Friends of the Black Forest Preservation Plan, Inc., a Colorado non-profit corporation; Richard Babcock; Jennifer Babcock; Brenda S. Baldry; Karen R. Coppeak; Remi Y. Gagne; Charlotte R. Gagne; Leif Garrison; James C. Kesser; Sharon Kesser; James A. Orban; Patricia E. Orban; Laura N. Spear; Timothy J. Spear; Wallace J. Stenhaug; Sandra A. Stenhaug; and Margaret J. Whitley, Plaintiffs-Appellants,
Board of County Commissioners of El Paso County, Colorado; and Black Forest Mission, LLC, a Wyoming limited liability company, Defendants-Appellees.
County District Court No. 14CV31194 Honorable Michael P.
Wright & Fredman, LLC, Eric Bentley, Colorado Springs,
Colorado, for Plaintiff-Appellants
Folsom, County Attorney, Kenneth R. Hodges, Senior Assistant
County Attorney, M. Cole Emmons, Senior Assistant County
Attorney, Colorado Springs, Colorado, for Defendant-Appellee
Board of County Commissioners of El Paso County, Colorado
Mulliken Weiner Berg & Jolivet P.C., Murray I. Weiner,
Joe D. Kinlaw, Colorado Springs, Colorado, for
Defendant-Appellee Black Forest Mission, LLC
JUDGE LOEB Márquez [*] and Vogt * , JJ., concur
1 In this C.R.C.P. 106(a)(4) action, plaintiffs, Friends of
the Black Forest Preservation Plan, Inc., and several
residents of the Black Forest area in El Paso County, appeal
the district court's judgment affirming the decision of
defendant Board of County Commissioners of El Paso County
(the Board) approving the special use permit application of
defendant Black Forest Mission, LLC (BFM) to construct a
greenhouse operation in the Black Forest preservation area.
Background and Procedural History
2 BFM proposed to construct a 51, 834-square-foot (1.19 acre)
greenhouse for a veteran-owned and -operated agricultural
entity known as Minibelly's Farm, LLC on its property
located in the Black Forest area of El Paso County. BFM
sought to build a hydroponic wholesale production greenhouse
for the purpose of growing organic vegetables to sell to
grocery chains and other retailers such as Whole Foods,
Albertson's, King Soopers, and Natural Grocers. BFM owned
41.38 acres of land in the Black Forest, and it proposed to
build the greenhouse on one of its 4.87 acre lots.
3 The property on which BFM intended to construct its
greenhouse falls within the area governed by the Black Forest
Preservation Plan (BFPP), the pertinent small area plan (SAP)
that is incorporated into El Paso County's overall master
plan. BFM's parcel is located within the
"Timbered Area" sub-area of the Black Forest, an
area generally forested with Ponderosa pine trees.
Additionally, BFM's property is within the RR-5 zoning
district, a residential, rural five-acre district.
4 Pursuant to the El Paso County Land Development Code (Land
Development Code), the RR-5 zoning district is "a 5 acre
district intended to accommodate low-density, rural,
single-family residential development." El Paso Cty.
Land Dev. Code § 3.2.2(A). For zoning purposes in the
RR-5 zoning district, property owners are allowed to build
greenhouses on their land if the greenhouse is less than one
acre in size, but property owners must apply for and obtain a
special use permit if they wish to build a greenhouse greater
than one acre in size.
5 On November 8, 2013, BFM submitted an application to the El
Paso County Development Services Department for a special use
permit to build its proposed hydroponic wholesale production
greenhouse. BFM proposed to build the 51,
834-square-foot greenhouse from corrugated steel, and the
main access point for the greenhouse would be from a driveway
along Lindsey Lane, which was a residential cul-de-sac. The
Department of Development Services Director forwarded
BFM's application to the El Paso County Planning
Commission for consideration and a public hearing.
6 The Planning Commission's public hearing took place on
January 7, 2014. During the hearing, a number of local
residents opposed the application as being incompatible with
existing and permitted uses in the neighborhood. The Planning
Commission ultimately recommended, by a 6-2 vote, that the
Board deny BFM's application because of its inconsistency
with both El Paso County's Policy Plan and the BFPP.
7 On February 25, 2014, BFM's special use permit
application was presented to the Board at a public hearing.
Pursuant to the special use application review standards
contained in section 5.3.2(B)(2) of the Land Development
Code, the Board was required to make a number of specific
findings before approving a special use permit, one of which
was that the special use was "consistent with the
applicable Master Plan." Following testimony from the
Planning Commission and many local residents, BFM was granted
a continuance to amend its application to attempt to
ameliorate various concerns of the Planning Commission and
8 On March 18, 2014, BFM presented a revised plan to the
Board for its greenhouse project. Rather than its original
plan to construct a single greenhouse of 51, 834 square feet,
BFM proposed to build three smaller greenhouses connected by
a head house, with construction occurring in three separate
phases. The proposed structures would total approximately 60,
000 square feet and would be built on two parcels instead of
one. BFM modified the location of the proposed structures to
mitigate the residents' concerns related to light
pollution, obstruction of views, and traffic congestion, and
it also proposed to move the main access point away from
9 Many residents of the area attended the second hearing
before the Board and argued that BFM's amended
application still failed to address the community's
concerns. A member of the County's Planning Commission
testified at the hearing that BFM's amended application
was "generally consistent" with the County's
overall Policy Plan but remained inconsistent with the BFPP,
particularly with the portions of the BFPP that emphasize
that the Black Forest area was intended to remain primarily a
rural-residential community and that new commercial uses
should be strictly limited in the Timbered Area. However, an
El Paso County Attorney advised the Board that master plans
are generally only advisory and that the Board had the
authority to interpret its Land Development Code and the
elements of the County master plan. At the conclusion of the
hearing, the Board voted 3-2 to approve BFM's amended
special use permit application. The Board then formally
adopted a resolution approving the application and making all
of the specific findings required by section 5.3.2(B)(2) of
the Land Development Code.
10 Plaintiffs then filed this action, seeking judicial review
of the Board's decision pursuant to C.R.C.P. 106(a)(4).
Plaintiffs contended, and still contend on appeal, that the
Board misapplied governing law, and thereby abused its
discretion, when it approved BFM's special use permit
application based on the erroneous belief that the
County's master plan was merely advisory. According to
plaintiffs, the County's master plan lost its advisory
nature and its provisions became binding regulations when the
plan was incorporated in Land Development Code section
5.3.2(B)(2). See § 30-28-106(3)(a), C.R.S.
2015. Because section 5.3.2(B)(2) requires the Board to find
that a special use is "consistent with the applicable
Master Plan, " and because the BFPP states that the
Black Forest area should remain primarily residential and
that commercial development in the Timbered Area should be
strictly limited, plaintiffs contend the Board abused its
discretion when approving BFM's special use application.
11 The district court affirmed the Board's decision,
finding that the El Paso County master plan explicitly
retained its advisory nature and that there was competent
evidence in the record supporting the Board's decision to
approve BFM's special use permit application. This appeal
Standard of Review
12 C.R.C.P. 106(a)(4) provides for judicial review of agency
action "[w]here any governmental body or officer or any
lower judicial body exercising judicial or quasi-judicial
functions has exceeded its jurisdiction or abused its
discretion, and there is no plain, speedy and adequate remedy
otherwise provided by law[.]" Judicial review is
strictly "limited to a determination of whether the body
or officer has exceeded its jurisdiction or abused its
discretion, based on the evidence in the record before the
defendant body or officer." C.R.C.P. 106(a)(4)(I). A
governmental body abuses its discretion if its decision is
not reasonably supported by any competent evidence in the
record or if the governmental body has misconstrued or
misapplied applicable law. Giuliani v. Jefferson Cty. Bd.
of Cty. Comm'rs, 2012 COA 190, ¶ 39.
13 In an appeal from a judgment entered in a C.R.C.P.
106(a)(4) action, this court stands in the same position as
the district court when conducting our review of the
governmental body's action. Giuliani, ¶ 38;
Stevinson Imps., Inc. v. City & Cty. of Denver,
143 P.3d 1099, 1101 (Colo.App. 2006). We review the decision
of the governmental body itself rather than the district
court's decision regarding the governmental body's
decision. Bd. of Cty. Comm'rs v. O'Dell, 920
P.2d 48, 50 (Colo. 1996).
14 A reviewing court "must uphold the decision of the
governmental body 'unless there is no competent evidence
in the record to support it.'" Id. (quoting
Sellon v. City of Manitou Springs, 745 P.2d 229, 235
(Colo. 1987)). There is "no competent evidence" in
the record if "the governmental body's decision is
'so devoid of evidentiary support that it can only be
explained as an arbitrary and capricious exercise of
authority.'" Id. (quoting Ross v. Fire
& Police Pension Ass'n, 713 P.2d 1304, 1309
15 Furthermore, in determining whether the governmental
agency abused its discretion or exceeded its jurisdiction,
the reviewing court in a C.R.C.P. 106(a)(4) proceeding
considers whether the governmental body misconstrued or
misapplied the law. See Giuliani, ¶ 39. In
doing so, the reviewing court reviews questions of law, such
as the interpretation of a statute, de novo.
Stevinson, 143 P.3d at 1101.
16 A reviewing court should defer to the governmental
body's construction of its statute, and if there is a
reasonable basis for the governmental body's
interpretation of the law, the reviewing court may not set
aside the governmental body's decision.
Giuliani, ¶ 40. Nonetheless, when a
governmental body's interpretation is not uniform or
consistent, we do not extend deference and instead look to
other statutory construction aids. Canyon Area Residents
for the Env't v. Bd. of Cty. Comm'rs, 172 P.3d
905, 910 (Colo.App. 2006).
17 If possible, courts must harmonize potentially conflicting
statutory provisions. Id. Additionally, if there is
a conflict, specific provisions prevail over general
provisions, "unless the seemingly conflicting provisions
may be construed to give effect to both." Bd. of
Cty. Comm'rs v. Bainbridge, Inc., 929 P.2d 691, 698
Applicable Land Use Planning and Regulation Law
18 While planning for the use of land and regulating land use
are related, the Colorado regulatory scheme distinguishes
between the two functions. See Theobald v. Bd. of Cty.
Comm'rs, 644 P.2d 942, 948 (Colo. 1982). Pursuant to
section 30-28-106(1), a county planning commission must make
and adopt a master plan for the development of an
unincorporated territory of a county. The master plan
"is the planning commission's recommendation of the
most desirable use of land." Theobald, 644 P.2d
at 948. Unlike binding regulations, a master plan
"is a guide to development rather than an instrument to
control land use." Id. A master plan is
"only one source of comprehensive planning, and is
generally held to be advisory only." Id. at
19 On the other hand, it is the task of the legislative body
charged with zoning - here, the Board - "to individually
apply the broad planning policies to specific property,
consistent with the public interest, and with notions of due
process and equal protection." Id. at 948-49.
Because master plans are generally advisory, a board of
county commissioners, by majority vote, is specifically
empowered to overrule a recommendation of the planning
commission. Id. at 949; see §
30-28-110(1)(b), C.R.S. 2015.
20 However, the law is also clear in Colorado that master
plans may become binding if they are properly incorporated
into a county's legislatively adopted subdivision,
zoning, or other similar land development regulations.
See § 30-28-106(3)(a); Bd. of Cty.
Comm'rs v. Conder, 927 P.2d 1339, 1346 (Colo. 1996).
21 In Conder, the Colorado Supreme Court held that a
master plan may become regulatory, and therefore binding, by:
"(1) formal inclusion of sufficiently specific master
plan provisions in a duly-adopted land use regulation by a
board of county commissioners or (2) a statutory directive
from the General Assembly that landowners must comply with
master plan provisions in pursuing land use development
proposals." 927 P.2d at 1346.
22 The Conder court concluded that, in adopting
Larimer County's subdivision regulations, the Board of
County Commissioners of Larimer County had included a master
plan compliance requirement. Id. The foreword to
Larimer County's subdivision regulations called for
consideration of the county's master plan provisions, and
several sections in the regulations "require[d] that
master plan provisions serve as 'guidelines' for
development proposals." Id. The court held that
these references in Larimer County's subdivision
regulations to the county's master plan constituted
"a legislative basis for the County's evaluation of
subdivision proposals for compliance with master plan
provisions." Id. at 1347.
23 Similarly, in Canyon Area, 172 P.3d at 910, a
division of this court considered whether the Jefferson
County Board of County Commissioners was required to make a
finding that a proposed planned unit development (PUD) was
compatible with the county's master plan or comprehensive
plan before approving a PUD application. The division looked
to section 24-67-104(1)(f), C.R.S. 2015, of the Planned Unit
Development Act of 1972, which explicitly states that a
county or municipality must find that a PUD is in general
conformity with any master plan or comprehensive plan for the
county or municipality before approving a PUD application.
Canyon Area, 172 P.3d at 910. Additionally,
Jefferson County zoning resolution section 15.F.2.a(1)
provided that the county's Planning Commission and Board
of County Commissioners "shall consider" many
factors when reviewing proposals, including "the
compatibility of the proposal with existing and allowed land
uses in the surrounding area" and the county's
comprehensive plan, but the Jefferson County Board had
"sole discretion to determine what weight, if any, to
give each of [the] factors." Id. (emphasis
omitted) (citation omitted).
24 Because section 24-67-104(1)(f) is a "statutory
directive . . . that landowners must comply with master plan
provisions in pursuing land use development proposals, "
Conder, 927 P.2d at 1346, the division concluded
that master plans are not advisory in the PUD context.
Canyon Area, 172 P.3d at 911. Despite the language
contained in the county's zoning resolution section
15.F.2.a(1), the division further concluded that the
Jefferson County Board had to do more than just
"consider" a PUD application's compliance with
any master plan; the division held that section
24-67-104(1)(f) required the Jefferson County Board to find
that the PUD was in general conformity with any master plan
or comprehensive plan. Id.
25 In 2007, in response to Conder and Canyon
Area, the General Assembly amended section 30-28-106 to
incorporate the basic holding in Conder that master
plans may be made binding by formal inclusion in all types of
county land use regulations. See Ch. 165, sec. 1,
§ 30-28-106(3)(a), 2007 Colo. Sess. Laws 612. Section
30-28-106 now provides, as relevant here:
(1) It is the duty of a county planning commission to make
and adopt a master plan for the physical development of the
unincorporated territory of the county. . . .
. . . .
(3)(a) . . . The master plan of a county or region shall be
an advisory document to guide land development decisions;
however, the plan or any part thereof may be made binding by
inclusion in the county's or region's adopted
subdivision, zoning, platting, planned unit development, or
other similar land development regulations after satisfying
notice, due process, and hearing requirements for legislative
or quasi-judicial processes as appropriate.
Paso County Land Use Framework
26 The central legal issue in this appeal is whether the
Board properly concluded that El Paso County's master
plan retained its status as an advisory document because it
had not been properly included and adopted as a mandatory
regulatory document in El Paso County's Land Development
Code. In order to fully analyze that issue, we first set out
in some detail the pertinent provisions of El Paso
County's land use and regulatory framework.
27 The pertinent and current version of El Paso County's
Land Development Code was adopted by the Board through a
public hearing process on October 12, 2006. The Land
Development Code is the governing authority for "the
development of buildings, structures and uses of land
throughout unincorporated El Paso County." Land Dev.
Code § 1.3.
28 It states that the Board "is the ultimate interpreter
of the meaning and application of [the] Code as to the type,
nature and rights of uses, conforming and nonconforming, as
allowed under this Code." Id. § 2.2.1(H).
In addition, the Land Development Code grants authority to
the Board to approve, approve with conditions, or deny
special use permits. Id. § 2.2.1(B).
29 As previously mentioned, the Land Development Code states
that "[t]he RR-5 zoning district is a 5 acre district
intended to accommodate low-density, rural, single-family
residential development." Id. § 3.2.2(A).
Land Development Code Table 5-1 illustrates that a special
use permit is required in order to build a greenhouse greater
than one acre in size in the RR-5 zoning district. The Land
Development Code includes the following definition:
A use that, owing to some special characteristics attendant
to its operation or installation (e.g. potential danger,
traffic, smoke or noise impact), is allowed in a zoning
district, subject to approval and special requirements,
different from those usual requirements ...