Friends of Black Forest v. COUNTY COM'RS

• Decision Date: 24 April 2003
• Citation: 80 P.3d 871
• Docket Number: 01CA2253
• Parties: FRIENDS OF THE BLACK FOREST REGIONAL PARK, INC., a Colorado nonprofit corporation; Dennis Hartley and Deborah Hartley, individually; James Fine and Jennifer Fine, individually; and Raymond A. Miller and Cynthia L. Miller, individually, Plaintiffs-Appellees, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF EL PASO, Defendant-Appellant, and Concerning Kings Deer Development, LLC, a Colorado limited liability company, Intervenor-Appellant.
• Court: Colorado Court of Appeals

80 P.3d 871

FRIENDS OF THE BLACK FOREST REGIONAL PARK, INC., a Colorado nonprofit corporation; Dennis Hartley and Deborah Hartley, individually; James Fine and Jennifer Fine, individually; and Raymond A. Miller and Cynthia L. Miller, individually, Plaintiffs-Appellees, v.BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF EL PASO, Defendant-Appellant, and Concerning Kings Deer Development, LLC, a Colorado limited liability company, Intervenor-Appellant.

No. 01CA2253.

Colorado Court of Appeals, Div. III.

April 24, 2003.

Certiorari Denied December 1, 2003.

Sparks Willson Borges Brandt & Johnson, P.C., Kenneth Sparks, Stephen A. Hess, Colorado Springs, Colorado, for Plaintiffs-Appellee.

Michael A. Lucas, County Attorney, Jay A. Lauer, Assistant County Attorney, Colorado Springs, Colorado, for Defendant-Appellant.

Anderson, Dude & Lebel, P.C., Lenard Rioth, Bennie H. South, Colorado Springs, Colorado, for Intervenor-Appellant.

Opinion by Judge ROY.

Defendant, Board of County Commissioners of the County of El Paso, Colorado (county), and intervenor, Kings Deer Development, LLC(developer), appeal the trial court's judgment in favor of plaintiffs, Friends of the Black Forest Regional Park, Inc., Dennis and Deborah Hartley, James and Jennifer Fine, and Raymond and Cynthia Miller.We affirm.

This case concerns a determination of the permitted uses of property described as the W 1/2 of the SW 1/4 of Section 12, Township 12 South, Range 66 West of the 6th P.M.(subject property), which is the south portion of the El Paso County Black Forest Regional Park(the park).

The first issue is whether a prior owner of the subject property created a road easement thirty feet in width along the west section line of Section 12(the road easement).We conclude that the road easement does not exist.The second issue is whether the use of the subject property is restricted by 16 U.S.C. § 484a(2002)(the Sisk Act), so as to prevent the construction of a road through and across it.We conclude that the Sisk Act prohibits construction of the road.

In 1919, a lumber company owned all the pertinent parts of Sections 1,2,11, and12.These four sections form a square, with the northeast quarter being Section 1, the northwest quarter being Section 2, the southwest quarter being Section 11, and the southeast quarter being Section 12.Section 10 is immediately west of Section 11 and the described square.The county road network does not penetrate the square.

In 1921, the lumber company conveyed Section 11 and other lands by a deed that contained the following pertinent language:

[I]t is expressly understood and agreed between the parties hereto that this conveyance is made subject to a right of way over and across a strip of land thirty (30) feet wide on each side of each section line, said right of way being reserved for use as a future roadway for the benefit of the owners of the tract and owners of adjoining tracts in these sections and adjacent sections, with the intent hereof being to have section lines available for road purposes as occasion demands....

The other lands conveyed in the 1921 deed included both sides of the section lines between Sections 1and2andSections 2and11 along their entire lengths and both sides of the section line between Sections 10and11 along its southerly portion.

In 1932, the lumber company conveyed the subject property by a deed that stated, inter alia, the conveyance was "subject to right of way for road purposes along section lines."Eventually the subject property was conveyed to the United States Forest Service (USFS) in 1944.

In the 1970s, pursuant to a special use permit from the USFS, the county began using the subject property and adjacent county property as the park.The permit stated nine specific purposes for which the subject property could be used, which included roadway and other park purposes.The county installed park facilities.

In 1999, the USFS conveyed the subject property to the county subject to the pertinent limitations of the Sisk Act, which applies to exchanges of forest service lands and states:

Whenever an exchange of land is proposed by a ... county ... [pursuant to] authority... under which the Secretary of Agriculture is authorized to exchange national forest lands or other lands administered by the Forest Service, [the exchange may be completed upon certain conditions] ....The provisions of this section shall not be applicable to the conveyance in exchange of more than eighty acres to any one ... county ....Lands may be conveyed to any ... county ... pursuant to this section only if the lands were being utilized by such entities on January 12, 1983.Lands so conveyed may be used only for the purposes for which they were being used prior to conveyance.

16 U.S.C. § 484a(emphasis added).

The terms of the deed from the USFS to the county stated, in pertinent part:

SUBJECT TO the limitations pursuant to the authority of Sec. 8(b) of the Act of January 12, 1983(96 Stat. 2535), which amended the Act of December 4, 1967(82 Stat. 531) and states: "lands may be conveyed to any State, County, or municipal government pursuant to this Act only if the lands were being utilized by such entities on the date of the enactment of this sentence.Lands so conveyed may be used only for the purposes for which they were being used prior to the conveyance."Therefore, Grantee agrees and covenants that the above-described land will be used for local government purposes in perpetuity....

(Emphasis added.)

Developer now owns all, or substantial portions of, Sections 1and2.Friends of the Black Forest Regional Park, Inc., is a non-profit corporation composed of individuals who own property near the park.

An improved gravel road has been constructed on a thirty-foot easement along the east section line of Section 11, which serves residences on unplatted lots in that section and also provides access to the park facilities on the subject property.The validity of that easement is, apparently, the subject of a separate proceeding.No road has been constructed on the road easement at issue here except for slight encroachments by the road constructed in Section 11.

Developer wants to develop portions of Sections 1and2, and it requested that the county grant access from the south using the full sixty-foot easement along the section line between sections 11and12 for approximately 1650 feet.The access then would proceed north-north-east through the subject property and departs from it approximately 450 feet east of the west section line.The road would then proceed through the north portion of the park to developer's property.

Because of their concerns that the new road would create heavy traffic through the subject property, plaintiffs brought a declaratory judgment action to determine whether the road would violate the deed limitations set forth in the USFS deed to the county and the Sisk Act and whether the road easement was valid.Plaintiffs obtained a temporary restraining order to stay the zoning proceedings pending the outcome of this litigation.

Subsequently, the parties stipulated that the zoning process would proceed, but road construction would not commence pending the outcome of this litigation.The county approved the development plan with the road as proposed.Plaintiffs then amended their complaint by adding a C.R.C.P. 106(a)(4) claim for judicial review of the county's rezoning decision.

The county filed a motion to dismiss asserting that plaintiffs lacked standing, that the administrative proceedings were plaintiffs' sole remedy, and that plaintiffs had failed to join indispensable parties.Developer intervened in support of the county and argued that the Sisk Act did not apply to the transfer from the United States to the county or alternatively that the Sisk Act did not prohibit the extension of the road for access to the subject property.The trial court denied both motions to dismiss.

Developer then filed a motion for summary judgment on the issue of whether the 1921 deed created the road easement.Plaintiffs filed opposing briefs and then, at the trial court's request, filed their own motion for summary judgment arguing that the language of the deed did not create the road easement.

The trial court ruled that plaintiffs had standing to contest the validity of the easement and that the 1921 deed did not create the road easement.The trial court also ruled that the subject property was conveyed pursuant and subject to the Sisk Act and further concluded that the USFS was not a necessary party.As to the C.R.C.P. 106(a)(4) claim, the trial court later concluded that the county did not exceed its jurisdiction or abuse its discretion in approving developer's zoning request and access through the subject property.

However, after a trial on the application of the Sisk Act, the trial court concluded that the Act prohibited construction of a road through the subject property and that developer did not have standing to argue otherwise.

This appeal followed.

I.

We first address the trial court's ruling on plaintiffs' declaratory judgment claim.Developer contends that the trial court's conclusion on the C.R.C.P. 106(a)(4) claim that the county did not exceed its jurisdiction or abuse its discretion in approving the rezoning and access road is the law of the case and that the trial court could not subsequently reach a contrary conclusion in the declaratory judgment action pertaining to the application of the Sisk Act.The county contends that a C.R.C.P. 106(a)(4) action was plaintiffs' exclusive remedy.We disagree with both contentions.

Generally, the exclusive remedy for one challenging a rezoning is judicial review pursuant to C.R.C.P. 106(a)(4).However, in certain circumstances, an action for declaratory judgment may proceed contemporaneously with a C.R.C.P. 106(a)(4) action.Norby v. City of Boulder,195 Colo. 231, 577 P.2d 277(1978).In addition,...