Wilkinson v. Board of County Com'rs of Pitkin County

• Decision Date: 09 September 1993
• Docket Number: No. 91CA1780,91CA1780
• Citation: 872 P.2d 1269
• Parties: George M. WILKINSON and Fidelity Trust Building, Inc., an Idaho corporation, Plaintiffs-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado, Defendant-Appellee. . III
• Court: Colorado Court of Appeals

Page 1269

872 P.2d 1269

George M. WILKINSON and Fidelity Trust Building, Inc., an Idaho corporation, Plaintiffs-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado Defendant-Appellee.

No. 91CA1780.

Colorado Court of Appeals,

Div. III.

Sept. 9, 1993.

Rehearing Denied Oct. 21, 1993.

Certiorari Denied May 16, 1994.

Ray Lee Wall, Boulder, for plaintiffs-appellants.

Timothy E. Whitsitt, Aspen, for defendant-appellee.

Opinion by Judge JONES.

Plaintiffs, G.M. Wilkinson and Fidelity Trust Building, Inc., appeal the trial court's judgments and orders affirming the decisions of the defendant, the Board of County Commissioners of Pitkin County (Board), which denied several of plaintiffs' applications to develop land located near the city of Aspen. In addition, plaintiffs appeal the trial court's dismissal of several of their claims, its summary judgment entered in favor of the Board, and its order of preliminary injunction and order and judgment of contempt citing one of the plaintiffs with violation of its preliminary injunction. We affirm.

The land at issue consists of 29 mining claims totaling approximately 184 acres that were patented in the 1890's and that are located on Smuggler Mountain in unincorporated Pitkin County. In 1985, plaintiffs acquired options to purchase the properties and thereafter acquired title to all of the properties at issue in May 1987.

The Board determined that, for purposes of plaintiffs' proposed development of the properties, the land containing 15 mining claims, comprising approximately 113 acres, merged together into a single parcel designated as Parcel A and the land on which lay 14 mining claims, comprising approximately 71 acres, merged into a single parcel designated as Parcel B.

In April 1988, plaintiffs filed two separate applications with Pitkin County for development approvals on the two adjacent designated parcels A and B. These applications requested approval of multiple unit development on each parcel pursuant to the county's Low Impact Subdivision (LIS) process, which is a procedure for exemption from both the full subdivision approval process and from the county's Growth Management Quota System (GMQS) process.

The GMQS requires new subdivision applications to compete for a limited number of available new building rights allocated each year by the county. GMQS applications are scrutinized for compliance with the full set of subdivision regulations and compete with other subdivision applications for the available allocated building rights.

After an initial vote of denial by the Board, plaintiffs were permitted to submit amended applications pursuant to the same LIS exemption process for approval of three free market units on Parcel A and for General Submission approval of a single residence on Parcel B. According to the Pitkin County Land Use Code (PCLUC), General Submission approval is the sole approval required by the Board for development of a residential unit which is entitled to a GMQS exemption. See PCLUC § 5-510.1, et seq. Both of plaintiffs' amended applications were rejected by the Board in December 1988, as reflected in the Board's formal resolutions of January 1989.

Prior to its decisions on the merits of plaintiffs' complaint, the trial court entered a temporary restraining order and preliminary injunctions prohibiting plaintiffs from doing further improvement or construction work on the road or the properties. An order of contempt was subsequently entered in May 1991, which required plaintiffs to demolish the structures they had proceeded to construct in violation of the injunctive orders. Plaintiffs' motion to stay enforcement of the contempt order was denied.

The trial court dismissed several of plaintiffs' claims with prejudice, including plaintiffs' claim that their patented mining lots are exempt from county subdivision regulation; plaintiffs' claim that the county is statutorily barred from regulating plaintiffs' property in excess of 35 acres; plaintiffs' review claims under C.R.C.P. 106(a)(4); and plaintiffs' inverse condemnation claim. The trial court also ultimately dismissed, with prejudice, plaintiffs' remaining police power claims in an order granting the county's motion for summary judgment.

Plaintiffs now appeal the trial court's dismissal of their several claims and its summary judgment entered on their sole remaining claim. They additionally appeal the trial court's entry of the contempt order and associated orders.

I.

Plaintiffs first contend that the trial court erred in dismissing their claim that their properties, as patented mining lots, were legally platted and subdivided prior to the passage of the PCLUC and that, therefore, their properties are statutorily exempt from subdivision regulation by the county. We do not agree.

Plaintiffs applied for a building permit approval on one of their individual mining lots based on their assertion that they were entitled to a development right on each separate patented mining lot claim. That application was denied by the Board based upon the determination of the County Planning and Zoning Commission that the land containing plaintiffs' mining claims had merged into two single land parcels under common ownership pursuant to the provisions of the PCLUC. In trial court, plaintiffs again claimed a development right on each patented mining claim. The trial court dismissed the claim on the grounds that plaintiffs did not state a claim upon which relief could be granted.

A.

Plaintiffs cite § 30-28-101(10)(a), C.R.S. (1986 Repl.Vol. 12A) for the proposition that a county has no authority to regulate land through its subdivision process when "such land when previously subdivided was accompanied by a filing which complied with the provisions of [state statutes] with substantially the same density, or which is divided into two or more parcels, separate interests, or interests in common...." They argue that their mining claims were previously subdivided by virtue of the legally platted mining claim lots in compliance with state and federal statutes, that the platted claims are legally filed and recorded with government mineral surveys, that the density of a single residential home on a patented mining claim is substantially the same as provided by the federal occupation and possession statutes governing mining claims, and that, therefore, they are in compliance with the provision of § 30-28-101(10)(a) which exempts their properties from county regulation.

The county argues that, even if the mining claims were subdivided pursuant to state and federal statutes, a "merger" provision in the PCLUC provides that if commonly owned and contiguous parcels of land merge into larger parcels they are subject to county subdivision regulation. The merger provision, PCLUC § 20.1, provides:

In the event that two or more contiguous parcels of land, previously separately conveyed (or described), shall come under single ownership, the division of such land into two (2) or more lots, tracts, sites, parcels, separate interests, interests in common, or other division, even if divided along the line of a previously described or conveyed parcel, shall constitute a subdivision of land. Nothing herein shall be deemed to apply to a lot shown on any recorded subdivision plat, unless such subdivision plat shall not have received those approvals required by state or local law.

Here, plaintiffs' contention turns upon whether this merger provision in the PCLUC is a valid exercise of the county's regulatory authority so as to deny plaintiffs an exemption from county subdivision regulations. We must, therefore, determine whether the county possesses the authority to regulate plaintiffs' properties through application of the PCLUC merger provision and whether this provision is enforceable pursuant to state statutes.

As a political subdivision of the state government, a county possesses only the regulatory authority expressly conferred upon it by the Colorado Constitution and enactments of the General Assembly, along with such incidental implied powers as are reasonably necessary to carry out such express powers. And, although a county is statutorily prohibited from adopting an ordinance that is in conflict with any state statute, § 30-15-411, C.R.S. (1986 Repl.Vol. 12A), an ordinance and a statute may both remain effective and enforceable as long as they do not contain express or implied conditions that are irreconcilably in conflict with each other. Board of County Commissioners v. Bowen/Edwards Associates, Inc., 830 P.2d 1045 (Colo.1992).

The expressly delegated authority conferred on counties by the Local Government Land Use Control Enabling Act, § 29-20-101, et seq., C.R.S. (1986 Repl.Vol. 12A) (Land Use Act), and the County Planning Code, § 30-28-101 et seq., C.R.S. (1986 Repl.Vol. 12A) (Planning Code), "leaves no doubt that land use regulation is within the scope of a county's legislative power." Board of County Commissioners v. Bowen/Edwards Associates, Inc., supra, 830 P.2d at 1056. Specifically, county authority includes the power to:

'[D]ivide the territory of the county which lies outside of cities and towns into districts or zones of such number, shape, or area as it may determine, and, within such districts or any of them, ... [to] regulate the ... uses of land.' ... County zoning regulations promulgated under the County Planning Code may include the classification of land uses and the distribution of land development and utilization....

Board of County Commissioners v. Bowen/Edwards Associates, Inc., supra, 830 P.2d at 1056.

We conclude that the Land Use Act and the Planning Code authorize the county here to regulate land use in the unincorporated area of Smuggler Mountain where plaintiffs' properties are located.

Thus, we must next determine whether the county has exceeded its authority by promulgating regulations that conflict, either expressly or impliedly, with state statutes. S...