Gordon v. Board of County Com'rs of El Paso County
Decision Date | 27 May 1963 |
Docket Number | No. 20049,20049 |
Citation | 382 P.2d 545,152 Colo. 376 |
Parties | William G. GORDON, Joan Helen Gordon, Charles Hewlett Upton, et al., Plaintiffs in Error, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF EL PASO, and Elroy Stum, Defendants in Error. |
Court | Colorado Supreme Court |
Donald E. LaMora, H. T. McGarry, Colorado Springs, for plaintiffs in error.
Strand & Geddes, Tarter & Tarter, Colorado Springs, for defendant in error Board of County Commissioners of El Paso County.
Goodbar & Goodbar, Colorado Springs, for defendant in error Elroy Stum.
This writ of error is directed to a judgment of the district court affirming the action of the Board of County Commissioners of El Paso county which purported to change the zoning regulations affecting certain real estate. We will refer to plaintiffs in error as 'protestants' and to defendants in error as the 'Board' and the 'applicant' respectively.
The applicant filed a request with the El Paso County Planning Commission for a change in zoning classification of certain real estate owned by him. The requested change (to a classification called C-2) would permit the construction of a shopping center on the real estate described, which was not permitted under the existing zoning. Protestants appeared and objected to the proposed change.
A hearing was had before the Planning Commission, at the conclusion of which the following occurred:
No resolution was adopted by the Planning Commission which referred '* * * expressly to the maps and descriptive matter intended by the commission to form the whole or part of the plan,' in compliance with the provisions of C.R.S. '53, 106-2-7.
When the matter came before the Board the record of proceedings before the Planning Commission was admitted without objection. Witnesses appeared and testified, some of whom had appeared before the Planning Commission. The hearing before the Board concluded with the following action:
Here again no resolution was adopted, the language of which identified any real estate to be affected by the purported change in zoning.
Substantial compliance with the statutory provisions applicable to resolutions of county commissioners on the subject of zoning of property is a prerequisite to a lawful enactment whether it be the original zoning regulation or an amendment thereof. Failure to comply with the essential mandates of the statute constitutes a jurisdictional defect and invalidates validates the entire proceeding. Yokley--Zoning Law and Practice, 2nd ed., Vol. 1, Sec. 70.
From 101 C.J.S. Zoning § 11, p. 695, we quote a statement of the applicable principle:
'Where a statute authorizes the adoption of zoning regulations by means of resolution, the municipality may not act by way of ordinance; but where the statute requires an ordinance for the attainment of the zoning restriction, a resolution is ineffective to accomplish the desired result. * * *'
The pronouncements of this court in cases dealing with zoning ordinances adopted by cities are applicable to the actions of county commissioners in connection with zoning 'resolutions' which they are now authorized to adopt, unless some specific statutory provision authorizes a different procedure. Again, broad general rules which are pertinent are found in 101 C.J.S. Zoning § 83, p. 835, as follows:
At 101 C.J.S. Zoning § 100, p. 856, we find the following:
'In amending the zoning law, the official or body making the amendment is enacting law, binding on the public, and is not merely dealing with the rights of the owners of the particular property affected, and the act is legislative and based on present facts, rather than judicial and dependent on past facts.'
By C.R.S. '53, 106-2-1 and 106-2-2 the commissioners of the respective counties are authorized to provide 'for the zoning of all or any part of' the unincorporated territory in their county, and they are authorized to appoint a planning commission. C.R.S. '53, 106-2-7 (and preceding subsections) deals with the powers and duties of the Planning Commission and contains, inter alia, the following:
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