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HomeMy WebLinkAbout1.1 Conclusion of Law & JudgementDistrict Court, GarfieldCounty, State of Colorado Court Address: 104 8TH Street, Garfield County Colorado 81601 Phone: 970-945-5075 FOR COURT USE ONLY Case Number 04CV216 4 COURT USE ONLY 4. Div.:B Ctrm: PINE'S STONE COMPANY, INC., PLAINTIFF vs. BOARD OF ADJUSTMENT OF GARFIELD COUNTY, COLORADO, and MARK BEAN, DIRECTOR OF GARFIELD COUNTY BUILDING AND PLANNING, DEFENDANTS FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT In this Rule 106 action, Pine's Stone Company, Inc. ("Pine") seeks review and reversal of the Board of Adjustment's (hereinafter "BOA") decision affirming the Garfield Director of Zoning, Mark Bean's (hereinafter "Bean"), interpretation of the traffic limits upon which a 1992 Special Use Permit was based. The initial issue is whether Pine ever made an express proposal or representation to the county concerning the number of wholesale customers who would travel to the Pine yard to pick up materials when it first obtained its Special User Permit from the Board of County Commissioners in 1992. Pine argues that it never made any express representation that the Special Use Permit would be conditioned on 10 or less trips on Cattle Creek Road. Pine also argues that the BOA exceeded its jurisdiction when it ordered Pine to obtain a new Special Use Permit to address the traffic concerns. Pine argues that Mr. Bean is estopped from limiting the number of truck trips made by Pine's customers because the County's past actions approved such vehicle trips and Pine has reasonably relied on such approval. BOA responds that Mr. Bean's interpretation is consistent, not erroneous and is entitled to deference in this Rule 106 action. BOA argues that the decision affirming Mr. Bean's interpretation of the Special Use Permit is supported by competent evidence. BOA also argues that it acted within its jurisdiction and properly applied the law when it affirmed Bean's interpretation, that did not modify either the approved use or the conditions, and that it did not order Pine to apply for a new Special Use Permit. BOA also argues that estoppel is not applicable in this Rule 106 action because the BOA is shielded by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et. seq. Finally, BOA argues that the Court need not exercise Pine's Stone Co. Inc. v. Board of Adjustment, et. al., 04CV216 Findings of Fact. Conclusions of Law, and Judgment March 14, 2006 Page 2 of 8 its equity jurisdiction because the BOA has no enforcement powers and estoppel is not an effective remedy against the BOA. Pine operates a wholesale -only business that processes and wholesales stone building materials to contractors. Its yard is located at 0600 County Road 113, Cattle Creek Road, in unincorporated Garfield County (the Yard), and is not open for retail sales to the public. At that time in 1992, Pine operated a small retail operation at a different location near Highway 82. The Yard was and now is zoned Agriculture/Residential/Rural Density. This zone district allows the processing, storage and material handling of natural resources by special use permit only. On August 18, 1992, Pine obtained a Special Use Permit (SUP) from the Board of County Commissioners (BOCC) for the processing, storage and material handling of natural resources at the Yard, BOCC Resolution No. 92-078. This followed a public hearing held on August 10, 1992. Staff Comments described the Project: The applicants are requesting a Special Use Permit to permit the processing, storage and material handling of natural resource on a site approximately %2 miles east of the current business location. The primary sales and processing would continue at its present location. No retail sales are proposed at this location. In essence, the Pine's have outgrown the storage capacity of the existing facility. The Pines estimate approximately ten(10) trips per day will be generated by the storage use. The SUP contained some express conditions, one of which was "all proposals of the applicant shall be considered conditions of approval unless stated otherwise by the Board of County Commissioners." In their 1992 Application, Pine explained that they intended to use the Yard for storing stones and rock to be sold at the other location at the intersection of Highway 82 and Cattle Creek. They represented:., Our regular business hours are 8 — 5:30 Monday through Friday and half day Saturday during the summer. Vehicle use to this new property would be 0 to 10 vehicles per day ..." (emphasis supplied). Our primary sales and business functioning will continue at this location due to its highway frontage. The purpose of the [Yard] is primarily for storage due to our outgrowing the lot at the highway. In issuing the SUP, the BOCC had to consider the impact of the proposal on local roads and traffic. Zoning Resolution, § § 5.03(2) and 5.03.12. The Planning Staff reviewed Pine's application and considered "vehicle use" to involve "vehicle" and "truck" use. The term "truck" included suppliers' semi -trucks delivering stone to the Yard and Pine's own pickup trucks delivering stone to customers or the retail location. The Defendants argue that it also included Pine's own pickup trucks delivering stone to customers or the retail sales property at Highway 82 and Cattle Creek. Pine's Stone Co. Inc. v. Board of Adjustment, et al., 04CV216 Findings of Fact. Conclusions of Law, and Judgment March 14, 2006 Page 3 of 8 In 1992, the Yard was described as a gently rolling square-shaped parcel about 300 feet from Cattle Creek, with sagebrush and native grasses scattered around it. Single-family residential uses lay to the east, west and south, and they looked over the entire Yard. North of the Yard was an undeveloped steep slope. Pine's lease for the retail sales lot expired and they sought an opinion from Mark Bean, then Director of Garfield County Regulatory Offices and Personnel, as to whether they could conduct wholesale sales at the Yard along with materials storage and limited processing. He concluded that they could, and he wrote a formal opinion on February 4, 1993 (1993 Opinion Letter): "Material handling" is defined as the loading and unloading of goods, materials and products, whether industrial or commercial, in bulk, excluding the operations of extraction, processing, fabrication or storage. Wholesale sales would seem to be a logical part of a bulk loading, storage and unloading of goods. This opinion letter did not refer in any way to vehicle trips per day. Seven months later, the County's Code Enforcement Officer went to the Yard and wrote to Pine on September 14, 1993 that there were several zoning violations to the SUP, including that the Yard had become "the primary and only business location for Pine's Stone Yard."(1993 Enforcement Letter). The 1993 Enforcement Letter recited that Pine was violating its SUP and noted: In the Special Use Hearing before the Garfield Board of County Commissioners, it was represented that a) you requested a permit to store surplus rock and natural resources, b) you expect ten (10) truck trips per day to either bring in raw materials or take them back to the retail site (i.e. 82 and Cattle Creek)." The 1993 Enforcement Letter cautioned, "The Board of County Commissioners only rule on what is specifically requested in a Special Use Permit application and the hearing." The Code Enforcement officer advised Pine of one of its options, which was "going back to a public hearing before the" commissioners to modify the SUP. Pine did not pursue this option. This litigation arose out of a letter which Mark Bean, Director of Garfield County Building and Planning, wrote on June 23, 2004 to Pine, as a result of complaints received by the County about Pine's operations at the Yard (2004 Opinion Letter). Mr. Bean wrote: In their written application for that Special Use Permit, the applicants (Paul and Pam Pine) represented the following: "Vehicle uses to this new property would be 0-10 vehicles per day." You will note that in their representations the Pines did not delineate or limit the type or character of 'vehicle' to which the representation would apply. (emphasis in the original). Pine's Stone Co. Inc. v. Board of Adjustment, et. al., 04CV216 Findings of Fact. Conclusions of Law, and Judgment March 14, 2006 Page 4 of 8 The 2004 Opinion Letter went on to recount the history of the 0-10 vehicle issue: In a subsequent report from the Garfield County Staff, and at the public hearing at which the Pine request was considered, the staff of the County stated that the vehicles represented by the Pines would be trucks. Even the Staff's construction of the Pine's actual representation did not limit the type of truck to which the ten (10) vehicle limitation would apply. (emphasis in the original). The 2004 Opinion Letter concluded: Therefore, I do not believe that your limitation of the ten (10) vehicular trips per day to "semi -trucks" is supported by [Pine), the staff construction of those representations, the BOCC approval resolution or the record in this application. It is my position, as the Chief Building Official for Garfield County, that the ten (10) vehicle trips per day limitation in the Special Use Permit technically applies to all vehicles. As a result of a previous interpretation of my staff, I am willing to accept a limitation on the definition of vehicles to "trucks." However, I am not willing to accept a limitation on that definition as to the type of truck. Therefore, I believe that the ten (10) vehicle per day limitation will be enforced as to all types of trucks, including pick-up trucks, in determining whether or not to enforce the provision of the Garfield County Zoning Resolution in relation to the Pine property. Pine appealed this official determination as to the meaning of the ten -truck limitation to the Garfield County Board of Adjustment which held a hearing on August 23, 2004 and affirmed Mr. Bean's interpretation of the ten -vehicle limitation language in his Opinion Letter. It is this administrative ruling that Pine now appeals under C.R.C.P. 106(a)(4). The applicable standards for review are explained in Ouaker Court Ltd. Liability Co. v. Board of County Com'rs of County ofJefferson, 109 P.3d 1027, 1030 (Colo.App.,2004), where the Board of Adjustment interpreted a ten -house limit imposed in a land use approval resolution by the county in 1990 to mean ten houses and not ten lots as the developer asserted: Pursuant to C.R.C.P. 106(a)(4), "[o]ur review is based solely on the record that was before the board, and the decision must be affirmed unless there is no competent evidence in the record to support it such that is was arbitrary or capricious." City & County of Denver v. Bd. of Adjustment, 55 P.3d 252, 254 (Colo.App.2002). Such review is limited to a determination of whether the BOA exceeded its jurisdiction or abused its discretion, "as well as whether an erroneous legal standard was applied by the agency." Puckett v. City & County of Denver, 12 P.3d 313, 314 (Colo.App.2000) (quoting Elec. Power Research Inst., Inc. v. City Pine's Stone Co. Inc. v. Board of Adjustment, et. al., 04CV216 Findings of Fact. Conclusions of Law, and Judgment March 14, 2006 Page 5 of 8 & County of Denver, 737 P.2d 822, 826 (Colo.1987)). Ma C.R.C.P. 106 review, an agency's legal conclusions are not reviewed de novo, and will be affirmed if supported by a reasonable basis. Elec. Power Research Inst, Inc. v. City & County of Denver, supra, 737 P.2d at 826; City & County of Denver v. Bd. of Adjustment, supra, 55 P.3d at 254; Wilkinson v. Bd. of County Comm'rs, 872 P.2d 1269, 1278 (Colo.App.1993). ... The BOA's determination is accorded a presumption of validity, and, as a result, the burden is on developer to overcome the presumption. See Van Sickle v. Boyes, 797 P.2d 1267 (Colo.1990); City & County of Denver v. Bd. of Adjustment, supra, 55 P.3d at 254. A reviewing court does not sit as a super -board of adjustment and re -weigh the evidence, Board of County Commissioners of Routt County v. O"Dell, 920 P.2d 48 (Colo. 1996). The hub of this appeal is whether the BOA abused its discretion in upholding Mr. Beans' interpretation in the 2004 Opinion Letter of the ten -vehicle language that it would be enforced as to all kinds of trucks, including pickup trucks. Upholding Mr. Bean's interpretation in the 2004 Opinion Letter was not an abuse of the BOA's discretion. In their original Application for the SUP, Pine represented that the traffic impact would be 0 —10 vehicles per day (1992 SUP request letter). Pine submitted the letter in compliance with procedural regulations then in effect that they provide a letter "explaining in detail the nature and character of the Special Use requested" (§ 9.030.03,Zoning Resolution). Their application represented that their uses would be limited to processing, primarily storage, which would have minimal traffic impacts at the Yard. The issues in the 1992 hearing were framed in part by the Staff Report and Recommendations which described the SUP project as one in which the "Pines estimate approximately ten (10)trips per day will be generated by the storage use." In the Staff's listing of Major Issues and Concerns, the focus was on 10 trips per day: Major Issues and Concerns: ... The ten (10) estimated daily truck trips to the site may generate dust problems for the adjacent residential uses if the existing driveway is not improved. The Court concludes that in the 1992 SUP proceedings, Pine did represent that no more than 10 truck trips per day would be generated by the SUP operations. This necessarily included pickup trucks. These representations were incorporated into the SUP itself. Thus, Mr. Beans' analysis was correct, and the BOA had competent evidence on which to base its decision upholding his conclusion. At the 2004 BOA hearing, Pine attempted to put into evidence letters of two prior county commissioners about what they thought they were approving in the 1992 SUP hearing. This evidence is improper. The 1992 SUP hearing was a quasi-judicial proceeding, Quaker Court Pine's Stone Co. Inc. v. Board of Adjustment, et. al., 04CV216 Findings of Fact. Conclusions of Law, and Judgment March 14, 2006 Page 6 of 8 Ltd. Liability Co. v. Board of County Com'rs of County of Jefferson, 109 P.3d I027,Colo.App.,2004. In Public Utilities Commission v. District Court In and For Arapahoe County, 431 P.2d 773, 777 (Colo. 1967), the Court stated: While there are some decisions to the contrary we believe that the great weight of authority prohibits inquiring or probing the mental processes or procedure by which an administrative decision is reached, and the only exception to this rule is where an allegation has been made and there is a clear showing of illegal or unlawful action, misconduct, bias or bad faith on the part of the commissioners or a specific violation of the applicable statute. Two primary reasons lie behind the rule: We have recognized two policy reasons which support the application of the mental process rule to prohibit inquiry into the mental process by which a decision is reached in a quasi-judicial administrative proceeding: First, there is a presumption of regularity and validity which attaches to proceedings conducted by administrative agencies. In the absence of evidence to the contrary, it is presumed that such agencies have properly discharged their official duties. Second, when administrative proceedings are quasi-judicial in character and resemble a judicial proceeding, the agency officials should be treated as the equivalent of judges. Gilpin County Bd. of Equalization v. Russell 941 P.2d 257, *264 (Colo.,1997). Thus, the mental state of those two commissioners is not an appropriate tool in determining the evidence at the 1992 SUP hearing and the representations that were then incorporated into the SUP permit. The BOA was bound by the language of Pine's representations as incorporated into the SUP, without regard to the recent statements of two of the county commissioners. Mr. Bean interpreted the Pine's representations which were incorporated into the 1992 SUP, and the BOA's decision affirming his interpretation is supported by the record. Pine incorrectly asserts that the BOA ordered it to get a new SUP. The BOA did not order this. Several members opined that a reasonable solution would be for Pine to apply for a modification of the existing SUP or for a new one, which would then allow the BOCC to conduct a full fact inquiry on the new request. Pine has declined to do so, which it has every right to do. The BOA members' suggestions were just that -- they did not carry the force of a resolution or mandate. Pine has not been prejudiced by them. Pine claims that the BOA is estopped from asserting its interpretation of the ten -vehicle rule. However, Pine did not plead this claim in its Complaint, and has not made any effort to amend the Complaint. Thus, it is not properly before the Court. Even if it were before the Court, the party to be estopped would be the Board of County Commissioners of Garfield County, which is not a party to this case. To the extent that the estoppel claim is based on Pine's Stone Co. Inc. v. Board of Adjustment, et. al., 04CV216 Findings of Fact. Conclusions of Law, and Judgment March 14, 2006 Page 7 of 8 alleged misstatements of fact or misrepresentations by Mr. Bean, is would constitute equitable estoppel, and would be a tort barred by the Colorado Governmental Immunity Act, C.R.S. § 24- 10-101„ et. seq., Patzer v. City of Loveland, 80 P.3d 908 (Colo. App. 2003); Allen Homesite Group v. Colorado Water Quality Control Commission, 19 P.3d 32 (Colo. App. 2002). To the extent that the estoppel claim is for promissory estoppel, Pine must prove that Mr. Bean made a promise to Pine, which he should reasonably have expected to induce action or forbearance by Pine, and Pine did in fact rely to its detriment, so that the promise must be enforced to prevent injustice. Here, Mr. Bean made no promise or express representation to Pine that could have induced reasonable reliance. To the contrary, Mr. Bean has consistently recited the limitation on traffic impacts and made no changes to the original SUP which incorporated the representations Pine made about the ten -vehicle limitation. Thus, the estoppel claim is not properly before the Court; and even if it were, it would not entitle Pine to relief. Pine argues that Mr. Bean's interpretations of the ten -vehicle limit have not been consistent since 1992 to 2004. However, the issue before the Court is whether his 2004 Opinion letter was properly upheld by the BOA. It was. Mr. Bean's other letters do not change this result. His 1993 Opinion Letter, which dealt with material handling, related to a different issue altogether, and it did not alter the meaning of the ten -vehicle limit. The 1993 Opinion Letter says nothing about traffic impacts. The 1993 Enforcement Letter did not change the 10-vehcile limitation language. The 1993 Opinion Letter and 1993 Enforcement Letter do not form a basis for concluding that the County has acted inconsistently on the ten -vehicle issue so as to make the BOA's decision affirming Mr. Bean's 2004 Opinion Letter unlawful. CONCLUSION The Court therefore concludes that: 1) the BOA did not act arbitrarily or capriciously or in abuse of its discretion; 2) the BOA's decision affirming Mr. Bean's 2004 Opinion Letter was lawful; 3) the BOA is not estopped from affirming Mr. Bean's 2004 Opinion Letter; 4) the Plaintiff is not entitled to injunctive relief; Pine's Stone Co. Inc. v. Board of Adjustment, et. al., 04CV216 Findings of Fact. Conclusions of Law, and Judgment March 14, 2006 Page 8 of 8 JUDGMENT Therefore the Court Orders that the Complaint is hereby dismissed with prejudice, and the Defendants are entitled to costs to be established pursuant to C.R.C.P. 121, § 1-22. DATED: Tuesday, March 14, 2006. BY THE COURT: T. PETER CRAVEN DISTRICT JUDGE I certify that I served the foregoing on March 15, 2006.