QUAKER COURT LTD. LIABILITY CO. v. BOARD OF COUNTY COM'RS

• Decision Date: 04 November 2004
• Docket Number: No. 03CA1867.,03CA1867.
• Citation: 109 P.3d 1027
• Parties: QUAKER COURT LIMITED LIABILITY COMPANY, a Colorado limited liability company, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF JEFFERSON, State of Colorado; Board of Adjustment of Jefferson County, Colorado; and Timothy Carl, the former and current Zoning Administrator of Jefferson County, Colorado, Defendants-Appellees.
• Court: Colorado Court of Appeals

109 P.3d 1027

QUAKER COURT LIMITED LIABILITY COMPANY, a Colorado limited liability company, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF JEFFERSON, State of Colorado; Board of Adjustment of Jefferson County, Colorado; and Timothy Carl, the former and current Zoning Administrator of Jefferson County, Colorado, Defendants-Appellees.

No. 03CA1867.

Colorado Court of Appeals, Division A.

November 4, 2004.

Certiorari Denied March 21, 2005.

Glen B. Maynard, P.C., Glen B. Maynard, Golden, Colorado, for Plaintiff-Appellant.

William A. Tuthill, III, County Attorney, Timothy P. Cox, Assistant County Attorney, Golden, Colorado, for Defendants-Appellees.

Opinion by Chief Judge DAVIDSON.

In this action concerning the denial of building permits in a landslide area, plaintiff, Quaker Court Limited Liability Company (developer) appeals from the judgment of the district court upholding, pursuant to C.R.C.P. 106(a)(4), the decision of defendant Board of Adjustment of Jefferson County (BOA), and denying developer's request for a declaratory judgment and inverse condemnation claim against defendant Board of County Commissioners of Jefferson County (BOCC). We affirm.

The facts are undisputed. Developer is the owner of five platted lots described as lots 14 and 15 in Block 2 and lots 4, 5, and 6 in Block 4, Sixth Avenue West Estates, Eleventh Filing, County of Jefferson, Colorado. These lots are located in an area zoned in 1980 as "Planned Development." Since that time the area has been subject to an official development plan entitled Sixth Avenue West Estates. The plan called for a substantial portion of the property to be zoned as a preservation area, within which buildings could not be constructed. The area was zoned as a preservation area because of its geologic instability. The development plan was amended three times between 1980 and 1989.

In 1990, developer's predecessors filed a rezoning application requesting a fourth amendment to the plan to decrease the size of the preservation area. At hearings on the proposed amendment, both the developers and the county expressed concerns about the geologic stability of the preservation area.

The BOCC ultimately approved the new plan, subject to several conditions. Specifically, resolution CC-90-645 provided that "[t]he number of houses permitted in the area that was zoned as Preservation Area prior to this rezoning shall be limited to ten and said area shall be identified on the Official Development Plan graphic." In addition, resolution CC-90-642, which approved a preliminary plat of Sixth Avenue West Estates, provided that "no more than ten (10) houses [can be built] in the area that had been designated [ ] as PA [Preservation Area] prior to the rezoning granted in Resolution No. CC-90-645."

Despite this condition, from 1991 to 1998 at least fourteen houses were constructed completely or partially in lots 3, 4, and 5 in Block 4 of the former preservation area. In 1998, a landslide damaged three of these houses. In 2000, in conjunction with the settlement of a related lawsuit, developer acquired lots 1, 2, 3, 4, 5, 6, and 7 in Block 4 and lots 14, 15, and 17 in Block 2. The houses on lots 3, 4, and 5 were demolished, and developer, also in accordance with the settlement, took measures to stabilize the soil in the landslide area.

In 2001, developer received offers to purchase lots 14 and 15. However, because there were eleven houses at least partially within the former preservation area, and each house proposed on lots 14 and 15 would have been located at least partially within that area, the Jefferson County zoning administrator denied developer building permits for these lots as well as for lots 3, 4, 5, and 6 in Block 4. Challenging the zoning administrator's interpretation of the ten-house limitation, developer appealed the determination to the BOA, which upheld the zoning administrator's decision.

Developer then sought judicial review in the district court, alleging that the BOA had abused its discretion and exceeded its jurisdiction pursuant to C.R.C.P. 106(a)(4). As relevant here, developer's complaint also included a request for declaratory judgment, alleging that the BOCC had exceeded its authority by enacting the ten-house condition, and a claim against the BOCC for inverse condemnation. In response to defendants' motion, the district court dismissed the inverse condemnation claim on ripeness grounds. Subsequently, in separate rulings, the court affirmed the BOA's decision pursuant to C.R.C.P. 106(a)(4) and granted defendants' motion for summary judgment on the declaratory judgment claim.

On appeal, developer contends the BOA misinterpreted the ten-house condition; the BOCC lacked authority to impose the ten-house condition; and the court erroneously dismissed the inverse condemnation claim.

I. C.R.C.P. 106(a)(4) Claim

Developer first contends the BOA abused its discretion by misinterpreting the ten-house limitation. Developer asserts that the BOCC, when referring to the number of houses to be counted as part of the ten-house limit, actually meant the number of lots. Noting that only three houses are located entirely within the former preservation area, developer also argues that the intent of the ten-house limit was not to include houses only partially within the area. We disagree.

Pursuant to C.R.C.P. 106(a)(4), "[o]ur review is based solely on the record that was before the board, and the decision must be affirmed unless there is no competent evidence in the record to support it such that is was arbitrary or capricious." City & County of Denver v. Bd. of Adjustment, 55 P.3d 252, 254 (Colo.App.2002). Such review is limited to a determination of whether the BOA exceeded its jurisdiction or abused its discretion, "as well as whether an erroneous legal standard was applied by the agency." Puckett v. City & County of Denver, 12 P.3d 313, 314 (Colo.App.2000) (quoting Elec. Power Research Inst., Inc. v. City & County of Denver, 737 P.2d 822, 826 (Colo.1987)).

In a C.R.C.P. 106 review, an agency's legal conclusions are not reviewed de novo, and will be affirmed if supported by a reasonable basis. Elec. Power Research Inst., Inc. v. City & County of Denver, supra, 737 P.2d at 826; City & County of Denver v. Bd. of Adjustment, supra, 55 P.3d at 254; Wilkinson v. Bd. of County Comm'rs, 872 P.2d 1269, 1278 (Colo.App.1993). Although relied on by developer to argue that the appropriate standard of review here is de novo, neither Ball Corp. v. Fisher, 51 P.3d 1053, 1056 (Colo.App.2001), nor Humana, Inc. v. Board of Adjustment, 189 Colo. 79, 537 P.2d 741 (1975), was a judicial review proceeding brought pursuant to C.R.C.P. 106. Thus, neither case is applicable.

The BOA's determination is accorded a presumption of validity, and, as a result, the burden is on developer to overcome the presumption. See Van Sickle v. Boyes, 797 P.2d 1267 (Colo.1990)

; City & County of Denver v. Bd. of Adjustment, supra, 55 P.3d at 254.

Here, the BOA determined that the language in the resolutions was unambiguous. This determination is supported by the text of the resolutions. For example, CC-90-645 states that "the number of houses permitted in the area that was zoned as Preservation Area . . . shall be limited to ten" (emphasis added). The BOA next found that the resolutions' "purpose [was] to limit construction and disturbance of the soil in an area of geologic instability." The BOA concluded that the purpose of the resolutions was inconsistent with developer's suggestion that the BOCC, in imposing the ten-house limitation, intended to limit the number of lots rather than the number of houses.

We agree with the district court that this determination is reasonable. The term "house" is not synonymous with the term "lot." Moreover, when the BOCC meant "lots" rather than "houses," it so indicated. See CC-90-642(6)(b) (conditioning approval on "no more than 35 lots on a cul-de-sac" in one area of the planned development).

Furthermore, the record contains evidence indicating that the BOA was aware that the land in the former preservation area was geologically unstable, that development had been restricted in the area for some time prior to the 1990 amendment, and that recent landslides had destroyed several houses within the area. Thus, it was reasonable for the BOA to conclude that the 1990 resolutions were primarily concerned with the effect that housing construction, not undeveloped lots, would have upon the former preservation area. Restricting the number of lots within the area would not address the primary concern underlying the resolutions, that is, geologic instability.

Developer contends that the BOA erroneously failed to review the transcripts of the 1990 hearings. However, the hearing transcripts show that geologic concerns and, in particular, a limitation on the number of houses constructed within the former preservation area were discussed numerous times throughout the hearings. Thus, even if the BOA did not consider them, the transcripts merely confirm the BOA's conclusion that the geologic instability of the former preservation area was a continuing and significant concern to the BOCC.

We also disagree with developer's argument that even if "houses" does not mean "lots," the ten-house limitation only applies to houses located entirely within the former preservation area. Nothing in the record indicates that the geologic effect of houses built entirely within the former preservation area was significantly greater than houses partially contained within the area. As the district court noted, construction of houses in the affected area, whether in whole or in part, would necessarily have an effect on soil, traffic, water runoff, and, ultimately, geologic instability.

The fact that more than ten building permits were issued for houses within the former preservation area after the enactment of the ten-house limit does not constitute inconsistent ...