Board of County Com'rs of Douglas County, Colo. v. Bainbridge, Inc.

Decision Date09 December 1996
Docket NumberNos. 95SC354,95SC479,RE-1,s. 95SC354
Citation929 P.2d 691
Parties115 Ed. Law Rep. 123, 20 Colorado Journal 1801 The BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, COLORADO; Douglas County, Colorado School District; and Robert A. Christensen, James R. Sullivan, and Suzy McDanal, in their capacities as members of the Douglas County Board of County Commissioners, Petitioners, v. BAINBRIDGE, INC., a Colorado corporation; Village Homes of Colorado, Inc., a Colorado corporation; Falcon Development Group, Inc., d/b/a Falcon Homes, a Colorado corporation; LHLI, Ltd., a Colorado corporation; Virden Homes, Inc., a Colorado corporation; The Genesee Company, a Colorado corporation; Sattler Homes, Inc., a Colorado corporation; and Sugarbush Homes, Inc., a Colorado corporation, Respondents. The BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY, COLORADO; St. Vrain Valley, Colorado School District; Ron Stewart, Homer Page, Sandy Hume, in their capacities as members of the Boulder County Board of County Commissioners, Petitioners, v. HOMEBUILDERS ASSOCIATION OF METROPOLITAN DENVER; Puma Property Partners; Bainbridge Inc.; McStain Enterprises, Inc.; and I.T.S. Corporation, Respondents.
CourtColorado Supreme Court

J. Mark Hannen, Douglas County Attorney, Castle Rock, for Petitioners Board of County Commissioners of Douglas County, Robert A. Christensen, James R. Sullivan and Suzy McDanal.

Caplan & Earnest, L.L.C., Richard E. Bump, W. Stuart Stuller, Boulder, for Douglas County School District RE-1.

Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Thomas J. Ragonetti, J. Thomas MacDonald, Brad W. Schacht, Denver, for Respondents in both cases.

David W. Broadwell, Denver, for Amicus Curiae Colorado Municipal League in both cases.

Lauren B. Kingsberry, Denver, for Amicus Curiae Colorado Association of School Boards in both cases.

Hall & Evans, L.L.C., Thomas J. Lyons, Tracey P. Robinson, Denver, Amicus Curiae Colorado Counties, Inc. in both cases.

Patrick C. Boyle, Denver, for Amicus Curiae Colorado Association of Commerce and Industry in both cases.

Caplan and Earnest, Richard E. Bump, Kathleen O. Nistico, Boulder, for Petitioner St. Vrain Valley, Colorado School District.

H. Lawrence Hoyt, Boulder County Attorney, Madeline J. Mason, Deputy Boulder County Attorney, Boulder, for Petitioners The Board of County Commissioners of Boulder County, Colorado, Ron Stewart, Homer Page and Sandy Hume.

Justice HOBBS delivered the Opinion of the Court.

In these consolidated appeals we granted certiorari 1 before judgment, pursuant to C.A.R. 50, to review orders of the district courts for Douglas and Boulder Counties granting motions for summary judgment invalidating new development school impact fees. Both courts concluded that the County Commissioners lacked authority, beyond the statutorily prescribed exaction for school purposes, to require an additional payment for the benefit of school districts. Both courts ruled that the state had preempted the arena of public school finance; in addition, the Boulder County District Court concluded that the school impact fee is an invalid regulatory fee.

Petitioners are the Douglas and Boulder County Commissioners and individual commissioners (the Counties). They contend that authority exists in various Colorado land use statutes for school impact fees to be assessed at the time a building permit or certificate of occupancy is sought by the builder or occupant of a new residential dwelling, in addition to the statutorily prescribed exaction required in connection with the approval of the subdivision where the building lot is located.

While we disagree that the state has preempted the arena of school finance, we agree with the district courts that the Counties were not authorized to charge and collect these school impact fees. We base our conclusion, as a matter of statutory construction, on the legislature's decision to fix the time and amount of the school exaction fee that can be charged. This fee is owed as part of subdivision approval and is limited to the "full market value" of sites and land areas that can be reserved for school purposes under section 30-28-133(4)(a)(I) and (II), 12A C.R.S. (1986 & 1996 Supp.). The county resolutions require a second payment as a prerequisite to issuance of a building permit or certificate of occupancy above and beyond the required zoning and subdivision approvals. Since we find no express or implied authority for the Counties to override the legislature's choice to specify both the maximum amount and the timing of the school fee, we find that the imposition of an additional school fee was without authority. Because of our construction of the relevant statutory provisions, we need not and do not determine whether the school impact fee itself is a valid regulatory fee. 2

I.

The operative facts of these consolidated cases are not disputed.

A. Douglas County Impact Fee

The Board of Education for Douglas County School District RE-1, responding to significant increases in student enrollment due to substantial population growth in the county, formally requested the County Commissioners for Douglas County to take the necessary steps to deny the approval of more subdivision plats, or, in the alternative, to implement the assessment of a school impact fee to be collected by the county and remitted to the school district for the acquisition, construction, or expansion of school facilities.

In February 1992, the Douglas County Commissioners adopted Resolution No. R-992-017 establishing conditions and procedures for the imposition of a school impact fee. In March 1992, the school district fulfilled the conditions of the resolution, held several public meetings to discuss the impact fee proposal, and requested the imposition of the fees.

After a public hearing was held to discuss the fees, the Board passed and adopted Resolution No. R-992-061 (resolution) in July 1992. The recited purposes of the resolution were to assist in implementing the County Master Plan, regulating land use and development, and ensuring that new development bears its share of the cost of either expanding existing schools or constructing new schools needed to serve students in growth areas. The resolution is applicable to previously approved subdivisions and lots: "Any person who, after the effective date of this resolution, requests either a residential certificate of occupancy, or an electrical meter release for a residential mobile home, shall pay a school impact fee in the manner and amount set forth in this resolution." Board of County Commissioners of Douglas County, Resolution R-992-062 § 5(A) (July 22, 1996). 3 Under the resolution, the impact fee amount to be collected in connection with a certificate of occupancy is set forth in a graduated scale depending upon the square footage of the residential unit. The fee owed for a two thousand square foot home, for example, is $1,660.00. 4

At oral argument, we were advised that, by the end of 1991, 8,701 platted, buildable, residential lots had been approved in Douglas County. A "plat" is defined as an instrument prepared in accordance with the applicable subdivision regulations consisting of a map and supporting materials for the purpose of recording real estate interests in certain described land. § 30-28-101(5), 12A C.R.S. (1986). After the effective date of the Douglas County resolution, even as to previously approved lots, any person requesting a certificate of occupancy for a residence, or an electrical meter release for a residential mobile home, must pay a school impact fee in addition to the land dedication or in-lieu fee, or combination thereof, paid by the developer in connection with subdivision approval. The collected fees are deposited in a trust fund for the benefit of the school district to be used only for acquisition, construction, or expansion of school facilities to benefit new residents.

The detailed methodology for determining the fee to be paid requires calculation of the cost of the new school facilities needed to provide sufficient school capacity to serve a single home, then reducing that amount by a credit for the anticipated property tax payments expected to be made by a new home from that property over the life of existing and anticipated general obligation bonds. Certain exemptions from payment of the fee are provided, such as for non-residential buildings, nursing homes, or developments subject to recorded covenants restricting the age of residents.

The county commissioners declined to adopt the school district's alternative request to deny the approval of new subdivision plats because of a lack of adequate schools to serve new residents.

In August 1992, nine home builders (the builders) and the Homebuilders Association of Metropolitan Denver (HBA) 5 commenced this lawsuit in Douglas County District Court challenging the fees. 6 The County and the School District filed a motion for judgment; the builders filed a cross-motion for summary judgment on the pleadings or, in the alternative, for summary judgment.

On July 11, 1994, the Douglas County District Court granted the builders' cross-motion for summary judgment, concluding that the County did not have the authority to assess the school impact fees and the state had preempted the arena of public school finance. 7 Douglas County was permanently enjoined from imposing or collecting school impact fees, prohibited from expending any collected fees, and required to refund all of the fees paid. 8 The court of appeals stayed implementation of the permanent injunction pending this appeal.

B. Boulder County Impact Fees

Boulder County also confronts burgeoning growth. Population projections made in 1993 indicated that by 1995 Niwot Elementary School (Niwot) and Sunset Middle School (Sunset) would be significantly over capacity. Attempting to address this problem, the St. Vrain School...

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