMENT AFFIRMED
Opinion by JUDGE JONES
Babcock and Criswell , JJ. , concur
Zak, Fox , Fehr and Fuller , P. C.
Richard L. Fuller
Westminster , Colorado
Attorneys for Plaintiffs-Appellants
Thomas 0. David , Weld County Attorney
Lee D. Morrison, Assistant Weld County Attorney
Greeley, Colorado
Attorneys for Defendants-Appellees fu COURT OF APPEALS
STAT: OF COLORADO
Opinion filed and ,iudgmewt
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Plaintiffs , Alvin Dechant , Josephine Dechant , Alice Pehr,
and William Pehr appeal a judgment affirming a grant of a use
by special review. We affirm.
The Board of County Commissioners of Weld County
(Commissioners) , after notice and public hearings , granted a
use by special review for an open-cut sand and gravel
operation to Front Range Sand and Gravel Co. (applicant) on
land owned by Freda Dreiling and Myrna Slabaszewski.
Plaintiffs , owners of or residents on real property adjacent
to the proposed gravel operations , objected to the use at the
hearings , and sought judicial review of the grant under
C.R. C. P. 106 . The district court determined the applicant had
substantially complied with the zoning ordinance and that the
Commissioners had not abused their discretion in granting the
use by special review.
I.
Plaintiffs contend that the application for use by special
review was so deficient that the Commissioners lacked
jurisdiction to grant the application. We disagree.
Weld County Zoning Ordinance §24. 7 . 1 states that the
purpose of an application for a use by special review is to
demonstrate how the proposal complies with the ordinance .
However , nothing in the ordinance indicates or suggests that
an imperfect application deprives the Commissioners of
jurisdiction.
Furthermore, here, the variance in the applicant ' s name
was a scrivener ' s error , and the applicant demonstrated
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substantial compliance with the requirements of the
ordinance . Cf. Sherman v. Colorado Springs Planning
Commission , 680 P. 2d 1302 (Colo. App . 1983) . Hence , the
district court correctly ruled that the Commissioners had
jurisdiction over the application.
II.
Plaintiffs further contend that granting the use by
special review was an abuse of discretion. Again , we disagree .
The scope of review under C.R. C. P. 106 is limited to the
question whether there was any competent evidence to support
the Board ' s decision. Corper v. Denver , 191 Colo. 252, 552
P. 2d 13 (1976) . A review of the record here shows competent
and substantial evidence to support the Board ' s decision even
though the evidence was contested. See Sundance Hills
Homeowners Association v. Board of County Commissioners , 188
Colo . 321 , 534 P. 2d 1212 (1975) . Therefore , the Commissioners
did not abuse their discretion in granting the use by special
review.
III.
Finally, plaintiffs contend that the public hearings were
fundamentally unfair because the Commissioners visited the
site and , after the close of testimony, made statements on
that inspection , and imposed a time limit on the testimony of
objectors . We disagree .
Due process requires fundamental fairness in
administrative hearings . Electrical Power Research Institute ,
- 2-
Inc . v. Denver , 737 P. 2d 822 (Colo . 1987) . It is a common
practice for a zoning or land use entity to inspect the
property under consideration. 4 R. Anderson, American Law of
Zoning §22. 38 (3d ed. 1986) . Here , the Commissioners visited
the site unaccompanied by any representative of the applicant
or any interested party and made their observations on the
record. See Community Synagogue v. Bates , 1 N. Y. 2d 445 , 136
N. E. 2d 488, 154 N. Y. S. 2d 15 (1956) . Their observations were
repetitive of evidence already admitted , and no prejudice
resulted.
As for the time limit, only one witness was reminded of it
and he was permitted to conclude his statement . Extensive
testimony in opposition to the application was presented . We
perceive no fundamental unfairness where , as the record
reflects , the limit was placed on the witnesses for both sides
who were not part of the application presentation. Moreover ,
the time limit was applied evenly as to both sides , and all
witnesses were given ample opportunity to express themselves
within the time allotted . Thus , plaintiffs were not denied
the opportunity to present evidence .
Judgment affirmed.
JUDGE BABCOCK and JUDGE CRISWELL concur .
-3-
c7 !y
MAY p 1986
tow
DISTRICT COURT, COUNTY OF WELD, COLORADO
Case No. 85-CV-1065 , Division I
ORDER
ALVIN DECHANT, JOSEPHINE DECHANT, ALICE PEHR, and WILLIAM PEHR,
Plaintiffs,
v.
THE BOARD OF COUNTY COMMISSIONERS , WELD COUNTY, COLORADO, FRIEDA
DREILING, MARY SLABASZEWSKI, FRONT RANGE SAND AND GRAVEL, FRONT
RANGE SAND AND GRAVEL CO. , a Colorado corporation,
Defendants.
THIS MATTER, having come before the Court on May 22 , 1986 ,
for oral argument on an Order to Show Cause, pursuant to Rule
106 (A) (4) , C.R.C.P. , with the Plaintiffs being represented by
Richard Fuller, the Defendant Board of County Commissioners of
Weld County , Colorado, represented by Lee D. Morrison, Assistant
Weld County Attorney, and the other Defendants represented by
Jerry Russell. This Court , after reviewing the record certified
to it by the Clerk to the Board of County Commissioners of Weld
County and having considered the arguments and briefs of counsel ,
DOTH FIND as follows:
1 . That Defendant Board of County of Commissioners did not
exceed its jurisdiction in acting on the application for a Use By
Special Review for an open-cut sand and gravel operation and, in
particular, that there was substantial compliance with the
procedural requirements of the Weld County Zoning Ordinance.
2 . That the Board of County Commissioners did not abuse its
discretion in approving the Use by Special Review by Resolution
dated November 25 , 1985 .
3. That there is at least some competent evidence to
support the findings of the Board of County Commissioners that
there was compliance with the criteria for review found in the
Weld County Zoning Ordinance and that in light of such evidence
and findings this Court has no authority to substitute its own
judgement for that of the Defendant Board of County Commissioners.
4. That the proceedings held by the Board of County
Commissioners were fundamentally fair to the parties appearing
before the Board.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED:
A. That all relief requested by the Plaintiffs is hereby
denied.
B. That the decision to grant the Use by Special Review by
the Defendant Board of County Commissioners of November 25 , 1985 ,
is affirmed.
Ao/7 A
C. .9?liat t-h}s—mat-t-er hP J; s a •_-`, r . • � • ho
.a} ativxr-a€ a 15 day period from execution of this Order for
filing of post-trial motions.
D. That the Stay entered by this Court on November 13 ,
1985 , shall be dissolved if no post-trial motions are filed within
the 15 days of execution of this Order but further providing that
should such motions be filed by the Plaintiff the Stay shall
remain in effect until determination of these motions . Any
further extension of such Stay shall be only upon further order of
this Court.
E. That costs of the proceedings shall be assessed against
the Plaintiffs for theefit of the Defendants herein.
DATED this ' day of May, 1986.
BY THE-
A. BEH •`
Dis rict Court Judge
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