Board of County Com'rs of Eagle County v. District Court In and For the City and County of Denver

• Decision Date: 24 August 1981
• Docket Number: No. 81SA146,81SA146
• Citation: 632 P.2d 1017
• Parties: BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF EAGLE, and the Land Use Commission of the State of Colorado, Petitioners, v. The DISTRICT COURT IN AND FOR THE CITY AND COUNTY OF DENVER, and Judge Robert T. Kingsley, and the City and County of Denver Acting By and Through Its Board of Water Commissioners, Respondents, and The City of Colorado Springs, Intervenor.
• Court: Colorado Supreme Court

Page 1017

632 P.2d 1017

BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF EAGLE, and the Land Use Commission of the State of Colorado Petitioners, v. The DISTRICT COURT IN AND FOR THE CITY AND COUNTY OF DENVER and Judge Robert T. Kingsley, and the City and County of Denver Acting By and Through Its Board of Water Commissioners, Respondents and The City of Colorado Springs, Intervenor.

No. 81SA146.

Supreme Court of Colorado, En Banc.

Aug. 24, 1981.

Rehearing Denied Sept. 14, 1981.

Beth A. Whittier, Eagle County Atty., Eagle, Kirkland & Ellis, Henry W. Ipsen, Raymond L. Petros, Denver, Gerald E. Dahl, Frisco, for Bd. of County Com'rs of the County of Eagle, Colo.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Marshall D. Brodsky, Asst. Atty. Gen., Natural Resources Section, Denver, for Colorado Land Use Com'n.

Wayne D. Williams, Henry C. Teigen, Michael L. Walker, Saunders, Snyder, Ross & Dickson, Eugene F. Megyesy, Jr., Martha Phillips Feiten, Denver, for respondents.

James G. Colvin, II, City Atty., Tad S. Foster, Asst. City Atty., Colorado Springs, for intervenor.

LEE, Justice.

In this original proceeding, a joint petition pursuant to C.A.R. 21 was filed by the petitioners (defendants in the district court) seeking relief in the nature of prohibition and mandamus. We issued our rule to show cause why the relief prayed for should not be granted. We now make the rule absolute.

The controversy before us arises out of the Denver district court's denial of a motion for change of venue filed by the Board of County Commissioners of Eagle County (Eagle County), and the denial of motions to dismiss and for severance filed by the Colorado Land Use Commission (L.U.C.), in an action in the Denver district court brought by the City and County of Denver, acting by and through its Board of Water Commissioners (Denver), against the petitioners.

The background of the controversy, as we determine it from the briefs and scant record before us, indicates that Eagle County, pursuant to section 24-65.1-101, et seq., C.R.S.1973 (1980 Supp.), adopted land use regulations which (quoting from the brief of Eagle County) concerned "certain activities of state interest within Eagle County, including site selection and construction of major nondomestic water and sewer treatment systems, major extensions of existing water and sewage treatment systems, the efficient utilization of municipal and industrial water projects" and "the administration of flood plain hazards." These regulations were submitted to the L.U.C. for review and consideration as provided by section 24-65.1-406, C.R.S.1973. Following review by the L.U.C. and return to Eagle County with recommended technical modifications, Eagle County accepted the requested modifications and modified the regulations accordingly. ¹

Denver, perceiving that the land use regulations invalidly interfered with the development of its water rights originating in Eagle County and the construction of its diversion projects in that county, commenced an action in the Denver district court, asserting nine claims for relief. It attacks the constitutionality of the land use regulations as adopted by Eagle County and their applicability to Denver's water diversion projects. Denver also challenges the actions taken by the L.U.C. pursuant to its statutory review of the county regulations. Denver seeks declaratory, injunctive and mandamus relief against Eagle County and the L.U.C.

In response to the suit against it, Eagle County timely filed a motion for change of venue to the District Court of Eagle County. L.U.C. consented on the record to the change of venue, and in addition filed its motion for dismissal of the action against it for failure to state a claim upon which relief can be granted, and its further motion under C.R.C.P. 20 for a severance of the claims against it from the claims against Eagle County.

After a hearing at which all three motions were considered, the court denied the motions and proceeded to consolidate this action with two other pending actions, neither of which included Eagle County as a party.

In issuing the rule to show cause, our concern was to avoid the delay and expense involved in a re-trial of the case if the change of venue was improperly denied. Jameson v. District Court, 115 Colo. 298, 172 P.2d 449 (1946). It is clear under numerous decisions of this Court that a proper application for a change of venue from an improper county, timely made, leaves the trial court with no alternative but to grant such application. Denver v. Glendale, 152 Colo. 39, 380 P.2d 553 (1963). The court has no authority to proceed further with the case as jurisdiction is divested except for the purpose of making the order of remand to the proper county, Cliff v. Gleason, 142 Colo. 500, 351 P.2d 394 (1960). State Board v. District Court, 126 Colo. 340, 249 P.2d 146 (1952); Lamar Alfalfa Milling Co. v. Bishop, 80 Colo. 369, 250 P. 689 (1926); Brewer v. Gordon, 27 Colo. 111, 59 P. 404 (1899). Further proceedings in the trial court after an erroneous denial of a proper motion for change of venue are a nullity and void. Cliff v. Gleason, supra.

In light of the foregoing principle we have examined the venue issue in this case and conclude that the district court erroneously denied a change of venue to Eagle County.

Eagle County is the proper venue of the action in this case for the following reasons. Denver's claims arise out of the adoption by the Board of County Commissioners of Eagle County of land use regulations. Denver asserts these regulations are invalid and inapplicable as to it and to Denver's development of its water rights which originate in Eagle County and to the construction and operation of its water diversion facilities. Denver seeks to prohibit Eagle County from implementing and enforcing the land use regulations and from imposing sanctions for their violation. The Board of County Commissioners is being sued in its official capacity for the adoption of the regulations which control the use of land located within the county, as authorized by section 24-65.1-101, et seq., C.R.S.1973 (1980 Supp.).

In our view, C.R.C.P. 98(b)(2) controls the venue of Denver's claims. This section provides that actions upon claims against a public officer for an official act done by him shall be tried in the county where the claim or some part thereof arose. It is clear that Denver's claims against Eagle County arose in that county by virtue of the official action of the Board of County Commissioners in adopting the land use regulations for the County of Eagle, which purport to control the development of Denver's water rights and facilities located in that county. Thus, the proper county for trial of Denver's claims is the County of Eagle.

In Water Comm. v. County Comm., 187 Colo. 113, 528 P.2d 1305 (1974), Denver, as petitioner in an original proceeding, sought the application of C.R.C.P. 98(b)(2) to it and moved for a change of venue of the case from Arapahoe County to the County of Denver. This court held that this section of the venue rule was applicable as a matter of law, stating:

"As we have pointed out, the relief sought here is to require the Commissioners of the Denver Water Board to furnish available water to surrounding counties from Denver's water supply. It follows that this is then an action to compel these public officers to perform acts or duties which they are required by law to perform.

Claims for injunctive relief against public officers arise, within the meaning of C.R.C.P. 98(b), in the county in which the public body has its official residence and from which any action by the board pursuant to the injunction must emanate. See, e. g., State v. District Court, 340 P.2d 939 (Okl.); State v. District Court, 290 P.2d 413 (Okl.); Clay v. Hoysradt, 8 Kan. 74. All defendants have their official addresses in Denver County and an order to supply water to plaintiffs would issue from Denver. Therefore defendants' motion to transfer venue to Denver District Court should have been granted under C.R.C.P. 98(b)."

The rationale of the foregoing applies to this case and we therefore conclude that under the provisions of the rule the venue of Denver's claims is properly in the County of Eagle.

Eagle County also argued, in support of its motion for change of venue, that C.R.C.P. 98(a) mandates a change of venue to the County of Eagle. While C.R.C.P. 98(a) requires that actions affecting real property be tried in the county in which the subject of the action, or a substantial part thereof, is situated, in our view this section is not controlling in this case. Even though the situs...