City of Colorado Springs v. Board of County Com'rs of County of Eagle, s. 93CA0386
| Court | Court of Appeals of Colorado |
| Citation | 895 P.2d 1105 |
| Docket Number | Nos. 93CA0386,93CA0412,s. 93CA0386 |
| Parties | CITY OF COLORADO SPRINGS and City of Aurora, Colorado, municipal corporations, Plaintiffs-Appellants and Cross-Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF EAGLE, State of Colorado; George A. Gates, Johnette Phillips, James E. Johnson, Jr., in their official capacities as individual members of said Board; The Board of County Commissioners of the County of Eagle, in its capacity as the permitting authority under § 24-65-101 et seq., C.R.S.; The Eagle County Planning Commission; Mark Donaldson, Robert Tether, Arlene Quenon, Robert Morris, Donald Price, in their official capacities as individual members of said Commission; The County of Eagle, State of Colorado; Holy Cross Wilderness Defense Fund; and Vail Valley Consolidated Water District, Defendants-Appellees and Cross-Appellants. . III |
| Decision Date | 17 November 1994 |
Page 1105
municipal corporations, Plaintiffs-Appellants and
Cross-Appellees,
v.
The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF EAGLE,
State of Colorado; George A. Gates, Johnette Phillips,
James E. Johnson, Jr., in their official capacities as
individual members of said Board; The Board of County
Commissioners of the County of Eagle, in its capacity as the
permitting authority under § 24-65-101 et seq., C.R.S.; The
Eagle County Planning Commission; Mark Donaldson, Robert
Tether, Arlene Quenon, Robert Morris, Donald Price, in their
official capacities as individual members of said
Commission; The County of Eagle, State of Colorado; Holy
Cross Wilderness Defense Fund; and Vail Valley Consolidated
Water District, Defendants-Appellees and Cross-Appellants.
Colorado Court of Appeals,
Div. III.
Rehearing Denied Dec. 15, 1994.
Certiorari Denied June 5, 1995.
Page 1108
Anderson, Johnson & Gianunzio, P.C., Mark T. Pifher, William Kelly Dude, Colorado Springs, for plaintiffs-appellants and cross-appellees.
James R. Fritz, County Atty., Eagle, Holme Roberts & Owen, L.L.C., Dennis J. Herman, Henry W. Ipsen, Mary H. Stuart, Denver, for defendants-appellees and cross-appellants Bd. of County Com'rs of County of Eagle, State of Colo., George A. Gates, Johnette Phillips, James E. Johnson, Jr., Bd. of County Com'rs of County of Eagle, State of Colo., Eagle County Planning Com'n, Mark Donaldson, Robert Tether, Arlene Quenon, Robert Morris, Donald Price, County of Eagle, State of Colo.
Sierra Club Legal Defense Fund, Lori J. Potter, Denver, Land and Water Fund of the Rockies, Frances M. Green, Boulder, for defendants-appellees and cross-appellants Holy Cross Wilderness Defense Fund.
Page 1109
Grimshaw & Harring, P.C., Wayne B. Schroeder, Ronald L. Fano, Denver, for defendants-appellees and cross-appellants Vail Valley Consolidated Water Dist.
Opinion by Judge DAVIDSON.
In this action pursuant to C.R.C.P. 106, and C.R.C.P. 57, defendants, Eagle County; the Eagle County Board of Commissioners; George A. Gates, Johnette Phillips, and James E. Johnson, in their official capacities as individual members of the Eagle County Board of Commissioners; the Eagle County Planning Commission; Mark Donaldson, Robert Tether, Arlene Quenon, Robert Morris, and Donald Price, in their official capacities as individual members of the Eagle County Planning Commission (collectively the Board); Holy Cross Wilderness Defense Fund; and Vail Valley Consolidated Water District (Vail Valley), appeal from the judgment of the trial court vacating a denial of certain land use permits to plaintiffs, the City of Aurora and the City of Colorado Springs (the cities), and remanding the matter to the Board of County Commissioners. The cities cross-appeal from the trial court's dismissal of certain of their claims against the Board. We affirm in part and reverse in part.
The cities hold water rights in the Holy Cross Wilderness area, located in Eagle County. In order to complete a transbasin water diversion project there, the cities applied to the Board for a special use permit, a permit to conduct a major extension of an existing water collection system, and a permit to conduct a municipal water project, pursuant to regulations enacted under § 24-65.1-101, et seq., C.R.S. (1988 Repl.Vol. 10B) (the Land Use Act) and § 29-20-101, et seq., C.R.S. (1986 Repl.Vol. 12A) (the Local Government Land Use Control Act). After a series of public hearings, the Board denied the permits, and the cities filed this C.R.C.P. 106 action protesting the denial. See § 24-65.1-502, C.R.S. (1988 Repl.Vol. 10B).
On review, the trial court found that certain of the land use regulations relied upon by the Board to deny the permits were preempted by various state and federal statutes. The trial court then found the remaining regulations, concerning wetlands protection and nuisance factors, to be valid under the Land Use Act, but concluded that it could not discern whether the Board would have denied the permits absent consideration of the preempted regulations. Thus, it vacated the denial of the permits and remanded the matter to the Board for reconsideration.
The Board denied the permits on remand and the cities again appealed. On different grounds, the trial court again vacated the Board's order and, in addition, ordered the Board to approve the permits because it found that the Board had violated due process by improperly refusing to consider a final wetlands mitigation report submitted to the Army Corps of Engineers.
On the Board's motion for reconsideration, the trial court deleted the portion of its order requiring approval of the permits and remanded the matter with instructions to consider the final wetlands mitigation report.
We will address the matters raised by defendants on appeal first and then consider the issues raised by the cities' cross-appeal.
I.
Defendants argue that the trial court's first order vacating the denial of the permits and remanding the matter to the Board was in error. We agree.
A.
Review of an agency decision under C.R.C.P. 106(a)(4) is limited to matters contained within the record of the proceeding before the agency and "[t]he burden is on the [party] challenging the action to overcome the presumption that the agency's acts were proper." Fedder v. McCurdy, 768 P.2d 711, 713 (Colo.App.1988).
Consequently, a court may reverse an administrative tribunal's decision under C.R.C.P. 106 if there is no competent evidence to support its decision, that is, only if "the ultimate decision of the administrative body is so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority." Ross v. Fire & Police Pension Ass'n, 713 P.2d 1304,
Page 1110
1309 (Colo.1986); Platte River Environmental Conservation Organization, Inc. v. National Hog Farms, Inc., 804 P.2d 290 (Colo.App.1990) (The relative merits of the decision are not within the inquiry on review.).Section 24-65.1-501, C.R.S. (1988 Repl.Vol. 10B) provides that, if a county has designated certain matters as areas or activities of state interest under § 24-65.1-401, C.R.S. (1988 Repl.Vol. 10B), and as defined by §§ 24-65.1-201 and 24-65.1-203, C.R.S. (1988 Repl.Vol. 10B), the county should enact a permitting process for future development.
Pursuant to this authority, the Board designated as activities of state interest the site selection and construction of major new domestic water and sewage treatment systems, major extensions of existing domestic water and sewage treatment systems, and the efficient utilization of municipal and industrial water projects. The Board then developed guidelines for the administration of these designated matters of state interest as required by § 24-65.1-402, C.R.S. (1988 Repl.Vol. 10B) and a permitting process as prescribed by § 24-65.1-501.
According to § 24-65.1-501(4), C.R.S. (1988 Repl.Vol. 10B):
[The county] may approve an application for a permit to conduct an activity of state interest if the proposed activity complies with the [county's] regulations and guidelines for conduct of such activity. If the proposed activity does not comply with the guidelines and regulations, the permit shall be denied.
Here, the trial court found that several, but not all, of the criteria which the Board had applied to the cities' proposed project were preempted. The court then remanded the matter to the Board for reconsideration in light of the remaining criteria.
In doing so, defendants argue, the trial court overlooked the regulatory provisions which implement § 24-65.1-501(4), and which dictate that the permit must be denied if the applicant fails to satisfy all of the criteria contained in the applicable regulations. We agree.
According to this regulatory scheme--and the cities apparently do not dispute this--if a proposed project fails to satisfy even one criterion, the Board must deny the requested permits. See Eagle County Land Use Regulations 6.04.15(2) ("The permit [for a major extension of existing domestic water or sewage treatment system] shall be denied if the applicant fails to satisfy all the criteria outlined in Subsection 6.04.15(1)."); and Eagle County Land Use Regulations 6.05.16(2) ("The permit [for development of a municipal or industrial water project] shall be denied if the applicant fails to satisfy all the criteria outlined above.").
Therefore, the court erred by remanding on the ground that it was unable to ascertain what the Board's decision would have been had the preempted criteria not been considered. The trial court should have focused solely upon whether the record contained any competent evidence to support the determination that any one of the remaining criteria had not been met.
B.
Defendants next argue that a remand to the trial court at this point is unnecessary as the Board's original decision is supported by competent evidence. Again, we agree.
In a C.R.C.P. 106 appeal, the appellate court is in the same position as the trial court concerning review of the agency proceeding. Empiregas, Inc. v. County Court, 713 P.2d 937 (Colo.App.1985). And, our review of the record reflects ample evidence to support the Board's determination that the criteria in the two areas which the trial court found were not preempted--wetlands protection and nuisance factors--had not been satisfied.
For example, there was extensive testimony at the public hearings that the cities' plan to mitigate the impact of water diversion on the Holy Cross wetlands was deficient and would be ineffective to prevent a substantial destruction of certain plant species in the area, including a rare species of moss which had been found in very few areas in the continental United States. Other witnesses testified that the plans for mitigation of the noise, dust, and other disruptions caused by the...
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