C & M Sand & Gravel, Div. of C & M Ready Mix Concrete Co. of Boulder v. Board of County Com'rs of Boulder County, Colo., 82CA0815

• Decision Date: 08 September 1983
• Docket Number: No. 82CA0815,82CA0815
• Parties: C & M SAND & GRAVEL, DIVISION OF C & M READY MIX CONCRETE COMPANY OF BOULDER, a Colorado corporation, Bertha J. Heil, Johannes Heil, Robert C. Heil, Erwin S. Heil, Martha H. Hillman, and Donald E. Heil, Trustees, Plaintiffs-Appellees and Cross-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF BOULDER, COLORADO, Defendant-Appellant and Cross-Appellee. . I
• Court: Colorado Court of Appeals

Page 1013

673 P.2d 1013

C & M SAND & GRAVEL, DIVISION OF C & M READY MIX CONCRETE

COMPANY OF BOULDER, a Colorado corporation, Bertha J. Heil,

Johannes Heil, Robert C. Heil, Erwin S. Heil, Martha H.

Hillman, and Donald E. Heil, Trustees, Plaintiffs-Appellees and Cross-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF BOULDER, COLORADO, Defendant-Appellant and Cross-Appellee.

No. 82CA0815.

Colorado Court of Appeals,

Div. I.

Sept. 8, 1983.

Hurth, Yeager & Sisk, John M. Yeager, Boulder, for plaintiffs-appellees and cross-appellants.

Ann T. Raisch, County Atty., William F. Nagel, Asst. County Atty., Boulder, for defendant-appellant and cross-appellee.

Perry P. Burnett, Denver, for amicus curiae Colorado Counties, Inc.

J.D. MacFarlane, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., Janice L. Burnett, Paula C. Phillips, Asst. Attys. Gen., Denver, for amicus curiae Mined Land Reclamation Board.

Norton F. Tennille, Jr., Denver, George E. Benner, Jr., County Atty., Rio Blanco County, Meeker, for amicus curiae The Board of County Commissioners of the County of Rio Blanco, Colorado.

Earl G. Rhodes, County Attorney, Garfield County, Glenwood Springs, for amicus curiae The Board of County Commissioners of the County of Garfield, Colorado.

Patrick R. Mahan, County Atty., H. Lawrence Hoyt, Asst. County Atty., Golden, for amicus curiae Board of County Commissioners of Jefferson County.

Marshall McClung, Fairplay, for amicus curiae Board of County Commissioners, County of Park, Colorado.

VAN CISE, Judge.

This certiorari and declaratory judgment action was instituted in the district court as the result of the denial of an application of plaintiff C & M Sand & Gravel Division of C & M Ready Mix Concrete Company of Boulder (C & M) to defendant, Board of County Commissioners of the County of Boulder (the commissioners), for a special use permit to mine aggregate in an unincorporated area within the county. The commissioners appeal a declaratory judgment entered by that court holding that the county is barred and preempted by the Preservation of Commercial Mineral Deposits statute, § 34-1-301, et seq., C.R.S.1973 (the Preservation Act), and the Colorado Mined Land Reclamation Act, § 34-32-101, et seq., C.R.S.1973 (the Reclamation Act), as effective in 1980, from prohibiting mining operations by means of special use review procedure under the county zoning resolution. The plaintiffs appeal the trial court's dismissal of their C.R.C.P. 106(a)(4) claim for review of the commissioners' denial of C & M's application for a permit. We affirm in part and reverse in part.

C & M leased from the individual plaintiffs 195 acres of land in an area known as Geer Canyon for the purpose of mining aggregate therefrom. Under the county zoning resolution, part of this land is zoned forestry and the balance is zoned agricultural. Mining is not a use by right in either zoning district. It is a use permitted only if approved by the commissioners after a special use review procedure as specified in the zoning resolution.

Geer Canyon is identified as a "mineral resource area" and in particular an "aggregate resource area" in the county comprehensive plan. It is also so designated in the county's master plan for extraction, promulgated pursuant to the requirements of the Preservation Act and included within the comprehensive plan. However, the plan provides:

"2.09 It shall be County policy to strongly discourage intensive uses in Aggregate Resource Areas.

"2.10 Whether within or without a designated aggregate or other resource area, the County shall prohibit or regulate, including by Special Use Review and the like, the open mining of any mineral or earthen material including ... quarry aggregate, sand and gravel, ... as well as all accessory activities related thereto. It is emphasized that the extraction plan is fundamentally and primarily a preservation plan and that these portions of the County's commercial aggregate deposits shall be protected from the encroachment of land uses which tend to inhibit or preclude extraction so that the options of future decision-makers will remain open in considering the demand for aggregate. Conversely, it is not intended that an applicant for the extractive land use in an Aggregate Resource Area shall automatically be assured of success in lieu of addressing all environmental concerns.... Rather it is reemphasized that the extraction master plan shall insure the availability of an adequate supply of quality aggregate over the next 30 years so far as can be reasonably estimated."

In October 1979, C & M applied to the commissioners for a special use permit to mine aggregate on its leased property. The county planning staff and the planning commission recommended approval of the application subject to certain conditions. Following a public hearing, the commissioners denied it. In their resolution denying the application, the commissioners made 11 findings detailing how C & M's proposal failed to meet the criteria required for special use approval. None of the findings related to reclamation. Instead, the findings related to the impact on the existing neighborhood of such a large mining operation, which could exist for up to 40 years.

Plaintiffs timely filed this action in the district court, seeking (1) C.R.C.P. 106(a)(4) review of the commissioners' denial of the application, and (2) a declaratory judgment that the county zoning resolution requirement of a special use review for mining activities in agricultural and forestry zoning districts is void because local regulation is both specifically prohibited by and has been preempted by state law.

The commissioners moved for summary judgment on C & M's second claim, the preemption issue. In denying that motion, the trial court in effect entered a declaratory judgment that the Preservation Act forbids the Commissioners from interfering with the access to, and extraction of, commercial mineral deposits once they are so designated, as here, in the county's master plan for extraction included in the county's comprehensive plan. It, therefore, determined that the special use procedure, as applied to mining operations, is void because it is prohibited by § 34-32-109(6), C.R.S. 1973, which vests exclusive authority in the Mined Land Reclamation Board (the Reclamation Board) to grant mining permits, and because, as indicated in the Preservation Act, the area of mining regulation has been preempted by state regulations.

The court then dismissed the first claim, for C.R.C.P. 106(a)(4) review, holding that, if the special use review procedure as applied in this case was valid, the standards set forth in the zoning resolution for special use review were sufficient and there was competent evidence in the record to support the commissioners' fact findings and conclusions. This appeal and cross-appeal followed.

I. PREEMPTION

The primary issue in this case is whether the trial court erred in determining that the entire field of regulation of land use for mining operations has been preempted by the Reclamation Act and the Preservation Act. The commissioners contend that land use concerns are not included within the scope of either of these statutes and that land use regulation has not been preempted. We agree with the commissioners.

No local government may adopt an ordinance or resolution that is in conflict with a state statute. Section 30-15-411, C.R.S. 1973 (1982 Cum.Supp.). If it does conflict, the ordinance or resolution is void. City & County of Denver v. Howard, 622 P.2d 568 (Colo.1981). However, for a conflict to exist, both the state statute and the local ordinance or resolution must contain express or implied conditions which are inconsistent and irreconcilable one with the other. Otherwise, the two can coexist and both are effective. Ray v. City & County of Denver, 109 Colo. 74, 121 P.2d 886 (1942). If there is no conflict between the two, there is nothing invalid about legislation on the same subject by both a local government and the state. City of Aurora v. Martin, 181 Colo. 72, 507 P.2d 868 (1973).

" 'Determination of the question whether the [general assembly] has undertaken to occupy exclusively a given field of legislation depends upon an analysis of the statute and a consideration of the facts and circumstances upon which it was intended to operate.... Where the [general assembly] has adopted statutes governing a particular subject matter, its intent with regard to occupying the field to the exclusion of all local regulation is not to be measured alone by the language used but by the whole purpose and scope of the legislative scheme.' " City of Golden v. Ford, 141 Colo. 472, 348 P.2d 951 (1960).

An analysis of the various state statutes pertaining to regulating land use, which includes mining, leads to the conclusion that, contrary to the trial court's holding, Colorado is committed to local control of land use decision making.

The statutes pertaining to county planning, § 30-28-101, et seq., C.R.S. 1973 (1977 Repl. Vol. 12), vest broad authority in the county to regulate "uses of land for trade, industry [which includes mining], recreation, public activities, or other purposes," § 30-28-111(1), C.R.S. 1973 (1977 Repl.Vol. 12), through zoning and land use controls, including special use review. The Colorado Land Use Act, § 24-65-101, et seq., C.R.S. 1973 (1982 Repl.Vol. 10), provides in § 104(1)(b) that the land use commission "shall recognize that the decision-making authority as to character and use of land shall be at the lowest level of government possible." The Local Government Land Use Control Enabling Act, § 29-20-101, et seq., C.R.S. 1973 (1977 Repl.Vol. 12), specifies in § 102 that "the policy of this state is to clarify and provide broad authority to local governments to plan for and regulate the use of land within their respective jurisdictions." And in § 104(1) of that Act, each local...