Board of County Com'rs of County of Boulder v. Martin, 92CA1409

• Decision Date: 03 June 1993
• Docket Number: No. 92CA1409,92CA1409
• Citation: 856 P.2d 62
• Parties: BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF BOULDER, Plaintiff-Appellant, v. James MARTIN, Defendant-Appellee. . V
• Court: Colorado Court of Appeals

Page 62

856 P.2d 62

BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF BOULDER, Plaintiff-Appellant, v. James MARTIN, Defendant-Appellee.

No. 92CA1409.

Colorado Court of Appeals,

Div. V.

June 3, 1993.

H. Lawrence Hoyt, Madeline J. Mason, Boulder County Atty., Boulder, for plaintiff-appellant.

James Martin, pro se.

Opinion by Judge DAVIDSON.

Plaintiff, the Board of County Commissioners for Boulder County, appeals from a judgment entered in favor of the defendant, James Martin, finding that a county zoning policy was preempted by § 42-15-101, et seq., C.R.S. (1984 Repl.Vol. 17), concerning motor vehicles as collectors' items. We affirm.

Martin owns residential property near the town of Lyons in unincorporated Boulder County. For a number of years before the events at issue here, he had kept numerous vehicles, operable and inoperable, on the property.

In 1990, the county filed a complaint in district court alleging that the storage of the vehicles violated the zoning resolution and seeking their removal. As a result of negotiations begun subsequent to the filing of the complaint, Martin removed the majority of the vehicles. He, however, retained several inoperable vehicles, asserting that he intended to license them as collectors' vehicles and store them on the property for restoration as a personal hobby.

In May of 1991, the county zoning administrator issued an enforcement policy permitting outdoor storage of one collectors' vehicle but requiring any additional such vehicles to be stored in a garage. Martin did not comply with the policy, and the zoning violation case proceeded to trial.

At trial, Martin argued that he was permitted by state statute to keep more than one collectors' vehicle in outdoor storage provided that he complied with the statutory screening requirements. The county contended that Martin must comply with the storage requirements outlined in the county's policy.

After a bench trial, the court concluded that the county enforcement policy impliedly conflicted with and was thus preempted by the statute. On motion for reconsideration, the court amended its order to conclude that the policy conflicted with the statute in its operational effect and found preemption on that basis.

On appeal, the county argues that the court erred in its finding of preemption. Martin, on the other hand, contends that the intent of the statute is to provide certain protections to motor vehicle collectors and that the policy is preempted to the extent that it conflicts with the statutory provisions. We agree with Martin.

In 1973, the General Assembly enacted § 42-15-101, et seq., C.R.S. (1984 Repl.Vol. 17). That statute provides for the registration and storage of cars considered to be collectors' vehicles.

As pertinent here, § 42-15-103, C.R.S. (1984 Repl.Vol. 17) provides:

A collector may store motor vehicles, as described in section 42-15-101, or parts thereof, on his private property provided such vehicles and parts cars and the outdoor storage areas are maintained in such a manner that they do not constitute a health hazard, a safety hazard, or a fire hazard and are effectively screened from ordinary public view by means of a solid fence, trees, shrubbery, or other appropriate means. Such storage areas shall be kept free of weeds, trash, and other objectionable items.

Under the county zoning resolution in effect prior to the enactment of the statute, storage of inoperable vehicles was permitted only in junk yards, which were allowed only on property zoned general industrial. Martin's property is zoned rural residential. Thus, under the zoning law as then in effect, Martin was prohibited from storing inoperable vehicles of any sort on his property.

However, in May 1991, in light of the 1973 statute, the county land use department issued a policy revising the zoning division's enforcement position concerning storage of collectors' vehicles. The policy stated, in summary, that although all unlicensed or inoperable vehicles were previously regulated under the junk yard classification, in order to reconcile the "spirit" of § 42-15-103 and the provisions of the zoning resolution, new guidelines were being set forth for storage of licensed operable and inoperable collectors' vehicles.

Specifically, the policy first classified the storage of collectors' vehicles as a legal accessory use to a principal residential use of property in the unincorporated portions of the county. It allowed licensed, operable vehicles to be stored on residential property. It set no limit or storage requirements for such vehicles.

Licensed but inoperable vehicles and associated parts cars were also permitted. The policy allowed one such vehicle to be stored outdoors, provided that the storage area complied with the screening requirements of § 42-15-103. Any additional inoperable vehicles were required to be stored inside a garage or similar accessory storage building.

Martin contends, however, that under the statute he is permitted to keep more than one inoperable vehicle or parts car in an outdoor storage area on his private property as long as the storage area is effectively screened and complies with applicable health, safety, and fire hazard regulations. The policy's limitation of such storage, he argues, impermissibly conflicts with the statute. The county responds that the policy complements rather than frustrates the purposes of the statute. It argues that the intent of the statute was to leave enforcement of the provisions of the statute, including screening, to local authorities, and it asserts that it is in the best position to establish requirements for effective screening in its area of jurisdiction. We are unpersuaded by the county's argument.

Although a county is prohibited from adopting an ordinance which conflicts with a state statute, § 30-15-411, C.R.S. (1986 Repl.Vol. 12A), an ordinance and a statute may coexist as long as they do not contain express or implied conditions that are irreconcilably in conflict with each other. Board of County Commissioners v. Bowen/Edwards Associates, Inc., 830 P.2d 1045 (Colo.1992). If there is a conflict, the local ordinance may be preempted. C & M Sand & Gravel v. Board of County Commissioners, 673 P.2d 1013 (Colo.App.1983).

We note that the local action taken here was not an ordinance but rather a policy announced by the county zoning administrator. However, because it was not properly raised as an issue by the parties here, and because of our resolution of the issue, we do not consider the effect, if any, of the difference between such a policy and an ordinance.

The supreme court most recently addressed preemption in Board of County Commissioners v. Bowen/Edwards Associates, Inc., supra. There, the court set forth three ways in which a state statute can preempt a county ordinance or regulation.

The first way is if the language of the statute leaves no room for local regulation by expressly indicating state preemption over the field. The second way is if the statute impliedly evinces a legislative intent to occupy completely a given field by reason of a dominant state interest. Board of County Commissioners v. Bowen/Edwards Associates, Inc., supra.

The statute at issue here contains no express language indicating legislative intent to preempt totally local regulation. Further, given the history of support for local control of land use issues, we do not believe that the statute impliedly seeks to occupy completely the field of collectors' car storage. See C & M Sand & Gravel v. Board of County Commissioners, supra.

The third way preemption may be found is if the operational effect of the local ordinance conflicts with the application of the statute. Preemption through operational effect can arise when the effectuation of the local interest would materially impede or destroy the state interest. Board of County Commissioners v. Bowen/Edwards Associates, Inc., supra.

In Bowen/Edwards, the court cited two cases in which the operational effect of local ordinances conflicted with state statutes. In National Advertising Co. v. Department of Highways, 751 P.2d 632 (Colo.1988), both a municipality and the state had promulgated rules concerning advertising signs placed along roadways of the state highway system. Pursuant to its regulations, the city authorized the erection of a sign along a state highway. No permit was sought from the state and it was conceded that none would have issued as the sign violated the applicable statute.

The court, after determining that the control of outdoor...