Cottonwood Farms v. Board of County Com'rs of County of Jefferson, 86SC218

• Decision Date: 31 October 1988
• Docket Number: No. 86SC218,86SC218
• Citation: 763 P.2d 551
• Parties: COTTONWOOD FARMS, a Colorado partnership, and Colorado Rock Company, a Colorado corporation, Petitioners, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF JEFFERSON, Colorado, and the State of Colorado, Respondents.
• Court: Colorado Supreme Court

Page 551

763 P.2d 551

COTTONWOOD FARMS, a Colorado partnership, and Colorado Rock Company, a Colorado corporation, Petitioners, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF JEFFERSON, Colorado, and the State of Colorado, Respondents.

No. 86SC218.

Supreme Court of Colorado En Banc.

Oct. 31, 1988.

Hutchinson, Black, Hill & Cook, David G. Hill, David M. Packard, James England, Boulder, for petitioners.

Patrick R. Mahan, County Atty., Gay B. Ummel, Asst. County Atty., Golden, for respondent Bd. of County Com'rs.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Jerry W. Goad, Asst. Atty. Gen., Denver, for respondent State of Colo.

KIRSHBAUM, Justice.

In Cottonwood Farms v. Board of County Commissioners, 725 P.2d 57 (Colo.App.1986), the Court of Appeals affirmed a district court judgment dismissing several claims contained in a complaint filed by Cottonwood Farms and Colorado Rock Company (hereinafter sometimes referred to as "applicants") for review of a decision of the Jefferson County Board of County Commissioners (the Board) denying an application to rezone land located in Jefferson County, Colorado. The Court of Appeals held, inter alia, that the application of the Preservation of Commercial Mineral Deposits Act (the Preservation Act), §§ 34-1-301 to -305, 14 C.R.S. (1984), to the property as zoned did not effect an unconstitutional taking of the real property. The court also stated that under the self-inflicted hardship doctrine a valid constitutional taking claim arises only when property is acquired under one zoning regulation and a subsequent change in zoning deprives the claimant of any reasonable use of the property. We granted certiorari to review these determinations. Although we disagree with the assertion that the self-inflicted hardship doctrine serves to bar constitutional taking claims, we affirm the judgment of the Court of Appeals.

I

By several separate purchases on December 23, 1981, and February 16, 1982, Cottonwood Farms acquired contiguous parcels of land in Jefferson County totalling approximately 323 acres. The land was at the time classified Agricultural-One under applicable county zoning regulations. On February 22, 1982, Cottonwood Farms and Colorado Rock Company filed an application with the Jefferson County Planning Department to rezone to a Planned-Development Mining classification. On April 1, 1982, Cottonwood Farms executed a lease with Colorado Rock Company, a corporation engaged in aggregate mining, whereby the 323-acre tract would be used as a rock quarry.

The Planning Department recommended conditional approval of the application. However, following extensive hearings, the Board denied the rezoning application. The Board concluded that the proposed quarry operation would not be compatible with existing uses in the surrounding area and, in particular, would not conform to Jefferson County Comprehensive Plan provisions respecting visual, air quality, noise pollution, water quality, blasting safety and economic impact standards.

The applicants filed a complaint in the district court against the Board, two of its members (referred to hereinafter as "the Commissioners") and the State of Colorado. The complaint sought judicial review of the Board's action pursuant to C.R.C.P. 106 and declaratory relief pursuant to C.R.C.P. 57. The complaint also contained six claims for damages against the Board, the Commissioners and the State of Colorado. The applicants' second claim asserted that aggregate mining was the only reasonable use of the property, that the Preservation Act imposed unreasonable restrictions on their use of the property, and that the combination of that statute and the Board's decision effected an unconstitutional taking of their property without just compensation. Their fourth claim asserted that the zoning regulations impermissibly excluded mining as a use by right, in violation of the applicants' due process rights. ¹

The Board and the State of Colorado, pursuant to C.R.C.P. 12(b), filed motions to dismiss the six damage claims. ² The district court granted the motions, concluding, inter alia, that the Agricultural-One zoning classification was not proscribed by the Preservation Act and did not deprive the applicants of substantially all the use of their property. The district court also determined that, pursuant to this court's decision in Nopro Co. v. Town of Cherry Hills Village, 180 Colo. 217, 504 P.2d 344 (1972), the claims for damages must fall because the hardship suffered by the applicants was self-inflicted.

In affirming the district court's dismissal of the applicants' second claim, the Court of Appeals concluded that application of the Preservation Act to the existing zoning classification did not effect an unconstitutional taking of the property. The Court of Appeals also indicated that a valid taking claim arises only when property is acquired under one zoning regulation and a subsequent change in zoning deprives the claimant of any reasonable use of the property. In affirming the district court's dismissal of the applicants' exclusionary zoning claim, the Court of Appeals concluded that the challenged zoning regulations in fact permitted aggregate mining under reasonable criteria which the applicants failed to meet. ³ The court also observed, again, that the applicants' problem was one of self-inflicted hardship which could not be relieved by the Board or the court.

II

The applicants argue that application of the Preservation Act, §§ 34-1-301 to -305, 14 C.R.S. (1984), to their property in the context of the zoning classification affecting the property results in a denial of all reasonable use of the property. We disagree.

Section 34-1-305, 14 C.R.S. (1984), provides in pertinent part as follows:

Preservation of commercial mineral deposits for extraction. (1) After July 1, 1973, no board of county commissioners, governing body of any city and county, city, or town, or other governmental authority which has control over zoning shall, by zoning, rezoning, granting a variance, or other official action or inaction, permit the use of any area known to contain a commercial mineral deposit in a manner which would interfere with the present or future extraction of such deposit by an extractor.

(2) After adoption of a master plan for extraction for an area under its jurisdiction, no board of county commissioners, governing body of any city and county, city, or town, or other governmental authority which has control over zoning shall, by zoning, rezoning, granting a variance, or other official action or inaction, permit the use of any area containing a commercial mineral deposit in a manner which would interfere with the present or future extraction of such deposit by an extractor.

....

(5) Nothing in this section shall be construed to prohibit a use of zoned land permissible under the zoning governing such land on July 1, 1973.

Pursuant to the Preservation Act, the Colorado Geological Survey conducted a study identifying the property acquired by the petitioners as a site containing a commercial mineral deposit. See § 34-1-303, 14 C.R.S. (1984). In addition, the Jefferson County Planning Commission adopted a master plan in 1977 for extraction of the mineral deposits within the county. See § 34-1-304, 14 C.R.S. (1984). However, it is uncontroverted that since 1955 the property in question has been continuously subject to the same zoning classification--Agricultural-One. Such classification allows, inter alia, the construction of residences on five-acre tracts, as well as the use of the property for agricultural purposes.

The clear intent of section 34-1-305(5) is to permit uses authorized by preexisting zoning regulations to continue subsequent to July 1, 1973. While a county authority deciding to amend its regulation of uses after July 1, 1973, must comply with these statutory provisions, no such action has been taken by the Board. Under these circumstances, the combination of the provisions of the Preservation Act and the Agricultural-One zoning classification applicable to the applicants' property does not prohibit all reasonable use thereof.

It is well-established that extant zoning ordinances do not constitute unconstitutional confiscations of property merely because they restrict the ability of landowners to realize greater profit from the use of their property. E.g., Sellon v. City of Manitou Springs, 745 P.2d 229 (Colo.1987); Landmark Land Co. v. City & County of Denver, 728 P.2d 1281 (Colo.1986), appeal dismissed sub nom. Harsh Inv. Corp. v. City & County of Denver, 483 U.S. 1001, 107 S.Ct. 3222, 97 L.Ed.2d 729 (1987); Baum v. City & County of Denver, 147 Colo. 104, 363 P.2d 688 (1961). In these circumstances, the zoning authority has not "taken" the property, but has merely created an obstacle to the possibility of obtaining windfall profits. See County of Ada v. Henry, 105 Idaho 263, 668 P.2d 994 (1983). Moreover, the fact that the plaintiff may have paid more than the land was worth under existing zoning in the hope of securing a zoning change is generally not a factor to be considered in the plaintiff's favor in analyzing a taking claim. E.g., Westbrook v. Board of Adjustment, 245 Ga. 15, 262 S.E.2d 785 (1980); Mintz v. Village of Pepper Pike, 57 Ohio App.2d 185, 386 N.E.2d 849 (1978) (noting that the plaintiffs' claim of financial loss was more accurately described as denial of a windfall). See generally 1 A. Rathkopf & D. Rathkopf, The Law of Zoning and Planning § 6.07 (1988).

Here, the applicants having agreed upon a purchase price for the property, it is reasonable to assume that at the time of the transaction the applicants assumed the property was capable of being put to some economic use. It is also true, as we have previously indicated, that the combination of the extant zoning classification and the Preservation Act does not prohibit the economic activity...