Board of County Com'rs of Delta County v. Goldenrod Corp.

• Decision Date: 13 September 1979
• Docket Number: No. 77-1031,77-1031
• Citation: 601 P.2d 360,43 Colo.App. 221
• Parties: The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF DELTA, State of Colorado, Plaintiff-Appellant and Cross-Appellee, v. GOLDENROD CORPORATION, a Colorado Corporation, Defendant-Appellee and Cross- Appellant. . III
• Court: Colorado Court of Appeals

Page 360

601 P.2d 360

43 Colo.App. 221

The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF DELTA State of Colorado, Plaintiff-Appellant and Cross-Appellee, v. GOLDENROD CORPORATION, a Colorado Corporation Defendant-Appellee and Cross- Appellant.

No. 77-1031.

Colorado Court of Appeals, Div. III.

Sept. 13, 1979.

McMartin, Burke, Loser & Fitzgerald, P. C., Ronald S. Loser, James S. Russell, Englewood, for plaintiff-appellant and cross-appellee.

Yegge, Hall & Evans, Michael D. White, David F. Jankowski, Denver, Brown & Brown, James D. Brown, Delta, for defendant-appellee and cross-appellant.

RULAND, Judge.

Plaintiff, The Board of County Commissioners, initiated this action to restrain defendant, Goldenrod Corporation, from soliciting any further sales of its subdivision lots, alleging that Goldenrod had failed to comply with the Board's subdivision regulations. Goldenrod counterclaimed seeking damages for slander of title. Following a trial to the court, it entered judgment dismissing both the complaint and the counterclaim. Both parties appeal. We affirm.

The trial court's findings of fact are not challenged on this appeal, and a summary of those findings suffices to present the relevant facts.

In 1968 Goldenrod acquired two parcels for purposes of completing construction of two subdivisions known as Northridge (80 acres) and Brenner (167 acres). Prior to acquisition of the parcels by Goldenrod, the design and development work had been initiated. This work was completed by Goldenrod prior to August 28, 1972. Except for a few lots in Northridge, underground utilities consisting of water, electricity, and telephone, were installed in both subdivisions. Most of the underground utilities were installed along roads in the subdivisions, and the general manager of Goldenrod consulted with the Board throughout the road construction process. In addition, county crews and equipment participated in construction of part of the roads.

On August 28, 1972, the Board adopted its current subdivision regulations pursuant to § 30-28-133, C.R.S.1973. As of that date thirty-seven of the lots in Northridge (comprising 441/2% Of the land) had been sold; forty-two of the lots in Brenner (comprising 55% Of the land) had been sold. Based upon supporting evidence, the trial court found that both subdivisions were considered "adequate and are probably among some of the better subdivisions now existing in District No. 2" of the county.

The trial court concluded that enforcement of the 1972 regulations against Goldenrod would constitute an unconstitutional retrospective application of those regulations. As to the counterclaim, the court concluded that Goldenrod had failed to prove all of the elements necessary to sustain a claim for slander of title.

I. Exhaustion of Administrative Remedies

The Board first contends that, because Goldenrod failed to first exhaust any administrative remedies, the trial court erred in considering Goldenrod's claim that the regulations were being unconstitutionally applied. The Board argues that Goldenrod was obligated to make application for exemptions or variances from the regulations prior to asserting the constitutional challenge. Under the circumstances of this case, we find no merit in this contention.

Generally, a landowner must first present his objections to land use regulations to the appropriate administrative agency before challenging those regulations in the courts. See, e. g., Heron v. City of Denver, 131 Colo. 501, 283 P.2d 647 (1955); Corper v. City & County of Denver, 36 Colo.App. 118, 536 P.2d 874 (1975), Modified, 191 Colo. 252, 552 P.2d 13 (1976). However, we are persuaded that where, as here, a board of county commissioners initiates an action to enforce its subdivision regulations, a landowner is under no obligation to first exhaust available administrative remedies prior to asserting a defense predicated upon allegations of unconstitutionality. See County of Lake v. MacNeal, 24 Ill.2d 253, 181 N.E.2d 85 (1962); See also People ex rel. Commissioner of Agriculture v. Webster, 40 Colo.App. 144, 570 P.2d 560 (1977).

This exception to the exhaustion requirement is based upon the following factors. An administrative agency demonstrates its belief that the regulations are valid by initiating legal action, and it would thus appear futile to require a landowner to undertake the time and expense to present a contrary claim in an administrative proceeding. Conversely, if Goldenrod was precluded from presenting that defense in response to the Board's complaint, judicial machinery could be used to enforce an ordinance that is unconstitutional. MacNeal, supra.

II. Validity of the Regulations

The Board next contends that application of its subdivision regulations to unsold lots in the subdivisions is not unconstitutionally retrospective. We disag...