HomeMy WebLinkAbout952495.tiff FILED IN
DISTRICT COURT
WELD Co.. COLS.
DISTRICT COURT, COUNTY OF WELD, STATE OF COLORADO NOV 15 '95
•
Case No. 94 CV 172 DIV. I '- , o
ORDER
az n r o '
rnM
IVAR LARSON AND DONNA LARSON, • �? 7 ;c, _'
-
f _i
Plaintiffs, a 47.3 ..
'o
v.
THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, George Baxter,
Connie Harbert, Dale Hall, Barbara Kirkmeyer, Bill Webster, County Commissioners,
Defendants.
Plaintiffs brought this action for judicial review of and relief from four decisions of the
Board of County Commissioners of Weld County (Hereinafter referred to as the "Board").
The Board's decisions denied Plaintiffs' applications to subdivide land under Weld County
Subdivision Ordinance 173, Section 4. This section provides the criteria an applicant must
meet to create a "Minor Subdivision." A Minor Subdivision has a maximum of six lots.
Approving or denying the subdivision of land in Colorado is a quasi-judicial action;
•
therefore, C.R.C.P. 106 provides this court with a means of reviewing the Board's action in
this case. A Rule 106(a)(4) proceeding provides only a limited scope of review of the Board's
decisions. This review is limited to a determination of whether the Board has 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).
Plaintiffs' contend the Resolutions adopted by the Board on June 28, 1995, were
unsupported by any competent evidence and constituted an abuse of discretion or acts in excess
of its jurisdiction. This court must uphold the decision of the Board unless there is no
competent evidence in the record to support its decisions denying Plaintiffs' Minor Subdivision
applications. 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).
leiM
c52495,S:IS' z o 44q
I
Mountain View Estates I & II
Mountain View Estates I and Mountain View Estates II constitute two separate
applications to subdivide but are geographically contiguous and the Board's findings and
resolutions are the same for each. Therefore, Mountain View Estates I and Mountain View
Estates II are dealt with together.
By Resolution, the Board found that Plaintiffs did not show compliance with Sections
4.5.16.5, 4.5.16.11, 4.5.16.16, and 4.5.16.2 of the Weld County Subdivision Ordinance 173.
Section 4.5.16 states:
The Board shall hold a public hearing to consider the application [for a Minor
Subdivision) and to take final action. In making a decision on the minor
subdivision final plat application, the Board shall consider the recommendation
of the Planning Commission, the facts presented at the public hearing, the
information contained in the official record, including the planner's case file,
and whether the applicant has demonstrated that the standards of sections
4.5.16.1 through 4.5.16.16 have been or will be met. The applicant has the
burden of proof to show that the standards of sections 4.5.16.1 through
4.5.16.16 are met. The applicant shall demonstrate-
Clearly, an applicant has the burden of proof before the Board to demonstrate
compliance with all standards in sections 4.5.16.1 through 4.5.16.16. Noncompliance with
any one standard gives the Board cause to deny a minor subdivision application.
The Board's first finding on the Mountain View Estates applications is based on
noncompliance with section 4.5.16.5 which states as follows:
That all areas of the minor subdivision which may involve soil or topographical
conditions presenting hazards or requiring special precautions have been
identified by the subdivider and that the proposed uses of these areas are
compatible with such conditions_
The soil at the proposed subdivision was described in the record as mostly Nunn Clay
Loam. The record indicates this soil is ideal for agriculture and performs poorly for urban
development. (Vol.3, p.6, L.8-21; Vol.3, p.147, L.16-20). The Board concluded both of
these conditions require special precautions under section 4.5.16.5.
The Board found that special precautions were not identified by Plaintiffs' application
to make the proposed subdivision compatible with soil conditions which are ideal for
agriculture and not urban development. While the foundations can be engineered to deal with.
soil conditions which are poor for housing, the record indicates the proposed site would not be
2
farmed after subdivision occurred. Therefore, no special precaution was taken to protect the
use for which the soil conditions are actually ideal not just compatible. Additionally, evidence
was provided by neighbors related to water runoff problems at the site which have created
flooding and erosion problems in the past and which would likely be exacerbated by the
development.
The Board's second finding on the Mountain View Estates applications is based on
noncompliance with section 4.5.16.11 which states, "That no additional access to a County,
State, or Federal highway will be created." The Board found that a new access was created
onto State Highway 60. The record contains conflicting evidence as to whether an additional
access would be created by the proposed subdivision or whether an existing access was simply
moved.
With conflicting evidence in the record, the Board was able to evaluate that evidence
and determine the credibility of that evidence. This court cannot second guess the Board's
evaluation of the credibility of evidence. Plaintiffs received a new permit for access to the
proposed subdivision in a different location from the shared easement and yet continued to
assert their "claim to current and future use of the shared easement . . . ." (Vol.1, p.195,
Exh.38). Therefore, Plaintiffs were asserting rights to two separate accesses onto State
Highway 60 from the proposed subdivision. This clearly conflicts with section 4.5.16.11.
The Board's third finding is based on noncompliance with section 4.5.16.2 which
states, "That the minor subdivision will be located in an Urban Growth Boundary area."
Plaintiffs argue that the only definition for "Urban Growth Boundary" is found in the
County's Comprehensive plan.' This appears to be true but this court disagrees with
Plaintiffs' interpretation of that definition.
Plaintiffs' contend that an Urban Growth Boundary is set at 3 miles from any
municipality regardless of whether such municipality is within Weld County. This
interpretation is too broad. Page 30 of the Weld County Comprehensive Plan states, "Urban
growth boundary areas are shown on the County's adopted future land-use map." Page 32 of
the Comprehensive Plan is the Weld County Urban Growth Boundary Map. This map is a
Contrary to the Order in this case dated March 24, 1995, Colorado law does not require
the Board of County Commissioners of Weld County to review Plaintiffs' subdivision
applications and make findings thereon with no reference to the Weld County Comprehensive
Plan. This court's reading of Vick v_Boar.iof County Commissioners, 689 P.2d 699 (Colo.
App. 1984) and subsequent cases indicates policies found in a County's comprehensive plan are
at least directive in nature. Thus, reference to and consideration of the Weld County
Comprehensive Plan to define"Urban Growth Boundary area" is appropriate. This court makes
no conclusion as to the propriety of the March 24, 1995, Order, except that, requiring all
reference to the Weld County Comprehensive Plan be stricken goes too far.
3
clear graphical representation of what the county intends to be within Urban Growth
Boundaries. The Weld County Urban Growth Boundary Map provides competent evidence for
the Board's conclusion that Plaintiffs' proposed subdivision is not located within an Urban
Growth Boundary area.
The Board's fourth and final finding is based on noncompliance with section 4.5.16.16
which states:
That the minor subdivision will not cause an unreasonable burden on the ability
of local governments or districts to provide fire and police protection or other
services.
After review of the record, this court finds that the Board's conclusion here is not
supported by competent evidence. Except for general conclusory statements and concerns
expressed by neighbors, all evidence in the record indicates a lack of concern about the project
from the local governments and districts which would be burdened by providing services to the
subdivision.
Pursuant to Weld County Subdivision Ordinance 173, Section 4.5.16, Plaintiffs had the
burden of proving that their subdivision application complied with the applicable criteria. The
Board found noncompliance with four of the criteria and competent evidence in the record
supports the Board's finding for three of the four. An applicant's failure to meet the burden of
proof on just one of the subdivision criteria is cause for the Board to deny an application. The
Board of County Commissioners of Weld County did not exceed its jurisdiction nor abuse its
discretion by denying the Mountain View Estates I and Mountain View Estates II subdivision
applications.
I I
Whitetail I & II
Whitetail I and Whitetail II constitute two separate subdivision applications but are
geographically contiguous and the Board's findings and resolutions are the same for each.
Therefore, Whitetail I and Whitetail II are dealt with together.
By Resolution, the Board found that Plaintiffs did not show compliance with Section
4.5.16.7 of Weld County Subdivision Ordinance 173. The cited section states:
That off-site street or highway facilities providing access to the proposed minor
subdivision are adequate in functional classification, width, and structural
capacity to meet the traffic requirements of the minor subdivision.
The record contains competent evidence to support the Board's conclusion related to
4
this criteria. The record is clear that Weld County Road 46 which would provide access to the
proposed minor subdivision is not adequate in functional classification, width and structural
capacity to meet the traffic requirements of the subdivision. (Vol.1, pp.45, 150, ; Vo1.3
pp.115-131)
By Resolution, the Board found that Plaintiffs did not show compliance with Section
4.5.16.16. This section states:
That the minor subdivision will not cause an unreasonable burden on the ability
of local governments or districts to provide fire and police protection or other
services;
As Commissioner Hall stated during the public hearing before the Board on this
application, ". . . part of the services Weld County provides is the road system." (Vol.3,
p.135, L.20-21). The record is clear that Weld County Road 46 would need improvements
and the Board concluded such improvements would be an unreasonable burden on the County.
There is competent evidence in the record to support the Board's finding as to section
4.5.16.16.
By Resolution, the Board found that Plaintiffs' did not show compliance with Section
4.5.16.5. This section states:
That all areas of the minor subdivision which may involve soil or topographical
conditions presenting hazards or requiring special precautions have been
identified by the subdivider and that the proposed uses of these areas are
compatible with such conditions.
The Plaintiffs conceded at the public hearing before the Board and in their Briefs filed
with this court that the soil at the proposed subdivision is highly erodible. Additionally, the
proposed subdivision site is on a steep slope. Clearly, as the Board found, the soil and
topography requires special precautions. The precautions put forth by Plaintiffs is a circular
sprinkler for irrigating grasses and other vegetation. Plaintiffs contend this will prevent
erosion problems.
Plaintiffs stated at the public hearing that a circular sprinkler system is "about the only
way you can irrigate [the subject property]." (Vol.3, p_72, L.14-16)_ Yet, Plaintiffs also
conceded at the hearing that the circular sprinkler will be moved to another farm and the lot
owners will have to irrigate the lots by hand from a ditch running through the property. This
is competent evidence that the proposed Minor Subdivision is not compatible with the soil and
topographical conditions found at the site. (Vol.3, p.71-71).
Pursuant to Weld County Subdivision Ordinance 173, Section 4.5. 16, Plaintiffs had the
burden of proving that their Whitetail subdivision applications complied with all of the
5
6
_ .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..
applicable criteria. The Board found noncompliance with three of the criteria and competent
evidence in the record supports the Board's findings. An applicant's failure to meet the
burden of proof on just one of the subdivision criteria is cause for the Board to deny an
application. The Board of County Commissioners of Weld County did not exceed its
jurisdiction nor abuse its discretion by denying the Whitetail I and Whitetail II subdivision
applications.
IT IS ORDERED:
The four Resolutions of the Board of County Commissioners of Weld County dated
June 28, 1995, denying Plaintiffs' subdivision applications for Mountain View Estates I,
Mountain View Estates II, Whitetail I, and Whitetail II are hereby affirmed.
Dated: November /S , 1995. /
Willia L est
District Judge
•
•
Hello