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Friends of Black Forest Preservation Plan, Inc. v. Board of County Commissioners of El Paso County

Court of Appeals of Colorado, First Division

April 7, 2016

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.

         El Paso County District Court No. 14CV31194 Honorable Michael P. McHenry, Judge

          Flynn Wright & Fredman, LLC, Eric Bentley, Colorado Springs, Colorado, for Plaintiff-Appellants

          Amy R. 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

          CHIEF 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. We affirm.

         I. 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.[1] 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.[2] 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[3] 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 residents.

         ¶ 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 Lindsey Lane.

         ¶ 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 followed.

         II. 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 (Colo. 1986)).

         ¶ 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 (Colo. 1996).

         III. 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 949.

         ¶ 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.

         IV. El 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.

         A. Land Development Code

         ¶ 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:

Use, Special
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 ...

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