Droste v. BOARD OF COUNTY COM'RS OF PITKIN, No. 02CA1156.

• Decision Date: 28 August 2003
• Docket Number: No. 02CA1156.
• Citation: 85 P.3d 585
• Parties: Peter C. DROSTE; Peter C. Droste, as trustee of a trust for the benefit of Peter C. Droste, Jr., and Elise Droste under written trust instrument dated December 25, 1991; Bruce F. Droste; and Bruce F. Droste, as trustee of a trust for the benefit of Edward Droste and William Droste under written trust instrument dated December 25, 1991, Plaintiffs-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF PITKIN, Colorado; Patti Clapper, Dorothea Farris, Jack Hatfield, Mick Ireland, and Shellie Roy Harper, in their official capacities as members of the Board of County Commissioners of the County of Pitkin, Colorado; and James R. True, in his official capacity as Pitkin County Hearing Officer, Defendants-Appellees.
• Court: Colorado Court of Appeals

85 P.3d 585

Peter C. DROSTE; Peter C. Droste, as trustee of a trust for the benefit of Peter C. Droste, Jr., and Elise Droste under written trust instrument dated December 25, 1991; Bruce F. Droste; and Bruce F. Droste, as trustee of a trust for the benefit of Edward Droste and William Droste under written trust instrument dated December 25, 1991, Plaintiffs-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF PITKIN, Colorado; Patti Clapper, Dorothea Farris, Jack Hatfield, Mick Ireland, and Shellie Roy Harper, in their official capacities as members of the Board of County Commissioners of the County of Pitkin, Colorado; and James R. True, in his official capacity as Pitkin County Hearing Officer, Defendants-Appellees.

No. 02CA1156.

Colorado Court of Appeals, Div. I.

August 28, 2003.

Certiorari Denied March 15, 2004.¹

Grimshaw & Harring, P.C., Wayne B. Schroeder, Jody Harper Alderman, Julie Karon Blakley, Denver, Colorado, for Plaintiffs-Appellants.

John M. Ely, County Attorney, Aspen, Colorado; Berg Hill Greenleaf & Ruscitti, LLP, Josh A. Marks, Denver, Colorado, for Defendants-Appellees.

Berenbaum, Weinshienk & Eason, P.C., David R. Eason, Denver, Colorado; Patton Boggs, LLP, Carolyn McIntosh, Denver, Colorado, for Amicus Curiae Regents of the University of Colorado.

Opinion by Judge HUME.²

Plaintiffs, Peter C. Droste and Bruce F. Droste, appeal the trial court's judgment rejecting their claims arising from Pitkin County's denial of their land use applications. We affirm.

In 1963, the Drostes purchased approximately 926 acres of land, known as Droste Ranch, lying between the City of Aspen and the Town of Snowmass Village in Pitkin County, Colorado. In 1996, the Drostes sold a conservation easement on the property to Pitkin County. In 1999, they also sold another conservation easement to the Town of Snowmass Village and Pitkin County. In both conservation easement agreements, the parties recognized and contracted to preserve critical wildlife habitat in the form of migration corridors between winter and summer elk ranges on the Droste Ranch.

On March 25, 1974, Pitkin County adopted Zoning Resolution 74-160. Under that zoning resolution, the Droste property was zoned AF-1, which allowed development of a single family residence on a lot of at least ten acres as a use by right. That zoning ordinance remained in effect on May 17, 1974, when both the Areas and Activities of State Interest Act (AASIA), § 24-65.1-101, et seq., 2002, and the Local Government Land Use Control Enabling Act (Enabling Act), § 29-20-101, et seq., C.R.S.2002, became effective.

In 1975, Pitkin County adopted Resolution 75-68 designating areas and activities of state interest and establishing a permit system for new development in natural resource areas, which included significant wildlife habitats. This provision has now been modified and codified in the Pitkin County Land Use Code (PCLUC).

In September 2000, the Drostes filed two development applications with Pitkin County. One application was for a 15,000-square-foot family residence on a 500-acre site, and the other was for an access road between the Brush Creek Road and the proposed residence site. Following hearings, the county denied both applications, and the Pitkin County Board of County Commissioners (BOCC) also determined that their denial did not constitute a taking.

The Drostes later filed this lawsuit and sought partial summary judgment on four claims. They first contended that their proposed development is exempted from county regulation under AASIA because the property was zoned for development of single family residences on tracts of ten acres or more when AASIA was enacted. Second, the Drostes contended that the county abused its discretion and acted in excess of its jurisdiction in denying their land use applications. Third, they challenged the constitutionality of the takings hearing conducted by the BOCC as a violation of the division of powers clause of the Colorado Constitution. Fourth, the Drostes asserted that the takings hearing required by the PCLUC violates the takings clause of the United States and Colorado Constitutions.

In ruling on the motion for summary judgment, the trial court rejected all four claims at issue here. The court determined that AASIA and the Enabling Act were separate and distinct grants of authority that parallel each other. The court also concluded that the zoned land exemption in AASIA did not preclude regulation of the Drostes' proposed development under the Enabling Act, and determined that the County's denial of the land use applications was proper and was supported by sufficient evidence. The court denied the constitutional takings claims, determining that the "taking" hearing was "another step in the administrative land use process," which did not infringe upon judicial authority to adjudicate issues concerning governmental takings of property and to order remediation therefor. The court certified the partial judgment as final under C.R.C.P. 54(b), despite the fact that other contractual claims asserted under the conservation easements and the Drostes' claim for inverse condemnation remain pending in the trial court. This appeal followed.

I. Zoned Land Exemption

The Drostes contend that the zoned land exemption in § 24-65.1-107(1)(c)(II) of AASIA exempts their proposed developments of a single family residence and driveway because the property was zoned for such uses by right on and prior to May 17, 1974, when AASIA became effective. The Drostes also contend that the county cannot employ the Enabling Act to prohibit development expressly exempted from regulation by AASIA. Based upon our interpretation of AASIA, the Enabling Act, and the PCLUC, we disagree.

Statutory interpretation is a question of law, which appellate courts review de novo. Stell v. Colo. Dep't of Health Care Policy & Fin., 78 P.3d 1142 (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, 1038 (Colo.2002).

When several statutes apply to the same subject matter, courts examine all applicable provisions to determine the intent of the General Assembly. Bontrager v. La Plata Elec. Ass'n, 68 P.3d 555 (Colo.App.2003). 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, 216 (Colo.App.2001); see also Sullivan v. Indus. Claim Appeals Office, 22 P.3d 535, 538 (Colo.App.2000)

.

Courts will not follow a statutory construction that defeats the intent of the General Assembly or leads to an absurd result. See State v. Nieto, 993 P.2d 493, 500-01 (Colo. 2000)

.

As relevant here, the Enabling Act, adopted in 1974, allows local government to "regulate the use of land by ... [p]rotecting lands from activities which would cause immediate or foreseeable material danger to significant wildlife habitat and would endanger a wildlife species." Section 29-20-104(1)(b), C.R.S.2002. The purpose of the Enabling Act is to "provide broad authority to local governments to plan for and regulate the use of land within their respective jurisdictions." Section 29-20-102(1), C.R.S.2002.

However, the Enabling Act also provides that "where other procedural or substantive requirements for the planning for or regulation of the use of land are provided by law, such requirements shall control." Section 29-20-107, C.R.S.2002. Under this provision, a county cannot disregard a limitation of its authority found in another statute. Oborne v. Bd. of County Comm'rs, 764 P.2d 397, 400 (Colo.App.1988).

AASIA, also adopted in 1974, was the first comprehensive land use law in Colorado and "allows both state and local governments to supervise land use which may have an impact on the people of Colorado beyond the immediate scope of the land use project." City & County of Denver v. Bd. of County Comm'rs, 782 P.2d 753, 755 (Colo.1989). AASIA authorizes a local government to designate certain specified areas, including natural resource areas, as matters of state interest within its jurisdiction. Section 24-65.1-201, C.R.S.2002.

However, the zoned land exemption in AASIA provides in pertinent part that:

This article shall not apply to any development in an area of state interest or any activity of state interest which meets any one of the following conditions as of May 17, 1974:....

The development or activity is to be on land:

....

Which has been zoned by the appropriate local government for the use contemplated by such development or activity....

Section 24-65.1-107(1)(c)(II), C.R.S.2002.

The PCLUC was adopted with the intent to exercise the BOCC's authority under, inter alia, AASIA and the Enabling Act. PCLUC § 1-60-010 (2000).

PCLUC § 3-80-080B prohibits development in certain wildlife areas:

Deer, Elk and Bighorn Sheep Winter Concentration Area/Severe Winter Range/Critical Habitat: Development is prohibited within deer, elk and bighorn sheep winter concentration areas and severe winter range areas. In the event that there is no hazard-free area on a site and a development application is subsequently denied, an applicant may petition the [BOCC] for consideration pursuant to Section 3-290 of this Code [concerning takings].

Here, the Drostes assert that the trial court's ruling is contrary to Board of County Commissioners v. Gartrell Investment Co., 33 P.3d 1244 (Colo.App.2001). In Gartrell, a division of this court concluded that a county's regulation concerning annexation exceeded the scope of AASIA. Bd. of County Comm'rs v. Gartrell Inv. Co., supra, 33 P.3d at 1248. However, Gartrell involved the construction of AASIA and the Municipal Annexation Act, § 31-12-101, et seq., C.R.S. 2002, which relate to...