Hopkins v. BD. OF CTY. COM'RS OF CTY. OF GILPIN

564 P.2d 415
CourtSupreme Court of Colorado
DecidedMay 23, 1977
Docket27100
StatusPublished
Cited by2 cases

This text of 564 P.2d 415 (Hopkins v. BD. OF CTY. COM'RS OF CTY. OF GILPIN) 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
Hopkins v. BD. OF CTY. COM'RS OF CTY. OF GILPIN, 564 P.2d 415 (Colo. 1977).

Opinion

564 P.2d 415 (1977)

C. Lew HOPKINS, Sue Hopkins, and Gilpin Investment Co., a Colorado Corporation, Plaintiffs-Appellants,
v.
The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF GILPIN, Defendant-Appellee.

No. 27100.

Supreme Court of Colorado, En Banc.

May 23, 1977.

*416 Elias J. Candell, Lakewood, for plaintiffs-appellants.

Hurth, Yeager & Sisk, John M. Yeager, Boulder, for defendant-appellee.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., James L. Kurtz-Phelan, Asst. Atty. Gen., Denver, for intervenor State of Colorado.

LEE, Justice.

Appellants C. Lew and Sue Hopkins and Gilpin Investment Company (Gilpin) appeal from the judgment of the District Court of Gilpin County in favor of appellee Board of County Commissioners of Gilpin County (Board). We affirm in part, reverse in part, and remand with directions.

Appellants own adjacent parcels of land in Gilpin County. The Hopkinses own the West Pewabic mining claim, which is roughly parallel to the Becky Sharp claim owned by Gilpin. Each parcel is bisected by County Highway 279, which runs north and south through the properties. Appellants wish to exchange parts of their holdings so that the Hopkinses will own both pieces *417 west of the highway and Gilpin will own both pieces east of the highway.

The tract sought to be transferred to the Hopkinses was described as:

Surface rights only to a depth of 100 feet, of all that part of Becky Sharp lode mining claim, U. S. Survey No. 636, westerly of the Central City-Idaho Springs Road, also known as Colorado Highway No. 279 (now owned by Gilpin Investment Co.).

The tract sought to be transferred to Gilpin was described as:

All that part of West Pewabic lode mining claim, U. S. Survey No. 172, easterly and northerly of Federal lode mining claim, U. S. Survey No. 107 (now owned by Hopkinses).

This controversy arose because of the limitations and restrictions on the sale or transfer of land under section 30-28-101 et seq., C.R.S.1973, relating to the subdivision of unincorporated territory.

The West Pewabic claim comprises only 2.729 acres and the Becky Sharp claim only 3.60 acres. Thus, each parcel constitutes a subdivision under section 30-28-101(10), C.R.S.1973 (1976 Supp.), and may not be transferred without approval by the board of county commissioners. Section 30-28-110(4)(a), C.R.S.1973.

The Board rejected appellants' request under section 30-28-101(10)(d), C.R.S.1973, for exemption from the above statutes, for the reason that appellants failed to provide proper legal descriptions of the parcels. Appellants then instituted this action in district court, in four claims requesting (1) that the statute requiring approval for transfers of subdivided land be declared unconstitutional; (2) that the court approve the proposed transfers; (3) that the court hold that the Board exceeded its authority in denying appellants' request for exemption and in requiring a $125 fee before considering the request; and (4) that Gilpin be awarded damages by way of inverse condemnation from the Board, arising from the alleged taking of a portion of Gilpin's Federal lode mining claim, U. S. Survey No. 107, by the relocation of County Highway No. 279, for which no compensation had been paid Gilpin, or, in the alternative, a decree quieting its title to that mining claim, and further decreeing that the Board had no right, title or interest therein. The court found for the appellee on all grounds and this appeal followed.

I.

Appellants first challenge the constitutionality of section 30-28-110(4)(a), C.R.S.1973, which requires approval by the Board for transfers of subdivided land, defined by section 30-28-101(10)(b) as parcels under thirty-five acres in size. Appellants contend essentially that this statute denies due process and equal protection of the law, as guaranteed by the United States and Colorado Constitutions.

Appellants bear the burden of showing this statute to be unconstitutional beyond a reasonable doubt, by clear and convincing evidence. Johnson v. Division of Employment, Colo., 550 P.2d 334; Sundance Hills v. County Comm., 188 Colo. 321, 534 P.2d 1212. In the area of zoning and other restrictions on land use, this standard requires that appellants show that the challenged statute bears no substantial relation to public health, safety, morals or welfare, or that it precludes the use of the affected property for any reasonable purpose. Board of County Com'rs v. Mountain Air Ranch, Colo., 563 P.2d 341, announced January 31, 1977; Ford Leasing v. County Comm., 186 Colo. 418, 528 P.2d 237. Appellants have failed to discharge their burden of showing the statute is unconstitutional.

Preliminarily, we observe that the boards of county commissioners of the respective counties are charged with the control of the physical development of the unincorporated territory of the counties. Section 30-28-102, C.R.S.1973. In the exercise of this function, the Board, acting through its county planning commission, is directed to make and adopt a master plan for the physical development of the unincorporated territory of the county. Section 30-28-106, C.R.S.1973. To this end, the planning commission is required to make careful and *418 comprehensive surveys and studies of existing conditions and the probable future growth of the territory within its jurisdiction, with the general purpose of

"* * * guiding and accomplishing a coordinated, adjusted, and harmonious development of the county or region which, in accordance with present and future needs and resources, will best promote the health, safety, morals, order, convenience, prosperity, or general welfare of the inhabitants, as well as efficiency and economy in the process of development, including such distribution of population and of the uses of land for urbanization, trade, industry, habitation, recreation, agriculture, forestry, and other purposes as will tend to create conditions favorable to health, safety, transportation, prosperity, civic activities, and recreational, educational, and cultural opportunities; will tend to reduce the wastes of physical, financial, or human resources which result from either excessive congestion or excessive scattering of population; and will tend toward an efficient and economic utilization, conservation, and production of the supply of food and water and of drainage, sanitary, and other facilities and resources." Section 30-28-107, C.R.S.1973.

Upon adoption of the master plan, all proposed subdivisions must be submitted for review and approval by the board of county commissioners before recordation. Section 30-28-110(3)(a). Without official approval of the subdivision, the transfer or sale of the subdivided tracts may result in penal sanctions. Section 30-28-110(4)(a).

The foregoing statutory restrictions, as part of the comprehensive planning scheme, bear a reasonable relation to the legitimate state interest in controlling the use and development of unincorporated land in Colorado.

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564 P.2d 415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hopkins-v-bd-of-cty-comrs-of-cty-of-gilpin-colo-1977.