Grant v. Board of County Com'rs of Mesa County, 21762

• Decision Date: 23 October 1967
• Docket Number: No. 21762,21762
• Citation: 164 Colo. 69,432 P.2d 762
• Parties: C. B. GRANT et al., Plaintiffs in Error, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF MESA, State of Colorado, Defendants in Error.
• Court: Colorado Supreme Court

Page 762

432 P.2d 762

164 Colo. 69

C. B. GRANT et al., Plaintiffs in Error, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF MESA State of Colorado, Defendants in Error.

No. 21762.

Supreme Court of Colorado, En Banc.

Oct. 23, 1967.

Rehearing Denied Nov. 13, 1967.

Creamer & Creamer, Denver, for plaintiff in error.

Helman, Younge, Hockensmith & Stacey, Grand Junction, for defendant in error.

McWILLIAMS, Justice.

This is a zoning case and arises as the result of a declaratory judgment action brought by C. B. Grant and some fifty-one other persons, each of whom is a resident landowner in Mesa County, against the Board of County Commissioners of Mesa County, which body will hereinafter be referred to as the Board. By their action these several plaintiffs, who will hereinafter be referred to simply as the plaintiff, sought a declaration of their rights under a so-called county-wide zoning resolution adopted by the Board and purporting to cover most, though not all, of the unincorporated area of Mesa County. By this action the plaintiff, though seeking a declaratory judgment, from the standpoint of practical effect placed in issue the basic validity of the foregoing resolution. Upon trial of this matter the trial court upheld the zoning resolution in its entirety, save and except in one rather small particular. The particular instance in which the trial court purportedly invalidated a minor part of this comprehensive zoning resolution will later be considered in greater detail. Some general background information is now in order.

Prior to 1961 the Board, pursuant to the provisions of C.R.S. '53, 106--2--18, created some ten 'district planning commissions,' which covered some--but by no means all--of the unincorporated area of Mesa County. Some, though apparently not all, of these district planning commissions had been functioning in the manner contemplated by the aforementioned statute. In any event, the County Planning Commission, hereinafter referred to as the Commission, had for some time prior to 1961 been considering proposed zoning which would cover All of the unincorporated areas of Mesa County. On April 18, 1961 the Commission unanimously approved 'The Mesa County Zoning Resolution, Sixth and Final Draft, with Maps Attached,' which document will hereinafter be referred to as the Resolution, and forwarded the same to the Board with the recommendation that it be acted upon favorably by the Board.

Digressing momentarily from our recitation of the facts, there is some dispute as to whether the Resolution recommended by the Commission covered All of the unincorporated area of Mesa County, or all of the unincorporated area of Mesa County except the areas within the Crestridge and Fruitvale Planning Districts. As concerns this particular matter, the Resolution as approved by the Commission provided that all resolutions, or portions thereof, of the Board 'inconsistent herewith' were thereby repealed to the extent of such inconsistency and the draft then went on to specifically provide that 'inconsistent portions' of prior resolutions of the Board concerning eight of the ten District Planning Commissions above referred to, were thereby repealed. These eight districts were each referred to by name. Two of the ten District Planning Commissions theretofore created by the Board, however, were not mentioned by the Commission in its Resolution, namely the Crestridge and Fruitvale Planning Districts. Hence, the Board's position in the present litigation is that it was at all times the intent of the Commission to recommend proposed zoning regulations for all of the unincorporated areas of Mesa County, except in the Crestridge and Fruitvale Planning Districts, with each of these two district planning commissions continuing to act for its particular locality.

Laying aside for the moment this aspect of the case, on June 2, 1961 the Board held a 'public hearing' on the proposed zoning Resolution, and on July 31, 1961 the Board then adopted the proposed Resolution. The Board, however, did make certain changes in the Resolution as recommended by the Commission. One such change concerned the location of fur farms, kennels, portable sawmills and veterinary buildings in an agricultural and forestry district. In this connection, the Resolution recommended by the Commission provided, among many other things, that in an 'agricultural and forestry district,' fur farms, kennels, portable sawmills and veterinary buildings were to be located at least 500 feet from the property line and also that such were to be at least 660 feet from any existing dwelling, school, or church. However, in this regard the Board, after hearing, eased the restriction by changing the particular provision so that such use had to be only 250 feet from the property line and only 300 feet from an existing dwelling, school or church.

Much of the present controversy centers around the public notice given by the Board of the public hearing which it proposed to hold, and which was actually held, in connection with the proposed Resolution. As concerns the requirement of public notice for a proposed hearing, C.R.S. '53, 106--2--11 provides as follows:

'Certification of plans--hearings.--The county planning commission shall certify a copy of the plans for zoning all or any part of the unincorporated territory within the county, or any adopted part or amendment thereof, or addition thereto, to the board of county commissioners of the county. After receiving the certification of said zoning plans from the commission and before the adoption of any zoning resolutions, the board of county commissioners shall hold a public hearing thereon, the time and place of which at least thirty days' notice shall be given by one publication in a newspaper of general circulation in the county. Such notice shall state the place at which the text and maps so certified by the county planning commission may be examined. * * *'

On April 29, 1961 the following public notice appeared in the Grand Junction Sentinel, a local Grand Junction newspaper:

'Notice is hereby given that the Board of County Commissioners, County of Mesa, State of Colorado, will conduct a public hearing at the District Court Room, Mesa County Court House, Grand Junction, Colorado, on June 2nd, 1961, commencing at 9:00 A.M. and continuing until all interested parties have been heard. At the said hearing, consideration will be given to a proposed Mesa County Comprehensive Zoning Resolution which, if adopted, will affect the unincorporated areas of the County, except the areas within Fruitvale and Crestridge Planning Districts. The text of the proposed resolution, together with all maps of the proposed zoning areas and classifications as certified by the Board of County Commissioners by the County Planning Commission, will be available for examination at the Planning Commission Office, Room 200--A, Mesa County Court House Annex, Grand Junction, Colorado, from the hours of 9:00 A.M. until 4:30 P.M., Mondays through Fridays from April 28th, 1961 through May 31st, 1961, holidays excepted.

'All parties desiring to be heard at the hearing shall contact the County Attorney, Thomas K. Younge at Chapel 2--2645 to arrange for a specific time to appear.

Arthur J. Jeans, Chairman

Board of County Commissioners

Mesa County.'

The dispute over the legal sufficiency of the aforementioned public notice stems from the fact that in the Same edition of the Grand Junction Sentinel appeared Another public notice, Identical in all respects with the notice set forth above, except that this 'other' or 'second' notice stated that the public hearing would be held on May 31, 1961.

The foregoing recital of facts is deemed sufficient to an understanding of the various issues presented by the instant writ of error. As already indicated, the trial court entered judgment upholding the zoning Resolution adopted by the Board, save and except in the one particular. As concerns the 'change' made by the Board in the Resolution relating to the locaton of fur fams, kennels, portable sawmills and veterinary buildings, the trial court 'invalidated' the change thus made. The trial court held, in this regard, that the 'change' was a substantial one, and under the applicable statute should have been referred back to the Commission. By this writ of error, then, the plaintiff seeks reversal of the judgment thus entered, and by way of so-called cross assignment of error, the Board seeks a reversal...