Sierra Club v. Billingsley, 05CA2607.

• Decision Date: 28 June 2007
• Docket Number: No. 05CA2607.,05CA2607.
• Citation: 166 P.3d 309
• Parties: SIERRA CLUB, Plaintiff-Appellant and Cross-Appellee, v. Graham BILLINGSLEY, in his official capacity as Director of Boulder County Land Use Department, and Boulder County Board of Adjustment, Defendants-Appellees and Cross-Appellants, and Cemex, Inc., Defendant-Intervenor-Appellee and Cross-Appellant.
• Court: Colorado Court of Appeals

166 P.3d 309

SIERRA CLUB, Plaintiff-Appellant and Cross-Appellee, v. Graham BILLINGSLEY, in his official capacity as Director of Boulder County Land Use Department, and Boulder County Board of Adjustment, Defendants-Appellees and Cross-Appellants, and Cemex, Inc., Defendant-Intervenor-Appellee and Cross-Appellant.

No. 05CA2607.

Colorado Court of Appeals, Div. II.

June 28, 2007.

John M. Barth, Hygiene, Colorado, for Plaintiff-Appellant and Cross-Appellee.

H. Lawrence Hoyt, Boulder County Attorney, Pat A. Mayne, Deputy Boulder County Attorney, Boulder, Colorado, for Defendants-Appellees and Cross-Appellants.

Petros & White, LLC, Raymond L. Petros, Jr., Jennifer Soice Pelz, Denver, Colorado, for Defendant-Intervenor-Appellee and Cross-Appellant.

Opinion by Judge TERRY.

In this appeal, we review under C.R.C.P. 106(a)(4) a determination of defendant Boulder County Board of Adjustment (BOA) applying provisions of the Boulder County Land Use Code (Code) to a special use permit (Permit) issued to the predecessor in interest of intervenor, Cemex, Inc. The Permit conditionally approved the use of discarded tires as fuel for the manufacturing of cement. We also review a claim that defendant Graham Billingsley, in his official capacity as Director of the Boulder County Land Use Department, violated the Colorado Open Records Act, § 24-72-201, et seq., C.R.S. 2006 (CORA).

We conclude the BOA did not abuse its discretion in its application of the Code to the Permit. We also conclude the district court must conduct further proceedings to determine whether Billingsley violated CORA, and whether plaintiff, Sierra Club, may be entitled to costs and attorney fees.

I. Issues on Appeal

Sierra Club appeals from (1) the district court's April 11, 2005 order upholding a determination by the BOA and Billingsley that the Permit had not lapsed under Article 4-604 of the Code; and (2) the district court's October 24, 2005 order denying Sierra Club's CORA claim and its motion for reconsideration and addressing other procedural issues. The BOA and Billingsley cross-appeal portions of the district court's October 24, 2005 order. We vacate the district court's April 11, 2005 order, affirm in part and vacate in part the district court's October 24, 2005 order, and remand with directions.

II. C.R.C.P. 106 Claim as to Special Use Permit

A. Facts

In 1990, the Board of County Commissioners of Boulder County passed a resolution issuing the Permit, under which Cemex's predecessor, Southwestern Portland Cement Co, was allowed to burn discarded tires as fuel for its manufacturing operations. Under the Permit, Southwestern burned tires for fuel until 1993.

In 1996, the Commissioners passed an amendment to the Code, codified as Article 4-604 (lapse provision), which provides for the lapse of special use permits if certain conditions are not met.

In 2002, Cemex notified Boulder County and the State of Colorado that it intended to resume burning tires as a fuel source at the cement plant. On September 5, 2002, Billingsley sent a letter to Cemex acknowledging that the Permit was still in effect because the lapse provision did not apply retroactively. Sierra Club appealed Billingsley's determination to the BOA, which upheld Billingsley's determination.

Sierra Club also filed this action against Billingsley and the BOA in Boulder County District Court, seeking review under C.R.C.P. 106(a)(4) of the BOA's determination. Cemex intervened. On March 4, 2003, the district court ruled that the lapse provision applied to the Permit, and remanded the case to the BOA for a factual finding of whether there had been a five-year period of inactivity under the Permit since the 1996 enactment of the lapse provision.

Pursuant to the remand, Billingsley conducted an investigation and issued findings that there had not been a complete cessation of all activity at the cement plant related to the Permit and therefore, that the Permit had not lapsed. The BOA affirmed Billingsley's determination on September 3, 2003.

Sierra Club then moved to amend its complaint to add a cause of action challenging the September 3, 2003 decision of the BOA. The district court granted the motion. In an April 11, 2005 order, the district court affirmed the BOA's determination that there had not been a continuous five-year period of inactivity under the Permit, and that the Permit was therefore still in effect. Sierra Club then appealed to this court.

B. Lapse Provision

Sierra Club's appeal focuses on the district court's April 11, 2005 order affirming the BOA's determination that there had not been a five-year period of inactivity under the Permit. In their response, the BOA and Billingsley focus on the propriety of the district court's March 4, 2003 order concluding that the lapse provision applied to the Permit. Both orders dealt with interpretation of the lapse provision. We begin our discussion by addressing the earlier order.

1. Standard of Review

When reviewing an agency's decision under C.R.C.P. 106(a)(4), we sit in the same position as the district court. Ad Two, Inc. v. City & County of Denver, 9 P.3d 373, 376 (Colo.2000).

Review of the judicial or quasi-judicial functions of an administrative agency under C.R.C.P. 106(a)(4) is "limited to a determination of whether the body or officer has exceeded its jurisdiction or abused its discretion, based on the evidence in the record before" the agency. C.R.C.P. 106(a)(4)(I); Fire House Car Wash, Inc. v. Bd. of Adjustment for Zoning Appeals, 30 P.3d 762, 766 (Colo.App.2001). In determining whether there was an abuse of discretion, courts may consider whether there was a misinterpretation or misapplication of governing law. Alward v. Golder, 148 P.3d 424, 428 (Colo.App. 2006); Droste v. Bd. of County Comm'rs, 85 P.3d 585, 590 (Colo.App.2003).

The supreme court has described the rules for interpreting land use ordinances as follows:

Courts interpret the ordinances of local governments, including zoning ordinances, as they would any other form of legislation. As such, zoning ordinances are subject to the general canons of statutory interpretation.

When construing a statute or ordinance, courts must ascertain and give effect to the intent of the legislative body. Moreover, courts must refrain from rendering judgments that are inconsistent with that intent. To determine legislative intent, we therefore look first to the plain language of the ordinance. If courts can give effect to the ordinary meaning of words used by the legislature, the ordinance should be construed as written, being mindful of the principle that courts presume that the legislative body meant what it clearly said. Finally, if the statutory language is clear and unambiguous, the language should not be subjected to a strained or forced interpretation.

City of Colorado Springs v. Securcare Self Storage, Inc., 10 P.3d 1244, 1248-49 (Colo. 2000) (citations omitted); see also International Paper Co. v. Cohen, 126 P.3d 222, 226 (Colo.App.2005)(discussing principles of interpretation for city ordinance).

If the language of an administrative rule is ambiguous or unclear, we give great deference to an agency's interpretation of a rule it is charged with enforcing, and its interpretation will be accepted if it has a reasonable basis in law and is warranted by the record. See Rivera-Bottzeck v. Ortiz, 134 P.3d 517, 521 (Colo.App.2006); Fire House Car Wash, Inc. v. Bd. of Adjustment for Zoning Appeals, supra; Regents of Univ. of Colo. v. City & County of Denver, 929 P.2d 58, 61 (Colo.App.1996); see also Quaker Court Ltd. Liab. Co. v. Bd. of County Commr's, 109 P.3d 1027, 1030 (Colo.App. 2004) (presumption of validity is accorded to determination by county board of adjustment, and burden is on party challenging board's determination to overcome the presumption).

We consider an administrative agency's interpretation as advisory, not binding. Stevinson Imports, Inc. v. City & County of Denver, 143 P.3d 1099, 1101 (Colo. App.2006). Administrative interpretations are most helpful when the subject involved calls for the exercise of technical expertise or when the statutory language is susceptible of more than one reasonable interpretation. Where the governmental body's interpretation is consistent with generally applied rules of statutory construction, the administrative interpretation is entitled to deference. Rivera-Bottzeck v. Ortiz, supra, 134 P.3d at 521.

2. Interpretation of Lapse Provision

We conclude that the zoning provisions at issue here are susceptible of more than one reasonable interpretation and are therefore ambiguous. Because the BOA's interpretation of these provisions is reasonable, we adopt that interpretation.

Article 4-604 of the Code states, in relevant part:

B. Any approved use by special review which does not significantly commence operation or construction on any portion of the special use permit within five calendar years after the use has received Board approval, shall lapse, and shall be of no further force and effect unless a new discretionary approval is granted under this Code. If a vesting period of longer than five years is expressly approved as part of the special use permit, the approval shall lapse if operation or construction is not commenced within the vesting period.

C. Any approved use by special review which commences operation or construction as required under Subsection (B), immediately above, shall lapse, and shall be of no further force and effect, if the use is inactive for any continuous five-year period. If this period of inactivity occurs, the use may not be recommenced without a new discretionary approval granted under this Code. An approved special use shall be deemed inactive under this Subsection (C) if there has been no activity under any portion of the special use permit for a continuous period of five years or more as a result of causes within the control of the special use permittee or agent.

Sierra Club...