Hajek v. Bd. of Cnty. Comm'rs for Boulder Cnty.

• Decision Date: 13 February 2020
• Docket Number: Court of Appeals No. 18CA2454
• Citation: 461 P.3d 665
• Parties: Sara Susie HAJEK, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS FOR BOULDER COUNTY, Colorado; Fair Farm, LLC, a Colorado limited liability company; and Walter F. Pounds, Defendants-Appellees.
• Court: Colorado Court of Appeals

461 P.3d 665

Sara Susie HAJEK, Plaintiff-Appellant,

v.BOARD OF COUNTY COMMISSIONERS FOR BOULDER COUNTY, Colorado; Fair Farm, LLC, a Colorado limited liability company; and Walter F. Pounds, Defendants-Appellees.

Court of Appeals No. 18CA2454

Colorado Court of Appeals, Division II.

Announced February 13, 2020

Spencer Fane LLP, Jacob F. Hollars, Gilbert F. McNeish, Denver, Colorado, for Plaintiff-Appellant

Ben Perlman, County Attorney, David Hughes, Deputy County Attorney, Katherine A. Burke, Senior Assistant County Attorney, Boulder, Colorado, for Defendant-Appellee Board of County Commissioners for Boulder County, Colorado

Lyons Gaddis Kahn Hall Jeffers Dworak & Grant, P.C., Timothy J. O’Neill, Longmont, Colorado, for Defendant-Appellees Fair Farm, LLC and Walter F. Pounds

Opinion by JUDGE TOW

¶1 State law requires that before a local government approves a development permit involving a significant "new water use," the local government must consider the adequacy of the development’s proposed water supply. § 29-20-103(1)(b), C.R.S. 2019. In this C.R.C.P. 106(a)(4) action, we must determine, as a matter of first impression, whether the term "new water use" encompasses only the use of additional water, or also includes water put to a different purpose. We conclude that the legislature intended the term to have the latter definition. In so doing, we conclude that the Board of County Commissioners for Boulder County (Board) abused its discretion by granting conditional approval of the application by Walter F. Pounds and Fair Farm, LLC (collectively, Fair Farm) for Site Plan Review (SPR) without considering the adequacy of the proposed water supply. As a result, we reverse and remand with directions.

I. Background

¶2 Fair Farm sought to transition the use of its property from primarily grazing and hay production to an organic farm that would include "laying hens in mobile houses in rotation with vegetable production." Because Fair Farm’s proposed operation required building new structures on vacant land subject to a protective conservation easement owned by Boulder County, the construction was subject to SPR under the Boulder County Land Use Code. Accordingly, Fair Farm submitted an application for SPR to the Boulder County Land Use Department (Department).

¶3 In its application and accompanying narrative, Fair Farm proposed building twelve mobile chicken houses, four greenhouses, and structures for processing and storing eggs and harvested crops. When Fair Farm later submitted the Fair Farm Operating Plan & Best Management Practices (Operating Plan), it reported that each chicken house would contain approximately four hundred hens.¹ While Fair Farm had originally listed the Little Thompson Water District as its proposed water supply for the operation, the Operating Plan specified that Fair Farm would instead use a thirty acre-foot water right from the Hessler Slough, though it never identified how much water the operation would require.

¶4 The Director of the Department conditionally approved Fair Farm’s application, opening a fourteen-day public comment period during which members of the community, including the appellant, Sara Hajek (the owner of a parcel adjacent to the proposed operation), submitted written comments voicing concerns over air and water quality, odors, increased traffic, attraction of natural predators to the area, and the adequacy of the water supply. The Director then referred the application to the Board to determine whether a public hearing would be required. The Board determined that a hearing was not necessary and, in doing so, finalized the Director’s conditional approval of Fair Farm’s application.

¶5 Hajek challenged the Board’s decision under C.R.C.P. 106. The district court affirmed the Board’s decision. Hajek now appeals.

II. Standard of Review

¶6 "Review of a governmental body’s decision pursuant to Rule 106(a)(4) requires an appellate court to review the decision of the governmental body itself rather than the district court’s determination regarding the governmental body’s decision." Bd. of Cty. Comm’rs v. O’Dell , 920 P.2d 48, 50 (Colo. 1996). Our review is limited to deciding whether the governmental body’s decision was an abuse of discretion, based on the evidence in the record before it, or was made in excess of its jurisdiction. C.R.C.P. 106(a)(4)(I) ; Whitelaw v. Denver City Council , 2017 COA 47, ¶ 7, 405 P.3d 433.

¶7 A governmental body abuses its discretion if it misinterprets or misapplies the law or if no competent record evidence supports its decision. Alpenhof, LLC v. City of Ouray , 2013 COA 9, ¶ 9, 297 P.3d 1052 ; Berger v. City of Boulder , 195 P.3d 1138, 1139 (Colo. App. 2008). There is no competent evidence in the record if "the governmental body’s decision is ‘so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority.’ " O’Dell , 920 P.2d at 50 (quoting Ross v. Fire & Police Pension Ass’n , 713 P.2d 1304, 1309 (Colo. 1986) ). Thus, we will reverse the Board’s decision if we determine that it erroneously interpreted the law or made a decision that is unsupported by the record. Nixon v. City & Cty. of Denver , 2014 COA 172, ¶ 12, 343 P.3d 1051.

¶8 Whether the Board abused its discretion in this instance turns on the interpretation of several Colorado statutes, which we review de novo. Friends of the Black Forest Pres. Plan, Inc. v. Bd. of Cty. Comm’rs , 2016 COA 54, ¶ 15, 381 P.3d 396.

III. Discussion

A. The Phrase "New Water Use" Includes Water Put to a Different Purpose

¶9 Hajek contends that the Board failed to comply with section 29-20-303(1), C.R.S. 2019, which provides in pertinent part:

A local government shall not approve an application for a development permit unless it determines in its sole discretion, after considering the application and all of the information provided, that the applicant has satisfactorily demonstrated that the proposed water supply will be adequate.

As relevant here, section 29-20-103(1)(b), C.R.S. 2019, limits the definition of "[d]evelopment permit" to

an application regarding a specific project that includes new water use in an amount more than that used by fifty single-family equivalents, or fewer as determined by the local government.

¶10 The Board and Fair Farm respond that the statute does not apply to Fair Farm’s application because the proposed laying hen operation did not involve a "new water use." Therefore, they contend, the Board’s SPR was not the approval of a "development permit."

¶11 To resolve this threshold issue, we must consider the meaning of "new water use" as it is used in section 29-20-103(1)(b). When interpreting a statute, our goal is to "ascertain and give effect to the legislature’s intent." Roup v. Commercial Research, LLC , 2015 CO 38, ¶ 8, 349 P.3d 273. To do so, we look first to the language of the statute and give words their plain and ordinary meaning. Id. Unless the statutory language is ambiguous, we presume the General Assembly meant what it said. United Airlines, Inc. v. Indus. Claim Appeals Office , 993 P.2d 1152, 1157 (Colo. 2000). In addition, we construe the statute as a whole to give consistent, harmonious, and sensible effect to all its parts, and we presume that the legislature intended the entire statute to be effective. People v. Buerge , 240 P.3d 363, 367 (Colo. App. 2009). We also avoid interpretations that would render any words or phrases superfluous or would lead to illogical or absurd results. People v. Null , 233 P.3d 670, 679 (Colo. 2010).

¶12 Our inquiry centers on the meaning of the word "new" in this context. In our view, it can be understood in two ways. "New" can be interpreted here as meaning "additional" — as in an additional quantity of water — and as meaning "different" — as in a different purpose for which water is used.

¶13 While the word "new" can be defined in a number of ways depending on the context, the applicable dictionary definitions here are "having originated or occurred lately," "being other than the former or old," and "different or distinguished from a person, place, or thing of the same kind or name that has longer or previously existed." Webster’s Third New International Dictionary 1522 (2002). Under any of these definitions, the word "new" does not exclusively mean additional. Rather, "new" is broad enough to also include a use that differs from prior use. Thus, giving the word "new" its plain and ordinary meaning, we construe the phrase "new water use" to encompass both the use of additional quantities of water and the use of water for a different purpose.

¶14 Notably, when sections 29-20-303(1) and 29-20-103(1)(b) were enacted, the General Assembly also added language defining an "[a]dequate" water supply as one that "will be sufficient for build-out of the proposed development in terms of quality, quantity, dependability, and availability to provide a supply of water for the type of development proposed ...." § 29-20-302(1), C.R.S. 2019. Thus, in determining if a water supply is adequate for a proposed development under section 29-20-303(1), a local government is required to consider not only the quantity of the water to be used, but the quality as well. Id. Because water quality is only relevant in the context of the purpose for which it is used, we draw two conclusions.

¶15 First, considering the quality of a water supply would not be necessary if the General Assembly had been solely concerned about development involving additional, as opposed to different, water use. But "quality" in this context indicates the General Assembly was also interested in the purpose for which water is used. Thus, a development’s use of water for a different purpose is a sufficient "new water use" to trigger section 29-20-303(1) oversight.

¶16 Second, if the General Assembly had intended section 29-20-303(1) to apply only where additional quantities of water are used and not where water is merely used for a different purpose, the...