Board of County v. Hygiene Fire Prot. Dist.

• Decision Date: 14 December 2009
• Docket Number: No. 09SC68.,09SC68.
• Parties: BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF BOULDER, Petitioner v. HYGIENE FIRE PROTECTION DISTRICT, Respondent.
• Court: Colorado Supreme Court

221 P.3d 1063

BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF BOULDER, Petitioner v. HYGIENE FIRE PROTECTION DISTRICT, Respondent.

No. 09SC68.

Supreme Court of Colorado, En Banc.

December 14, 2009.

Rehearing Denied January 11, 2010.^*

Harold L. Hoyt, County Attorney, Twentieth Judicial District, Pat A. Mayne, Deputy County Attorney, Boulder, Colorado, Attorneys for Petitioner.

Frascona, Joiner, Goodman & Greenstein, P.C., Joseph Adams Cope, Boulder, Colorado, Attorneys for Respondent.

Trout, Raley, Montaño, Witwer & Freeman, P.C., Peggy E. Montaño, Lisa M. Thompson, Denver, Colorado, Special District Association, Mary G. Zuchegno, Denver, Colorado, Attorneys for Amici Curiae Northern Colorado Water Conservancy District Municipal Subdistrict, Northern Colorado Water Conservancy District, and Special District Association of Colorado.

Justice HOBBS delivered the Opinion of the Court.

We granted certiorari in Hygiene Fire Protection District v. Board of County Commissioners, 205 P.3d 487 (Colo.App.2008), to review the court of appeals' decision that a statutory county may not refuse to process the location and extent review application of a fire protection district pursuant to section 30-28-110(1), C.R.S. (2009), of the County Planning Act ("Planning Act") because the district did not first seek modification of a planned unit development pursuant to section 24-67-106(3)(b), C.R.S. (2009), of the Planned Unit Development Act ("PUD Act").¹ We agree with the court of appeals.

Section 30-28-110(1) of the Planning Act codifies the longstanding rule that political subdivisions with special statutory purposes, including special districts, have a different relationship to county zoning authority than is otherwise applicable to private developments. This provision requires a political subdivision to apply to the county for location and extent review for a proposed public project, but the governing body of the political subdivision ultimately has authority to override county disapproval of the project.

The General Assembly enacted the PUD Act as a supplement to the Planning Act, not a substitute for it. We read the PUD Act provisions to function as a type of zoning regulation. We hold that the override authority of political subdivisions with special statutory purposes, codified in section 30-28-110(1) of the Planning Act, is applicable to the PUD Act. A statutory county may not refuse to process an otherwise complete application for location and extent review of a public project on the basis that the applicant political subdivision must first seek modification of a planned unit development.

I.

The Hygiene Fire Protection District ("the District") is a special district² charged with providing fire protection services for approximately 30,000 acres of unincorporated Boulder County ("the County").³ The District decided to build a second fire station⁴ on a parcel of privately-owned land ("the parcel") near the City of Longmont. The District intends to acquire the parcel through exercise of its power of eminent domain but has not yet initiated condemnation proceedings pending the County's acceptance and review of the District's application for location and extent review.⁵ Although the District's authority to condemn the parcel pursuant to section 32-1-1002(1)(b) of the Special District Act is undisputed, the parties dispute the statutory procedures applicable to condemnation of a parcel within a planned unit development ("PUD"), as it relates to county land use authority. At the time the District identified the parcel as the site for its new station, the County was in the process of reviewing and approving a PUD containing the parcel. The District contacted the County to request that it designate the parcel for the new station within the PUD. The County refused, informing the District that it preferred the City of Longmont to provide fire protection services for the PUD.

The County subsequently approved and platted the PUD, with the parcel at issue platted as common open space. Both during and after PUD approval and platting, the owner of the parcel refused to negotiate with the District for its purchase. Intending to apply for location and extent review pursuant to section 30-28-110(1)(a) of the Planning Act, the District discussed with the County during its pre-application conference its plan to acquire the parcel by eminent domain. The County informed the District that, along with applying for location and extent review, the District needed to seek modification of the PUD, pursuant to section 24-67-106(3)(b) of the PUD Act.⁶ Maintaining that it need only apply for location and extent review, the District submitted that application. The County refused to process the District's application because it had not first sought modification of the PUD.

The District then filed a complaint in Boulder County District Court, seeking judicial review of the County's refusal to process its application for location and extent review. The trial court granted the District's motion for summary judgment. The trial court determined that the District is a public entity not subject to zoning regulations and that a PUD is a form of zoning; therefore, the District is not subject to the PUD Act and need only comply with the location and extent review process under the Planning Act.

The court of appeals affirmed the trial court's ruling. We granted certiorari to clarify the relationship between the Planning Act and the PUD Act and, specifically, to resolve whether section 30-28-110(1)'s override authority of political subdivisions with special statutory purposes applies to the provisions of the PUD Act.

II.

We hold that the override authority of political subdivisions with special statutory purposes, codified in section 30-28-110(1) of the Planning Act, is applicable to the PUD Act. A statutory county may not refuse to process an otherwise complete application for location and extent review of a public project on the basis that the applicant political subdivision must first seek modification of a PUD.

A. Standard of Review

We review a grant of summary judgment de novo. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251, 1256 (Colo.1995). Statutory interpretation is also a question of law subject to de novo review. Fogg v. Macaluso, 892 P.2d 271, 273 (Colo.1995).

Our primary objective in construing a statute is to effectuate the intent of the General Assembly. Romanoff v. State Comm'n on Judicial Performance, 126 P.3d 182, 188 (Colo.2006). We start with the plain meaning of the language, which we consider within the context of the statute as a whole. Id.; see also § 2-4-101, C.R.S. (2009). Where two statutes address the same subject, we construe them together to avoid inconsistency and attempt to reconcile them. City & County of Denver ex rel. Bd. of Water Comm'rs v. Bd. of County Comm'rs, 782 P.2d 753, 766 (Colo.1989); People v. James, 178 Colo. 401, 404, 497 P.2d 1256, 1257 (1972); see also § 2-4-206, C.R.S. (2009). Specific provisions control over general provisions. City & County of Denver, 782 P.2d at 766; see also § 2-4-206. Where the legislative intent to do so is clear and unmistakable, later-enacted general legislation may repeal by implication a preexisting specific provision. Smith v. Zufelt, 880 P.2d 1178, 1184 n. 9 (Colo.1994); see also City of Colorado Springs v. Bd. of County Comm'rs, 895 P.2d 1105, 1118 (Colo.App.1994).

B. The Planning and PUD Acts and Other Political Subdivisions

1. The Planning Act

Enacted in 1939, section 30-28-106 of the Planning Act places a duty upon county planning commissions to adopt master plans to direct the development of unincorporated lands. A 2007 amendment to the Act provides that master plans are advisory until the county makes them binding by inclusion in its "subdivision, zoning, platting, planned unit development, or other similar land development regulations...." Ch. 165, sec. 1, § 30-28-106(3)(a), 2007 Colo. Sess. Laws 612.

Provisions of section 30-28-110(1) specifically govern the interrelationship between county zoning authority and the statutory authorities of other political subdivisions such as the fire protection district in this case. Where a county has adopted a master plan, another political subdivision proposing to construct a public building or structure in an unincorporated portion of the county must submit to the county an application for location and extent review:

[N]o road, park, or other public way, ground, or space, no public building or structure, or no public utility, whether publicly or privately owned, shall be constructed or authorized in the unincorporated territory of the county until and unless the proposed location and extent thereof has been submitted to and approved by such county or regional planning commission.

§ 30-28-110(1)(a) (emphasis added). This location and extent review procedure provides the county an opportunity to review and approve or disapprove a proposed public project in relation to the county's master plan.

The Boulder County Land Use Code specifically provides that "the purpose of the location and extent review is to determine whether public or quasi-public utilities or uses proposed to be located in the unincorporated area of the County are in conformance with the Comprehensive Plan." Boulder, Colo., Land Use Code, § 8-100(A) (2009). In Boulder County, public and private proposals for roads, parks, public ways, grounds, and spaces, public buildings and structures, and public utilities are subject to location and extent review, which may be conducted concurrently with other discretionary county review processes. Id. § 8-100(B)(1)-(2). This review must be conducted in conformance with the following procedures, applicable to a variety of actions requiring approval by the Boulder County Board of Adjustment, Planning Commission, and/or Board of County Commissioners: pre-application conference,...