Board of County Commissioners v. Conder

927 P.2d 1339, 1996 Colo. LEXIS 708, 1996 WL 700568
CourtSupreme Court of Colorado
DecidedDecember 9, 1996
Docket95SC431
StatusPublished
Cited by33 cases

This text of 927 P.2d 1339 (Board of County Commissioners v. Conder) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of County Commissioners v. Conder, 927 P.2d 1339, 1996 Colo. LEXIS 708, 1996 WL 700568 (Colo. 1996).

Opinions

Justice LOHR

delivered the Opinion of the Court.

This case presents the issue of whether a county can adopt a requirement in its subdivision regulations that subdivision proposals comply with the county’s master plan provisions, and then rely upon non-compliance' with master plan provisions in denying a subdivision application. The Board of County Commissioners of Larimer County denied the application of Steve Conder and Wendy Sommervold for a proposed subdivision in rural Larimer County. On certiorari review under C.R.C.P. 106(a)(4), the Larimer County District Court affirmed the denial. Con-der and Sommervold appealed, and the Colorado Court of Appeals reversed, holding that the Board of County Commissioners acted arbitrarily, capriciously, and abused its discretion in denying approval of the subdivision application. Conder v. Board of County Comm’rs of Larimer County, No. 94CA0848, slip op. at 4, 6 (Colo.App. May 4, 1995). We granted certiorari to review the court of appeals’ decision and now reverse and remand with directions.

I.

Steve Conder and Wendy Sommervold (proponents) propose to develop a 560.76 acre parcel in the southern part of Larimer County into the “Windemere Acres Subdivision” (Subdivision). The proponents seek to divide the property into fifty-six lots, generally ranging in size from 2.3 to 5.4 acres, with nine perimeter lots larger than thirty-five [1341]*1341acres. The parcel that the proponents intend to subdivide is zoned FA-1, a “Farming District.” Larimer County’s “Comprehensive Zoning Resolution” permits single family dwellings with minimum lot areas of 100,000 square feet1 in areas zoned FA-1.2 The Lar-imer County Land Use Plan, which is the master plan for the County, categorizes the area in which proponents’ parcel is located as “rural.” Larimer County Planning Department, “Planning Staff Report” at 26 (Aug. 23, 1993).

The proponents filed a subdivision application in November of 1992.3 The Larimer County Planning Commission (Planning Commission) held a hearing to review the application on December 16, 1992, and the Larimer County Planning Department (Planning Department) recommended that the Planning Commission deny the application.4 The proponents attempted to address the concerns of the Planning Department at the hearing:

[The proponents] wanted to point out that their desire is to keep this area rural and attempted this by surrounding the subdivision by 35 acre parcels. These parcels will have recorded covenants also which prohibit more than one residential residence, and are also controlled by the subdivision’s architectural control committee in regard to fencing, home size, and construction of any out buildings.

Larimer County Planning Commission, “Minutes” at 7 (Dee. 16, 1992). The Planning Commission, with one of the six commissioners abstaining, unanimously voted to deny the proponents’ subdivision application, primarily based on the perception that the Subdivision would not be compatible with a rural location.

The proponents responded by submitting a revised subdivision application in May of 1993, attempting to address the concerns of the Planning Department. One of the changes that the proponents made was to include the nine lots that were greater than [1342]*1342thirty-five acres within the Subdivision boundaries, so that the average lot size for the Subdivision increased to approximately ten acres.5

The Planning Commission considered the proponents’ revised subdivision application on July 21, 1993, and recommended that the Larimer County Board of County Commissioners (Board) deny the application. The Planning Commission adopted the Planning Department’s findings that “[t]he proposed Preliminary Plat is not consistent with the Larimer County Land Use Plan in location of the proposed use, intensity of use, design, consolidation of services, and maintenance of rural character.” Larimer County Planning Commission, “Minutes” at 6-7 (July 21, 1993) (adopting staff findings found in Larimer County Planning Department, “Planning Staff Report” at 4 (July 21,1993)).

On August 23, 1993, the Board considered the revised subdivision application in a public hearing. The “Agenda” for the meeting included two “major issues and concerns” regarding the application:

1. The primary concern with the proposal, and the reason the Planning Department recommended denial on the first request, remains the same. The project is located in a rural agricultural area of Larimer County. The proposed subdivision appears suburban rather than rural in character. The Larimer County Land Use Plan guidelines for rural development emphasize low-intensity design that consolidates services and maintains large blocks of open space. Despite the reduced number of lots, only about 10% of the proposal is common open space. Planned Unit Developments, for example, require a minimum of 30% open space.
The Land Use Plan states that because of lack of services, rural areas are generally inappropriate for subdivision activity. Adequate facilities should be provided without subsidy by other County residents and the County should not be obligated to provide an urban level of service outside designated urban areas. The Planning Department is concerned that this intensity of development will negatively impact provision of services in the area and create expectations for an urban level of service where it cannot be realistically provided.
2. Inclusion of some of the surrounding 35 acre tracts in the subdivision boundary may create more problems than benefits. These tracts are not integrated into the subdivision road system and apparently will be accessed by easements and private roads, or directly from the County Roads. The existing access to some of these tracts is very poor. The Planning Department is concerned that all subdivision lots meet County subdivision standards.
The applicant may believe that inclusion of the 35 acre tracts is beneficial as it reduces the average lot size for all lots to approximately 10 acres. Plat notes indicate a belief that this somehow makes the subdivision “rural.” The Planning Department sees no difference in the impact of the development between 35 acre tracts inside the subdivision or surrounding it.

See Larimer County Board of Commissioners, “Agenda” (Aug. 23, 1993) (“major issues and concerns” for “Agenda” outlined in attached Larimer County Planning Department, “Planning Staff Report” at 26 (Aug. 23, 1993)).

After a hearing, the Board voted unanimously to deny the subdivision application. In rejecting the application, the Board issued written findings, determining that the proposed subdivision was inconsistent with the Larimer County Land Use Plan in several specified respects — in general, because the nature of the proposed development was not [1343]*1343consistent with the contemplated rural character of the area.6 The Board also quoted essentially verbatim the Agenda’s aforementioned “major issues and concerns,” supra pp. 1341-42, with regard to inadequate services for the Subdivision and the proponents’ inclusion of the thirty-five acre tracts within the Subdivision’s boundaries.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Land Corp. v. Langer
2020 CO 30 (Supreme Court of Colorado, 2020)
Roalstad v. City of Lafayette, Colorado
2015 COA 146 (Colorado Court of Appeals, 2015)
Roalstad v. City of Lafayette
2015 COA 146 (Colorado Court of Appeals, 2015)
Alpenhof, LLC v. City of Ouray
2013 COA 9 (Colorado Court of Appeals, 2013)
Griff v. City of Grand Junction Ex Rel. Tuin
262 P.3d 906 (Colorado Court of Appeals, 2010)
MORRIS-SCHINDLER, LLC. v. City & County of Denver
251 P.3d 1076 (Colorado Court of Appeals, 2010)
Wolf Creek Ski Corp. v. Board of County Commissioners
170 P.3d 821 (Colorado Court of Appeals, 2007)
Droste v. BOARD OF COUNTY COM'RS OF PITKIN
159 P.3d 601 (Supreme Court of Colorado, 2007)
Boone v. Board of County Commissioners
107 P.3d 1114 (Colorado Court of Appeals, 2004)
Quaker Court Ltd. Liability Co. v. Board of County Commissioners
109 P.3d 1027 (Colorado Court of Appeals, 2004)
Widder v. Durango School District No. 9-R
85 P.3d 518 (Supreme Court of Colorado, 2004)
Woods v. City & County of Denver
62 F. App'x 286 (Tenth Circuit, 2003)
DeLong v. Trujillo
25 P.3d 1194 (Supreme Court of Colorado, 2001)
Raygor v. Board of County Commissioners
21 P.3d 432 (Colorado Court of Appeals, 2000)
City of Colorado Springs v. SecurCare Self Storage, Inc.
10 P.3d 1244 (Supreme Court of Colorado, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
927 P.2d 1339, 1996 Colo. LEXIS 708, 1996 WL 700568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-county-commissioners-v-conder-colo-1996.