Barras v. BOCC Garfield

• Court: Colorado Court of Appeals
• Decided: June 26, 2025
• Docket: 24CA1603
• Status: Unpublished

Opinion

24CA1603 Barras v BOCC Garfield 06-26-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1603 Garfield County District Court No. 23CV30032 Honorable Anne K. Norrdin, Judge

Norman T. Barras, Jr.,

Plaintiff-Appellant,

v.

Board of County Commissioners of the County of Garfield and Skyfooze1, LLC, a Pennsylvania Domestic limited liability company,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division II Opinion by JUDGE HARRIS Fox and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 26, 2025

Neiley Law Firm, LLC, Richard Y. Neiley, Jr., Glenwood Springs, Colorado, for Plaintiff-Appellant

Heather K. Beattie, County Attorney, Glenwood Springs, Colorado, for Defendant-Appellee Board of County Commissioners of the County of Garfield

Holland & Hart LLP, Susan M. Ryan, Kevin P. Giles, Aspen, Colorado, for Defendant-Appellee Skyfooze1, LLC ¶1 After defendant, the Board of County Commissioners of the

County of Garfield (BOCC), approved an application for a minor

subdivision submitted by Skyfooze1, LLC (the applicant), plaintiff,

Norman T. Barras, Jr., sought review in the district court under

C.R.C.P. 106(a)(4). The district court affirmed the BOCC’s decision.

¶2 Barras appeals, arguing that the BOCC abused its discretion

in approving the application by waiving certain submission

requirements without good cause. We disagree and therefore

affirm.

I. Background

¶3 The applicant owns a forty-one-acre parcel of land in Garfield

County. In September 2022, it applied to the Garfield County

Community Development Department (Department) to subdivide

the parcel into two lots. The application for a minor subdivision

indicated that each lot would have a single-family home and an

accessory or secondary dwelling unit.

¶4 The applicant submitted a 100-page application with several

attachments, but it requested that the Department waive until the

building permit stage two submission requirements of the Garfield

1 County Land Use and Development Code. See Garfield Cnty. Land

Use & Dev. Code (LUDC) § 4-202.

¶5 The first requirement concerned the proposed onsite

wastewater treatment system (OWTS). See id. § 4-203(N)(1)(b).

Section 4-203(N)(1)(b) requires an applicant to provide evidence that

“the OWTS will comply with the County’s OWTS requirements and

requirements of the [Colorado Department of Public Health and

Environment], Water Quality Control Commission.” The applicant

provided documentation to support its position that an OWTS was

feasible on the lots. But the application explained that the OWTS’s

particular design and siting depended on the location of the

buildings, and because those locations would be determined by the

eventual lot owners, the applicant could not provide information

about the OWTS’s compliance with local and state regulations until

a later stage of the process.

¶6 The second requirement concerned the plans for groundwater

drainage. Id. § 5-401. Under sections 5-301 and 5-401, an

application for a minor subdivision must contain preliminary

engineering reports and plans for groundwater drainage and

preliminary cost estimates for any proposed improvements. The

2 application noted that no changes to existing grading and drainage

were proposed and that no private or public improvements would be

necessary. The applicant therefore requested that the eventual lot

owners obtain any necessary approvals for grading and drainage

changes at the building permit stage.

¶7 In December 2022, Barras, an adjacent property owner,

submitted a written objection to the application to the Department

director. He argued that there was “no legitimate justification for

the requested waivers,” as the applicant could simply designate the

location of future improvements and provide the required

information.

¶8 A few days later, Department staff issued a report

recommending approval of the application, including the requested

waivers. The report stated that the waivers were “deemed

appropriate for the [a]pplication as the development will not be

phased and no new public improvements are proposed or required.”

Department staff recommended conditioning approval on, among

other things, plat notes stating that the waived requirements had to

be satisfied at the building permit stage. Shortly thereafter, the

director approved the application with the recommended conditions.

3 ¶9 Barras then initiated a “call-up” of the director’s decision to

the BOCC, see id. § 4-112, repeating the same objections from his

December letter, including a concern that the minor subdivision

might not have an adequate water supply. Pursuant to the “call-

up” procedures, the BOCC held a public hearing on the application.

At the hearing, Barras asserted that there was “really no good

justification” for the applicant’s requested waivers. He maintained

that the applicant should designate the location of the buildings, in

part so that he could ensure the preservation of his view, and he

challenged the reliability of the reported water supply.

¶ 10 At the conclusion of the hearing, the BOCC voted to uphold

the director’s decision to approve the application. The BOCC later

adopted a resolution approving the application subject to various

conditions, including that the waived requirements be satisfied at

the building permit stage.

¶ 11 Barras sought judicial review under C.R.C.P. 106(a)(4). The

district court, in a well-reasoned and comprehensive order, affirmed

the decision of the BOCC.

4 II. The BOCC’s Approval of the Subdivision

¶ 12 Barras argues that the district court erred by affirming the

BOCC’s decision. He says that the decision constitutes an abuse of

discretion because the BOCC did not find good cause to grant the

requested waivers and no good cause existed.

A. Standard of Review

¶ 13 C.R.C.P. 106(a)(4) permits judicial review of a governmental

agency action exercising a quasi-judicial role. Save Our Saint Vrain

Valley, Inc. v. Boulder Cnty. Bd. of Adjustment, 2021 COA 44, ¶ 26.

Under Rule 106(a)(4), we review the decision of the governmental

body itself, rather than the district court’s order affirming that

decision. Alpenhof, LLC v. City of Ouray, 2013 COA 9, ¶ 9.

¶ 14 Our task “is a limited one.” Stor-N-Lock Partners #15, LLC v.

City of Thornton, 2018 COA 65, ¶ 22. In reviewing the BOCC’s

decision, we apply the same standard of review as the district court,

and we “must affirm unless the governmental entity abused its

discretion or exceeded its jurisdiction.” Alpenhof, ¶ 9. A

governmental entity abuses its discretion only if it misapplies the

law or if no competent evidence supports its decision. Whitelaw v.

Denver City Council, 2017 COA 47, ¶ 8. “‘No competent evidence’

5 means that the decision of the governing body was ‘so devoid of

evidentiary support that it can only be explained as an arbitrary

and capricious exercise of authority.’” Rangeview, LLC v. City of

Aurora, 2016 COA 108, ¶ 16 (citation omitted).

B. The BOCC Did Not Abuse Its Discretion

¶ 15 As a preliminary matter, we address Barras’s argument that

the staff report’s summary concerning the waiver requests was

inadequate. Like the district court, we conclude that this argument

is waived.

¶ 16 Section 4-202(B) of the LUDC provides that if the applicant

requests a waiver of any submission requirements, the Department

director “shall notify the [a]pplicant in writing of the

determination . . . and include a summary of the decision in the

staff report.” The staff report included a summary stating that the

requested waivers were “deemed appropriate for the [a]pplication as

the development will not be phased and no new public

improvements are proposed or required.” To the extent Barras

contends that the summary itself is inadequate because it does not

sufficiently explain the basis for the director’s decision to grant the

waivers, that contention is unpreserved.

6 ¶ 17 At no time during the administrative proceedings did Barras

ever claim that the staff report’s summary was somehow deficient.

He did not raise that specific complaint with the director or with the

BOCC. His arguments focused on the alleged lack of justification

for granting the waivers, not on the particular language contained

in the staff report. Nor did he mention the staff report’s summary

in his C.R.C.P. 106 complaint. The inadequacy of the summary

was raised for the first time in briefing to the district court. For

that reason, the district court determined that the issue was

waived, and we agree.

¶ 18 Issues not raised or addressed in administrative proceedings

are not preserved for judicial review. See Chostner v. Colo. Water

Quality Control Comm’n, 2013 COA 111, ¶ 39. Accordingly, we may

not review Barras’s contention that the staff report’s summary was

inadequate.

¶ 19 In any event, it appears that Barras’s primary argument goes

to the merits — the BOCC did not find good cause for the waivers

because there was none. We now turn to that argument.

¶ 20 Under section 4-202(A) of the LUDC, the director may waive

any submission requirements if those requirements are

7 “unnecessary in determining whether the application satisfies

applicable standards.” In evaluating a waiver request, the director

must consider certain criteria, including whether the applicant has

“show[n] good cause for the requested waiver” and “[t]he project

size, complexity, anticipated impacts, or other factors [that] support

a waiver.” Id. § 4-202(C).

¶ 21 Barras argues that the BOCC had to make an explicit finding

of good cause before it could approve the applicant’s waiver

requests. But while the LUDC requires the BOCC to find good

cause to grant waivers, it does not say that such a finding must be

explicit, and we cannot add language to the municipal code. See

City of Golden v. Sodexo Am., LLC, 2019 CO 38, ¶ 23 (statutory

interpretation rules apply when construing municipal codes);

Larimer Cnty. Bd. of Equalization v. 1303 Frontage Holdings LLC,

2023 CO 28, ¶ 46 (when construing a statute, court may not add

words to the provision).

¶ 22 Indeed, “express factual findings are not a prerequisite to a

valid decision by an administrative board if the necessary findings

may be implied from the action taken.” Canyon Area Residents for

the Env’t v. Bd. of Cnty. Comm’rs, 172 P.3d 905, 909 (Colo. App.

8 2006). As long as the record supports that the BOCC “necessarily

acted on the basis” that there was good cause to grant the waivers,

and “the state of the evidence is such as would warrant the making

of [that] finding,” we may conclude that the BOCC implicitly found

good cause. No Laporte Gravel Corp. v. Bd. of Cnty. Comm’rs, 2022

COA 6M, ¶ 87 (quoting Sundance Hills Homeowners Ass’n v. Bd. of

Cnty. Comm’rs, 534 P.2d 1212, 1216 (Colo. 1975)).

¶ 23 The staff report acknowledged the waiver requests and

recommended that they be granted. At the BOCC hearing, a

Department representative reiterated that the Department had

considered the waiver requests and determined that waiving the

submission requirements was appropriate given that the applicant

had agreed to satisfy the requirements at the building permit stage.

The BOCC then approved the application, including the requests for

waivers. The record therefore supports a conclusion that the BOCC

implicitly found that the applicant showed good cause for the

requested waivers. See Canyon Area, 172 P.3d at 909.

¶ 24 As for whether good cause actually existed, Barras’s argument

is essentially an invitation for us to reconsider the BOCC’s

discretionary decision to approve the minor subdivision with the

9 requested waivers. But as the reviewing court, we may not reweigh

the evidence presented to the Department or substitute our own

judgment for that of the BOCC when competent evidence supports

its decision. See Stor-N-Lock, ¶ 33; Bd. of Cnty. Comm’rs v. O’Dell,

920 P.2d 48, 50 (Colo. 1996). Our review is limited to ensuring that

there is evidence in the record to justify the BOCC’s decision. Stor-

N-Lock, ¶ 22. We conclude that there is sufficient record evidence

to justify the BOCC’s decision to approve the waivers.

¶ 25 First, with respect to requirements concerning an OWTS,

Department staff stated during the pre-application conference that

full design of the OWTS requirement could be waived until the

building permit stage, as long as the application “show[ed] evidence

of the ability of such a system to service the lots.” Department staff

clarified that “percolation tests and letters from licensed

professionals attesting that OWTS will be feasible” would suffice.

¶ 26 Accordingly, the applicant included a geotechnical report

prepared in 1995 for one of the proposed subdivided lots that

showed, through percolation testing, that the lot was suitable for an

OWTS. The applicant acknowledged the age of the report but

explained that the report remained relevant because the underlying

10 geology had not significantly changed in the interim. The applicant

also supplemented that report with two site-specific OWTS designs

prepared in 2020 for adjacent lots and noted that both of the

proposed subdivided lots would have sufficient space for OWTS

installation in conformance with the law.

¶ 27 Second, with respect to requirements concerning groundwater

drainage, the applicant explained that the requirement to submit

engineering reports and plans for groundwater drainage did not yet

apply, as no changes to existing grading or drainage were presently

contemplated. See LUDC § 4-202(C)(4) (in evaluating waiver

request, director should consider whether “[t]he information is not

material to describing the proposal or demonstrating compliance

with approval criteria”).

¶ 28 Third, the BOCC did not approve permanent waivers of either

requirement; rather, it conditioned application approval on the

applicant’s satisfaction of these requirements at the building permit

stage. Cf. King’s Mill Homeowners Ass’n v. City of Westminster, 557

P.2d 1186, 1191 (Colo. 1976) (“The power to impose conditions on

rezoning is an exercise of the police power and such conditions are

valid as long as they are reasonably conceived.”). The BOCC

11 resolution requires that the recorded plat note this condition of

approval so that future buyers have notice of the requirements.

¶ 29 In a single sentence in his opening brief, Barras argues that

the waived requirements “provide protections against . . . hazards

that cannot be duplicated at the time of building permit

application.” But he does not explain why that is true or direct us

to any authority on that point. Nor does he explain why he would

not have a remedy for future lot owners’ noncompliance with any

conditions imposed by the BOCC. His conclusory assertion cannot

override the BOCC’s discretionary authority to defer the applicant’s

compliance with two submission requirements on a finding of good

cause.

¶ 30 In sum, we conclude that there is competent record evidence

to support the BOCC’s decision. Accordingly, we must uphold it.

See Alpenhof, ¶ 9.

III. Disposition

¶ 31 The judgment is affirmed.

JUDGE FOX and JUDGE SCHUTZ concur.