Bd. of Cty. Com. Cty. of Logan v. Vandemoer

• Decision Date: 07 August 2008
• Docket Number: No. 07CA1011.,07CA1011.
• Parties: BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF LOGAN, State of Colorado, Plaintiff-Appellant, v. Christopher VANDEMOER, Defendant-Appellee.
• Court: Colorado Court of Appeals

205 P.3d 423

BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF LOGAN, State of Colorado, Plaintiff-Appellant, v. Christopher VANDEMOER, Defendant-Appellee.

No. 07CA1011.

Colorado Court of Appeals, Div. VI.

August 7, 2008.

Rehearing Denied September 25, 2008.

Law Firm of Anthony Melonakis, Anthony Melonakis, Denver, Colorado; Alan W. Samber, County Attorney, Sterling, Colorado, for Plaintiff-Appellant.

Brammer Law Office, P.C., Jay M. Brammer, Ray Ann Brammer, Sterling, Colorado, for Defendant-Appellee.

Opinion by Chief Judge DAVIDSON.

In this action for injunctive relief, plaintiff, the Board of County Commissioners of the County of Logan, appeals from the judgment dismissing its complaint against defendant, Christopher Vandemoer. We affirm.

The following facts are undisputed. Defendant is a farmer. He owns two adjacent quarter sections of land in Logan County, which are separated by a half mile of an unpaved and infrequently used county road. In 2003, defendant installed a linear sprinkler system for his fields that is approximately one-half mile in length and is set on wheels, which makes it mobile. Approximately seven times annually during the irrigation season of July through September, defendant moves his sprinkler system from one field to another, across the county road, a process that blocks the road for as long as eleven minutes. When doing so, defendant places two trucks on either end of the road with hazard lights to warn any oncoming traffic.

In September 2004, the board brought an action requesting a preliminary and permanent injunction to restrain defendant from moving his sprinkler across the intersecting county road. In its complaint, the board alleged three grounds for its request for injunctive relief: violation of a county resolution prohibiting agricultural sprinkler irrigation systems from being moved across public roads; creation of a public nuisance in violation of the board's "express and implied power over public roads"; and violation of section 43-5-301, C.R.S.2007, which provides for criminal sanctions for obstructing a highway.

After an evidentiary hearing, the trial court denied the board's request for a preliminary injunction, concluding "[t]hat there is no imminent damage to be avoided through injunctive relief." In support, the court noted that the board had an available remedy through criminal prosecution, and found that "[t]here is [a] minimal traffic hazard created by [defendant's] linear sprinkler system, he has taken suitable steps to avoid creation of any traffic hazard, minimal amounts of water are dropped on the roadway, and law enforcement authorities have been indifferent towards the enforcement of [section] 43-5-301."

Subsequently, upon defendant's motion to dismiss, and treating it as a request for summary judgment, the court dismissed the first two claims. In its ruling, the trial court adopted the facts found in the preliminary injunction proceedings, including the finding, not disputed on appeal, that defendant's agricultural sprinkler system was an implement of husbandry. The court determined that the board lacked authority to regulate the use of an agricultural sprinkler on a county road "[s]o long as it does not spray water over the county road or otherwise damage the county road." The court also found the county resolution invalid on the ground that section 30-15-401(1)(h), C.R.S.2007, concerning county regulation of the movement of traffic, required enforcement by ordinance, not resolution.

The parties then filed cross-motions for summary judgment on the third claim. Granting defendant's motion, the court stated that the board had not offered any evidence of damage to the road caused by defendant's sprinkler and noted that the board had not provided any affidavit to contradict defendant's affidavits indicating that the road was "not so affected by his activities." The court concluded that "the movement of [d]efendant's sprinkler, under the circumstances of this case, does not represent a permanent or long-term hindrance to passage over [the county highway]."

The board then filed this appeal, claiming that the dismissal of its complaint was in error.

Our review of the trial court's grant of summary judgment is de novo. BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 71 (Colo. 2004).

I. Regulation by Resolution

The board's resolution prohibiting agricultural sprinklers on county roads, Resolution 2004-08, reads in part:

Agricultural sprinkler irrigation systems shall not be moved across or operated in a manner that results in any portion of the assembled sprinkler system extending over public roads and highways, irrespective of whether such sprinkler system is operating at the time or not.

The board contends that the trial court erred when it dismissed its claim for relief based on defendant's alleged violation of Resolution 2004-08. Based on somewhat different reasoning, we agree with the result reached by the trial court. Specifically, defendant asserts, and we agree, that despite its broad authority over its roads, the county's prohibition of any movement onto a county road of an agricultural sprinkler system, an implement of husbandry, impermissibly conflicts with state interests. See Negron v. Golder, 111 P.3d 538, 542 (Colo.App. 2004) (court of appeals may affirm a trial court's dismissal on different grounds).

A. County Authority over County Roads

Counties, as political subdivisions of the state, have those powers expressly or impliedly granted to them by the Colorado Constitution or the General Assembly. See Bd. of County Comm'rs v. Bainbridge, Inc., 929 P.2d 691, 699 (Colo.1996).

Deriving both from statute and its general police powers, a county has broad powers to regulate public roads over which it has jurisdiction. See Asphalt Paving Co. v. County Comm'rs, 162 Colo. 254, 262, 425 P.2d 289, 294 (1967) ("Due to the varying situations which need to be regulated in our complex system of municipal, county, state and federal highways, obviously only local authorities are in a position to determine which non-federal or state streets in a residential area need to be regulated in a `reasonable' manner, or would know about these problems in any detail."); Lewis v. Lorenz, 144 Colo. 23, 26, 354 P.2d 1008, 1010 (1960) ("The statutes are conclusive of the fact that the county commissioners have the sole right to authorize and control the use of the highway ... whether the user be an abutting owner or otherwise."); Bd. of County Comm'rs v. Cottingham, 134 Colo. 156, 158, 301 P.2d 135, 136 (1956) ("In the absence of any statutory authority to the contrary, ... it is clear that a county does have both general and specific duties with reference to the highways under its jurisdiction."); Switzer v. Bd. of County Comm'rs, 70 Colo. 563, 564-65, 203 P. 680, 681 (1922) ("The board is vested with reasonable discretion as to the modes and methods by which it may exercise the power ... [of] laying out, altering, or discontinuing roads."); Crossroads West Ltd. Liab. Co. v. Town of Parker, 929 P.2d 62, 64 (Colo.App.1996) (municipalities have "broad and general police power to institute regulations for the public good," including, for example, traffic regulations); see also §§ 30-11-107(1)(h), 30-15-401(1)(h), 42-4-110(1), 42-4-111(1)(g) & (y), 43-2-111(1) & (6), C.R.S.2007.

B. State Interest in Implements of Husbandry

1. Support for Agricultural Operations

Colorado is a state with strong agricultural ties which maintains a policy of support for agricultural operations. See § 35-3.5-101, C.R.S.2007 ("It is the declared policy of the state of Colorado to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products.... It is the purpose of this article to reduce the loss to the state of Colorado of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance."); § 35-3.5-102(1)(a) & (b), C.R.S.2007 ("[E]xcept as provided in this section, an agricultural operation shall not be found to be a public or private nuisance if the agricultural operation alleged to be a nuisance employs methods or practices that are commonly or reasonably associated with agricultural production;" specifically including the employment of new technology.); § 39-1-103(5)(a), C.R.S.2007 (providing statutory scheme for favorable tax treatment of agriculture); Douglas County Bd. of Equalization v. Clarke, 921 P.2d 717, 720 (Colo.1996) ("Agricultural land in Colorado receives favorable ad valorem tax treatment, calculated on the basis of the earning or productive capacity of the land." (citing Colo. Const. art. X, § 3)); Ft. Lyon Canal Co. v. Ark. Valley Sugar Beet & Irrigated Land Co., 39 Colo. 332, 341, 90 P. 1023, 1027 (1907) (discussing the value of farms in Colorado in context of water rights).

2. Implements of Husbandry

The Uniform Motor Vehicle Law defines an "implement of husbandry" as "[e]very vehicle that is designed, adapted, or used for agricultural purposes," which includes "[h]eavy moveable farm equipment primarily used on farms or in a livestock production facility and not on the highways." § 42-1-102(44), C.R.S.2007.

Defendant asserts, and we agree, that implements of husbandry, such as his agricultural sprinkler system, "are treated uniquely by the state." Numerous statutes reflect the special treatment given to the movement of implements of husbandry on public roads. See, e.g., § 43-5-303, C.R.S.2007 (describing the criminal offense of overflowing a highway with water, but stating that "[a]gricultural crop sprinkler systems upon which generally accepted devices are installed or preventative practices are carried out and when due diligence has been exercised to prevent the end gun from discharging water upon the highway shall not be deemed to be in violation of this section."); § 42-4-510(9), C.R.S.2007 (owners of...