v. Bd. of Cty. Commr's for Boulder Cty

2020 COA 28

• Court: Colorado Court of Appeals
• Decided: February 13, 2020
• Docket: 18CA2454, Hajek
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY February 13, 2020

2020COA28

No. 18CA2454, Hajek v. Bd. of Cty. Commr’s for Boulder Cty. — Government — Local Government Regulation of Land Use — Adequate Water Supply for Development

Section 29-20-303, C.R.S. 2019, requires that when a local

government is considering a development permit it must review the

adequacy of the proposed water supply if the development includes

“new water use,” as used in section 29-20-103(1)(b), C.R.S. 2019, in

an amount exceeding a defined threshold. In a matter of first

impression, a division of the court of appeals concludes that the

phrase “new water use” encompasses a change in either the

quantity of the water used or the purpose for which the water is

used. COLORADO COURT OF APPEALS 2020COA28

Court of Appeals No. 18CA2454 Boulder County District Court No. 18CV30183 Honorable Thomas F. Mulvahill, Judge

Sara Susie Hajek,

Plaintiff-Appellant,

v.

Board of County Commissioners for Boulder County, Colorado; Fair Farm, LLC, a Colorado limited liability company; and Walter F. Pounds,

Defendants-Appellees.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division II Opinion by JUDGE TOW Webb and Terry, JJ., concur

Announced February 13, 2020

Spencer Fane LLP, Jacob F. Hollars, Gilbert F. McNeish, Denver, Colorado, for Plaintiff-Appellant

Ben Perlman, County Attorney, David Hughes, Deputy County Attorney, Katherine A. Burke, Senior Assistant County Attorney, Boulder, Colorado, for Defendant-Appellee Board of County Commissioners for Boulder County, Colorado

Lyons Gaddis Kahn Hall Jeffers Dworak & Grant, P.C., Timothy J. O’Neill, Longmont, Colorado, for Defendant-Appellees Fair Farm, LLC and Walter F. Pounds ¶1 State law requires that before a local government approves a

development permit involving a significant “new water use,” the

local government must consider the adequacy of the development’s

proposed water supply. § 29-20-103(1)(b), C.R.S. 2019. In this

C.R.C.P. 106(a)(4) action, we must determine, as a matter of first

impression, whether the term “new water use” encompasses only

the use of additional water, or also includes water put to a different

purpose. We conclude that the legislature intended the term to

have the latter definition. In so doing, we conclude that the Board

of County Commissioners for Boulder County (Board) abused its

discretion by granting conditional approval of the application by

Walter F. Pounds and Fair Farm, LLC (collectively, Fair Farm) for

Site Plan Review (SPR) without considering the adequacy of the

proposed water supply. As a result, we reverse and remand with

directions.

I. Background

¶2 Fair Farm sought to transition the use of its property from

primarily grazing and hay production to an organic farm that would

include “laying hens in mobile houses in rotation with vegetable

production.” Because Fair Farm’s proposed operation required

1 building new structures on vacant land subject to a protective

conservation easement owned by Boulder County, the construction

was subject to SPR under the Boulder County Land Use Code.

Accordingly, Fair Farm submitted an application for SPR to the

Boulder County Land Use Department (Department).

¶3 In its application and accompanying narrative, Fair Farm

proposed building twelve mobile chicken houses, four greenhouses,

and structures for processing and storing eggs and harvested crops.

When Fair Farm later submitted the Fair Farm Operating Plan &

Best Management Practices (Operating Plan), it reported that each

chicken house would contain approximately four hundred hens. 1

While Fair Farm had originally listed the Little Thompson Water

District as its proposed water supply for the operation, the

Operating Plan specified that Fair Farm would instead use a thirty

acre-foot water right from the Hessler Slough, though it never

identified how much water the operation would require.

¶4 The Director of the Department conditionally approved Fair

Farm’s application, opening a fourteen-day public comment period

1 Thus, the operation would house approximately 4800 hens.

2 during which members of the community, including the appellant,

Sara Hajek (the owner of a parcel adjacent to the proposed

operation), submitted written comments voicing concerns over air

and water quality, odors, increased traffic, attraction of natural

predators to the area, and the adequacy of the water supply. The

Director then referred the application to the Board to determine

whether a public hearing would be required. The Board determined

that a hearing was not necessary and, in doing so, finalized the

Director’s conditional approval of Fair Farm’s application.

¶5 Hajek challenged the Board’s decision under C.R.C.P. 106.

The district court affirmed the Board’s decision. Hajek now

appeals.

II. Standard of Review

¶6 “Review of a governmental body’s decision pursuant to Rule

106(a)(4) requires an appellate court to review the decision of the

governmental body itself rather than the district court’s

determination regarding the governmental body’s decision.” Bd. of

Cty. Comm’rs v. O’Dell, 920 P.2d 48, 50 (Colo. 1996). Our review is

limited to deciding whether the governmental body’s decision was

an abuse of discretion, based on the evidence in the record before

3 it, or was made in excess of its jurisdiction. C.R.C.P. 106(a)(4)(I);

Whitelaw v. Denver City Council, 2017 COA 47, ¶ 7.

¶7 A governmental body abuses its discretion if it misinterprets or

misapplies the law or if no competent record evidence supports its

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

City of Boulder, 195 P.3d 1138, 1139 (Colo. App. 2008). 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.’”

O’Dell, 920 P.2d at 50 (quoting Ross v. Fire & Police Pension Ass’n,

713 P.2d 1304, 1309 (Colo. 1986)). Thus, we will reverse the

Board’s decision if we determine that it erroneously interpreted the

law or made a decision that is unsupported by the record. Nixon v.

City & Cty. of Denver, 2014 COA 172, ¶ 12.

¶8 Whether the Board abused its discretion in this instance turns

on the interpretation of several Colorado statutes, which we review

de novo. Friends of the Black Forest Pres. Plan, Inc. v. Bd. of Cty.

Comm’rs, 2016 COA 54, ¶ 15.

4 III. Discussion

A. The Phrase “New Water Use” Includes Water Put to a Different Purpose

¶9 Hajek contends that the Board failed to comply with section

29-20-303(1), C.R.S. 2019, which provides in pertinent part:

A local government shall not approve an application for a development permit unless it determines in its sole discretion, after considering the application and all of the information provided, that the applicant has satisfactorily demonstrated that the proposed water supply will be adequate.

As relevant here, section 29-20-103(1)(b), C.R.S. 2019, limits the

definition of “[d]evelopment permit” to

an application regarding a specific project that includes new water use in an amount more than that used by fifty single-family equivalents, or fewer as determined by the local government.

¶ 10 The Board and Fair Farm respond that the statute does not

apply to Fair Farm’s application because the proposed laying hen

operation did not involve a “new water use.” Therefore, they

contend, the Board’s SPR was not the approval of a “development

permit.”

5 ¶ 11 To resolve this threshold issue, we must consider the meaning

of “new water use” as it is used in section 29-20-103(1)(b). When

interpreting a statute, our goal is to “ascertain and give effect to the

legislature’s intent.” Roup v. Commercial Research, LLC, 2015 CO

38, ¶ 8. To do so, we look first to the language of the statute and

give words their plain and ordinary meaning. Id. Unless the

statutory language is ambiguous, we presume the General

Assembly meant what it said. United Airlines, Inc. v. Indus. Claim

Appeals Office, 993 P.2d 1152, 1157 (Colo. 2000). In addition, we

construe the statute as a whole to give consistent, harmonious, and

sensible effect to all its parts, and we presume that the legislature

intended the entire statute to be effective. People v. Buerge, 240

P.3d 363, 367 (Colo. App. 2009). We also avoid interpretations that

would render any words or phrases superfluous or would lead to

illogical or absurd results. People v. Null, 233 P.3d 670, 679 (Colo.

2010).

¶ 12 Our inquiry centers on the meaning of the word “new” in this

context. In our view, it can be understood in two ways. “New” can

be interpreted here as meaning “additional” — as in an additional

6 quantity of water — and as meaning “different” — as in a different

purpose for which water is used.

¶ 13 While the word “new” can be defined in a number of ways

depending on the context, the applicable dictionary definitions here

are “having originated or occurred lately,” “being other than the

former or old,” and “different or distinguished from a person, place,

or thing of the same kind or name that has longer or previously

existed.” Webster’s Third New International Dictionary 1522 (2002).

Under any of these definitions, the word “new” does not exclusively

mean additional. Rather, “new” is broad enough to also include a

use that differs from prior use. Thus, giving the word “new” its

plain and ordinary meaning, we construe the phrase “new water

use” to encompass both the use of additional quantities of water

and the use of water for a different purpose.

¶ 14 Notably, when sections 29-20-303(1) and 29-20-103(1)(b) were

enacted, the General Assembly also added language defining an

“[a]dequate” water supply as one that “will be sufficient for

build-out of the proposed development in terms of quality, quantity,

dependability, and availability to provide a supply of water for the

type of development proposed . . . .” § 29-20-302(1), C.R.S. 2019.

7 Thus, in determining if a water supply is adequate for a proposed

development under section 29-20-303(1), a local government is

required to consider not only the quantity of the water to be used,

but the quality as well. Id. Because water quality is only relevant

in the context of the purpose for which it is used, we draw two

conclusions.

¶ 15 First, considering the quality of a water supply would not be

necessary if the General Assembly had been solely concerned about

development involving additional, as opposed to different, water

use. But “quality” in this context indicates the General Assembly

was also interested in the purpose for which water is used. Thus, a

development’s use of water for a different purpose is a sufficient

“new water use” to trigger section 29-20-303(1) oversight.

¶ 16 Second, if the General Assembly had intended section 29-20-

303(1) to apply only where additional quantities of water are used

and not where water is merely used for a different purpose, the

reference to water quality would be unnecessary. Because we must

avoid interpretations that render words or phrases superfluous, we

cannot construe “new water use” to exclude instances where the

8 same quantity of water is used for a different purpose. Null, 233

P.3d at 679.

¶ 17 Therefore, we conclude that the phrase “new water use” in

section 29-20-103(1)(b) refers to the use of additional quantities of

water as well as the use of a similar quantity of water for a different

purpose. Thus, a “development permit” as referenced in section 29-

20-303(1) includes approval of an application for a specific project

where either (1) an additional use of water is required in the

threshold amount set forth in section 29-20-103(b)(1) or (2) an

amount of water exceeding the threshold set forth in section 29-20-

103(b)(1) is to be used for a different purpose.2

B. The Fair Farm Application Implicated Section 29-20-303(1)

¶ 18 We next turn to whether the approval of the Fair Farm

application was a “development permit” within the meaning of

section 29-20-103(1)(b) and thus triggered section 29-20-303(1).

¶ 19 The Board and Fair Farm argue that Fair Farm’s SPR

application was strictly limited to seeking approval to build the

2We note that “new water use” is not specifically defined in any Colorado statute. However, in several other Colorado statutes, “water use” implies purpose and not volume. See, e.g., § 37-75- 105(3)(a), C.R.S. 2019; § 37-97-103(5), C.R.S. 2019.

9 structures associated with the proposed operation, not for the

operation itself. Indeed, as the Board and Fair Farm also point out,

based on how the property is zoned, Fair Farm is already permitted

by right to use the land for the envisioned laying hen operation

without any special review or authorization. See Boulder County

Land Use Code 4-502(D), Use Table 4-502.

¶ 20 Even so, because the proposed structures are intended to

facilitate the operation, which includes water use, building the new

structures necessarily implicates any “new water use” associated

with the operation. Moreover, the Department conditioned approval

in part on implementing prescribed management practices related

to potential wildlife interactions with the hens and obtaining a

permit for producing eggs, which indicates that the Department was

also reviewing the operation as a whole in addition to the

construction of the structures. For these reasons, we conclude that

the approval of Fair Farm’s application for SPR is within the scope

of a development permit. § 29-20-103(1).

¶ 21 However, as noted, such a development permit only falls

within the ambit of section 29-20-303(1) if the operation “includes

new water use in an amount more than that used by fifty

10 single-family equivalents.”3 § 29-20-103(1)(b). Although neither the

statute nor any regulation referenced by the parties establishes how

much water would be used by fifty single-family equivalents, Hajek

alleged in her complaint that “[a] single family equivalent is typically

in the range of 0.4 to 0.6 acre-feet . . . [t]hus ‘fifty single-family

equivalents would require between 20 acre-feet and 30 acre-feet of

water.” She also alleged that Fair Farm’s operation would require

more than thirty acre-feet of water. On appeal, neither the Board

nor Fair Farm argues that the amount of water required would be

below this threshold.

¶ 22 In sum, because Fair Farm’s operation includes “new water

use,” the statute required the Board to consider whether the

amount of water used exceeded the threshold, and thus whether

the Board had to review the application as a development permit

under section 29-20-303(1). Because the Board did not do so, it

3 While section 29-20-103(1)(b), C.R.S. 2019, allows a local government to set the standard at fewer than fifty single-family equivalents, Boulder County has not done so. Accordingly, the fifty single-family equivalent threshold provided in section 29-20- 103(1)(b) applies.

11 abused its discretion by approving Fair Farm’s application. 4 See

O’Dell, 920 P.2d at 50.

C. The Record Does Not Demonstrate Adequate Water Supply

¶ 23 The Board and Fair Farm argue that, even if the statute

applies to Fair Farm’s application, reversal is not required because

the record evidence demonstrates that the proposed water supply is

adequate. We disagree.

¶ 24 First, while the Fair Farm application and Operating Plan

alluded to two possible sources of water, nowhere did the

application or other material Fair Farm submitted to the

Department or Board indicate how much water the operation would

require. In fact, the only indication in the record of the amount of

water necessary for the operation is public comments submitted

about the possible inadequacy of the supply. Without any estimate

of how much water Fair Farm’s operation will require, the Board

could not have considered whether the proposed water supply

4 We note that, in addition to considering the adequacy of the proposed water supply, the statute required the Board to consider the documentation outlined in section 29-20-304, C.R.S. 2019, which Fair Farm never submitted. § 29-20-305(a), C.R.S. 2019.

12 would be adequate.5 Similarly, if the record does not reflect how

much water will be required by the operation, it cannot possibly

contain sufficient evidence for us to conclude that the proposed

water supply is adequate.

¶ 25 Moreover, as we have noted, a consideration of the adequacy

of the water supply includes exploring the quality as well as the

quantity of the water available. Yet the record contains no

information regarding whether the new operation will require water

of a different quality than that required for the simple irrigation that

has been occurring.

¶ 26 The Board and Fair Farm also essentially contend that the

Board need only consider whether the applicant has proposed a

water supply, and that it does not matter whether the applicant

presently has the rights to that water. While the latter half of this

argument is correct, it only goes so far.

5 Indeed, in the Board’s answer to Hajek’s complaint in the district court, its response to the allegations regarding the volume of water the operation would require was that the Board was “without knowledge and information sufficient to form a belief as to the truth of the allegations.” The Board’s earlier disavowal of any knowledge regarding the amount of water involved cannot be reconciled with its assertion on appeal that the record reflects an adequate water supply.

13 ¶ 27 True, the statute provides that the applicant does not have to

“own or have acquired the proposed water supply or constructed

the related infrastructure at the time of the application.” § 29-20-

303(2). This means precisely what it says: the Board cannot reject

a development permit solely because the applicant has not yet

obtained the rights to the water it proposes to use. But the Board

must still consider whether, assuming the rights are obtained, the

proposed water supply is adequate. Here, Fair Farm’s proposed

water supply was a “thirty acre-foot water right.” Yet, as noted, the

Board did not consider, and cannot say now, that this source would

be adequate in terms of either quality or quantity.

¶ 28 Finally, the Board points out that “all determinations required

under the enumerated provisions are made in the County’s ‘sole

discretion’” and notes that it can delay addressing the adequacy of

the water supply to a later date “if it became a relevant issue in the

future.” First, we reject any implication that a local government’s

decisions regarding the adequacy of a development’s water supply

are unreviewable by a court merely because such decisions are

entrusted to the local government’s “sole discretion.” The district

and appellate courts are clearly empowered to review such

14 decisions for an abuse of that discretion. See C.R.C.P. 106(a).

Second, the Board’s claim that it can consider the adequacy of the

water supply whenever it deems it appropriate is contrary to the

unequivocal statutory mandate that this consideration occur before

any development permit is approved. § 29-20-303(1).

IV. Conclusion

¶ 29 The judgment is reversed, and the case is remanded to the

trial court with directions to vacate the Board’s conditional approval

and remand the case to the Board to determine whether the

development’s water requirements exceed fifty single-family

equivalents, and, if so, whether the applicant’s proposed water

supply is adequate.

JUDGE WEBB and JUDGE TERRY concur.