Wolf Creek Ski v. County Coms. of Min. Cty.
| Decision Date | 20 September 2007 |
| Docket Number | No. 06CA0113.,06CA0113. |
| Citation | 170 P.3d 821 |
| Parties | WOLF CREEK SKI CORPORATION, Colorado Wild, and San Luis Valley Ecosystem Council, Plaintiffs-Appellees and Cross-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF MINERAL COUNTY and Leavell-McCombs Joint Venture, Defendants-Appellants and Cross-Appellees. |
| Court | Colorado Court of Appeals |
Hogan & Hartson, L.L.P., Andrew R. Shoemaker, Andrew L. Spielman, Jacqueline S. Cooper, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant, Wolf Creek Ski Corporation.
Jeffrey C. Parsons, Lyons, Colorado; Anna N. Ulrich, South Fork, Colorado, for Plaintiffs-Appellees and Cross-Appellants, Colorado Wild and San Luis Valley Ecosystem Council.
Richard J. Jacobs, P.C., Richard J. Jacobs, Alamosa, Colorado, for Defendant-Appellant and Cross-Appellee, Board of County Commissioners.
Berg Hill Greenleaf & Ruscitti, L.L.P., Josh A. Marks, Heidi C. Potter, Boulder, Colorado, for Defendant-Appellant and Cross-Appellee, Leavell-McCombs Joint Venture.
Opinion by Judge WEBB.
In this C.R.C.P. 106 action concerning the approval of a planned unit development (PUD), defendants, Board of County Commissioners of Mineral County (the board) and Leavell-McCombs Joint Venture (the developer), appeal the portion of the trial court order that voided the board's approval because the PUD lacked sufficient access to the state highway system. Plaintiffs, Wolf Creek Ski Corporation (Wolf Creek), Colorado Wild, and the San Luis Valley Ecosystem Council, cross-appeal the portion of the order holding that the developer did not violate a scenic easement or a water decree, and that the board did not violate section 24-67-106(3)(b), C.R.S.2007, or their right to procedural due process.
We agree with the trial court that the board abused its discretion in approving the PUD because the PUD lacked year-around access to the state highway system. We also conclude that the trial court correctly rejected plaintiffs' contentions concerning the scenic easement and the water decree. Our determination that the board abused its discretion renders plaintiffs' other contentions moot. Therefore, we affirm the order and remand to the trial court with directions to remand to the board for further proceedings, which are not limited by statements in the trial court's order concerning what the developer must do.
In 1987, the developer obtained the property at issue in a land exchange with the United States Forest Service (Forest Service) and entered into a scenic easement agreement with the Forest Service. The property abuts the Wolf Creek Ski Area, which operates under a permit from the Forest Service, and it is completely surrounded by Forest Service land. The developer described the proposed project on this property as a "year-round recreational resort area that will enhance the existing ski area" that will house 10,000 persons (the Village).
In 1999, the developer submitted a preliminary development plan to the board. In 2000, the board approved the plan through Resolution 2000-13 (the preliminary approval), which set out a series of requirements for final approval. The final approval was defined as approval of the final development plan, the final plat, the Application for Designation of New Phase (ADNP) for Phase 1, and certain other documents. Phase 1 involved the construction of 500 dwelling units. The preliminary approval also contemplated separate approvals for each remaining phase of the development and presumed that utilities for the Village would be provided by the local utility company.
When the preliminary approval was adopted, vehicles could access the Village from State Highway 160 only via Forest Service Road 391 (FSR 391), which is maintained and regulated by the Forest Service. FSR 391 is a single lane, gravel road that is open to wheeled vehicles only from June through September. During the winter months, Wolf Creek operates ski runs over the road. FSR 391 was not included on the preliminary plat as the access road to the Village. The preliminary approval, section 4.6.11, stated, "The main access road shall be . . . completed prior to the Supplemental Resolution covering phase 1."
The developer sought and received several extensions from the board to secure an alternative access road to the Village. However, the Forest Service never authorized any reconstruction of FSR 391. Nor did it grant the developer a permit for a different access road between State Highway 160 and the Village, although the developer's application for a permit remained pending. The developer was unable to obtain access approval from the Colorado Department of Transportation (CDOT) or a utility easement.
In June 2004, the developer applied to the board for final approval, relying on FSR 391. Because of inability to obtain a utility easement, the developer proposed construction of an electric power plant within the Village. The proposed power plant would be fueled by a stockpile of liquefied natural gas (LNG), which is a hazardous material under federal law. See 49 C.F.R. § 190-199.
Following several meetings at which Wolf Creek and Colorado Wild provided comments, the planning commission recommended final approval. At an October 26, 2004 hearing, during which Wolf Creek and Colorado Wild also provided comments, the board approved the final plat and final development plan and announced it would consider the ADNP for Phase 1 at its regularly scheduled meeting on November 1, 2004. The ADNP for Phase 1 was approved at the November 1, 2004, meeting.
During the hearings, the county land use administrator stated that "the quality of access is a marketing issue and therefore of little concern to the County." Resolution 2004-21 (final approval) acknowledged that because the Village did not access a county road, state highway access would involve "compliance with state laws, rules, and regulations," and that access across Forest Service lands would be "controlled by compliance with federal laws, rules and regulations." It required:
[A]n alternative access road or roads shall be constructed by the Developer in accordance with federal requirements. . . . No Supplemental Resolution shall be adopted for Phase 1 until the main access complies with federal requirements [and] the adequacy of access to the Development will be a condition of the adoption of every Resolution of Phase Approval following Phase 1.
C.R.C.P. 106(a) provides in relevant part:
In the following cases relief may be obtained in the district court by appropriate action . . .
. . .
(4) Where any governmental body or officer or any lower judicial body exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy otherwise provide by law:
(I) Review shall be 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 defendant body. . . .
"The district court's review is based solely on the record that was before the governmental entity." Prairie Dog Advocates v. City of Lakewood, 20 P.3d 1203, 1206 (Colo.App.2000). The court of appeals reviews the governmental body's decision under "the same standard of review as the district court." Id.
To determine if an abuse of discretion has occurred, "the reviewing court may consider . . . whether the hearing officer[s] misconstrued or misapplied the applicable law." Bd. of County Comm'rs v. Conder, 927 P.2d 1339, 1343 (Colo.1996) (quoting Van Sickle v. Boyes, 797 P.2d 1267, 1274 (Colo.1990)). The reviewing court may also consider whether there was "competent evidence in the record to support such decision." Bd. of County Comm'rs v. Conder, 927 P.2d at 1343.
Statutory interpretation is a question of law that we review de novo. Ryals v. St. Mary-Corwin Reg'l Med. Ctr., 10 P.3d 654, 659 (Colo.2000).
Statutes should be interpreted to effect the General Assembly's intent, giving the words in the statute their plain and ordinary meaning. Golden Animal Hosp. v. Horton, 897 P.2d 833, 836 (Colo.1995). A statute should be interpreted as a whole, giving effect to all of its parts. Zab, Inc. v. Berenergy Corp., 136 P.3d 252, 255 (Colo. 2006). "[W]e look at the context in which a statutory term appears, and the meaning of a word may be ascertained by reference to the meaning of words associated with it." Robinson v. Colo. State Lottery Div., 155 P.3d 409, 413 (Colo.App.2006) (cert. granted Apr. 9, 2007); Premier Farm Credit, PCA v. W-Cattle, LLC, 155 P.3d 504, 513 (Colo.App. 2006).
If the language of a statute "is clear and the intent of the General Assembly may be discerned with certainty, we need not resort to other rules of statutory interpretation." Western Fire Truck, Inc. v. Emergency One, Inc., 134 P.3d 570, 573 (Colo.App. 2006). But if the language is ambiguous, we look to "legislative history, prior law, the consequences of a given construction, and the goal of the statutory scheme to ascertain the correct meaning of a statute." Bd. of County Comm'rs v. Costilla County Conservancy Dist., 88 P.3d 1188, 1193 (Colo.2004) (quoting People v. Luther, 58 P.3d 1013, 1015 (Colo. 2002)).
Courts also presume that the legislature intended a just and reasonable result, § 2-4-201(1)(c), C.R.S.2007, and courts will not interpret a statute in a manner that leads to an absurd or unreasonable result. See, e.g., In re Marriage of Roosa, 89 P.3d 524, 528 (Colo. App.2004).
Defendants first contend the board did not abuse its discretion by provisionally accepting FSR 391 as sufficient access. We disagree, although for somewhat narrower reasons than those articulated by the trial court.
Section 30-28-133.1, C.R.S.2007, provides:
Subdivision plan or plat — access to public highways. No person may submit an application for subdivision approval to a local authority unless the...
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