HomeMy WebLinkAbout4.0 Court Case•
GARFIELD COUNTY
DEPARTMENT OF DEVELOPMENT
PLANNING / ENVIRONMENTAL HEALTH / BUILDING: 945-8212
MEMORANDUM
TO: Earl Rhodes, County Attorney
FROM: Dennis A. Stranger, Director of the Department of Development / - /
DATE: April 17, 1984
RE: Thompson vs The Board of County Commissioners
Per your request, I have reviewed Pete Craven's Cattle Creek PUD brief.
In order to categorize my comments, I have structured my response in the
same order as Craven's presentation. If you have any questions or require
additional information, do not hesitate to call.
Statement of Facts
1. I believe that the public hearing for this project was held before the
Board of County Commissioners on January 10, 1983 not June 10 as noted in
the brief (or is the transcript dated June 10?)
2. The brief has conflicting statements of the number of findings in
Resolution #83-27. There were, in fact, seven findings in the Resolution.
Arguments I, II, IV
I do not have any comments on these sections other than the general
observation that Craven has presented a specious argument. I leave the
proof to you.
Argument III
1. Four dwelling units per acre are permitted in a PUD per the Garfield
County Zoning Resolution.
2. The County professional planning staff recommended approval of both
the Sketch Plan and PUD with the objective of achieving "high standards of
design and liability." This is consistent with our responsibilities as
outlined in the Comprehensive Plan. The brief is more concerned with form
than substance on this point.
3. The Board references the appropriate County regulations in both
Resolution No. 83-26 and 83-27. Surely we do not have to cite every
relevant section from every regulation.
100 8TH STREET
P.O. BOX 640 GLENWOOD SPRINGS. COLORADO 81602
• •
Argument V.
Mr. Craven's mathematical calculations are incorrect. 10% of 313
acres is 31.3 acres not 13.1 In any event, in large, low density
subdivisions a 10% variance is not particularly significant. The Board of
County Commissioners have approved the 10% adjustment as an automatic
permissible alternative. The adjustment provision is useful because the
zone district boundaries are estimated rather than calculated and
surveyed. The actual surveying will take place later in the subdivision
process.
P.O. Box 640
GARFIELD COUNTY 1
COUNTY ATTORNEY'S OFFICE
109 8th Street Suite 300
Glenwood Springs, Colorado 81602-0640
Phone 945-9150
MEMO
TO: Dennis Stranger, Dept. of Development
FROM: Earl G. Rhodes, County Attorney(
RE: Cattle Creek P.U.D.
DATE: October 3, 1984
This memo will confirm my conversation with you in which I advised
you of the status of the lawsuit as to the above matter. Enclosed
please find a copy of the finding of fact, conclusions of law and
Order entered by Judge Ossola on this case of August 15, 1984. As I
have told you, the Judge dismissed the lawsuit and thereby confirmed
the decision of the Board of County Commissioners.
The Attorney for Frank Lerner and I have told you that so long as
litigation is pending, the developer need not comply with the time
frame contained in Resolution No. 83-27. The specific purpose of
this memo is to indicate to you that the Plaintiffs in the
above -captioned action have filed a Motion for New Trial and that as
of this date, the Court has not ruled on that matter. A final Order
of the Court will occur when the court rules on the Motion for New
Trial and the matter is not appealed. I will advise you, when that
occurs. For your purposes, that will be the point in time that the
clock starts to run in terms of the developer's obligations. If the
matter is appealed to the Court of Appeals
obligations will not begin until a final order�is received the vfrom ethe
Court of Appeals. If you have any questions about this, don't
hesitate to contact me.
cc: Board of County Commissioners
7,777?7,7-1)
QCT 41984
•
DISTRICT COURT, COUNTY OF GARFIELD, STATE OF COLORADO
Case No. 83 CV 72
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
JUDITH L. THOMPSON, JOHN B. WHITE, and SUE
TERRY WHITE,
VS.
Plaintiffs,
THE BOARD OF COMMISSIONERS OF THE COUNTY OF GARFIELD,
COLORADO, EUGENE ("JIM")DRINKHOUSE, LARRY VELASQUEZ, and
FLAVEN J. CERISE as member -3 of the Board of County
Commissioners of the County of Garfield County; CATTLE
CREED RANCH, a joint venture and FRANK LERNER,
Defendants.
THIS MATTER comes before the Court for consideration
of proceedings commenced under Rule 106 (a) (4) C.R.C.P. and
the Court being fully advised in the premises, finds,
concludes and orders the following:
FINDINGS OF FACT
1. This action was commenced by the filing of a
complaint brought pursuant to Rule 106 (a) (4) C.R.C.P.
on March 2, 1983. A stipulation concerning certification
of the record was approved by the Court on the 8th day
of April, 1983. On April 13, 1984, plaintiffs moved to
supplement the record to include proceedings before the
defendant Board of County Commissioners in which the Board
purported to authorize defendant Cattle Creek Ranch
Joint Venture to avail itself of the condemnation authority
of Garfield County for purposes of improving County Road
113 and to add to the record a letter from plaintiff Judith
L. Thompson to the Board of County Commissioners.
2. Defendants have objected to that motion. As the
parties stipulated to the status of the record prior to the
motion to supplement it the Court concludes that the motion
to supplement the record is not timely and should be denied.
3. Subsequently, the parties stipulated to supplement
the record by inclusion in the record of Resolution 83-26
and Resolution 83-27 of the Board of County Commissioners.
Those resolutions are properly before the Court for
consideration on appeal.
4. The Court finds that it has jurisdiction over
the subject matter and parties to this action and that venue
is proper.
5. The record establishes that on January 31, 1983,
the defendant Board of County Commissioners (herein after
referred to as the County) adopted resolutions numbered
83-26 and 83-27 concerning real property owned by the
defendants Cattle Creek Ranch and Frank Lerner (herein
after referred to as the Developers).
6. The evidence establishes that the real property
is located in the unincorporated area of Garfield County
and is approximately 960 acres about 8 miles east of
Colorado Highway 82 on County Road 113.
7. The County approved a planned unit development
(herein after referred to as PUD) for the
30subject prophe rte
by resolution No. 77-113. On November
irst
subdivision filing, designated filing No. 1, Cattle Creek
Subdivision, was recorded and covered 476 acres and provided
for 67 lots.
8. In 1981 the Developer attempted to get a new
PUD approved which would increase the number of single
family residents from 131 to 786. The Garfield Cuy
Planning Commission recommended denial of the application.
In 1982 the Developer made application to the County for
approval of a PUD for 786 units on the subject property.
The Planning Commission again recommended denial. On
August 16, 1982, the Developer made application to the
County for approval of a PUD for 131 units on 313 acres.
The Garfield CountP1aOnning Januaorym10S1on 1983ec�mmeBoaddaof
of that application.
County Commissioners held a public hearing on the application.
On January 31, 1983, the approval of the application was
passed in the form of Resolutions 83-26 and 83-27.
9. An examination of the application itself revealed
that the cover letter styled it as an application for a
PUD. At the commencement of the public hearing on
January 10, 1983, Commissioner Cerise presiding, he referred
to the proceedings a a "public hearing regarding modification
to PUD and sketch plan and vacation of existing PUD zoning
and final plat of PUD at the Cattle Creek Joint Venture".
The County Attorney referred to the proceedings as "a public
hearing before the Board of Commissioners of Garfield County,
Colorado to determine whether or not the application of
Lerner and Sturgis for modification of planned unit development
should be granted or denied". At the conclusion of the hearing,
however, the County Attorney referred to the application
as a "new application". See P.68, L. 21 Transcript of
Hearing.
10. At the public hearing testimony was presented by
Mr. Dennis Stranger of the county planning staff that
the layout of the design of the PUD in the application
was a good example of effective design utilizing PUD
techniques. He testified that the general area was rural
and predominently ranch oriented and that there would be no
more road impact in the approval of the new PUD concept than
had existed in the previous PUD which was approved.
11. Mr. Leonard Bowlby, county road supervisor
testified that the major road impact would be on County
Road 113.
12. Mr. Liston testified for the applicant' that
a major part of the entire holding would be returned to
ranch'iing and agricultural uses under the new PUD concept
and that adjacent land owners would be physically buffered
from development.. He further testified that the entire
redesign of the PUD was directed to what the developer
determined to be a saleable market.
13. Mr. Lawrence, an adjacent land owner spoke in
favor of the project.
14. Plaintiffs have brought this Rule 106 action
Commissioners exceeded
used its discretion in adopting Resolutions
alleging that the Borad of County
and ab matter before the Board of
jurisdiction arguing that the
modification of
83-26onand miss ne
a
County Commissioners was in the nature of 24_67-106 (3)
the commissioners failed
a previously approved PUD and that required by C.R.S.
findings as Zoning
tob make specific .2,3of the Garfield County specific
e and section 4 tiff (2)r
• n, Plaintiffs argue that failure to make
Resolutio that the resolutions are no
jurisdictional and there
the efor is j required by
Plaintiffs further assert the
therefore ee in the. on which the findings
in ingsbe made.
evidence record up resolution failed to
Adthstatuteonaland the zoning argue that the defendants fa
Additionally plaintiffs arg zoning manner
4.07.06 of the a timely
on
comply with hanger failed to act in nmtim of the
concerning changes in zoning, made an assignment on the application and unlawfully the Developer.
County's power or eminent domain to
15. Defendants assert that
the action taken by the
Cwas upon an application for a
new PUD and that
the
C.R.S.24-67106 (3) (b)
and section
the provisions notDefendants further assert that
do apply• record to support
there 4.12.03 (2) resolution concerning
there was required
by evidence
and findings are
findings required by
modification of the PUD and that specific
d, Defendants argue that the provisions
not zoning
required. 4.07.06 and the provisions act uponan
theo
zoning resolution commissioners must
Further the defendants argue
timeaontdonnote bpPly. d off r bring this action.
plication do
that the plaintiffs lack standing to
that plaintiffs
113
16. The evidence establishes ocated along County
Further the evidence
are owners of real property owners. ate in the
and are not adjacent land participate establishes
that plaintiffs did not p
public hearings.
CONCLUSIONS OF LAW
s a matter of law
The Court concludes that County Commissioners
17. the Borad of ss the
by the presiding member
the actions taken by the public hearing,
wereand theas wasoindicated Attorney
Y at the outset of and that
Attorney roved PUD
hCounty
of an existing approved that is,
the provisions of C.R.S.
24-67-106 (3)(b) and section 4.12.03
(2) are applicable to the review of the Board's action.
ion
lg. A review of the findings c°�ommissionersin sdidtnot
No 83-27 indicates that the Board of by C.R.S.
make all of the findings technically required
24-67-106 (3) (b)
and section 4.12.03 (2) of the zoning
resolution with regard to the modification of aBPUD. of
on the holding in Hudspeth vs.
Defendants rely 1983) and argue that
Commissioners, 677 P.2d 775 (Colo. APP-
su supported by comp
the decision of the Board of Commissioners must be upheld
s required areP
etent
if the ultimate finding
Tri
evidence. Plaintiffs direct the Court
tto Citstateof Generation
and Transmission Com an , et al.vs.
647
P.2d 670 (1982) for the proposition that the specific
findings must be made.
The Court concludes that the sandsTristate Generation
19. supra.
and Transmission Company case,
proposition that the resolution or ordinance Permitting
t the
the creation of a PUD must be specificrintinsetting
a out
conditions which must be met forF7thehilg ita would certainly
g of
to facilitate judicial review.
facilitate judicial review if the ininferior triof bunial ute,
articulated its specific finding
uds eth case, su ra., requires that where that is not
the presented to
donetthemin Court whethershtherewas
intthforecord
determine s as required by the statute
r
to support those finding
ordinance. of. the
When the testimony is analyzed in light
20,Hudspeth case, the
of Stranger, Bthe and
provisions of the statute and the — able to the
Court concludes that the testimony most favor
Liston when construed in the lightmeat and
defendants, is consistent with taOeSenotoeffect in
abutting
preservation of the entire PUD; enjoyment of
the public interest;
up ntor
substantially adrstreetnfrom 1the rPUD; or benefit in any
upon is across theto confer a special Dints
and not granted solely
person. Clearly the evidence oneach rdfofhese four
uioners and
was not uncontroverted before theon the evidence as to
reasonable men could differ basThed Boaurd of Commissioners dgaicting
each of the four criteria. that
not, however, abuse its discretion in resolving
5
evidence in favor or approving the mofification.
The Court concludes that when the provisions
21. applied to the
of the statute and section 4.12.03
didnnpassing
evidence presented t
exceed its jurisdiction or abuse its discretion
the resolutions in issue.
domain by the County
22. The Court further concludes
inentthat the issue of
power of em
ro riately before the Court and
the thesDevelo of the The Court
to Developers is not appropriately
PP on that issue.
is made upon provisions
thereforeeno rulingdeapplication of the time p
applicable to these
further concludes that the aPP regulation with
f the nor anent and vresionslof then zonng
facts are the prove
regard to change of zoning.
JUDGMENT
ADJUDGED AND DECREED that
HEREFORE,
IT IS ORDERED, the plaintiffs
judgment enter for int befendants dismissed and against
and that the compla
Dated this
day of
CERTIFICATE OF MAILING
;;� if
I Certf.; L all
Farugotcp.`
19�'
4&fo1G•
BY THE COURT:
1984.
THOMAS W. OSSOLA
District Judge
6
P.O. Box 640
GARFIELD COUNTY
COUNTY ATTORNEY'S OFFICE
Glenwood Springs, Colorado 81602-0640 Phone 945-9150
MEMORANDUM
TO: Dennis Stranger, Director
Department of Development
FROM: Earl G. Rhodes
Garfield County Attorney
DATE: May 10, 1984
SUBJECT: Cattle Creek PUD
I9I3 /
ptitNfrfs
Enclosed please find a copy of the Brief, which I have filed on
behalf of Garfield County. I anticipate, at some point in the
future, that oral arguments will be held on this. Therefore, I
would appreciate any comments you have as to this Brief.
/sl
pc: (w/enc) Larry Velasquez, Chairman, GarCo Cty. Commissioner
TO:
FROM:
DATE:
RE:
•
GARFIELD COUNTY
DEPARTMENT OF DEVELOPMENT
PLANNING / ENVIRONMENTAL HEALTH / BUILDING: 945-8212
MEMORANDUM
Earl Rhodes, County Attorney
Dennis A. Stranger, Director of the Department of Development /C6rki
April 17, 1984
Thompson vs The Board of County Commissioners
Per your request, I have reviewed Pete Craven's Cattle Creek PUD brief.
In order to categorize my comments, I have structured my response in the
same order as Craven's presentation. If you have any questions or require
additional information, do not hesitate to call.
Statement of Facts
1. I believe that the public hearing for this project
Board of County Commissioners on January 10, 1983 not
the brief (or is the transcript dated June 10?)
2. The brief has conflicting statements of the numb
Resolution #83-27. There were, in fact, seven findings
was held before the
June 10 as noted in
Arguments I, II, IV
er of findings in
in the Resolution.
I do not have any comments on these sections other than
observation that Craven has presented a specious argument.
proof to you.
the general
I leave the
Argument III
1. Four dwelling units per acre are permitted in a PUD per the Garfield
County Zoning Resolution.
2. The County professional planning staff recommended approval of both
the Sketch Plan and PUD with the objective of achieving "high standards of
design and liability." This is consistent with our responsibilities as
outlined in the Comprehensive Plan. The brief is more concerned with form
than substance on this point.
3. The Board references the appropriate County regulations in both
Resolution No. 83-26 and 83-27. Surely we do not have to cite every
relevant section from every regulation.
100 8TH STREET
P.O. BOX 640 GLENWOOD SPRINGS. COLORADO 81602
• •
Argument V.
Mr. Craven's mathematical calculations are incorrect. 10% of 313
acres is 31.3 acres not 13.1 In any event, in large, low density
subdivisions a 10% variance is not particularly significant. The Board of
County Commissioners have approved the 10% adjustment as an automatic
permissible alternative. The adjustment provision is useful because the
zone district boundaries are estimated rather than calculated and
surveyed. The actual surveying will take place later in the subdivision
process.
• •
DISTRICT COURT, GARFIELD COUNTY, COLORADO
Case No. 83CV72
DEFENDANTS' RESPONSIVE BRIEF, MOTION TO STRIKE, AND MOTION TO
DISMISS
JUDITH L. THOMPSON, et. al.,
Plaintiffs,
vs.
THE BOARD OF COUNTY COMMISSIONERS ;OF THE COUNTY OF GARFIELD,
COLORADO, ete.;--et al.,
Defendants.
COMES NOW the Defendant, Board of County Commissioners of
the County of Garfield, Colorado, by and through its attorney,
and files its Responsive Brief as follows:
I. STATEMENT OF FACTS
On January 31, 1983, the Defendant, Board of County
Commissioners of the County of Garfield, Colorado, (hereinafter
referred to as "Garfield County" or "County") adopted
Resolution Nos. 83-26 and 83-27 (hereinafter referred to as
"Approval Resolution"). The other Defendants named herein are
the owners of the real property, who will be referred to as
"Applicants" or "Developers". The subject property is
comprised of approximately nine hundred sixty (960) acres in
Township 7 South, Range 87 West of the 6th Principal Meridian
in the unincorporated area of Garfield County, Colorado. The
practical description is that it is located eight (8) miles
East of Colorado Highway 82 on County Road 113.
•
Garfield County is a legal and political subdivision of
the State of Colorado, which derives its authority from the
Colorado Constitution and Colorado Statutes. The Board of
County Commissioners of Garfield County is authorized, by
Colorado Statutes, to act on behalf of Garfield County.
Pursuant to Section 30-28-101, et seq., C.R.S., as amended.
Garfield County adopted the Garfield County Zoning Resolution
of 1978,. ---as- amended, (hereinafter xe..f.erred to as "Zoning
Resolution -"1.- That Resolution conto1s- the subject act -ion -.---
This development has had a contentious history in
Garfield County. By Resolution No. 77-113, Garfield County
approved a Planned Unit Development (hereinafter referred to as
"PUD") for the subject property on nine hundred sixty (960)
acres for one hundred thirty-one (131) single-family
residences. This approval did not require the Developer to pay
monies towards off-site road improvements. On November 30,
1980, the first subdivision filing, designated Filing No. 1,
Cattle Creek Subdivision, was recorded and covered four hundred
seventy-six (476) acres and provided for sixty-seven (67) lots.
In 1981, the Developer attempted to get a new PUD
approved, which would increase the number of single-family
residences from one hundrd thirty-one (131) to seven hundred
hundred eighty-six (786). On September 14, 1981, the Garfield
County Planning Commission recommended denial of this
application. Again, in 1982, the Developer made application to
Garfield County for approval of a PUD for seven hundred
2
• •
eighty-six (786) units on the subject property. Again, the
Garfield County Planning Commission recommended denial.
On August 16, 1982, the Developer made application to
Garfield County for approval of a PUD for one hundred
thirty-one (131) units on three hundred thirteen (313) acres
(see Exhibit "A"). On October 13, 1982, the Garfield County
Planning Commission recommended approval of this application.
On January 10, 1983, the Board of County Commissioners held a
_public hearing ..as .to the above -land -use. application. At the
end of the hearing, on January 10, 1983, the public hearing was
closed to additional public comment (Tr., Pages 73-75). On
January 24, 1983, the Commissioners made a motion for approval
with conditions and, on January 31, 1983, the Approval
Resolution was adopted.
Plaintiffs' entire argument rests upon the assumption
that the Approval Resolution constituted a modification of the
PUD approved in 1977. This is in error. As is clear from
Condition 1 of the Approval Resolution, what occurred was that
a new PUD was approved upon condition that the previous PUD
approval and final plat, subsequent thereto, be vacated. Thus,
Plaintiffs' continual reference to modification of the PUD and
Section 4.12.03 of the Zoning Resolution is misplaced, since,
in fact, Sections 4.02, 4.04 and 4.07 of the Zoning Resolution
are controlling , which govern the approval of a new PUD.
Garfield County admits that the word "modification" is used
throughout the public hearing in the Resolution, but this word
3
• •
is used in reference to Sections 10.01.04 and 10.02.04 of the
Zoning Resolution, which are procedural sections that set forth
how matters are brought to the attention of the Board. This
issue was clarified at the public hearing (Tr., Page 67).
Plaintiffs did not appear at the public hearing, and
there is no basis in the record for their objections.
Plaintiffs are not owners of property inside the PUD, are not
adjacent property owners and do net live in the nearby area.
They are incidently affected by the—approval since Condition--- L: ------
6(a) of the Approval Resolution may affect their property.
II. COMPETENT EVIDENC jN THE RECQAD
In a Rule 106 proceeding, the District Court's review is
.a,.; limited to a review of the record before it. Hazelwood vs.
Haul, Colo. , 619 P.2d 499 (1980). There is a
presumption of validity as to the acts of public officers, and
the burden of proof is on the Plaintiff to show that there is
error. See City and Co_unty___of Denvex vs. District Court, 196
Colo. 134, 582 P.2d 678, (1978); Sundance Hills Homeowners
Association vs. :••r• • • : •,u' • _0, 188 Colo. 321,
534 P.2d 1212, (1975). The public official's decision is to be
upheld, if the ultimate findings are supported by any competent
evidence.
Hudspeth vs. Board of County Commissioners, 677 P.2d
775 (Colo. App. 1983); Bcott vs. City of Englewood, 672 P.2d
225 (Colo. App. 1983); and Kings Mill Homeowners Association vs.
4
•
Sil.y___Qi___H tfhij1 er, 192 Colo. 305, 557 P. 2d 1186, (1976) . The
Court is to read the record before it and determine whether the
decision of the County is supported by evidence in the record.
In large part, the Approval Resolution is concerned with
off-site road impacts as a result of the Developer's
application. In this regard, the Board found that County Road
113 "is the primary access to the subject property..." The
testimony is not unanimous in th;4 regard, but there is
substantial evidence to support Ind this Court- should
consider the matter "fairly debated". Exhibit "G", by the
County Road Supervisor, is the basis for the County's finding
as to the significance of County Road 113, as well as the basis
for the conditions imposed by Condition 6 of the Approval
Resolution. Additionally, a letter of April 15, 1982, by
Eldorado Engineering Company, supports this condition. The
necessity of these improvements are made reference to by Mr.
Stranger (Tr., Page 13), and by Mr. Liston (Tr., Page 20). In
fact, the Developer agreed that there would be impact on County
Road 113, and that the Developer acknowledged some
responsibility for the costs to correct it. Ms. Donelan made
reference to County Road 113 as a "death trap" (Tr., Page 47),
and Mr. Weinstock stated the road is extremely dangerous and
"there is no way it can handle any more traffic", (Tr., Page
49).
5
• •
The County's decision was based upon substantial evidence
that County Road 113 would be the primary access. Having done
so, it imposed conditions on the Developer to deal with the
problem of increased traffic volume. Condition 6 of the
Resolution dealt with the specific recommendations made by Mr.
Bowlby, which were read into the record (Tr., Pages 14-16).
Although, as indicated above, some members of the public felt
that other roads also needed improvement, there was no dispute
that the improvements on County Road- 1A were necessary.
The comments from the public, in large part, address the
question of what responsibility the Developer had for the
above -referenced public improvements. Numerous people said
that other developers were required to pay for the impact
caused by their development, and the Developer, in this case,
should be treated no differently: Mr. Farrar (Tr., Pages 31
and 33); Mr. Davis (Tr., Pages 38 and 39); Mr. Kinshella (Tr.,
Page 39); and Mr. Lawrence (Tr., Page 44). This issue, then,
in addition to the density question, which will be discussed
below, was the prime focus of the public hearing.
In its findings, the County found that the new PUD was in
general compliance with the recommendations of the Garfield
County Master Plan. This is a most important finding since not
only is general conformity a requirement of law, but it is very
substantial evidence for the validity of the County's approval
of the project. (See Kings Mill Homeowners Asauis i.4D, supra;
6
Til Qb_a1 v s . . QS rs3 --_9. -- CD_QILtY fQfl Th 1Qfls`r c
Colo. , 644 P.2d 942 (1982); Section 24-67-104(1)(f); and
Section 4.04, Garfield County Zoning Resolution).
The testimony as to conformance with the Master Plan came
from several sources. Mr. Stranger, on behalf of the County,
talked about the issue at length (Tr., Pages 6-8). The
Developer's planner, Mr. Liston, discussed the subject (Tr.,
Pages 22-26). In addition, members.__.£-th.e public commented as
•
--t a -tb 1s--1411estion: Mr. Farrar (Ti_. Page --30) and ..Mr..
(Tr., Page Page 39). Other members of the public opposed the
project because of this issue: Mrs. Donelan (Tr., Page 47) and
Mrs. Moffatt (Tr., Pages 52-54). Commissioner Drinkhouse, in
his remarks at the end of the public hearing, expressed concern
about this issue and, presumably, voted against the project for
this reason. (Tr., Page 74) When one looks at the record as a
whole, one sees a lively discussion as to this issue and more
than an adequate basis for the County to have determined that
the project was in general conformity with its Master Plan.
Plaintiffs are critical of the County's effort because
the Approval Resolution contains "self-serving declaration".
Yet Plaintiffs are also critical of the County since apparently
not engough self-serving declarations were included in the
Approval Resolution. Specifically, Plaintiffs argue that the
subject action is void since necessary findings for a
modification of the PUD were not made.
7
• •
This Defendant's argument is that Plaintiffs'
representation as to the status of Colorado law is in error,
that express findings are not necessary, and that the record
contains sufficient information to support the decision of the
County.
In Colorado, it is clear that:
"The absence of express findings by a lay board does
not affect the validity of the decision where the
necessary findings are impl,ic:ii in the action
taken." See also Sundance, Hills Homeowners
-Association vs . Board of - G4---CommisajQners, -188 -
Colo. 321, 534 P.2d 1212 (Colo. App. 1975);
audspetb vs. Board of County Commissioners of god
Counx_y, Colo. , 667 P.2d 775 (Colo. App.
1983).
That this is the law is made more clear by the idea that a
zoning hearing is informal in nature, which action need not
have the precision of a judicial proceeding. See Monte Vista
Professional Building, Inc. vs. City of Monte Vista, 35 Colo.
App. 235, 531 P.2d 400.
By way of rebuttal, Defendants point out to this Court
that the Approval Resolution contains the following
"That the proposed amendment implements the
and meets the standards and requirements
Planned Unit Development Provisions of the
County Zoning Resolution."
It
findings
Defendants
record to
is
the County's position that, to the
are
necessary, the
concede, however,
above -quoted one
language:
purposes
of the
Garfield
extent express
is sufficient.
that evidence must be
support the findings required by its
in the
own Zoning
Resolution. Defendant, Garfield County, strongly disputes that
8
•
the modifications criteria are appropriate. Even so, the
standard of those criteria have been met. The first finding
that Plaintiffs direct the Court's attention to is found at
Section 4.12.03(2) of the Zoning Resolution, which "is not
granted solely to confer a special benefit upon any person".
This statement appears at the last of a series of criteria as
to modification of PUD's, the other criteria will be discussed
following.
It is admitted that there is - 1) -owner of the_ subject
property. However, it does not follow from this that the
approval was granted solely for the benefit of a particular
person. This is clear, from the fact, that the County found
the modification was consistent with the Garfield County Master
Plan. This consistency argues against Plaintiffs' objection.
Secondly, the County, in approving the modification, imposed
substantial off-site road impact conditions on the Developer
which had not been done by the County in 1977. These
conditions will promote the public good and not confer a
benefit on just the Developer. Finally, the testimony is full
of references to the better quality of the new PUD than the
original plan. Since land use planning is related to the
general public welfare, this finding contradicts the argument
that the modification was solely for the benefit of one (1)
person.
9
• •
Plaintiffs also challenge the fact that there is no
express finding that the modification is not injurious to the
interests of land abutting upon or across the street from the
PUD or the public interest (see Section 4.12.03(2) of the
Zoning Resolution). As to this criteria for approval, the
record is harmonious from both proponents and opponents of the
proposal that the clustering concept of the residential units
and the preservation of open space _was,. in__the new PUD, a great
improvement over the estate lot ccnicept contained in the 1977
approval.
The Developer's land planner, Mr. Liston, indicated that
eighty-seven percent (87%) of the Developer's property would be
an Open Space/Agricultural function. Among other things, the
purpose of the clustering concept is to put together the
residential uses and leave open property around the perimeter
of the project so as to have the least amount of impact on
adjoining agricultural uses. Since the number of units allowed
under the Approval Resolution, is the same as under the old
PUD, and the quality of the development has been greatly
improved, it cannot be argued that there is a substantial
adverse impact on adjoining property owners. In this regard,
it must be pointed out the Plaintiffs do not fall within the
class of people intended to be protected by this provision.
Plaintiffs criticize the Approval Resolution since it
does not contain express language that the amendment promotes
the efficient development and preservation of the entire PUD.
10
'Po the extent the issue is competent evidence in the record to
support such a finding, Garfield County argues that there can
be no question but such a finding can be made. Of most
significance is the testimony of Mr. Liston, the Developer's
land planner. The estate lot concept, which the County had
approved in 1977, was now a "dinosaur", and that what was being
proposed was a more modern concept of a residential community
in an agricultural surrounding (Tr:, =Page 24). Mr. Liston's
perception ---of -this matter was echoed_. --by the County -Planning
staff, where Mr. Stranger found that:
"The overall layout of this subdivision design is
very good. The relationship to residential areas and
the access to open space for recreational facilities
is well designed and appropriate for the type of
development that is proposed...The design - the
design is a good example of efficient design
utilizing PUD technics of cluster housing,
preserving large tracts of open space, minimizing in
the structure, development and promoting harmonious
design." (Tr., Page 12). Even those who opposed
the project did not attack the proposal on this
basis.
Conditions No. 1, 2 and 5 address the density issue of
the subject development. A reading of the Transcript of the
public hearing makes clear that this was a prime concern on
residents in the Missouri Heights area. By requiring the
Developer to agree to the vacation of the previously filed
final plat and the abandonment of the previous PUD zoning, the
County is imposing on the Developer the wishes of the public.
In addition, the down -zoning of the balance of the Developer's
property to A/R/RD is consistent with the critisism of the
11
• •
development that the density was too great. Condition No. 5
put an express cap on the number of units which could be
constructed at the number one hundred thirty-one (131). Again,
this is consistent with the position of the County staff and
the public that density was a critical issue.
The County staff, and some members of the public, were
concerned about fire protection since the clustering concept
involves a greater risk that fire in-- ne.-:;;structure would move
to another. With the consent---:of—the—Developer, these items
were included as Condition Nos. 3 and 4.
Condition No. 7 had to do with protection of private
ditches. Concern about these ditches came in at the public
hearing (Tr., Page 57) and by letter (Exhibit "L").
The remarks of Mr. Stranger and the County Planning staff
comments (Tr., Pages 6-9 and Exhibit "D") are sufficient basis
to support the County's findings as to the designation of zone
districts and the approval of a zone district text.
III. THE COUNTY'S CONL EMEATION AUTEDRITY
It cannot be questioned that the County does have the
ability to condemn Plaintiffs' property, if it should so choose
and, if, in the determination of the Court, adequate
compensation is paid to the Plaintiffs. (See Section 43-2-112,
C.R.S., as amended) That decision by the County is of
12
• •
necessity, legislative in character. In the absence of fraud
or prejudice, this Court cannot question the County's
evaluation of public necessity for the taking. (See Wadlow vs.
Kanaly, Colo. , 511 P.2d 484 (1973).
Knowing the above, the Plaintiffs have chosen to raise
the condemnation issue in the Rule 106 action. Several obvious
things need to be said. The first is that the word
"condemnation" does not appear in ether the Transcript _.of : t-h.e.--
public hearing or the subject Resol4t44-1s of the County...- - How. -----_.- --
the Developer complies with Condition 6 of Resolution No. 83-27
is an incidental matter to the Rule 106 proceedings. If, at
some point in the future, condemnation proceedings are
instituted against the Plaintiffs by the County, at that time
Plaintiffs could raise the issue of "unlawful delegation of
authority". That issue is irrelevant here and should not be
considered.
By way of showing the speciousness of Plaintiffs'
argument, it is sufficient to show that there is no factual
basis in the record for this Court to consider this
condemnation question. That is, in order for Plaintiffs to
posture this case for the Court's consideration, it must
manufacture evidence as to the Plaintiffs' legal interest and
what property of theirs would be taken, in order to comply with
County Road Standards. In addition, this Court has no
jurisdiction to consider this matter since no condemnation
action has been filed.
13
• •
Plaintiffs strongly argue that the subject Resolution
constitutes an assignment of the County's right of eminent
domain to the Developer. However, Plaintiffs fail to specify
what it is that constitutes this assignment. To aid the Court,
these Defendants indicate that Condition 6 of Resolution No.
83-27 requires the Developer to do certain things in regard to
off-site road improvements. The introductory part of that
paragraph reads as follows:
7J
"That,prior.... to_, preliminary plat approval, the
applicant shall demonstrate that it has made its
best efforts to accomplish the following off-site
road improvements on County Road 113, which, in any
case, must be completed in accordance with Garfield
County Design Standards and to the satisfaction of
the Garfield County Road Supervisor, prior to final
plat approval, or provided for by a subdivision
improvements agreement:
a) At a point approximately three point four (3.4)
miles East of the intersection of Colorado State
Highway 82 and County Road 113, the applicant shall
reconstruct County Road 113 to Garfield County
Road Standards, which work shall consist of
pre -engineering evaluation, acquisition in
right-of-way and construction of a new section of
County Road 113 for a distance of approximately one
eighth (1/8) mile;..."
The plain meaning of this language provides no basis for
Plaintiffs' argument. Condemnation language is not used, and
one cannot conclude from the language that it is intended. The
intent of the language is that the Developer acquire the
right-of-way by means of purchase. No other conclusion can be
reached from the subject language. That the purchase of
necessary right-of-way could prove difficult was provided for in
14
• •
Paragraph 6, where it makes reference to "its best efforts",
and at Paragraph 8, where an extension of time is provided
for. If the approval had contemplated condemnation
proceedings, this flexibility, in terms of time perimeters,
would not have been necessary.
Alternately, Plaintiffs' argument can be read for the
proposition that it is somehow illegal for a developer to
contribute funds to a public entityrd.for the public entity,
then -;-to perform the work. This concept would have a chilling
affect upon the ability of counties to deal with development
costs, and runs contrary to the authority granted the counties
by Section 30-28-101, et seq., and the Colorado Court of
Appeals in the case of C&M Gr&vel,Y,C.Qmpany vs. Bo&rd of County
Commissioneu, Colo. App. , 673 P.2d 1013 (Colo.
App. 1983), at Page 1017, "Socioeconomic Impacts". It is
fiscally responsible for the County to require the Developer to
pay the cost of the impact of its development, and Plaintiffs'
argument should not be allowed to stand in the way of this good
government practice.
Finally, Plaintiffs will not know, nor will this Court,
who the named Petitioner is in the condemnation proceeding
until it is filed. If the Petitioner were the Developer in
this case, then Plaintiffs' argument raised here in the Rule
106 proceeding might have some validity. If, however, the
Petitioner were the County, in conformance with State Statute,
then no question could be raised about the propriety of the
15
• •
action. It is sheer speculation on Plaintiffs' part to conjure
up a Petition in condemnation that has not been filed to assume
that the Developer, and not the County, would be the
Petitioner, and that a fact situation exists which requires the
condemnation proceedings. Surely, this Court need not go this
far into the realm of the unknown in order to vindicate
Plaintiffs' rights.
-IV, AVERAG5J G AND TRA -N -'. BBING OF
DBE ILLES WITH1,N_TILE PUD
Plaintiffs' argument simply is that the County Zoning
Resolution states, as a goal, that averaging and transferring
of densities should be for the purpose "to achieve high
standards of design and leviability." (Section 4.07.06)
Plaintiffs follow up on this significant legal issue by stating
that the record contains "self-serving laudatory comments". At
this, Plaintiffs' argument ceases.
It is absolutely clear, from the record, that the
internal design of the proposed PUD was of high quality, and
that it was a great improvement over the existing PUD. The
Director of the Garfield County Department of Development,
Dennis Stranger, said:
"Generally, the overall layout of this subdivision
design is very good. The relationship to
residential areas and access to open space for
recreational facilities is well designed and
appropriate for the type of development that is
proposed...The design - the design is a good example
of efficient design utilizing PUD technics of
cluster housing, preserving large tracts of open
16
• •
space, minimizing in the structure, development and
promoting harmonious design. The recreational
amenities are high quality and exceptional for the
one hundred thirty-one (131) dwelling units...The
impression we feel when you are driving through the
area will be relatively low density
Recreational/Residential sort of development,
surrounded predominately by large tracts of land
that are shown on the plan. (Tr., Pages 11-12)
Plaintiffs have chosen to ignore the fact that the
Developer's proposal is based upon a modern concept of
clustering_ of_ housing and preserving- open space. The
=s,
Developer's land planner, Ron Listota-ted--- that eighty-seven
percent (87%) of the Developer's property would remain in open
space, "will be in an open space, agricultural function".
(Tr., Page 21) Given the County's approval of the prior PUD in
1977, in its concept of estate lots, with neither the
perception nor access to open space, the new PUD is a great
improvement.
Comments from the public echo the statements of both the
County staff and the Developer's land planner. Mr. Strang, a
resident of Missouri Heights, compared the new PUD to the
previous proposal:
"We think it's cut the land up much too much. We,
from our perspective, we would like to see this
program approved over the original plat because we
think it tears the country up a little less. We
feel that's a better ." (Tr., Page 34)
Since the record contains professional opinion and public
sentiment in support of the new PUD, Plaintiffs' argument must
fall.
17
• •
Finally, at Section 4.07.06 of the County Zoning
Resolution, statement is made as to PUD densities as:
"The overall average residential density shall be no
greater than four (4) dwelling units per gross acre
within the PUD."
Thus, the plan at issue, greatly exceeds the design
requirements of the County's Zoning Resolution.
V. TIME LIMITS QL TILE_COUNT'.41,INaG 2ESO[&TIQ1N
As is clear from the statement of facts by the parties
and the record before the Court, that the Developer's proposal
was controversial, and much time was taken to consider it, both
by the County Planning Commission and the Board of County
Commissioners. That Plaintiffs chose not to participate in
this lengthy process cannot help their case. Be that as it
may, Plaintiffs have argued that the County did not act within
the time perimeter set forth in the Zoning Resolution,
therefore, the act is void. Plaintiffs have cited Section
4.08.01 of the Zoning Resolution as a basis for their argument,
but they have failed to inform the Court of Section 11 of the
County Zoning Resolution. It provides, in pertinent part:
"Unless otherwise specifically provided herein, time
limitations imposed upon the Board of County
Commissioners, the Planning Commission, or any other
County officer or body, by this Zoning Resolution,
shall be interpreted as having no consequence other
than authorizing any interested party, upon the
expiration of such limitation, to request judicial
relief in the nature of mandamus, requiring the
18
• •
officer or body to make the determinations or
decisions required by this Resolution. The
expiration of any such time limitation shall not, in
and of itself, be considered the approval or denial
of any application, plan or question under
consideration."
Obviously, the Plaintiffs are not the Developer, who is the
person usually complaining about the slowness of the County
process. Also, Plaintiffs have made no showing that they
applied to Court for a mandamus action against the County.
Rather, Plaintiffs' argument is tjat_;" because the time;Jimit
was not made, the action is void.
It is clear, in the State of Colorado, that zoning
proceedings are an informal action, where the niceties of
jurisdiction need not be followed exactly. Since there is no
violation of the County Zoning Resolution, the Commissioners'
decision must stand.
VI. ALTERATIONS OF ZONE DISTRICTS
WITHOUT COUNTY APPROVIL
Plaintiffs take objection to the following sentence in
Section III(c) of the text of the PUD, which is Exhibit "C" to
Resolution No. 83-27. That sentence provides:
"The size of any zone district may increase or
decrease by a maximum of ten percent (10%) during
the subdivision process without any amendment to the
PUD zone map."
As this Court is well aware, the PUD zoning approval is simply
the first step towards final approval of the project which will
allow the Developer to sell homesites. In addition to the
19
• •
zoning approval, the Developer must go through the subdivision
process,
as required by Section 30-28-101, et seq., C.R.S., as
amended, and the Garfield County Subdivision Regulations. By
law, this process requires notice of public hearing so that it
is incorrect for Plaintiffs to assert that modifications will
be made without public hearing. This adjustment provision is
useful because the zone district boundaries are estimated
rather than calculated and surveyed.=_In any event, in large,
low density subdivisions a ten - pet -dent- -. (10%) variance-- -is --..not.----.
particularly significant. Given the amount of open space
provided for in the proposal, which acts as a buffer to
adjoining property owners, the judgment of the County in
allowing for this variation is sound and should be upheld.
VII. PLAINTLF. '$' LACK -RiOUI$ITE ,STANDING
TO BEING TSI ��T_IQ1
American Jurisprudence requires that there be a case or
controversy in order for the Court to have jurisdiction to
grant relief and, normally, Courts will not relief unless the
Court determines that the fact situation is ripe for judicial
review. (See heron vs. C and�_PI_Jlenmer. 159 Colo. 314, 411
P.2d 314 (1966). The fact situation of the instant case is
such that this Court should decline to grant the relief
requested by Plaintiffs.
Plaintiffs are not owners of property in the PUD, are not
owners of property either abutting the PUD or across the street
20
• •
from the PUD, and do not live in the nearby area. They do own
property adjacent to the access road to the PUD, however, said
property is approximately three (3) miles from the boundary of
the PUD. Plaintiffs did not appear at the public hearing on
January 10, 1983, and there is no basis in the record for the
objections they are making at this time. Given the Plaintiffs
have a remedy in a condemnation proceeding, this Court should
not continence those same arguments in the Rule 106 proceeding,
since the condemnation proceeding`ma_ not be, and certainly has
not been, filed.
It is also clear that the Plaintiffs do not come within
that group of individuals that either Colorado Statutes or the
Zoning Resolution contemplate to be considered and protected in
a PUD approval. In the State Statute, the only reference to
those persons to be protected, as to PUD, is contained in
Section 24-67-106, C.R.S., as amended. There, the Statute
indicates that no substantial modification of a PUD can occur
unless the modification is 1) consistent with the development
of the PUD and 2) does not affect lands abutting upon or
across the street from the PUD or the public interests. Thus,
the universe of people intended to be protected are persons who
own property in the PUD and property owners adjoining the PUD.
At Section 104, the Statute requires that no PUD can be
approved unless such plan is in general conformity with any
Master Plan of the County, 104(1)(f).
21
• •
The Zoning Resolution deals with this question in several
ways. At Section 404, it requires that the PUD approval be in
general conformity with the County's Master Plan. Secondly,
Section 407, under Standards and Requirements, requires that
the PUD shall "have an appropriate relationship to the
surrounding area..." (4.07.03(1)), and as noted by Plaintiffs
in their Brief, at Section 4.12.03, that substantial
modifications cannot be made, except ;in conformity with the
above—stated statutory criteria. - -A-t- Section 12 of the Zoning
Resolution, certain persons are given rights by the County to
enforce the provisions of the Zoning Resolution. In pertinent
part, that Section provides:
"In case any building or structure...or any land
is or is proposed to be used in violation of any
regulation or provision of this resolution...or
any owner of real estate within the district
in which...such land is situated...may
institute...other appropriate action."
Although, generally, this is a broad grant of authority under
the facts of this case, this Section means that only those
persons inside the PUD are empowered to protest it. In
summary, under both state law and the Zoning Resolution,
Plaintiffs are not in that universe of persons intended to be
considered and protected by the approval of the PUD.
VIII. 2j,$INT1Ef BRIEF SHOU E .TRICKEN
Plaintiffs' Brief is not in conformance with Rule 10,
22
• •
C.R.C.P., and Rule 32, C.A.R., since Plaintiffs' Brief is
single spaced. Therefore, Plaintiffs' Brief should be stricken
from the records of this Court.
IX. CQ.NCjLUS1CIN
The most significant case in Colorado land law, at this
time, is Ma 9_,Li.3 v sColo.
638 P.2d 297-'(1981), where the Co ado Supreme Court held as
to a municipality of the State of Colorado, that citizens have
the right of initiative and referendum with regards to land use
decisions. Curiously, this right does not apply to county
decisions. (See Colorado Constitution, Section
Because rights of the citizens are based upon the
Colorado Constitution, absent a defect in the election
proceeding, a Court has no ability to reverse the outcome of
the election, whether that election is based upon substantial
evidence or good planning. By ruling, as it did, the Colorado
Supreme Court is establishing a doctrine of self-restraint in
the land use area. Thus, the Courts should be looking at the
process by which decisions are made, as opposed to the outcome
or quality of those decisions.
In this case, the public was greatly involved in this
decision-making, even if the Plaintiffs were not. The record
is replete with comments that the hearing room, on January 10,
23
• •
1983, was packed, and, obviously, this land use application had
a long history. When one looks at the record as a whole and
compares that to the Resolution of approval, one sees that the
decision -makers are listening to the electorate, and that there
is a basis in the record for each of the conditions of
approval. Clearly, the road conditions were conditions which
the public demanded to be attached to this approval. That
off-site road conditions could be attached, at this time, was a
major argument in favor of this 'apjroval,..as opposed to
allowing the prior PUD to stand. Secondly, the County required
the Developer to vacate the previous plat and abandon the
previous PUD zoning, which, generally, the public was in favor
of. The down -zoning of the majority of the Developer's
property to A/R/RD was again consistent with the public
wishes. In summary, what we have here is a public process that
works, where the wishes of the public become manifest in the
decision of the County Commissioners. Not, coincidentally, the
quality of the decision is very good.
In contrast to this, the Plaintiffs herein do not own
property in the PUD, are not adjoining landowners, but rather
are incidentally affected by the road improvements, which may
or may not occur sometime in the future. The Plaintiffs did
not participate in the hearing, and there is no basis in the
record for the objections they are making now. Clearly, the
Plaintiffs' lawsuit is a transparent attempt to obtain leverage
24
• •
ay<a:nst the County and the developer as to future litigation.
That the Plaintiffs have not addressed the basic issues
discussed in the public hearing, or involved in the PUD, is
indicative of the fact that they have no real interest in this
matter. Where the record is so strong, and the conditions of
approval can so directly be related to public sentiment, this
Court should not give credence to the hypertechnical arguments
of the Plaintiffs.
Respectfully submitted:
Earl G. Rhodes, #6723
Garfield County Attorney
Attorney for Defendants
P. 0. Box 640
Glenwood Springs, CO 81602
Telephone: 303/945-9150
25
• •
CERTIFICATE 0!' MAILING
1 hereby certify that a true and accurate copy of the foregoing
DEFENDANTS' RESPONS[VE BRIEF, MOTION TO STRIKE, AND MOTION TO DISMISS
was mailed this J\ day of May, 1984, to the following:
Robert W. Hughes, Esquire
533 E. Hopkins, Third Floor
Aspen, CO 81611
T. Peter Craven, Esquire
P. 0. Box 1105
Glenwood Springs, CO 81602
DISTRICT COURT, GARFIELD COUNTY, STATE OF COLORADO
Case No. 83CV72
REPLY BRIEF OF DEFENDANTS' CATTLE CREEK RANCH,
A JOINT VENTURE, AND FRANK LERNER
•
JUDITH L. THOMPSON, et al.,
Plaintiffs,
vs.
THE BOARD OF COUNTY COMMISSIONERS OF THE
COUNTY OF GARFIELD, COLORADO, et al.,
Defendants.
Defendants Cattle Creek Ranch, a joint venture, and
Frank Lerner ("Cattle Creek") by their attorneys OATES, HUGHES &
KNEZEVICH, P.C., herewith submit the following brief in reply to
Plaintiffs' opening brief:
I.
PRELIMINARY STATEMENT
A. Introduction. Plaintiffs principally contend
that Resolution No. 83-27 (the "Resolution of Approval") by
which the Defendant Board of County Commissioners ("Board") on
January 31, 1983 acpro-ed the Planned Univ Development ("PUD")
application of Cattle Creek for a clustered development of
dwelling units to be installed on 313 of its 960 acres of
property (the balance remaining essentially as open space and
for recreational use) is void on the grounds that:
j `
1:' MJ-. : 1- 198,1
E.
(ii‘Ar11_1_0 L.U. i'Lr:I
rri
1. The Resolution of Approval failed to
incorporate the technical wording of certain findings referred
to in Section 24-67-106(3)(b), C.R.S. 1973, applicable in the
case of modifications to a PUD;
2. There is no evidence in the record to
support those findings; and
3. The Resolution of Approval somehow purports
to assign to Cattle Creek Garfield County's right of eminent
domain.
We believe Plaintiffs' principal contentions are bent
largely on elevating technical form over substance and proceed
from an entirely distorted reading of the record.
Plaintiffs also assert other rather miscellaneous
grounds of error (concerning the timing of action by the Board
and the averaging of density), which they themselves treat
rather lightly and which, at best, appear specious, since in the
final analysis they depend upon inaccurate, incomplete and
misleading paraphrasing of the Garfield County Zoning
Resolution.
We also submit that Plaintiffs lack standing to
maintain this action.
B. Summary of Facts - The Record. Cattle Creek's
property lies approximately eight miles east of Colorado
Highway 82 by way of County Road 113, and consists of approxi-
mately 960 acres. Plaintiffs' properties abut County Road 113
approximately five miles east of Highway 82; hence, Cattle
Creek's property is approximately three miles from the
properties of Plaintiffs.
In 1977, Cattle Creek received PUD approval
(Resolution No. 77-131) for 131 dwelling units to be constructed
on all 960 acres of its property.
In conjunction with that
approval, Cattle Creek thereafter (on July 28, 1980) filed a
subdivision plat of the initial phase of its PUD -- some 67 lots
on 476 acres. No off-site road improvements had been required
of Cattle Creek in connection with this early PUD approval, much
(as it developed at the hearing on the approval here under
review) to the consternation of the Garfield County citizenry.
In 1981 and 1982 Cattle Creek twice sought approval of
a new PUD contemplating an increase in the number of dwelling
units to be built. Both of these efforts were unsuccessful,
each having failed to receive a recommendation of approval from
the Garfield County Planning Commission. See Exhibit D to
Authenticated Record ("Record").
The application for the new PUD culminating in the
approval from which this appeal has been taken was filed by
Cattle Creek on August 16, 1982. The County Planning Commission
thereafter recommended approval of this application [Exhibit D
to Record] and on January 10, 1983, a public hearing on the
application was held before the Defendant Board.
As is evident from the 75 pages comprising the
transcript ("Tr.") of the public hearing, which forms a part of
the Record on this appeal, the Cattle Creek proposal prompted
something of a spirited hearing at which several members of the
public (including several adjacent owners) attended and
expressed their views. Plaintiffs were conspicuously absent
from the meeting. Needless to say, there were those from the
public in attendance who were opposed to the proposal and those
who were in favor of it. A recurring theme to the public
comment involved concerns with the need for improvements (e.g.,
widening, straightening and paving) to County Road 113 and other
access roads, both in the vicinity of the Cattle Creek property
and further west in the vicinity of Plaintiffs' properties and
the general sentiment that Cattle Creek should be required to
pay for these off-site road improvements. See generally Tr.
pp. 35-46; p. 49; pp. 51-52. There also was a strong sense of
respect expressed by members of the public for the comments and
recommendations of the Board's advisory staff (planning, roads,
engineering, etc.). Tr. p. 31.
Details of the Cattle Creek Proposal -- its favorable
comparison to surrounding uses, the clustering concept, the
zoning, the pros and the cons of the site plan, and
compatibility with the County's Comprehensive Plan along with
background on chancing conditions in the vicinity, including the
parceling of large agricultural estates into residential
subdivisions, were presented by Dennis Stranger of the Garfield
County Planning Office. Tr. pp. 6-14. The Planning Office had
recommended approval of the proposal in an earlier staff
memorandum concluding in part [Exhibit D, p. 4 to Record]:
-4-
"The present proposal meets the guidelines of
the Comprehensive Plan. The costs of
providing county services to this area will,
at worst, remain the same as the costs of
providing services to the approved 131 units.
In fact due to the compact design of the
subdivision, the provisions of services will
probably be somewhat less.
The proposal offers a distinct alternative to
typical 5 acre subdivisions by preserving
large maintainable, farmable and, most
important, useable tracts of open space. The
Planning staff and Planning Commission have
worked through numerous "5 acre type"
subdivisions and have found that even this
arbitrary standard has distinct design
problems at times (for example, Hawkridge; the
developer could demonstrate that good design
necessitate small lots). The Comprehensive
Plan guidelines are applied on a case by case
basis.
The present proposal must be reviewed in terms
of its impact on adjacent properties. Here
again,the present proposal, physically has
less impact on adjacent neighbors then the
approved 131 units simply because the units
are further away from adjacent property
owners."
Leonard Bowlby, the Road Supervisor for Garfield
County, testified as to probable impacts of the Cattle Creek
proposal on its servicing roads and offered mitigative measures,
which ultimately were incorporated into the Resolution of
Approval. Tr. pp. 14-17.
Ron Liston, the land planner for Cattle Creek,
described the new proposal in great detail and commented as well
on its relationship to the Comprehensive Plan and on changing
conditions, including in the real estate marketplace that
militated in favor of adoption of the new plan. Tr. pp. 17-26.
At the conclusion of private citizen comment from the public
sector, which in the main appeared to be generally favorable,
Liston ably addressed virtually each concern raised by the
private citizens commenting. Tr. pp. 59-65.
The Record also contains the detailed recommenda-
tions of approval of the Board's Advisory Staff, which
recommendations, however, proposed rather exacting demands of
Cattle Creek; these, in turn, were incorporated into the
conditions contained in the Board's Resolution of Approval.
In short, the Record and Transcript plainly bespeak a
hearing at which competent evidence on both sides of all issues
relevant to a major land use proposal was presented and
vigorously debated. This evidence was considered and acted upon
approximately three weeks later when the Board, by a two to one
vote, approved the Cattle Creek proposal. With its several
conditions, including as to road improvements, fire protection
and downzoning, the Resolution of Approval clearly reflects due
and deliberate concern for all consequential matters presented
at the hearing. The process, we submit, was well vindicated in
this instance.
C. Summary of Applicable Law. The law or. review
under Rule 106 (a) (4) , Colo. Rules Civ.
Pro., is
Weil-sett.led. A
presumption of validity and regularity attends the official acts
of public officers. City and County of Denver v. District
Court, 196 Colo. 134, 582 P.2d 678, 684 (1978).
Judicial review
extends only to the record made at the proceedings being
reviewed and, in the land use context, the reviewing court does
not function as a "super zoning commission." See `nerally
Hazelwood v. Saul,
Colo. , 619 P.2d 499 (1980); Garrett
v. City of Littleton, 177 Colo. 167, 493 P.2d 370 (1972).
Rather, where there is any competent evidence to support it, or
conflicting evidence, or where the issues are fairly debatable,
the decision of the administrative body must be upheld. King's
Mill Horne Own. Ass'n v. City of Westminster, Colo.
557 P.2d 1186, 1190 (1976); Hudspeth v. Board of Co. Comm'rs.,
Colo. , 667 P.2d 775, 778 (1983). The plaintiff bears
the burden of proving the invalidity of government action under
these review standards beyond a reasonable doubt. Corper v.
Cty. and County of Denver, Colo. , 552 P.2d 13, 15
(1976); Ford Leasing Develop. Co. v. Board of Co. Comm'rs., -
Colo. , 528 P.2d 237, 241 (1974). Overriding all of
this, of course, is the notion that the land use process, in the
final analysis, is essentially a political process compelling a
measure of judicial restraint. See generally Margolis v.
District Court, Colo. , 638 P.2d 297 (1981).
II.
ARGUMENT
A. All Findings Recuisite to the Board's Action Were
Made Or Are Implicit in the Record. Plaintiffs' argument that
certain findings mandated by Section 24-67-106(3)(b), C.R.S.,
and by the correlative section of the Garfield County Zoning
Resolution, proceeds from the fundamental misconception that
Cattle Creek sought and the Board approved but a modification of
an existing PUD. Although the proceedings were at times
referred to in the public hearing as modification hearings and,
indeed, the Resolution of Approval itself is styled as a
modification, form ought not to control substance and the plain
fact of the matter is that the proceedings below contemplated an
entirely new PUD in conjunction with a discard of the earlier
PUD. This is abundantly clear from condition one (1) of the
Resolution of Approval, which provides:
"1. The applicant, Cattle Creek Ranch Joint
Venture, shall agree to the vacation of the
final plat, which was approved on July 28,
1980, and the previous Planned Unit
Development Zoning, which was authorized by
Resolution No. 77-113, which approval shall
be evidenced by a document submitted to the
Board prior to the Board's signing of this
Resolution." Emphasis supplied.
It is rather definitional that for something to be
modified the original, as modified, must survive not, as here,
be vacated and supplanted with a and superceding version.
To modify is "to alter; to change in incidental or subordinate
features; * * *." Black's Law Dictionary Rev'd. 4th Ed., i•?est
Publ. Co. All of this was explained by the Garfield County
Attorney (Tr. pp. 68-69) and, of course, the 1 -..embers oi: `he
public in attendance seemed to understand. See e.g., Tr.
pp. 39, line 8; 42, lines 18-19; 55, line 1. The differences
between the PUD approval here under review and the approvals
obtained by Cattle Creek in 1977 (which Plaintiffs inexplicably
suggest was merely modified) loomed large and predominant -- not
incidental and subordinate.
Moreover, even if headings and labels are to be
considered as redefining substance and the proceedings below
deemed to be in the nature of a modification [but Cf., Corper v.
Cty. and County of Denver, supra, 552 P.2d 13, 15), it is
noteworthy that in the findings actually made the Board
announced in its Resolution of Approval:
"6. That the requested zone change amendment
and plan approval meet all requirements of the
zoning resolution of Garfield County, * * *."
Among other requirements of the Garfield County zoning
resolution thereby incorporated as having been met in this case
is the requirement that modifications to a PUD be based on the
identical findings mandated by Section 24-67-106(3)(b). In
short, the findings Plaintiffs suggest are absent from the
Board's approval were, in fact, made; one simply has slightly to
scratch beneath the surface to find them.
Furthermore, Plaintiffs' single-minded fixation with
form and technical wording overlooks settled law in this area.
Where the record itself supports the findings, the lack of their
expression in the resolution resulting is of no consequence.
Hudspeth v. Board of Co. Comm'rs., supra 667 P.2d 775, 778; see
also Sundance Hills Home. Ass'n v. Board of Co. Co?mm'rs.,
Colo. 534 P.2d 1212 (1975), where the Colorado Supreme
Court quoted with approval from Cugini v. Chiaradio, 96 R.I.
120, 189 A.2d 798 (1963) as follows [534 P.2d, at 1216]:
"* * * it does not follow that a decision of
the zoning board will necessarily be reversed
absent express findings of the ultimate facts
upon which the decision must rest. It is
well settled that, if upon an examination of
the record this court can find from the
evidence contained therein that the board
necessarily acted on the basis of such
findings, although not expressed, in the
interests of practical justice we will not
reverse the decision. Where a board of
review acts affirmatively upon an application
for an exception the granting of which is
conditioned upon the finding of ultimate
facts prescribed in the ordinance, we will
hold, in the absence of an express finding
thereon, that there is an implicit finding in
the decision of these prerequisite facts when
the state of the evidence is such as would
warrant the making of such finding by the .
board. * * *"
As discussed below, the record clearly sustains any findings
necessary.
Plaintiffs' reliance on the decision in Tri-State
Generation, etc. v. City of Thornton,Colo. , 647 P.2d
670 (1982) is entirely misplaced. That case involved a consti-
tutional challenge to the entire PUD ordinance of the city and
the language Plaintiffs here have quoted from that case simply
sets forth the standards by which a PUD ordinance must be
examined in the face of such an attack. The language is plainly
inaposite to this case.
B. The Record Supports the ronroval Granted. As
discussed above, while we believe that in the circumstances of
this action the criteria for modification of a PUD are not
appropriate, Plaintiffs have nonetheless limited their critique
of the Record to a supposed want of competent evidence to
sustain two findings necessary to a PUD modification:
1. That the modification is not granted solely
to confer a special benefit upon any person; and
2. That the modification does not affect land
abutting or across the street from the PUD or the public
interest in a substantially adverse manner.
Interestingly, in their discussion of the first
criteria, Plaintiffs have conveniently misstated the statutory
finding required by omitting the key word "solely." It is
Plaintiffs' careless and inaccurate paraphrasing of the statute,
however, that explains their clumsy analysis and simplistic
conclusion that because Defendant Lerner stood to benefit from
approval, and regardless of the other benefits to be derived by
the public in general, the proceedings are void. The necessary
implication in Plaintiffs' analysis that no one can benefit from
a PUD modification is absurd in the extreme. The statute only
condemns a modification granted solely to benefit a (single)
person. The fact that Mr. Lerner stood to benefit, which is a
pure given since he was the applicant, is a far cry from
supposing that he alone did, and the Record plainly indicates
otherwise. If nothing else, the mere fact that by virtue of
this approval the developer became committed to off-site road
improvements where it was not so committed in the earlier PUD is
a distinct advantage benefiting the public in general. Nearly
every citizen who spoke at the public hearing emphasized this
point. Tr. pp. 30-57.
Moreover, inasmuch as the rational underpinnings of
zoning and land use controls lie in the public health, welfare
and safety, the fact that the new PUD better promoted the county
Comprehensive Plan [see generally Tr. pp. 6-8; 22-26] and that
the clustering concept contemplated by the new plan fostered a
better quality environment and more sophisticated use of the
land than the plan previously approved [see Generally
Tr.. pp. 12], compels the conclusion that the public as a whole
benefited. That is all that is required by the statute.
Next, Plaintiffs suggest that the Record is devoid of
evidence that land
abutting or across the street from Cattle
Creek would not be affected in a substantially adverse manner.
Plaintiffs' contention is patently shallow and proceeds from the
ludicrous proposition that only one adjacent land owner
testified at the hearing and that is not enough on which to base
an approval.
that the only
the testimony
The necessary implication in Plaintiffs' thesis
competent evidence that can exist on this issue is
of abutting or adjacent owners or owners of
property across the street is totally untenable. Moreover, for
that matter the favorable opinion of merely one abutting
landowner would be enough to sustain the Board's action under
the applicable review criteria. This Court's inquiry is limited
to determining whether any competent evidence supports the
Resolution of Approval. Beyond that, the quantum of evidence is
immaterial.
• •
Plaintiffs' attempt to avoid the conclusion of the
County Planner that the new PUD would have less impact on
adjacent properties than the previous PUD [Exhibit D, p.4 of
Record] by suggesting that the previous PUD did not indicate
whether or not it had a substantially adverse affect is
circuitous and artificial, at best, and conveniently overlooks
that Plaintiffs have chosen to analyze the new PUD under
modification criteria. As such, it is axiomatic that for
purposes of the so-called adverse affect, the modification can
only be analyzed in terms of what it modified and where, as
here, it improves the original, it passes the test. What the
original held in terms of adverse affect is totally academic,
except as a point of reference for determining whether the
modification improves, maintains or detracts from the original.
Plaintiffs' efforts to obfuscate aside, in the final
analysis the Record is clear and strongly supportive of the new
Cattle Creek PUD as being compatible with the Comprehensive
Plan, compatible with surrounding uses of land, more responsive
than the previous PUD to existing conditions both from the
standpoint of the real estate marketplace and neighboring
landowners, and as incorporating more sophisticated land use
planning concepts. On these points, the Record is not even
fairly debatable. Virtually every concern expressed by the
members of the public in attendance was translated into a
condition of the approval to which Cattle Creek must affirma-
tively respond.
-13-
C. The County Has Not Assigned Its Power of Eminent
Domain. Plaintiffs inexplicably contend that the County has
delegated to Cattle Creek its right of eminent domain. There
simply is nothing in the record to sustain this proposition, and
certainly nothing in the Resolution of Approval itself, which
did no more than obligate Cattle Creek to employ its best
efforts to facilitate certain road improvements. The manner in
which that is to be done, be it by private acquisition or by
condemnation by the County (with Cattle Creek contributing to
the award), or otherwise, obviously is not before this Court at
this time. Simply stated, the issue Plaintiffs have sought to
raise in this respect is not presently justiciable or ripe; no
controversy exists. In Sundance Hills Home. Ass'n. v. Board of
Co. Comm'rs., supra, 534 P.2d 1212, for example, the trial court
had concluded that because adequate sewage facilities were
unavailable at the time of a rezoning resolution, that
particular deficiency was fatal to the approval. Noting that
the rezoning resolution required the developer to comply with
subdivision laws and review processes, including demonstrating
the availability of adequate sewage, prior to the commencement
of building, the Supreme Court reversed and stated [534 P.2d at
1215-1216]:
"The court cannot anticipate a future abuse of
discretion by the Board. It may be assumed
that the Board will follow its own regulations
and thoroughly consider the impact which the
project's sewage will have on the immediate
vicinity and the surrounding metropolitan
area. Sundance has not in any way been
prejudiced; it will be able to protest --
should that be necessary -- when the Board
again considers the issue."
-14-
The same reasoning applies here. If it should come to
be that condemnation is the only way in which the road improve-
ments can be done, Plaintiffs are free at that point in time to
raise all the issues relevant to those proceedings, including
the propriety of what they contend to be a delegation of
condemning power, should that issue then be material.
D. Plaintiffs' Lack Standing. Standing for purposes
of participation at a public hearing is different from the
standing necessary for one to be able to seek judicial review
and commence an action under Rule 106 (a) (4) . Cf., Woda v. City
of Colorado Springs, Colo. 570 P.2d 1318, 1319 (1977).
Even assuming Plaintiffs had participated in the proceedings
here under review, which they did not, Plaintiffs cannot be
viewed presently as substantially aggrieved by the decision of
the Board in approving the new Cattle Creek PUD. Plaintiffs'
property is entirely remote from the Cattle Creek property and,
certainly from the standpoint of the review criteria Plaintiffs
have sought to invoke (i.e., no adverse affect on adjoining
property or property across the street), Plaintiffs are not
within the class sought thereby to be protected. Moreover, the
new PUD approval did not contemplate an increase in density,
which might theoretically otherwise have given Plaintiffs
standing to object since their property abuts a traffic route.
Rather, stripped to its essentials, it is clear that
Plaintiffs' real objection relates to the impact that they may
-15-
or may not sustain if, as and when the off-site road improve-
ments contemplated by the Resolution of Approval are undertaken.
That impact, we submit, is remote and attenuated from the issues
material to review of the Cattle Creek PUD approval. Indeed, if
Plaintiffs and Cattle Creek are not able to strike an accord at
some future point in time on road improvements and acquisitions
for widening, and it then becomes advisable for the County to
condemn, it is then, in that context but not before, that
Plaintiffs legitimately could assert standing. They should not
be allowed to bootstrap that remote and far off particular into
a right, otherwise non-existent for lack of substantial
aggrievement, to maintain this action.
E. Plaintiffs' Miscellaneous Objections are Without
Merit. Plaintiffs' contention that the County did not act
timely on Cattle Creek's application conveniently overlooks that
[Section 11, Garfield County Zoning Resolution]:
"Unless otherwise specifically provided
herein, time limitations imposed upon the
Board of County Commissioners, * * * by this
Zoning Resolution, shall be interpreted as
having no consequence other than authorizing
any interested party, upon the expiration of
such limitation, to request judicial relief in
the nature of mandamus, requiring the officer
or body to make the determinations or
decisions required by this Resolution.* * *"
The fact that Cattle Creek -- or for that matter,
assuming them to be interested parties, Plaintiffs earlier --
chose not to avail themselves of their right to mandamus the
Board sooner to act is hardly something of which Plaintiffs now
can complain. As the zoning resolution unmistakably makes clear,
the timing on the adoption of the Resolution of Approval in this
case is without consequence.
Plaintiffs' contention that somehow Cattle Creek can
alter the size of zone districts without County approval, further
notice or hearing, is simply without merit. Further notice and
public hearing must accompany subdivision review, which is the
required next step and which is the only level at which the zone
districts can change. There is nothing in the language of the
PUD upon which Plaintiffs have focused that, in the subdivision
process, would prevent the County and Cattle Creek from effecting
the kind of notice that Plaintiffs claim, in the circumstances,
is their right. Once again, the language in Sundance Hills is
aposite [534 P.2d, at 1215]: "The Court cannot anticipate a
future abuse of discretion."
Plaintiffs' contention that the section of the Garfield
County Zoning Resolution was not met in this case, because the
magical words "high standards of design and liveability" have not
been used, once again is an effort to raise mere form to lofty
heights and ignore the substantive reality of the Record. The
Record contains abundant references to the high level and aualit
of planning in the Cattle Creek proposal, the incorporation of
sophisticated land use techniques, and the maximization of open
space. See e.g. Tr. pp. 11-12. It does not take a semanticist
to equate these features of the Cattle Creek PUD with "high
standards of design and liveability."
III.
CONCLUSION
For the foregoing reasons, this action should be
dismissed with prejudice and the Court should affirm the action
of the Board in approving the new Cattle Creek PUD.
DATED this llth day of May, 1984.
Respectfullyisubmitted,
OATES, HUGHES & KNEZEVICH, P.C.
/ t '
By 1 �, \ .\,
Robert W. Hughes, #17317
Attorneys for defendants
Cattle Creek Ranck
and Frank Lerner
533 E. Hopkins, Third Floor
Aspen, Colorado 81611
(303) 920-1700
CERTIFICATE OF MAILING
I hereby certify that I have this /a day of May,
1984, placed a true and correct copy of the foregoing Reply
Brief of Defendants' Cattle Creek Ranch, a Joint Venture, and
Frank Lerner in the United States mail, first-class postage
prepaid, addressed as follows:
T. Peter Craven, Esq.
P. O. Box 1105
Glenwood Springs, CO 81602
Earl G. Rhodes, Esq.
Garfield County Attorney
P. O. Box 640
Glenwood Springs, CO 81602
•
GARFIELD COUNTY
COUNTY ATTORNEY'S OFFICE
109 8th Street Suite 300
Glenwood Springs, Colorado 81601-3303
Phone 945-9150
MEMO
• &a}4 61
/Z1a k
TO: BOARD OF COUNTY COMMISSIONERS \�
FROM: DON K. DEFORD, COUNTY ATTORNEYr
RE: J. E. DEVILBISS v. GARFIELD COUNTY, ET AL.
DATE: November 1, 1985
Attached for your information is a copy of a letter from Earl
Rhodes, dated October 31, 1985 setting forth his impressions of the
oral argument held in this matter before the Colorado Supreme Court
on October 24, 1985.
mis
Enclosure
cc: Mark Bean, Planning Dept.
FRANK M HOCKENSMITH
DAN G GRIFFIN
KIRK RIDER
JAMES S. CASEBOU
RONALD W 0188S
CATHY P. HOLLINGSWORTH
GARY L. DOEHLING
TERRY O. SLATER
EARL G. RHODES
• •
YOUNGE & HOCKENSMITH
PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
200 GRAND AVE.. SUITE 500
Pp. BOX 1768
GRAND JUNCTION. COLORADO 8 1502-1 768
303.242.2645
October 31, 1985
Don K. DeFord
Garfield County
County Attorney's Office
109 8th Street, Suite 300
Glenwood Springs, Colorado 81601-3303
RE: J. E. DeVilbiss v. Garfield County, et al.
Dear Don:
OF COUNSEL
THOMAS K YOUNGE
The purpose of this letter is to set forth my impressions as to
my appearance in front of the Colorado Supreme Court on
Thursday, October 24, 1985, as to the above matter.
As you know, the Colorado Supreme Court granted certiorari to
review the Court of Appeals' decision in DeVilbiss v. Zoning
Board of Adjustment of Garfield County, 690 P.2d 260 (Colo. App.
1984). In that case, the Court agreed with the Plaintiff that
the case was not moot by the construction of the subject
facility and that the prayer in the Plaintiff's Complaint for a
mandatory injunction was sufficient to give the Court authority
after final judgment to order that the subject facility be torn
down.
Prior to the Supreme Court appearance, I took the time to review
the case law in Colorado and other jurisdictions as cited to the
Court by Mr. Holme on behalf of the Snowmass Coal Company. I
found the Colorado cases not to be persuasive on either side;
however, the case law of other jurisdictions is persuasive that
if one attempts to stop a proceeding by means of a Rule 106
Complaint, the Plaintiff must also obtain relief under C.R.C.P.
65. Thus, the Plaintiff has the burden of going forward and
obtaining the preliminary injunction, or run the risk that the
case will be moot upon construction of the subject facility.
Mr. Holme's argument in front of the Supreme Court was credible
and persuasive. Mr. Hartert had not squarely addressed the
argument of the Snowmass Coal Company in his Brief and did not
do so again on oral argument. Justices Kirschbaum and Quinn
closely questioned Mr. Hartert as to his position, and I thought
suggested that they would rule against the Plaintiff, Mr.
DeVilbiss, for his failure to obtain a preliminary injunction in
this case.
• •
Don K. DeFord
October 31, 1985
Page Two
My overall impression was that the Supreme Court would reverse
the Court of Appeals and establish law in the State of Colorado
that a C.R.C.P. 65 Order must be obtained in order to stop a
proceeding at issue under C.R.C.P. 106(a)(4). I would
anticipate a six-month delay before the Court issues its
decision.
I will send you my bill under separate cover. Thank you for the
opportunity to do this work.
Very truly yours,
YOUNGE & HOCKENSMITH
Professional Corporation
By
EGR:sma
v /
Earl G. Rhodes