City & County of Denver Ex Rel. Board of Water Commissioners v. Board of County Commissioners

782 P.2d 753, 13 Brief Times Rptr. 1397, 1989 Colo. LEXIS 430, 1989 WL 135484
CourtSupreme Court of Colorado
DecidedNovember 13, 1989
Docket88SC358
StatusPublished
Cited by27 cases

This text of 782 P.2d 753 (City & County of Denver Ex Rel. Board of Water Commissioners v. Board of County Commissioners) 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
City & County of Denver Ex Rel. Board of Water Commissioners v. Board of County Commissioners, 782 P.2d 753, 13 Brief Times Rptr. 1397, 1989 Colo. LEXIS 430, 1989 WL 135484 (Colo. 1989).

Opinions

Justice VOLLACK

delivered the Opinion of the Court.

Petitioner, the City and County of Denver (Denver), acting by and through its Board of Water Commissioners (the Denver Water Board), petitioned for certiorari review of the court of appeals decision in City and County of Denver v. Board of County Commissioners, 760 P.2d 656 (Colo.App.1988). The court of appeals held that sections 24-65-101 to 24-65.1-502,10B C.R.S. (1988) (the Land Use Act or the Act), do not manifest an unlawful delegation of legislative power.

I.

In 1974 the Colorado legislature adopted the Land Use Act in response to the “rapid growth and development of the state and the resulting demands on its land resources.” § 24-65-102(1). The Act is “Colorado’s first comprehensive land use law,” Bermingham, 1974 Land Use Legislation in Colorado, 51 Den.L.J. 467, 468 (1974), and is designed to protect Colorado’s land resources and allocate those resources among competing uses. See § 24-65-102(1). To accomplish these goals the Act identifies a list of activities of state interest and allows local governments to address local land use concerns by regulating activities which are represented on the list. The Act thus allows both state and local governments to supervise land use which may have an impact bn the people of Colorado beyond the immediate scope of the land use project. Colorado Land Use Comm’n v. Board of County Comm’rs, 199 Colo. 7, 12, 604 P.2d 32, 34 (1979).

Article 65.1 of the Land Use Act, §§ 24-65.1-101 to 24-65.1-502, encourages local governments to designate areas and activities of state interest, and promulgate guidelines for the administration of those areas and activities. See

§ 24-65.1-101(2)(b). Section 24-65.1-203 identifies activities which local governments may declare to be of state interest. Section 24-65.1-203(1) specifically provides that,

[sjubject to the procedures set forth in part 4 of this article, a local government may designate certain activities of state interest from among the following:
(a) Site selection and construction of major new domestic water and sewage treatment systems;
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(h) Efficient utilization of municipal and industrial water projects....

Section 24-65.1-204 establishes criteria for the administration of activities of state interest. Subsection 24-65.1-204(1) establishes criteria for the construction of new domestic water and sewage treatment systems, and major extensions of domestic water and sewage treatment systems. Subsection 24-65.1-204(8) establishes criteria for the efficient utilization of municipal and industrial water projects.

In 1978 the Board of County Commissioners of Grand County (the Grand County Board) designated site selection and construction of major new domestic water and sewage treatment systems to be an activity of state interest. Grand County Admin., Regs, for Areas and Activities Designated as Matters of State Interest, Resolution No. 1978-5-4, book 245, p. 4. The Grand County Board also adopted regulations governing activities it declares to be of state interest (the Grand County regulations or the regulations). Id., Resolution No. 1978-5-4, book 245, p. 4. The regulations require those who wish to construct major new domestic water systems in Grand County to apply to the Grand County Board for a permit. Id., § 1-301(1), book 245, p. 14; id., § 3-302(1), book 245, p. 25.

In 1980 the Eagle County Board of County Commissioners (the Eagle County Board) designated site selection and con[756]*756struction of major new domestic water and sewage treatment plants to be an activity of state interest. Eagle County Admin. Reg. 6.03.10. The Eagle County Board also designated efficient utilization of municipal and industrial water projects to be an activity of state interest. Eagle Co. Admin.Reg. 6.05.07. The Eagle County Board adopted regulations governing activities the Eagle County Board declares to be of state interest. Eagle Co. Admin.Regs. 6.03.07 to -.17, and 6.05.01 to -.17 (the Eagle County regulations or the regulations). The regulations provide that “[n]o person may locate a major new domestic water or sewage treatment system wholly or partially within the unincorporated territory of [Eagle] County without first obtaining a permit pursuant to these Regulations.” Eagle County Admin.Reg. 6.03.-11(1). The regulations also provide that “[n]o local authority shall issue a building permit for purposes of selecting a site for constructing a major new domestic water or sewage treatment plant without the applicant first having obtained a permit pursuant to these Regulations.” Eagle County Admin.Reg. 6.03.11(2). The regulations establish the Eagle County Board as the Eagle County permit authority to receive applications for conduct of an activity of state interest. Eagle County Admin.Reg. 6.02.04(1).

Denver brought two separate actions against Eagle and Grand Counties to obtain declaratory judgments that it need not obtain permits from the Eagle or Grand County Boards to construct or operate water collection and diversion facilities in Eagle and Grand Counties. The Grand County case began on November 23, 1979, when the Northern Colorado Water Conservancy District and its municipal subdistrict (the Northern Colorado Water District) and' Denver, acting by and through the Denver Water Board, filed a complaint against the Grand County Board. The complaint alleged that Denver, acting through the Denver Water Board, was in the process of extending its raw water collection facilities in Grand County in order to take advantage of water rights it held in Grand County. The complaint also alleged that the Northern Colorado Water Conservancy District annually diverted water from Grand County to northeastern Colorado, and that its municipal subdistrict planned to construct and operate water diversion facilities in Grand County. The complaint sought a declaratory judgment invalidating the Grand County Board’s regulations requiring Denver to apply to the Grand County Board for permits to construct and operate the water diversion facilities. Defendants, the Grand County Board, and plaintiffs, Denver and the Northern Colorado Water District, moved for summary judgment. The district court entered a summary judgment order in favor of the Grand County Board.

The Eagle County case began on October 26, 1981, when Denver, acting by and through the Denver Water Board, filed a complaint against the Eagle County Board. The complaint alleged that the Denver Water Board was in the process of developing water rights in Eagle County to provide a larger and more dependable water works system for Denver. The complaint sought a declaratory judgment invalidating the Eagle County regulations requiring the Denver Water Board to apply to the Eagle County Board for a permit to extend its water works operations in Eagle County. The complaint also sought a declaratory judgment that the Colorado Land Use Commission’s 1 approval of Eagle County’s regulations was void. The district court entered summary judgment in favor of the Eagle County Board.

Denver, acting through the Denver Water Board, appealed the summary judgments entered against it in both the Grand [757]*757County and Eagle County cases.

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Bluebook (online)
782 P.2d 753, 13 Brief Times Rptr. 1397, 1989 Colo. LEXIS 430, 1989 WL 135484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-county-of-denver-ex-rel-board-of-water-commissioners-v-board-of-colo-1989.