Vick v. Board of County Commissioners

689 P.2d 699, 1984 Colo. App. LEXIS 1194
CourtColorado Court of Appeals
DecidedMay 24, 1984
DocketNo. 83CA0582
StatusPublished
Cited by7 cases

This text of 689 P.2d 699 (Vick v. Board of County Commissioners) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vick v. Board of County Commissioners, 689 P.2d 699, 1984 Colo. App. LEXIS 1194 (Colo. Ct. App. 1984).

Opinion

STERNBERG, Judge.

Petitioner, Don Vick, as trustee for the owner of 73 acres of land located in an unincorporated portion of Larimer County, sought approval of a subdivision plat from the Board of County Commissioners. The Board refused to approve the plat, and Vick sought review in the district court pursuant to C.R.C.P. 106(a)(4). The court upheld the action of the Board. Vick appeals and we reverse.

The land in question is located near the • City of Estes Park. Property elevations range from 8900 to 9400 feet, and slopes average 20% with a maximum of 40%. The property was zoned for single family residences, and the subdivision plat submitted by Vick proposed dividing the property into single family lots ranging in size from 2.4 to 5.2 acres.

The plat was submitted to the City of Estes Park whose Planning Commission recommended approval. However, the Lar-imer County Planning Commission considered the plat and recommended that it not be approved. A public hearing on the plat was then scheduled before the Board. The County Planning Staff submitted a report critical of the plat, setting forth proposed findings of fact which it recommended the Board adopt in refusing to approve the plat. Following a public hearing, the Board did not approve the plat and adopted the findings submitted by the Planning Staff.

Larimer County by resolution had adopted a land development Master Plan, and it has zoning and subdivision regulations. The Vick subdivision plat satisfied all requirements of the zoning and subdivision resolutions. However, the basic reason the Board did not approve the plat was the plat’s alleged failure to comply with the Comprehensive or Master Plan for the county. This Plan is referred to in the subdivision regulations wherein it is provided that: “In designing and planning subdivisions, consideration should be given to the Larimer County Master Plan and the Larimer County Zoning Regulations.” Thus, it is contended that compliance with the Master Plan is a requirement if one is to comply with the subdivision regulations.

The Larimer County Master Plan consists of several portions related to different areas of the county. With respect to the area in question, the County adopted the 1977 Comprehensive Plan of the City of Estes Park by this language: “An area land use plan for the Town of Estes Park and the surrounding area has been developed and adopted by the town. Both these plans have been adopted by the county and function as elements of the Comprehensive Plan.”

In refusing to approve the Vick plat, the Board gave many reasons of a general nature which can only be described as vague and as having no foundation in any resolution or any regulation. Among these are the finding that the site distance [701]*701at the southern planned access to the subdivision was substandard, that four lots could be adversely affected by traffic noise, that Vick refused to dedicate an access easement or to build a trailhead to adjoining wilderness land. The Board also expressed concern with the amount of time it would take emergency vehicles to arrive at the site, should they be needed. The Board noted that future problems with the development could arise and that the plat was incompatible with the surrounding area. Also, the Board found that the plat did not comply with the Larimer County Policy Plan directing that new residential developments should be located where its residents would expend the least amount of energy for transportation to work, shopping, and community services.

The Board concluded that approval would not promote the convenience, prosperity, and general welfare of the immediate inhabitants of the area, nor be in the best interests of the people of the county. However, none of these reasons, individually or collectively, form a sufficient basis for the refusal to grant approval of the plat.

Denial based upon these reasons was arbitrary, capricious, and an abuse of discretion. Such unfettered restrictions on the right of property owners to use land cannot stand. This is made especially clear by the fact that several other residential developments had been approved in this area. A subdivision plat may not be disapproved if the subdivision controls or regulations have been complied with. Reynolds v. City Council, 680 P.2d 1350 (Colo.App.1984); RK Development Corp. v. City of Norwalk, 242 A.2d 781 (Conn.1968); 8 E. McQuillin, Municipal Corporations § 25.-118c at 347 (3d rev. ed. 1983). Nor may the plat be disapproved merely because the developer fails or refuses to comply with unauthorized or irrelevant conditions. McQuillin, supra.

The Board, however, did make reference to three specific instances in which the plat was inconsistent with the Master Plan, i.e., the City of Estes Park Plan adopted by the County. These three instances become the critical elements in this review. The Board refused to approve the plat because the property is above 8100 feet in elevation, because the property is located in a wildfire hazard area, and because it is located in an area with slopes in excess of 30%. We address each of these factors below, concluding that denial on any of these bases cannot stand. Indeed, it appears that the county, in effect, is using the broad generalities of the Master Plan to rezone property without having followed proper procedures.

A. Property Above Elevation of 8100 Feet.

The Estes Park Plan provides:

“The Town recently has revised the limit of water service from a maximum elevation of approximately 7840 feet to elevation 8100 feet_ No areas of development are shown above this elevation unless they are already in existence. It is assumed that areas above this elevation might be proposed for future development using individual wells or a special water system; however, since they will not be in the main area for designated development as established by water service and other factors, special review planning and design considerations should be required of the developer as determined necessary in each case by the Planning Commission.”

The plat was simply dismissed as being “inconsistent” with the Comprehensive Plan because it was above 8100 feet in elevation. This despite the fact that Vick had submitted evidence at the hearing that a private water system would serve the area and that test wells had already been drilled. The Estes Park Plan does not compel denial of plats located above 8100 feet, but the Board applied the provision to deny Vick’s right to develop property located above that elevation.

B. Property Located in Severe Wildfire Hazard Area

[702]*702“Extreme wildfire hazard is generally the result of a combination of relatively steep slope and dense vegetation. The condition of human habitation in wildfire hazard areas creates a potentially dangerous situation because of man’s use of fire or flame. Since such extreme wildfire hazard areas are usually also areas of steep slope, in many cases little interest is expected in the development of these areas; however, due to their potential danger to life and property, all areas identified as extreme wildfire hazard areas have been excluded to a large degree from any development designation in the Future Land Use Plan other than as open space.”

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Vick v. BD. OF CTY. COM'RS OF LARIMER CTY.
689 P.2d 699 (Colorado Court of Appeals, 1984)

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Bluebook (online)
689 P.2d 699, 1984 Colo. App. LEXIS 1194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vick-v-board-of-county-commissioners-coloctapp-1984.