Blue River Defense Committee v. Town of Silverthorne
| Decision Date | 21 August 1973 |
| Docket Number | No. 73--003,73--003 |
| Parties | BLUE RIVER DEFENSE COMMITTEE et al., Plaintiffs-Appellants, v. TOWN OF SILVERTHORNE et al., Defendants-Appellees. . II |
| Court | Colorado Court of Appeals |
Beck, Fanganello & Croak, Thomas E. Croak, Dillon, for plaintiffs-appellants.
Cosgriff, Dunn, French & Seavy, Peter Cosgriff, Leadville, Calkins, Kramer, Grimshaw & Harring, Daniel C. Hale, Denver, for all defendants-appellees except defendant-appellee, Lee Woolsey.
This case presents the issue of whether a town must comply with county zoning procedures enunciated in C.R.S.1963, 106--2--9(1), when the town exercises its power of eminent domain for construction of sewage facilities beyond its corporate limits pursuant to C.R.S.1963, 50--6--22.
The towns of Silverthorne and Dillon acted jointly in proposing and commencing construction of a sewage plant outside their corporate limits in Summit County. The site of the proposed plant was zoned by the county for agricultural use. Plaintiffs-appellants, county residents and landowners of property adjacent to the proposed sewage plant, commenced this action pursuant to C.R.S.1963, 106--2--23, seeking to enjoin the proposed construction. The plaintiffs urge that erection of the proposed sewage plant violates the county master plan and that defendants failed to comply with the procedures required by C.R.S.1963, 106--2--9. The district court granted defendants' motion for summary judgment and dismissed the action. We reverse.
C.R.S.1963, 106--2--9(1)(c), provides that where the 'public way, grounds, space, building, structure, or utility be one the authorization or financing of which does not . . . fall within the province of the board of county commissioners or other county officials or board,' as is the case here, then the 'submission to the commission shall be by the body or official having such jurisdiction,' (here the towns of Silverthorne and Dillon), and the disapproval of the planning commission 'may be overruled by said body (town).' The defendants argue that the towns are not subject to the procedural requirements of C.R.S.1963, 106--2--9, nor are they bound by the substantive provisions of the county master plan. They urge that even if submission to the planning commission is required, approval by the county was received, as evidenced by exhibit #1 which was introduced at the hearing on the motion for summary judgment. Exhibit #1 is an application to the Colorado Water Pollution Control Commission for approval of the location for sewage treatment facilities. One page of this document contains a signature of approval on behalf of the planning commission. This document does not constitute the submission to the county planning commission contemplated by C.R.S.1963, 106--2--9. The trial court properly deemed the exhibit immaterial to its determination.
The two Colorado cases upon which defendants-appellees rely for the proposition that a town need not comply with the procedural requirements of C.R.S.1963, 106--2--9, are inapposite. In City and County of Denver v. Board of Commissioners, 113 Colo. 150, 156 P.2d 101, Arapahoe County sought to enjoin condemnation proceedings brought by Denver for the purpose of acquiring land in Arapahoe County for the construction of an airport facility. The Arapahoe County Board of Commissioners commenced the action prior to submission of Denver's plan to the Arapahoe County Planning Commission, and, in fact, prior to the conclusion of the condemnation proceedings. The Supreme Court ruled that the City and County of Denver, and not the Arapahoe County Board of Commissioners, had final authority to determine the wisdom of locating the airport on the proposed site in Arapahoe County. The court's ruling in that case is clearly limited to a situation where a board of county commissioners seeks to enjoin condemnation proceedings prior to submission for site approval to the planning commission. The court assumed that at some point the city would be required to submit its plan to the planning commission, stating:
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