Jafay v. Board of County Com'rs of Boulder County, 91SC622
| Citation | 848 P.2d 892 |
| Decision Date | 08 March 1993 |
| Docket Number | No. 91SC622,91SC622 |
| Parties | Kurt F.G. JAFAY, Petitioner, v. BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY, State of Colorado, Respondent. |
| Court | Supreme Court of Colorado |
Jean E. Dubofsky, P.C., Jean E. Dubofsky, William S. Stuller, Boulder, Miller, Leher & Steiert, P.C., Martin P. Miller, Littleton, for petitioner.
Gorsuch, Kirgis, Campbell, Walker and Grover, Malcolm M. Murray, Robert C Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Thomas J. Ragonetti, J. Bradley Olsen, R. Michael Shomo, Denver, for amici curiae American Planning Ass'n and Colorado Chapter of the American Planning Ass'n.
Widner, Katharine J. Teter, Denver, Office of the County Atty., Boulder County, Madeline J. Mason, Deputy Boulder County Atty., Boulder, for respondent.
Hayes, Phillips & Maloney, P.C., Kathleen E. Haddock, Denver, for amicus curiae Colorado Mun. League.
Office of the County Atty., Douglas County, J. Mark Hannen, County Atty., County of Douglas, Castle Rock, for amicus curiae Colorado Counties, Inc.
Petitioner Kurt F.G. Jafay (Jafay) petitions from the court of appeals opinion in Jafay v. Heath, No. 90CA0375 (Colo.App.1991), an opinion not selected for official publication. Jafay commenced an action against the Board of County Commissioners of Boulder County (the Board), alleging, inter alia, that a change in county zoning regulations constituted a taking of his property without either due process or just compensation, in contravention of both the Colorado and United States Constitutions. The district court granted summary judgment in favor of the Board and against Jafay. The court of appeals affirmed the district court order. We affirm in part, reverse in part, and remand the case with instructions.
Prior to 1967, Jafay acquired three parcels of land located in Boulder County: one parcel consisting of approximately 134 acres, identified as the Boulder Tech Center; 1 a second parcel consisting of approximately six acres, identified as the Boulder Tech Center Plaza (the Plaza); 2 and a third unnamed parcel consisting of approximately eighty acres. When Jafay acquired the parcels, the Boulder Tech Center was zoned for agricultural and rural uses. On February 2, 1967, the Board adopted a resolution that changed the zoning classifications of Jafay's parcels. The Boulder Tech Center was upzoned to light industrial use, and the Plaza was upzoned to commercial use.
On April 6, 1978, the Board adopted the "Master Plan for the Physical Development of Boulder County," also termed the "Boulder County Comprehensive Plan" (the Comprehensive Plan). Through the Comprehensive Plan, the Board attempted to direct new urban growth into community service areas, where a full range of urban services would be provided, and to correspondingly limit the economic burden of "urban sprawl" on taxpayers.
As a result of the zoning changes, Jafay submitted a conceptual master plan to develop the Boulder Tech Center in 1981. Jafay formed a plan to construct an industrial park in the Boulder Tech Center. Jafay installed water and sewer lines, fire hydrants, telephone lines, electrical and gas lines, asphalt paving, curbs, and gutters on the Tech Center parcel. Jafay installed water and sewer mains on the Plaza parcel. Jafay spent in excess of $1 million in building on-site improvements.
The 1981 plan was eventually rejected. In late 1981, the Boulder County Planning Staff submitted a summary to the Board wherein it stated that it could not fully implement the Comprehensive Plan because the implementation would require Boulder County to purchase a large amount of property to maintain as open space. Jafay submitted a second plan to develop the Boulder Tech Center. In order to implement his development plan, Jafay filed an application with the Boulder Land Use Planning Department to incorporate On October 4, 1984, the Board approved a plat for the development of the Boulder Tech Center. According to the plat, the Boulder Tech Center was subdivided into six lots and fourteen outlots. 3 Lots one through five comprised "Phase I" of the approved development plan. Seven of the outlots, referred to as "outlots F through L," comprised "Phase II" of the two-stage development plan. Phase I and Phase II comprised approximately thirty to thirty-five acres. No development was approved for five of the outlots, referred to as "outlots A through E." Outlots A through E were composed of the remaining 100 acres of the Boulder Tech Center.
the Boulder Tech Center into the Niwot Community Service Area early in 1982. Between 1983 and 1984, Jafay entered into contracts with the Niwot Community Service Area and the Left Hand Water Supply Company to provide sewer and water services, respectively, to the Boulder Tech Center over an extended period of time. Jafay ultimately withdrew his application for annexation after receiving advice from a county employee that annexation into the Niwot Community Service Area was not a prerequisite to developing the Boulder Tech Center.
In July of 1985, the Board considered "a proposed zoning plan consisting of comprehensive text and map amendments to the Boulder County Zoning Resolution (including the zoning district maps) in accordance with the Boulder County Comprehensive Plan." The Board indicated that the Land Use Department of Boulder County had proposed rezoning so the zoning regulations would conform to the Comprehensive Plan. The Land Use Department had reviewed all the land in the county, and had held numerous public meetings to ascertain the opinions of Boulder County residents. The Board held a public meeting and, on July 23, 1985, adopted a temporary zoning resolution. 4
The Boulder County Planning Commission subsequently conducted hearings on the proposal between August 21, 1985, and September 25, 1985. Ultimately, the Planning Commission recommended a rezoning resolution to the Board that entailed rezoning 25,340 acres through map amendments. The resolution also proposed text amendments which applied generally throughout the county. During the fall of 1985, the Board sent several direct mailings to affected property owners. Jafay received a letter dated October 21, 1985, informing him of the proposed zoning changes and indicating that such changes were required to prevent urban development where installation of public services was not planned.
On October 1, 1985, Jafay had entered into a subdivision agreement with the Board. The agreement stated that Jafay, as the subdivider, was required to construct streets, sidewalks, curbs, utilities, drainage facilities, water and sewer facilities, flood protection devices, and other improvements.
After publishing notices in two newspapers of general circulation throughout Boulder County, the Board held public hearings regarding adoption of proposed zoning resolution 85-193 on December 10 through December 12. Jafay presented evidence during the hearing as to why the Boulder Tech Center should not be downzoned. Jafay sought permission to present four or five hours of evidence, but the Board limited his presentation to fifteen minutes. Jafay introduced affidavits and written testimony of: (1) Nolan Rosall, an independent consultant responsible for the design of the Boulder Tech Center; (2) Dan Hall, the project manager for the Boulder Tech Center; (3) Marvin Bothal, a public accountant; and (4) Peter Charlton, a real estate appraiser. Jafay also offered sixteen On January 16, 1986, Jafay filed a complaint in district court against the Board. 5 Jafay sought review of the Board's actions under C.R.C.P. 106(a)(4), contending that the Board, in exercising a quasi-judicial function, acted arbitrarily and capriciously when downzoning his property. Jafay alternatively argued that, if the district court found that the Board's actions were legislative and not quasi-judicial, then the resolution should be declared invalid pursuant to C.R.C.P. 57. Jafay additionally contended that the resolution amounted to a confiscatory taking without either payment of compensation or due process of law in violation of both the United States and Colorado Constitutions. Jafay requested that the district court both award him $7.4 to $10 million as just compensation for the diminution in value of his property, and declare that the parcels retain the light industrial and commercial zoning classifications, among other things.
exhibits. The Board unanimously adopted and recorded resolution 85-193 on December 17, 1985. As a result of the resolution, Phase I and Phase II were zoned as existing light industrial, while outlots A through E were rezoned as agricultural.
On March 3, 1986, the Board filed a motion to consolidate the action initiated by Jafay with several actions initiated by other property owners challenging resolution 85-193. 6 The district court later granted the motion to consolidate. The Board filed a motion to dismiss all rule 106 claims on the ground that its actions were legislative and not quasi-judicial. On May 28, 1986, the district court held a hearing on the Board's motion to dismiss. The district court found that it was required to determine whether the Board's actions in adopting resolution 85-193 were legislative or quasi-judicial. While considering Snyder v. City of Lakewood, 189 Colo. 421, 542 P.2d 371 (1975), the district court concluded that the Board's action was legislative "in this case where 4,000 properties and 25,000 acres are rezoned in a sweeping policy change." The district court concluded that judicial review of the Board's actions was proper under C.R.C.P. 57, and not under rule 106. The district court dismissed the rule 106 claims for lack of subject matter jurisdiction.
On April 15, 1987, the Board sought to dismiss the inverse condemnation claims on the ground that the appropriate remedy is not in the nature of damages but...
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