Shoptaugh v. Board of County Com'rs of El Paso County

• Decision Date: 09 October 1975
• Docket Number: No. 75--229,75--229
• Parties: A. G. SHOPTAUGH, Plaintiff-Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF EL PASO COUNTY, Defendant-Appellee. . I
• Court: Colorado Court of Appeals

Page 524

543 P.2d 524

37 Colo.App. 39

A. G. SHOPTAUGH, Plaintiff-Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF EL PASO COUNTY Defendant-Appellee.

No. 75--229.

Colorado Court of Appeals, Div. I.

Oct. 9, 1975.

Rehearing Denied Nov. 6, 1975.

Certiorari Denied Jan. 5, 1976.

Isaac, Walsh & Johnson, Howard J. Alpern, Robert M. Isaac, Colorado Springs, for plaintiff-appellant.

Floyd, Kramer & Lambrecht, Clark A. Floyd, Colorado Springs, for defendant-appellee.

ENOCH, Judge.

Shoptaugh appeals from a judgment of the district court which upheld the disapproval of a preliminary subdivision plat by the Board of County Commissioners of El Paso County. We affirm.

Shoptaugh (landowner) is the owner of real property located in El Paso County which was zoned A--2 Agricultural or Farming. In July 1974, the landowner submitted a preliminary subdivision plat identified as 'Shoptaugh Subdivision Filing #2' to the El Paso County Planning Commission. The plat provided for division of the property into four lots; each lot was in excess of five acres and was to accommodate one single family residence. The Planning Commission distributed copies of the proposed plat to various agencies for review and recommendation as required by the El Paso County Subdivision Regulations. After receiving the agencies' recommendations and conducting a public hearing, the Planning Commission unanimously approved the plat. The plat was then forwarded to the Board of County Commissioners which reviewed the agencies' recommendations and voted unanimously to disapprove the plat. Two of the three Commissioners indicated that the primary reason for disapproval was the report of the Colorado State Forest Service which stated that a high fire danger existed in the area, caused by the plant life and topography, accentuated by the potential difficulty of maneuvering emergency equipment due to the location of the flag lots. In a C.R.C.P. 106 proceeding the landowner sought relief in the district court; however, the court found that the Board had not acted arbitrarily or capriciously and upheld its decision.

The landowner argues that the plat met all the technical requirements of the El Paso County Subdivision Regulations, and that thus the Board had no authority to consider the agencies' reports and disapprove the plat. Hence, the basic issue raised by this case is a determination of what factors may be utilized by the Board of County Commissioners in disapproving a plat.

Before reaching this issue, however, we must determine if the agency reports which were admittedly submitted late, were properly considered by the Board. Section 30--28--136, C.R.S.1973, establishes that upon receipt of a preliminary plat, copies of the plat shall be distributed to various named agencies, including the Colorado State Forest Service, and § 30--28--136(2), C.R.S.1973, provides in part:

'The agencies named in this section shall make recommendations within twenty-four days after the mailing by the county or its authorized representative of such plans unless a necessary extension of not more than thirty days has been consented to by the subdivider and the board of county commissioners of the county in which the subdivision area is located. The failure of any agency to respond within twenty-four days or within the period of an extension shall, for the purpose of the hearing on the plan, be deemed an approval of such plan . . ..'

It appears that the statute is designed to allow the Planning Commission to make to decision on a preliminary plat without waiting indefinitely for the agencies' reports. Here, the reports although submitted well after the 24 days provided for in the statute were nevertheless considered by the Board. Hence, the issue is one of procedural due process. These reports were received prior to the first hearing held by the Planning Commission on the subdivision plat, and no decision was made by the Commission on the plat until a second hearing was held several weeks later. Since the landowner was apprised of the reports and had an opportunity to respond to the negative recommendations prior to any decision, his due process rights were not abridged. See Sundance Hills Homeowners Ass'n v. Board of County Commissioners, Colo., 534 P.2d 1212. Under the facts of this case we find no error in the Board's consideration of the late agency reports.

The major contention raised by the landowner is that the Board's disapproval of the plat based on the recommendations of the Colorado Forest Service is arbitrary and capricious. He argues that the proposed five-acre single family dwellings were permitted by the zoning, that he complied with the requirements of the subdivision regulations, and that thus the Board had no right to take any action except approval. The essence of his argument is that the Board had no discretion to consider the agency reports which are required by both the El Paso County Subdivision Regulations and § 30--28--136, C.R.S.1973. We disagree.

Initially it must be recognized that zoning and subdivision regulations are separate and distinct legislation and serve different purposes. As was stated in Smith v. Township Committee, 101 N.J.Super. 271, 244 A.2d 145,

'Municipal planning embraces zoning but the converse does not hold true. Planning legislation and zoning, although sometimes deemed a single conception, do not cover identical fields of municipal elevator. . . . 'Zoning covers the immediate use of land, while planning restricts transferability and future use."

It was also pointed out in Note, Land Division Control, 65 Harv.L.Rev. 1226 (1952):

'Zoning presupposes that the needs of the community have become sufficiently crystallized to permit the enactment of specific regulations. Subdivision control, on the other hand, establishes more general standards to be specifically applied by an administrative body in order to insure that the change of use will not be detrimental to the community.'

See also Popular Refreshments, Inc. v. Fuller's Milk Bar & Recreation Center, Inc., 85 N.J.Super. 528, 205 A.2d 445.

Here, the landowner argues that since the proposed use of the land was a use of right under the zoning laws, the Board had no alternative but to either change the zoning or approve the plat. This argument fails to take into consideration that a subdivider must first meet the zoning regulations and then additionally must comply with the state and county subdivision regulations.

The landowner relies on Western Paving Construction Co. v. Board of County Commissioners, 181 Colo. 77, 506 P.2d 1230, and Bauer v. City of Wheat Ridge, 182 Colo. 324, 513 P.2d 203. However, these cases are not dispositive of the issue at bar. Both of these cases dealt with 'special use' premits in areas where the zoning would allow the use but special criteria had to be complied with in areas subject to flooding. In both cases the court found that the legal requirements were met by the parties requesting the special use...