Boone v. BOARD OF COUNTY COM'RS, 03CA1850.

• Decision Date: 16 December 2004
• Docket Number: No. 03CA1850.,03CA1850.
• Citation: 107 P.3d 1114
• Parties: Greg and Mary BOONE, Plaintiffs-Appellees, v. BOARD OF COUNTY COMMISSIONERS, Elbert County, Defendant-Appellant.
• Court: Colorado Court of Appeals

107 P.3d 1114

Greg and Mary BOONE, Plaintiffs-Appellees, v. BOARD OF COUNTY COMMISSIONERS, Elbert County, Defendant-Appellant.

No. 03CA1850.

Colorado Court of Appeals, Div. V.

December 16, 2004.

Rehearing Denied January 20, 2005.

John Kokish, PC, John Kokish, Shannon L. Meddings, Castle Rock, Colorado, for Plaintiffs-Appellees.

Berg, Hill, Greenleaf & Ruscitti, LLP, Josh A. Marks, Heidi C. Potter, Boulder, Colorado, for Defendant-Appellant.

WEBB, J.

In this land use dispute, defendant, Elbert County Board of County Commissioners, appeals the trial court's partial summary judgment in favor of plaintiffs, Greg and Mary Boone, declaring Elbert County's rezoning regulations for parcels between 35 and 59.99 acres illegal on their face. We reverse and remand.

The following facts are undisputed. The Boones owned a tract of approximately 143 acres, which they divided into 4 separate parcels by quitclaim deeds. Each of the 4 parcels was more than 35 acres.

In Elbert County, lots greater than 60 acres are zoned Agriculture (A); lots between 35 and 59.99 acres are zoned Agriculture-one (A-1). Elbert County Zoning Regulations, pt. I, § 1(J)(1). Lots zoned as A enjoy uses permitted by right that are not afforded to A-1 lots. Elbert County Zoning Regulations, pt. II, § 2(B). For lots zoned A-1, these uses are permitted only by special review. Elbert County Zoning Regulations, pt. II, § 3(c).

Shortly after the quitclaim deeds were recorded, the Elbert County Planning Department wrote to the Boones stating that they "had created one or more illegal parcels" and that the county would not issue building permits "for the illegal parcel(s) until [the Boones] have applied, and received approval for, the appropriate land use application(s)." The Boones were not then seeking a building permit.

Instead of applying for rezoning, the Boones brought this action asserting three claims for relief. In the first claim, they sought a judgment declaring the A-1 rezoning regulations "illegal and not enforceable, and superceded by [§ 30-28-101(10)(b), C.R.S.2004]," which precludes application of subdivision regulations to divisions of property resulting in parcels of 35 acres of more. In the second claim, they sought to enjoin the Board's enforcement of the rezoning regulations by refusing to issue building permits as in excess of its jurisdiction and an abuse of discretion. The third claim sought damages for an unconstitutional taking under 42 U.S.C. § 1983.

The parties filed cross-motions for summary judgment on the first claim and a stipulation of facts. Initially, the trial court denied the motions, explaining, "The pleadings do not clearly demonstrate what the County may choose to attempt to do with respect to zoning. Whether any attempt to rezone property would be a ruse for subdivision regulation is not yet adequately developed."

The parties jointly moved for reconsideration. They stated that the county had informed the Boones that it would not issue a building permit until they had obtained rezoning for their land and that, because the Boones "have not requested any zoning changes," they were not bringing an "as applied challenge to the county's authority, which could create the factual disputes referenced by the court in its prior summary judgment ruling."

The court then entered partial summary judgment for the Boones on the basis that § 30-28-101(10)(b) exempts from subdivision regulation parcels of 35 or more acres. After the court certified its partial summary judgment as final under C.R.C.P. 54(b), the Board appealed.

I.

Summary judgment is appropriate where no genuine issue of material fact exists. Dunne v. Shenandoah Homeowners Ass'n, 12 P.3d 340 (Colo.App.2000). Here, because the parties agree that the facts concerning this claim are undisputed, we review the summary judgment in the same manner as did the trial court. Dunne v. Shenandoah Homeowners Ass'n, supra.

Statutory interpretation is a question of law that appellate courts review de novo. Bontrager v. La Plata Elec. Ass'n, 68 P.3d 555 (Colo.App.2003). When construing statutes, a court's primary purpose is to effectuate the intent of the General Assembly. To determine that intent, courts first look to the statutory language, giving words and phrases their commonly accepted meaning. Archibold v. Pub. Utils. Comm'n, 58 P.3d 1031 (Colo.2002).

When several statutes apply to the same subject matter, courts examine all relevant provisions to determine the intent of the General Assembly. Bontrager v. La Plata Elec. Ass'n, supra. Courts must reconcile potentially conflicting statutes relating to the same subject matter, if possible, to avoid an inconsistent or absurd result. Bodelson v. City of Littleton, 36 P.3d 214 (Colo.App.2001). Courts will not adopt a statutory construction that defeats the intent of the General Assembly. State v. Nieto, 993 P.2d 493 (Colo.2000).

II.

The Board contends the trial court erred in applying the 35-acre subdivision exemption to invalidate on their face the county's rezoning regulations for parcels between 35 and 59.99 acres. We agree.

Local governments employ several methods of regulating land use within their jurisdictions, including master plans, zoning regulations, and subdivision regulations. Bd. of County Commr's v. Conder, 927 P.2d 1339 (Colo.1996). Zoning and subdivision regulations are separate and distinct types of controls that serve different purposes: zoning regulations limit the current use of land, while subdivision regulations restrict transferability and plan for future use involving a platted subdivision. See Bd. of County Commr's v. Bainbridge, Inc., 929 P.2d 691 (Colo.1996).

The authority to promulgate subdivision regulations is in addition to the general authority given to counties to adopt zoning regulations. Beaver Meadows v. Bd. of County Commr's, 709 P.2d 928 (Colo.1985). Hence, a subdivider must first satisfy applicable zoning regulations and then additionally comply with the subdivision regulations. Shoptaugh v. Bd. of County Commr's, 37 Colo.App. 39, 543 P.2d 524 (1975).

Section 30-28-111(1), C.R.S.2004, gives a county broad authority to enact zoning regulations:

The county planning commission of any county may ... make a zoning plan for zoning all or any part of the unincorporated territory within such county ... for the regulation by districts or zones of the location, height, bulk, and size of buildings and other structures, percentage of lot which may be occupied, the size of lots, courts, and other open spaces, the density and distribution of population, the location and use of buildings and structures for trade, industry, residence, recreation, public activities, or other purposes, access to sunlight for solar energy devices, and the uses of land for trade, industry, recreation, or other purposes.

(Emphasis added.) To enforce zoning regulations, the county may withhold building permits. Section 30-28-114, C.R.S.2004.

Section 30-28-133, C.R.S.2004, requires every county planning commission to develop, propose, and recommend subdivision regulations. However, § 30-28-101(10)(b) provides an exemption from subdivision regulation:

The terms "subdivision" and "subdivided land" ... shall not apply to any division of land which creates parcels of land each of which comprises thirty-five or more acres of land and none of which is intended for use by multiple owners.

Thus, § 30-28-133 only authorizes subdivision regulations controlling parcels of land smaller than 35 acres. Pennobscot, Inc. v. Bd. of County Commr's, 642 P.2d 915 (Colo.1982). The Boones argue that this exemption precludes the Board from requiring a landowner to rezone a parcel between 35 and 59.99 acres that arises from division of a larger tract. We disagree.

The plain language of § 30-28-101(10)(b) applies only to subdivision regulations. The General Assembly specifically defined the term subdivision as "any parcel of land ... which is to be used for ... multiple-dwelling units ... or which is divided into two or more parcels, separate interests, or interests in common, unless exempted under paragraph (b)... of this subsection (10)." Section 30-28-101(10)(a), C.R.S.2004 (emphasis added).

The General Assembly did not provide a parallel exemption from a county's zoning regulations. During oral argument, both parties agreed that the legislative history of § 30-28-101(10)(b) does not indicate an intent to limit county zoning powers. Moreover, county zoning authority expressly includes the power to regulate use based on lot size. Section 30-28-111(1).

Here, when the Boones divided their land, the new parcels no longer met the requirements for A zoning. Thus, they needed to be rezoned according to the A-1 zoning regulations for smaller parcels.

Nevertheless, the Boones argue that the county's A-1 zoning regulations are unenforceable because they improperly restrain alienability, based on the statement in Pennobscot, supra, that the 35-acre subdivision exemption prevents subdivision regulation from operating as a restraint on alienability. We are not persuaded.

Initially, we note that a county's statutory zoning enforcement powers do not include enjoining...