Theobald v. Board of County Com'rs, Summit County
| Decision Date | 03 May 1982 |
| Docket Number | No. 79SA405,79SA405 |
| Citation | 644 P.2d 942 |
| Parties | Robin G. THEOBALD, Plaintiff-Appellee, v. The BOARD OF COUNTY COMMISSIONERS, SUMMIT COUNTY, State of Colorado, Summit County Regional Planning Commission, Defendants-Appellants. Frank PLAUT, Linda Plaut, Robert A. Theobald Co., a general partnership, and Lois G. Theobald Co., a general partnership, Plaintiffs-Appellees, v. BOARD OF COUNTY COMMISSIONERS OF SUMMIT COUNTY, State of Colorado, Summit County Regional Planning Commission, Defendants-Appellants. Steven GROSSBARD, Plaintiff-Appellee, v. L. Scott GOULD, County Commissioner; et al., Defendants-Appellants. PEERLESS DEVELOPMENT CORPORATION, a Colorado corporation, Plaintiff-Appellee, v. L. Scott GOULD, County Commissioner; et al., Defendants-Appellants. RED LTD., a Partnership, Plaintiff-Appellee, v. L. Scott GOULD, County Commissioner; et al., Defendants-Appellants. The DUNKIN GROUP, a joint venture; et al., Plaintiffs-Appellees, v. L. Scott GOULD, County Commissioner; et al., Defendants-Appellants. BLUE VALLEY, LTD., a Colorado limited partnership; Alpine Meadows Development Co., a Colorado corporation; Ptarmigan Associates, a Colorado general partnership; and David A. Ray and Ptarmigan Properties, Ltd., a Colorado limited partnership, its general partners, Plaintiffs-Appellees, v. L. Scott GOULD, County Commissioner; et al., Defendants-Appellants. BLUE RIVER INVESTMENT COMPANY, a Colorado limited partnership, Plaintiff-Appellee, v. L. Scott GOULD, County Commissioner; et al., Defendants-Appellants. FARNCOMB HILL DEVELOPMENT CORPORATION, a Colorado corporation; Baron Investments, Inc., a Washington corporation; and Columbia Savings and Loan Association, a Colorado corporation, Plaintiffs-Appellees, v. L. Scott GOULD, County Commissioner; et al., Defendants-Appellants. Robin G. THEOBALD, Plaintiff-Appellee, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF SUMMIT, State of Colorado; The Summit County Regional Planning Commission; George Way, Summit County Building Inspector; David Vince, Director of the Summit |
| Court | Colorado Supreme Court |
Plaut & Lipstein, P. C., Frank Plaut, Lakewood, for plaintiffs-appellees Robin G. Theobald, et al.
Mitchem & Mitchem, P. C., Allen P. Mitchem, Denver, for plaintiffs-appellees Steven Grossbard and Peerless Development Corp.
Grant, McHendrie, Haines & Crouse, P. C., Donald B. Gentry, Denver, for plaintiff-appellee Red, Ltd.
Gorsuch, Kirgis, Campbell, Walker and Grover, Joseph M. Montano, Shayne M. Madsen, Denver, for plaintiffs-appellees The Dunkin Group, et al.
Philip A. Rouse, Tinkler and Carwin, Stephen E. Tinkler, Denver, for plaintiffs-appellees Blue Valley, Ltd., et al.
Holme, Roberts & Owen, Spencer T. Denison, W. Dean Salter, Denver, for plaintiff-appellee Blue River Inv. Co.
Wegher & Fulton, P. C., Richard W. Breithaupt, J. C. Tim Scates, David R. Demuro, Denver, for plaintiff-appellee Columbia Sav. and Loan Ass'n.
Richard D. Lynton, Breckenridge, for defendants-appellants The Board of County Com'rs of Summit County Colorado, The Planning Commission of Summit County, and the County Officials of Summit County.
Hall & Evans, Harvey W. Curtis, Denver, for defendants-appellants The Board of County Com'rs of Summit County, Colorado, and the Regional Planning Commission of Summit County.
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Marshall D. Brodsky, Marcia Hughes, Asst. Attys. Gen., Denver, for defendants-intervenors-appellants Colorado Land Use Commission and State of Colorado.
Perry P. Burnett, Denver, for amicus curiae Colorado Counties, Inc.
Blake T. Jordan, Wheat Ridge, for amicus curiae Colorado Municipal League.
Gerald E. Dahl, Susan J. Baluzy, Frisco, for amicus curiae The Northwest Colorado Council of Governments, and special counsel to amici curiae, The Boards of County Com'rs of the Counties of Eagle and Grand, Colorado.
Beth A. Whittier, Eagle, for amicus curiae County of Eagle, Colorado.
Daniel J. Kaup, Walden, for amicus curiae County of Jackson, Colorado.
Ronald W. Stock, Aspen, for amicus curiae City of Aspen, Colorado.
Sandra M. Stuller, Aspen, for amicus curiae Board of County Com'rs of Pitkin County, Colorado.
Harden, Schmidt & Hass, P. C., George H. Hass, Richard Zier, Fort Collins, for amicus curiae Board of County Com'rs of Larimer County, Colorado.
In this appeal, the appellants, the Board of County Commissioners of Summit County, the State of Colorado, and the Colorado Land Use Commission, seek to reverse the judgment of the district court which held the Summit County Comprehensive Land Use Code (CLUC) to be invalid. The appellees are landowners in Summit County whose complaints were consolidated in the district court, seeking a declaration that the CLUC was invalidly adopted. The district court invalidated the CLUC, holding that it was an improperly adopted zoning measure which also was unconstitutional, both facially and as applied.
Certain of the complaints also sought damages on the theory of inverse condemnation. Some of the complaints also claimed damages from the individual defendants for an alleged conspiracy and damages under 42 U.S.C. § 1983. Upon motion the district court dismissed the inverse condemnation claims without prejudice and the other damage claims against the individual defendants with prejudice. Several of the appellants cross-appealed from the court's dismissal of their damage claims; however, the cross-appeals were dismissed by this court for failure to brief the issues raised by the cross-appeals.
We reverse the judgment declaring the CLUC invalid and unconstitutional. 1
Historically, the CLUC emerged from the development of a master plan by the Summit County Regional Planning Commission, certified to the board of county commissioners. In 1963, pursuant to the authority of section 30-28-101 et seq., C.R.S.1973 , the original master plan for the physical development of the unincorporated territory of Summit County was adopted by the Summit County Planning Commission. 2 The policy of the master plan was to promote concentrated growth in established communities while preserving the county's scenic qualities to protect future tourism potential. Consistent with the master plan, the first county zoning resolution was adopted by the board of county commissioners in 1969. The zoning resolution included a classification designated as A-1 Agricultural, under which one of the permitted uses was a 20 acre minimum lot size for a single family dwelling in the rural sections of the county. That zoning classification has remained in effect up to the time these actions were filed in 1978.
Summit County experienced rapid growth and a population increase. In 1975 the Summit County Regional Planning Commission 3 adopted an Interim Land Use Guide as an aid in evaluating land use and development proposals submitted by developers to the planning commission. The intent of the commission as expressed in the Interim Land Use Guide was to discourage commercial and high-density development outside existing growth centers. That same year a study was begun by the county's planning department to design a new master plan for the county and as a result, the CLUC was formulated and adopted by the Summit County Regional Planning Commission on April 20, 1978. 4 After public meetings at which some citizen concerns were voiced, the CLUC was readopted with amendments by resolution of the regional planning commission on July 6, 1978. The plan was then certified to the Board of County Commissioners of Summit County and was approved on July 10 by motion of the board sitting as a planning commission. On August 8, 1978, the civil actions challenging the CLUC were filed, and a court order was issued staying the implementation of the CLUC. On August 21, 1978, on recommendation of counsel that the July 10th motion for and adoption of the CLUC may have been ineffective, the board of county commissioners sitting as the planning commission adopted the CLUC by resolution.
The basic land use policies of the CLUC emphasize the following general land use goals:
(1) To encourage high density and commercial development to locate within existing growth centers and to discourage such development from locating outside such centers;
(2) To preserve and maintain Summit County's rural character;
(3) To encourage land uses which will stabilize and diversify the economy.
In accordance with these general policies, the CLUC identified certain "growth centers" by boundaries and restricted certain types of development to the growth centers. By this means it sought to preserve the rural character of the undeveloped areas of the county and to avoid "sprawl" development throughout the county and to prevent "strip" development along the highways.
The appellees' quarrel with the CLUC resulted from their disagreement with the boundaries drawn identifying the growth centers and with the limitations proposed on the use of their property by reason of its exclusion therefrom and its classification as rural in nature. They contended in the trial court that the CLUC amounted to a rezoning of their property without due process, hearing, or compliance with the statutory procedures required for rezoning. They argued that the Code as adopted was unreasonable and arbitrary with regard to the treatment of their land and the designation of growth center boundaries which excluded their property, and unfairly and...
To continue reading
Request your trial
-
AVSG v. Board of County Com'rs of La Plata
...observed that master plans are not the equivalent of zoning, nor binding upon the zoning authority. Theobald v. Bd. of County Comm'rs, 644 P.2d 942, 948-49 (Colo.1982) (holding that "[c]onceptually, a master plan is a guide to development rather than an instrument to control land use," and ......
-
Mt. Emmons Min. Co. v. Town of Crested Butte
...See Heather Corp., 677 P.2d at 334-35; Beacom v. Board of County Commissioners, 657 P.2d 440, 447 (Colo.1983); Theobald v. Board of County Commissioners, 644 P.2d 942 (Colo.1982); see e.g., Farmers Elevator Co. v. First National Bank, 176 Colo. 168, 489 P.2d 318 (1971); People ex rel. Inter......
-
Board of County Com'rs of Douglas County, Colo. v. Bainbridge, Inc.
...compliance with the notice and hearing requirements attendant to valid zoning and subdivision regulations, see Theobald v. Board of County Comm'rs, 644 P.2d 942, 950 (Colo.1982), a subdivision proposal may be denied based on such regulations for lack of available schools to serve the reside......
-
Carter v. City of Salina
...notice and hearing are void. Melville v. Salt Lake County, supra; Tolman v. Salt Lake County, supra; Theobald v. Board of County Com'rs, Summit County, 644 P.2d 942 (Colo.1982); Hallmark Builders and Realty v. City of Gunnison, 650 P.2d 556 (Colo.1982); McIntyre v. Mohave County, 127 Ariz. ......
-
Judicial Review, Referral and Initiation of Zoning Decisions
...Adjustment, 38 Colo.App. 9, 550 P.2d 874 (1976). 67. Hermanson v. Bd of Comm'rs, 42 Colo.App. 154, 595 P.2d 694 (1979) (cert. denied). 68. 644 P.2d 942 (Colo. 1982). See also, Margolis, supra, note 2 at 305-06. 69. See, CRS §§ 31-23-206 and 30-28-106. 70. Supra, note 53. 71. See, Merrick, s......
-
Assault on the Citadel, Part Ii: Dams, Diversions and Water Quality Regulations
...Environmental Regulations and Colorado Water Law," 53 U. of Colo. L.Rev. 597, 622, 627 (1982). 28. Theobald v. Bd. of County Comm'rs, 644 P.2d 942, 949 (Colo. 1982); CRS § 30-28-110. 29. Vick v. Bd. of County Comm'rs, 689 P.2d 699 (Colo.App. 1984). 30. See, Eagle County Resolution No. 88-15......
-
Growth Management: Recent Developments in Municipal Annexation and Master Plans
...H.B. 01S2-1020, 63rd Leg. 2d Ext. Sess. (2001), amending CRS § 24-32-3209. 41. See Theobald v. Board of County Comm'rs, Summit County, 644 P.2d 942 (Colo. 1982); see also Beaver Meadows Board of County Comm'rs, Larimer County, 709 P.2d 928 (Colo. 1985). 42. Board of County Comm'rs, Larimer ......