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DISTRICT COURT OF WELD COUNTY, STATE OF COLORADO
Case No . 94-CV-203 Division IV
BRIEF IN RESPONSE TO PLAINTIFFS ' MOTION FOR SUMMARY JUDGMENT AND
BRIEF PURSUANT TO RULE 106 AND DEFENDANTS ' CROSS-MOTION FOR SUMMARY
JUDGMENT ON PLAINTIFFS ' DECLARATORY JUDGMENT CLAIM
IVAR LARSON AND DONNA LARSON,
Plaintiffs ,
v.
THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, George Baxter,
Connie Harbert, Dale Hall, Barbara Kirkmeyer, Bill Webster, County
Commissioners,
Defendants .
COMES NOW the Defendants, by and through their attorney, the
Assistant of Bruce T. Barker, below-named, and submit the following
Brief in Response to Plaintiffs ' Motion for Summary Judgement and
Brief Pursuant to Rule 106 and Defendants ' Cross-Motion for Summary
Judgment on Plaintiffs ' Declaratory Judgment Claim:
I . STATEMENT OF FACTS
Plaintiffs are the owners of real property in part of Section
5 , Township 4 North, Range 68 West of the 6th P .M. , Weld County,
Colorado, located approximately one-quarter mile west of the
intersection of Weld County Road 5 and State Highway 60 . (Vol . 1,
pg. 137 ; Vol . 2 ) The parcel contains 25 acres , approximately, of
1 91//‘
/91 99EO
irrigated farm land which was zoned and still is zoned A -
Agricultural Zone under the Weld County Zoning Ordinance ( "Zoning
Ordinance" ) . The applications for Mountain View Estates 1 and
Mountain View Estates 2 (collectively, "Mountain View" ) were
submitted for two separate "minor subdivisions" pursuant to the
Weld County Subdivision Ordinance # 173-A ( "Subdivision
Ordinance" ) . The parcels were originally subdivided in 1974
pursuant to a recorded exemption process under the existing County
subdivision regulations . (Vol . 1 , pg. 199 , Exh. 42; Vol . 2, pg.
499 )
The Plaintiffs made two applications for adjacent previously
divided properties for two minor subdivisions totaling 9 lots . A
single application for a minor subdivision was unavailable because
of a limit to six lots per minor subdivision. The applicants were
only able to apply without first rezoning the property because the
Zoning Ordinance allowed minor subdivisions in the A - Agricultural
Zone District as creating legal lots for a three month period
between December 29 , 1992 and March 8 , 1993 . Zoning Ordinance #89-
X and 89-Y, Section 31 .2 .2 (Vol . 7-A and 7-B) . The applicants made
application for the sketch plan for Mountain View, an adminis-
trative review process (Section 5 , Subdivision Ordinance # 173-A) ,
immediately prior to the March 8, 1993 change in the Zoning
Ordinance, as well as for another pair of minor subdivisions known
as Whitetail Acres I & II ( see Case # 94-CV-172) , but did not
2
actually proceed with the platting process until November 4 , 1993 .
The applications for the Mountain View plats were determined to be
complete and the review process commenced by staff November 18 ,
1993 . (Vol . 1, pg. 136 ; Vol . 2 , pg. 437 ) Department of Planning
Services staff reviewed the applications and recommended denial
based upon their determination that the applicants had not met
their burden to show compliance with Section 4 . 5 . 9 of the
Subdivision Ordinance. (Vol . 1 , pg. 0137, Exh. 5; Vol . 2 , pg. 438,
Exh. 5) [Note that the criteria for review by the Planning
Commission in the Subdivision Ordinance Section 4 . 5 . 9 are the same
as those for review by the Board of County Commissioners which are
found at Section 4 . 5 . 16 . ]
The matter was then heard by the Weld County Planning
Commission ( "Planning Commission" ) (Vol. 1 , pgs . 152-153 and 231-
239 ) following continuances requested by the plaintiffs . The
Planning Commission unanimously recommended denial to the Board of
County Commissioners ( "Board" ) . (Vol . 1, pg. 232-234 ; Vol . 2 , pg.
516-518) The matter was ultimately heard by the Board, again after
additional continuances from December 31, 1993 to January 4 , 1994 ,
on March 30, 1994 . (Vol . 1, pgs . 152-153; Vol . 2 , pgs . 453-454 )
The Board unanimously denied the application and incorporated the
recommendation of the Planning staff and the Planning Commission.
(Vol . 1, pgs . 2-4 ; Vol . 2, pgs . 340-342) The parties had agreed to
conduct hearings on the two Mountain View proposals simultaneously
3
so that there is only one transcript (Vol . 3 ) and the written
records are, for the most part, identical (Vol . 1 and 2 ) .
The Comprehensive Plan is divided into various sets of goals
and policies . Because of the current zoning in the area around the
Mountain View proposals, the agricultural goals and policies were
part of the review considerations . (Vol . 1, pgs . 2-4 ; Vol . 2 , pgs .
340-342 ) Had the area already been rezoned, the agricultural
policies would not have been an issue. The agricultural policies
can be capsulized as minimizing the conversion of agricultural land
to other uses especially where, as here, the land is prime agri-
cultural land. The Board denied the application on a number of
grounds , including a failure to comply with the Comprehensive Plan.
However, the Board also found, pursuant to Section 4 . 5 . 16 of the
Subdivision Ordinance, that the applicants failed to address
concerns regarding the suitability of the soils for urban develop-
ment and the creation of an additional access onto Colorado Highway
60 .
II . ANALYSIS OF FACTUAL BASIS FOR DECISION
There is substantial evidence in the record supporting the findings
of non-compliance with the Comprehensive Plan policies in an agri-
culturally zoned district. (Resolution of Board, Vol . 1 , pg. 2 and
Vol . 2 , pgs . 340-342, Sections 1 .a, 1 .b, 1 .c, 1 .e, 1 . f) There was
4
substantial opposition principally related to the impacts on agri-
culture to the proposals . Examples : Vol . 1, pgs . 253-332 ; Vol . 1 ,
pg. 188-193; Vol . 2 , pgs . 397-403 and 503-512 ; Vol . 3, pg. 63, line
7 through pg. 65, line 24 ; pg. 97 , line 41 through pg. 98, line 14 ;
and pg. 101, line 15 through pg. 108, line 9 .
The lots proposed to be created in Mountain View clearly are
not for agricultural purposes , but are for uses incidental to
residential . The proposed covenants (Vol . 1, pgs . 79 ; Vol . 2 ,
pg. 408) prohibit the use of the lots for any uses except for
residential and related purposes ( Section 2 . 01 ) . Section 2 . 03 of
the Covenants requires a minimum square footage of 1,400 square
feet and the number of animals allowed to be kept on the property,
Section 2 . 06 , are much more restrictive than allowed in the
agricultural zone of the Zoning Ordinance. ( Section 31 . 5 .4 and
Definition of Animal Unit, Zoning Ordinance) . The lots average
less than three acres in size and are allowed only two large
animals per lot; agricultural zoning would allow four large animals
per acre. Section 2 . 16 of the Covenants limits the agricultural
uses to producing a garden and/or orchard "unless proper conserva-
tion measures are utilized to prevent blowing dust and soil
erosion. " The Mountain View proposal clearly is intended to change
the character of the use from agricultural to residential and the
Board had substantial evidence that this change was not consistent
with the comprehensive plan goals and policies , a finding
5
Plaintiffs do not challenge factually in their brief .
Plaintiffs overstate some of the facts which they cite as
supporting their position. The City of Loveland took a no comment
position, but did respond and as such should not be viewed as
supportive of the Subdivisions . The letter received from the City
of Loveland speaks for itself (Vol . 1, pg. 466 ) . The Plaintiffs
attempt to make the area surrounding the subdivisions out to be a
residential neighborhood but the testimony and photos introduced
IP
by the neighbors make it clear it is not. It is primarily a rural
setting with a minimal number of residences . (Vol . 1, pgs . 203-
217 , which are prints of slides submitted as Exhibit 46 and
described in the Transcript (Vol . 3 , pg. 109 , line 24 through pg.
112 , line 25) ) . The field checks (Vol . 1, pg. 179 ; Vol . 2 , pg.
480) show the land use on all sides as agricultural . The evidence
overwhelmingly demonstrates the rural agricultural use of the area
and residents of the area testified that the majority of the houses
in the area are old and were created as part of large farming
operations . (Vol . 1, pg. 197 ; Vol . 2 , pg. 497 , Exh. 40; Vol . 3,
pg. 83 , lines 4-22)
The Board also found that new accesses were created on State
Highway 60 in contravention of Section 4 . 5 . 16 . 11 of the Subdivision
Ordinance # 173 . Prior to this Mountain View minor subdivision ;..c
proposal , the area of the proposed subdivisions and additional two
6
dwellings to the east of the proposed subdivisions were served by
a joint access . A dispute arose with the owners of property to the
east of the proposed Mountain View subdivisions as to the right to
use the access which lies 30 ' on either side of the shared property
line and was based upon a upon an easement dated March 24 , 1974 ,
but not recorded until May 19 , 1982 (Vol . 1, pg. 198, Exh. 41) .
The Colorado Department of Transportation (CDOT) had granted a new
highway access permit on November 1, 1993, but that permit presumed
there was an agreement on the joint access . There was no clarifi-
cation of the use of the joint access, although the issues were
identified in a memo of December 13, 1993 (Vol . 1, pg. 170)
identifying the need for clarification in order that joint access
could be considered as adequate access for the subdivisions . CDOT,
in a letter of December 23, 1993 by Theresa Jones (Vol . 1 ; Vol . 2 ,
pgs . 462-464 ) , discussed these issues and indicated that the access
permit of November 1 , 1993 presumed the use of the joint access and
would have to be revoked. As a result, the Plaintiffs asked for a
postponement of a hearing before the Planning Commission because
the road was to be moved. (Vol . 1, pg. 461, Exh. 16 ) The
Plaintiffs , however, still continue to claim an interest in the
joint access which serves the two lots to the east of the proposed
Mountain View subdivisions . (Vol . 1 , pg. 195; Transcript, Vol . 3 ,
pg. 146 , line 23 through pg. 147 , line 5 ) .
7
III . ARGUMENT
A. Standard of Review
1 . Rule 106 (a) (4 ) , C.R.C.P. Standard
A Rule 106 (a) (4 ) , C.R.C. P. , proceeding provides only very
limited scope of review by the District Court of a decision of an
inferior tribunal . The appropriate standard to be applied to a
judicial review of the record is limited to a determination as to
whether the Board of County Commissioners, as the "inferior
tribunal" , exceeded its jurisdiction or has abused its discretion.
Clary v. County Court, 651 P.2d 908 (Colo . App. 1982 ) ; Ragsdale v.
County Court, 39 Colo. App. 341, 567 P. 2d 817 ( 1977 ) . The Court
must uphold the decision of the Board unless there is no competent
evidence to support the decision. Corper v. City and County of
Denver, 191 Colo . 252 , 552 P. 2d 13 ( 1976 ) ; Ford Leasing Development
Company v . Board of County Commissioners, 186 Colo . 418, 528 P.2d
237 ( 1974 ) ; Coleman v. Gormley, 748 P . 2d 361, 364 (Colo . App.
1987 ) . It is the Plaintiffs ' burden, as parties challenging the
Board' s action, to establish invalidity of the Board' s action
beyond a reasonable doubt. Corper, 552 P . 2d at 15; Coleman, 748
P . 2d at 364 . The reviewing Court cannot substitute its own
judgment for that of the lower tribunal if there is any competent
evidence to support the lower tribunal ' s decision. The State Civil
8
Service Commission v. Hazlett, 119 Colo. 173 , 201 P . 2d 616 ( 1948) .
The interpretation by public officials such as the Board of
County Commissioners charged with reading their own legislative
enactments is entitled to deference by any reviewing court. Corper
v. City and County of Denver, 36 Colo. App. 118, 536 P. 2d 874
( 1975) , aff 'd. 191 Colo. 252, 552 P.2d 13; Roundup Foundation, Inc .
v. Board of Adjustment of the City and County of Denver, 626 P. 2d
1154 , 1157 (Colo. App. 1981) ; Schneider v. Industrial Commission of
the State of Colorado, 624 P . 2d 371 (Colo. App. 1981) This
deference extends to zoning staff who are vested with the day-to-
day administration of legislative enactments . Neighbors for Better
Approach v. Nepa, 770 P. 2d 1390 , 1392 (Colo. App. 1989 ) . Deference
to the Board' s interpretation is especially compelling where the
Planning Commission, planning staff, and Board all applied the same
interpretation to the County enactments .
2 . Standard for Reviewing Validity of Legislative Enactments
Plaintiffs have attacked the validity of the process of
adoption of the Comprehensive Plan and provisions within the
Subdivision Ordinance which require the consideration of the
Comprehensive Plan pursuant to a claim for declaratory relief .
Legislative enactments such as the Subdivision Ordinance and the
Comprehensive Plan of Weld County are presumed to be valid. A
9
party challenging the validity of a county ordinance, including
challenges based on lack of constitutionality, assumes the burden
of proving the asserted invalidity beyond a reasonable doubt.
Sellon v. City of Manitou Springs , 745 P. 2d 229 , 232 (Colo. 1987 ) ,
Board of Jefferson County Commissioners v. Mountain Air Ranch, 563
P. 2d 341, 344 (Colo. 1977 ) . The ordinance is a legislative
enactment and is presumed valid. Tri-State Generation and
Transmission Company v. the City of Thornton, 647 P . 2d 670, 677
(Colo. 1982) ; Sundance Hills Homeowners Association v. Board of
County Commissioners, 188 Colo. 321, 534 P.2d 1212 , 1217 ( 1975) .
Ford Leasing Development Company v. Board of County Commissioners
of Jefferson County, 528 P . 2d 237 , 241 (Colo . 1974 ) . The
Plaintiffs have a substantial burden to overcome, which they have
not done, to show that the Comprehensive Plan has been adopted
improperly or that the Subdivision Ordinance incorporates
provisions contrary to law.
B. Analysis
1 . The Comprehensive Plan Has Been Adopted and Certified in
Accordance With Statute.
The Comprehensive Plan has been adopted by the Planning
Commission by action of November 16 , 1986 , with subsequent amend-
ments on June 10 , 1987 and January 21, 1992 (Vol . 6 ) and each such
10
action certified under signature of the Secretary to the Board of
County Commissioners . The action by the Planning Commission
appears to meet the requirements of C.R. S. §§ 30-28-108 and 109 .
The Board then adopted the Comprehensive Plan pursuant to Ordinance
147, 147-A, and 147-B in a manner which conforms to the require-
ments of the Weld County Home Rule Charter. It should also be
noted that the record of the Planning Commission action was
obtained from the records of the Board.
2 . Comprehensive Plan Was Adopted Properly in Light of the
Weld County Home Rule Charter
Weld County is a Home Rule County, under a charter
adopted effective January 1 , 1976 (hereinafter referred to as
"Charter" ) . County Home Rule exists pursuant to Article XIV,
Section 16 of the Colorado Constitution. This provision authorizes
the electors of each county to adopt a Home Rule Charter estab-
lishing "the organization and structure of county government . . .
The State Legislature has adopted two principal statutory
provisions specifically dealing with county home rule. The
provisions of C . R. S . §§ 30-11-501, et seq, are primarily procedural
and structural and deal with the process to enact, amend, and
repeal a charter but do contain specific language granting substan-
tive powers under a Home Rule Charter. C.R. S . § 30-11-501 allows
11
the county electors by majority vote, to "establish the organiza-
tion and structure of county government . . . " . C.R.S. Section 30-
11-511 requires that home rule counties provide mandatory county
function services and that the county may exercise permissive
powers except as otherwise prohibited or limited by the County
Charter or Constitution. Consistent with the constitutional
provision, the statute gives free reign to the electors of the
county to create a structure for carrying out the county functions
by means of different officers than are designated by statute for
statutory counties . C.R. S . Section 30-11-511 states :
"Any power, function, service or facility vested by
statute in a particular county officer, agency, or board,
including the Board of County Commissioners, may be
exercised or performed within a Home Rule County by such
county officer, agency, or board, or by any other county
officer, agency, or board designated in the Home Rule
Charter. "
The "substantive" Home Rule Powers Act, C .R.S. §
30-35-201, also specifically mentions as a county power, at
subsection (40) , the powers of planning and zoning pursuant to
Article 28 of C.R.S . of Title 30 . However, it must be read in
conjunction with C. R.S . Section 30-35-301, which sets forth a
procedure and a duty to:
"make and publish, from time to time, ordinances, not
inconsistent with the laws of the state, for carrying
into effect or discharging the powers and duties
conferred by this article and as seems necessary and
12
proper to provide for the safety, preserve the health,
promote the prosperity, and improve the morals, order,
comfort and convenience of such county and the
inhabitants thereof" .
The exercise of county powers under a Home Rule Charter by means of
an ordinance process is not inconsistent with the subdivision,
planning and zoning powers found in Title 30 , Article 28 , in
general , nor the comprehensive planning powers specifically found
at C.R. S . §S 30-28-106 to 109 . The Home Rule County procedures do
not change the authority of a County to adopt a Comprehensive Plan
but do change the procedure by which a Comprehensive Plan is
adopted and implemented.
The Charter centralizes the county powers in the Board of
County Commissioners . This structure requires that the Board of
County Commissioners should be the adopting body for the Compre-
hensive Plan. Article III , Section 3-8 (2 ) of the Charter provides
that "it (Board of County Commissioners] shall exercise all powers
of the county to determine policy and to enact legislation. "
Article III , Section 3-8 (4) provides without limitation that the
powers and duties of the Board shall include under (b) the power
to:
"Enact legislation including such means of enforcement
thereof as shall be authorized by law, and otherwise
formally promulgate county policy. "
13
The Board also has the power under Article III , Section 3-8 ( 4 ) (h)
to designate itself to perform the functions and exercise the
process of any other commission as may be required by state law
unless prohibited by state law or Charter. The Board' s position of
primacy within Weld County government is not disturbed by the Home
Rule Charter section regarding the Planning Commission found at
Article IV Section 4-4 (a) (3) . In particular Article IV, Section 4-
4 (A) (4) (c) provides that all decisions of the Planning Commission
are subject to appeal and review by the Board and 4 (b) authorizes
the Planning Commission to act as directed by law and as directed
by the Board. This centralized approach is consistent with the
adoption by the Board of the Comprehensive Plan.
The Charter provisions regarding adoption of legislation and
policies support the view that the Comprehensive Plan had to be
adopted by the Board in order to be effective. Article III ,
Sections 3-8 ( 2 ) and (4 ) (b) require the Board to enact legislation
and otherwise formally promulgate county policy and that legisla-
tion must be in the form of an ordinance . See Article III , Section
3-14 of the Charter. The Charter, which makes Weld County unique,
requires the Board to formally promulgate County policy which was
done in the adoption of the Comprehensive Plan.
14
The nature of the Charter has previously been reviewed in
relation to the Personnel Policy of the Sheriff by the Weld
District Court. The decision of Judge Behrman was adopted as a
decision of the Colorado Court of Appeals in the Board of County
Commissioners v. Andrews, 687 P.2d 457 (Colo. App. 1984 ) . The
decision sets forth the legislative history of county home rule in
Colorado and in Weld County and sets forth the dual nature of the
constitutional legal basis for county home rule. It should be
noted that the case was at issue before the adoption of C.R.S . §
30-35-201 . The Court of Appeals, quoting District Judge Behrman,
stated:
"the Home Rule Counties are given broad discretion in the
area of structure-creating of a frame of government,
designating county official , and establishing their
relative duties within the county government. They are
given much less freedom in determining what functions
they may choose to have their county government perform.
Until recently this area of county government function
has been no broader in Home Rule County' s than in non
Home Rule County' s . " 687 P. 2d at 459 .
Distinguished from statutory counties in Sealy v. Board of
County Commissioners, 771 P. 2d 21, 22 (Colo. App. 1989 , aff ' d. 791
P. 2d 696 (Colo. 1990 ) .
The Comprehensive Plan is clearly a policy document. C.R. S .
30-28-106 ( 3) The Charter requires such a document to be adopted by
the Board of County Commissioners and the Board did so, after
15
review by the Planning Commission, on three occasions during the
last seven years . This interpretation by the staff and Board of
Weld County that the Comprehensive Plan, by Charter, was required
to be adopted by the Board is entitled to "persuasive" effect by
the courts . Mile High Enterprises, Inc . v. Dee, 192 Colo. 326 , 558
P. 2d 568, 573 ( 1977 ) ; Darnell v. City of Englewood, 740 P. 2d 536 ,
537 (Colo. App. 1787 ) . The plain language of the Charter and the
consistent interpretation by the County staff and elected and
appointed officials should lead the court to the conclusion that
the Comprehensive Plan was properly enacted.
C. The Board of County Commissioners Properly and Appropriately
Applied the Comprehensive Plan to the Consideration of
Plaintiff ' s Applications .
Plaintiffs appear to contend that they have a right to the
creation of 12 lots , each less than 35 acres in size, because no
rezoning was required prior to making application for a minor
subdivision. This violates the basic premise of Colorado law with
respect to subdivisions as defined under C.R. S . § 30-28-101 ( 10) and
Section 30-28-110(4 ) . Those sections provide that, absent an
express exemption from the definition of subdivision or an approval
by the Board of County Commissioners, the creation and sale of
parcels less than 35 acres in size in unincorporated portions of
Counties is illegal . The Plaintiffs, in fact, made application for
16
two minor subdivisions to create the multiple lots and now appear
to argue that such a process which they purported to comply with is
meaningless .
The agricultural zone district under the Zoning Ordinance at
Section 31 . 2 . 2, as it existed at the time of the application by the
Plaintiff for the site plan for the minor subdivisions, still
requires application and approval under Section 4 of the Sub-
division Ordinance (minor subdivision) before the lots are
considered to be legal . The consideration of a subdivision appli-
cation is a discretionary act by the Board of County Commissioners .
Meyer v. Buffalo Park Development Company, 607 P. 2d 401, 402 (Colo.
App. 1980 ) . This is distinguished from the ministerial process for
obtaining a building permit where all one has to do if zoning and
subdivision requirements are met is make a technically sufficient
application to build the structure . The argument that the appli-
cant has a right to a subdivision simply because they were already
in compliance with zoning was rejected by the Court in Shoptaugh v.
Board of County Commissioners , 37 Colo. App. 39 , 543 P. 2d 524
( 1975 ) at 527 ; Cited with approval in Coffey v. Maryland-National
Capital Park and Planning Commission MD. , 441 A. 2d 1041, 1044 .
Specifically, the Shoptaugh court rejected the argument that the
use of the land to create five acre subdivisions was a use by right
because an application for subdivision was allowed by law and that
the Board had to change the zoning or approve the plat. "This
17
argument fails to take into consideration the subdivider must first
meet the zoning regulations and then additionally must comply with
the state and county subdivision regulations . "
Vick v. Board of County Commissioners, 689 P. 2d 699 (Colo.
App. 1984 ) appears to be the cornerstone of much of Plaintiffs '
argument . Vick is a questionable proposition of law at this point
and specifically inapplicable to this case. Consideration of Vick
requires a review of the law with respect to the Subdivision
Ordinance and the relationship to master or comprehensive plans in
Colorado. See, for example, Conder v. Board of County Commis-
sioners of Larimer County, et. al . , District Court, Larimer County,
Case # 93-CV-632-5 at pg. 5, decided April 29 , 1994 , attached,
which declined to follow Vick, relying upon Beaver Meadows v. Board
of County Commissioners , 709 P. 2d 928 (Colo. 1985) . Section 30-28-
102 , C.R. S . , grants counties authorities to provide for the
physical development of unincorporated territory within the county
in a manner provided for by the statutes . Section 29-20-101,
C.R.S . , et seq. , grants counties authority to provide for regu-
lating the location of activities and developments which may result
in significant changes in population density, provide for phased
development of services facilities, regulate the use of land on the
base of the impact on the community and surrounding area and
otherwise plan for and regulate the use of land so as to provide
planned and orderly use of land and protection of the environment.
18
This statute reaffirms that land use authority is a matter of
local, not state-wide, concern and within the clear authority of
counties . Voss v. Lundvall, 830 P. 2d 1061, 1064 (Colo . 1992 ) ;
Board of County Commissioners v. Bowen-Edwards , 830 P. 2d 1045, 1056
(Colo. 1992) . Other relevant powers include C.R.S. § 30-28-133( 5) ,
which prohibits the granting of any subdivision approvals unless a
subdivision has been found to meet all "sound planning and
engineering requirements of the county contained in its Subdivision
Regulations" , and C.R.S. §S 30-28-106 and 107, which provide for
the adoption of a county Comprehensive Master Plan.
Weld County implements those powers by means of the Subdivi-
sion Ordinance adopted pursuant to Charter and § 30-28-133, C . R. S . ,
and the Comprehensive Plan adopted in accordance with the Charter
and C.R. S . § 30-28-106 . This plan, as adopted by the Planning
Commission and made an ordinance by the Board in the case of Weld
County, was done in accordance with the general purpose of "guiding
and accomplishing a coordinated, adjusted, and harmonious develop-
ment of the County . . . " .
C .R.S. § 30-28-123 specifically provides that when statutes or
local regulations enacted thereunder conflict the statute or
regula-tion imposing the highest standard controls and that under
these circumstances the highest standard imposed under all the
county land use regulations, zoning, subdivision, and master plan
19
are the controlling standards for a subdivision.
The Subdivision Ordinance explicitly requires the staff, the
Planning Commission, and the Board to make findings regarding
compliance with the Comprehensive Plan and find compliance before
approving any such minor subdivision. (Subdivision Ordinance
Section 4 . 5 . 9 . 1 . ) The provision goes beyond a requirement of
considering the Comprehensive Plan as an advisory document and
mandates a finding of compliance before approval can be made of a
minor subdivision which distinguishes it from Vick at page 700 .
The Court of Appeals in Vick summarized the circumstance as
follows :
"Larimer County by resolution had adopted a land
development Master Plan, and it has Zoning and
Subdivision Regulations . The Vick subdivision plat
satisfied all requirements of the Zoning and Subdivision
Resolutions . However, the basic reason the Board did not
approve the plat was the plat ' s alleged failure to comply
with the Comprehensive or Master Plan for the county.
This Plan is referred to in the Subdivision Regulations
wherein it is provided that; ' In designing and planning
subdivisions , consideration should be given to the
Larimer County Master Plan and the Larimer County Zoning
Regulations . ' (emphasis added)
The actual provision of the Larimer County Plan relied upon by
Larimer County was a land use plan for the Town of Estes Park and
the surrounding area which was "adopted by the county and
functioned as elements of the [county] Comprehensive Plan" . The
Comprehensive Plan does not appear to have been a specific element
20
of proof under the Larimer County Subdivision Regulation, but
rather a "consideration" for design and planning. This is a
critical distinction because the Vick Court relied on the language
of Theobald v. Board of County Commissioners , 644 P.2d 942 (Colo.
1982 ) , which stated that the Comprehensive Plan, in that instance,
was advisory only. In Beaver Meadows v. Board of County Commis-
sioners of the County of Larimer, 709 P . 2d 928, 936 (Colo. 1985) ,
the court expressly recognized that where the legislative body,
here the Board of County Commissioners, has decided to bind itself
to the provisions of a Comprehensive Plan rather than treating it
as advisory, it has then created a requirement which must be
followed, not merely considered. See also Tri-State Generation v.
City of Thornton, 647 P. 2d 670, 678 ( 1982 ) ; Conda v. Colorado State
Board of Land Commissioners, 782 P . 2d 851 , 853 (Colo . App. 1989 )
aff 'd 809 P. 2d 974 ( 1991) ; C & M Sand and Gravel v. Board of County
Commissioners of Boulder, 673 P . 2d 1013, 1018 (Colo. App. 1983)
which allow conformity with the "general intent of the Compre-
hensive Master Plan . . . " to be considered as an element of
approval for a specific development proposal . To the extent Vick
is good law, it would only apply where a county has not elected to
make compliance with the Comprehensive Plan mandatory. Weld
County, using its structural home rule powers , has chosen,
consistent with charter, statute, and case law, to make compliance
with the Comprehensive Plan mandatory as to minor subdivisions .
21
CONCLUSION
The Defendants respectfully request that the Court deny
Plaintiffs ' Motion for Summary Judgment; find that the Comprehen-
sive Plan is valid and that a finding of compliance with the
Comprehensive Plan is required prior to granting minor subdivision
approval ; and find that the Board of County Commissioners did not
exceed its jurisdiction nor abuse its discretion in denying
Plaintiffs minor subdivision applications .
BOARD OF COUNTY COMMISSIONERS
OF THE COUNTY OF WELD, STATE OF
COLORADO, Petitioner
BRUCE T. BARKER
WELD COUNTY ATTORNEY
"lEE �RRISON #8067
Assistant Weld County Attorney
915 Tenth Street
P.O. Box 1948
Greeley, CO 80632
( 303) 356-4000 , Ext. 4391
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CERTIFICATE OF MAILING
The undersigned hereby certifies that a true and correct copy
of the foregoing BRIEF IN RESPONSE TO PLAINTIFFS ' MOTION FOR
SUMMARY JUDGMENT AND BRIEF PURSUANT TO RULE 106 AND DEFENDANTS '
CROSS-MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS ' DECLARATORY
JUDGMENT CLAIM was placed in the United States mail, postage
prepaid, addressed to:
John Chilson
6610 Chokecherry Drive
Loveland, CO 80537
DATED this a*1 day of -� , 1994 .
� C( Qak
b94cv203.gjb
23
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DISTRICT COURT, COUNTY OF LARIMER, STATE OF COLORADO
CASE NUMBER 93 CV 632 - 5
ORDER
STEVE CONDER and WENDY SOMMERVOLD, 1\v-c.
Plaintiffs , t (etaClE2mGLY1_00H.
v.
THE BOARD OF COUNTY COMMISSIONERS OF LARIMER COUNTY, Courtlyn
Hotchkiss, James Disney and Janet Duvall, County Commissioners , THE
LARIMER COUNTY PLANNING DEPARTMENT, Steve Barnett, Department Head,
Defendants .
This matter is before the Court with regard to plaintiffs'
complaint for mandamus under C.R.C.P . Rule 106 (a) (2 ) , judicial
review under C.R.C.P . 106 (a) (4 ) , and declaratory judyment. The
Court has reviewed all of the briefs, and has reviewed the record
filed in this case, including the transcript of a public hearing
before the Latimer County Commissioners concerning an application
for subdivision approval (Volume III of the record) . The Court has
also had the benefit of oral argument. The Court finds , concludes,
and orders as follows .
BACKGROUND
Plaintiffs brought this action for declaratory relief, and for
review pursuant to Rule 106 (a) (4 ) , with regard to denial of an
application for subdivision approval by the Board of County
Commissioners . Plaintiffs also sought relief in the nature of
mandamus to require defendants to perform what plaintiffs
characterized as a ministerial, nondiscretionary duty; however,
plaintiffs have confessed that portion of the Motion to Dismiss and
have withdrawn the mandamus claim.
Plaintiffs own approximately 560 acres in the southern part of
Larimer County, property they acquired for investment purposes . The
area in question in zoned FA-1, which allows for single family
residences. Plaintiffs obtained a preliminary plat, and in November
of 1993 filed their initial subdivision application. A hearing was
scheduled before the planning commission, and planning department
staff recommended that the application be denied. Plaintiffs
withdrew the plat from consideration before the hearing, and
thereafter submitted a revised subdivision proposal, revised and
amended to address certain problems identified by staff with regard
to the initial proposal. This application was considered by the
planning commission in July of 1993 , and it recommended denial of
the application, as being inconsistent with the land use plan. The
matter came before the Board of County Commissioners August 23 ,
1993 . See Volume III of the record. The board heard from counsel
for the applicants , the applicants , and individuals appearing in
support of and in opposition to the application. The issue again
was raised that the proposal was inconsistent with the
comprehensive land use plan. The Board of County Commissioners
voted unanimously to deny the application. The denial was based
either in large part, or wholly ( in the opinion of plaintiffs ) upon
the view that the application was inconsistent with the
comprehensive land use plan for Larimer County.
2
Thereafter, this action for review pursuant to Rule 106 was
brought by plaintiffs.
DISCUSSION AND CONCLUSIONS REGARDING ISSUES RAISED ON REVIEW
Plaintiffs first assert that the action of the board, denying
the subdivision application, was contrary to law, and was not
supported by the evidence. The standard to be applied by the Court
for review pursuant to Rule 106 (a) (4 ) is whether the actions of
defendants exceeded their jurisdiction, or amounted to an abuse of
discretion (Madis v. Higginson, 164 Colo. 320, 434 P . 2d 705
( 1967 ) ) . In order for the Court to set aside the decision of an
inferior body on review pursuant to Rule 106 , there must be no
competent evidence in the record to support such decision (Ford
Leasing Development Company v. The Board of County Commissioners ,
186 Colo. 418 , 528 P . 2d 237 ( 1974 ) ; Dillon Companies, Inc . v. The
City of Boulder, 183 Colo. 117 , 515 P. 2d 627 ( 1973 ) ) .
One assertion made by plaintiffs, with regard to the action of
defendants exceeding their jurisdiction, which was also asserted,
as the Court understands it, in the now withdrawn mandamus claim,
is that, since all requirements of the zoning resolution and
subdivision regulations were met, plaintiffs were entitled as a
matter to law to have the defendant approve their subdivision
application. In other words , the granting of approval amounted to
a mere ministerial act, required of defendants , if , as plaintiffs
assert here, they met all the appropriate requirements, such as
would be the case, for example, with regard to issuing a building
permit. The Court agrees with defendants that the law in Colorado
3
is otherwise. See Shoptaugh v. Board of County Commissioners, 37
Colo. App. 39 , 543 P . 2d 524 ( 1975 ) ; City of Colorado Springs v.
Smartt, 620 P. 2d 1060 (Colo. 1980 ) ; Meyer v. Buffalo Park
Development Co. , 607 P . 2d 401 (.Colo. App. 1980 ) .
Plaintiffs also assert that defendants abused their
discretion, exceeded their jurisdiction, or took an action
unsupported by any competent evidence, in that the denial of the
application was based entirely upon the assertion that the
comprehensive land use plan was incompatible with the application.
This they may not do, assert plaintiffs, pursuant to Vick v. County
Commissioners, 689 P . 2d 699 (Colo. App. 1984 ) and Theobald v. Board
of County Commissioners , 644 P . 2d 942 (Colo. 1982 ) . Pursuant to
Vick, plaintiffs argue that the comprehensive land use plan is to
be viewed as a guide for future zoning, not as a regulation to be
employed with regard to subdivision applications , and using it as
such amounts in essence to an illegal rezoning.
The Court disagrees with plaintiffs for two reasons . First,
the Court does not agree with the assertion of plaintiffs that the
only basis for denial was the asserted incompatibility with the
comprehensive land use plan. Clearly, plaintiffs are correct in
asserting that incompatibility with the plan weighed large in the
minds of the commissioners . Such incompatibility was a major
consideration, perhaps the main consideration. It is not accurate
to say, however, that it was the only consideration. A transcript
reveals that other concerns were identified; plaintiffs maintained
that all of these concerns were adequately addressed and
4
eliminated, but this is a question of fact which was to be resolved
by the commissioners, not by this Court on review, where there is
conflicting evidence . For example, the Berthoud water concern was
raised, and discussed at some length, although it is correct that
the town of Berthoud had withdrawn its previous written opposition.
The concern, however, to some extent, apparently remained in the
minds of staff and the commissioners . There also were other
concerns not directly related to the plan, raised by the
commissioners, staff , and others who spoke in opposition to the
project.
Further, the Court believes that reliance on or reference to
the comprehensive land use plan by the defendants did not amount to
a violation of law. To the extent that Vick holds to the contrary,
the Court believes Vick has been overruled by the Colorado Supreme
Court in Beaver Meadows v. Board of County Commissioners , 709 P.2d
928 (Colo. 1985 ) . In that opinion the Colorado Supreme Court
discussed at length the various legislative grants of authority
resulting in adoption of a comprehensive plan, and the various
things which may be considered by a board of county commissioners
in passing upon subdivision or PUD applications . A fair and
reasonable reading of Beaver Meadows must lead to the conclusion
that the Colorado Supreme Court approves consideration of the
concerns and principles stated in the comprehensive plan, when
passing upon a subdivision application. This is what was done here.
The action of defendants being consistent with the holding in
Beaver Meadows, the Court determines that such action does not
5
amount to a violation of Colorado law, notwithstanding the prior
Vick case.
The various concerns raised by the defendants, which led to
the denial of the application, were supported by substantial
evidence in the record. Clearly, there was other evidence to the
contrary. The test on review is not whether the reviewing Court
would, faced with the same evidence, have reached the same result,
but whether the decision of the Board of County Commissioners was
supported by substantial competent evidence. The answer must be in
the affirmative in this case.
Plaintiffs also assert that the Latimer County Comprehensive
Land Use Plan, and the consideration of such plan by defendants in
the course of denying their subdivision application, are
unconstitutional. They assert that consideration of the plan by
defendants amounts to an unconstitutional denial of due process .
Based upon Beaver Meadows v. Board of County Commissioners, supra,
the Court believes that consideration of the plan was appropriate
and does not amount to a denial of due process . It is also asserted
that the plan lacks adequate and necessary standards and
specificity to meet appropriate constitutional requirements , lacks
objective standards , is overbroad, and is vague. Plaintiffs have
the burden of establishing this assertion beyond a reasonable doubt
(Board of County Commissioners v. Simmons , 177 Colo. 347 , 494 P. 2d
85 ( 1972 ) ) . The comprehensive land use plan uses terms such as
harmony, compatibility, need, and so forth, which are within the
ordinary understanding of reasonable people, and which have been
6
•
•
approved on appellate review, in the context of a constitutional
challenge, in similar circumstances. See Tri-State Generation, Etc.
v. City of Thornton, Colo. 1982, 647 P.2d 670. A person of ordinary
intelligence is not required to guess or speculate as to the
meaning of these terms . The plan appears to the Court to contain
sufficient standards that all parties will be apprised of their
respective rights, and a sufficient bench mark exists for measuring
administrative action in case of subsequent judicial review (Tri-
State Generation, supra) . The Court does not believe that
plaintiffs have overcome the presumption of validity and
constitutionality with regard to the plan, or the use of the plan
in this case (Sundance Hills Homeowners Association v. Board of
County Commissioners , 188 Colo. 321, 534 P .2d 1212 ( 1975 ) ) .
Plaintiffs next content that the Latimer County Comprehensive
Procedural Land Use Resolution was not properly and legally
adopted, with appropriate notice being given pursuant to law. The
Court ' has reviewed the record in this case, including the
supplemental record certified to the Court February 28, 1994 , and
is unable to determine, on the state of the record at the time,
whether there is a genuine dispute of material fact as to this
issue. The Court reserves a ruling on this issue for a period of 30
days ; the Court affords plaintiffs a period of 15 days from the
date of this order to file such additional affidavits or other
materials that they may wish the Court to consider with regard to
this issue; and defendants a further 15 days thereafter to
supplement the record by affidavit or otherwise as they deem
7
•
appropriate. Thereafter, the Court will rule upon this issue, and
may direct that an evidentiary hearing be held if it appears that
there is a genuine dispute as to a material fact .
IT IS THEREFORE ORDERED that the Court resolves the issues for
defendants and against plaintiffs with regard to the complaint for
mandamus , judicial review, and declaratory judgment, and denies the
various claims for relief brought by plaintiffs, except for the 6th
claim for relief, wherein the Court reserves a ruling for
additional submissions or possible evidentiary hearing, as stated
above.
DATED this day of April, 1994 .
BY THE COURT:
District Court Judge
CERTIFICATE OF MAILING
This is to certify that on the day of April , 1994 , a
true and correct copy of the abo e and foregoing Order was
delivered to the attorney of record and parties appearing pro se in
the following manner:
For counsel in Fort Collins , who have agreed to such
procedure: by placing said copy in the attorney ' s pick-up box
located in the Latimer County Courthouse, 200 West Oak, Fort
Collins , Colorado.
For all other counsel, or parties appearing pro se: deposited
in the United States Mail with the c rect p to a ixe thereon
cc: /1
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