Pennobscot, Inc. v. Board of County Commissioners

QUINN, Justice,

dissenting:

In my view section 30-28-133(1), C.R.S. 1973 (1977 Repl.Vol. 12), of the County Planning Statute does not prohibit the county from adopting subdivision regulations for parcels of land comprising 35 acres or more and not intended for use by multiple owners. Any doubt in this respect is resolved by the Local Government Land Use Control Enabling Act of 1974 (Land Use Act), section 29-20-101 et seq., C.R.S. 1973 (1977 Repl.Vol. 12), which grants to local governments broad regulatory powers over land use within their respective jurisdictions. Accordingly, I respectfully dissent.

Section 30-28-133(1) provides in part:

“Every county in the state which does not have a county planning commission on July 1, 1971, shall create a county planning commission in accordance with the provisions of section 30-28-103. Every county planning commission in the state shall develop, propose, and recommend subdivision regulations, and the board of county commissioners shall adopt and enforce subdivision regulations for all land within the unincorporated areas of the county in accordance with this section not later than September 1, 1972.... In the event the board of county commissioners of any county in this state has not adopted subdivision regulations by September 2, 1972, the Colorado land use commission may promulgate such subdivision regulations for such areas of the county for which no subdivision regulations exist. Such subdivision regulations shall be in full force and effect and enforced by the board of county commissioners. If at any time thereafter the board of county commissioners adopts its own subdivision regulations for land within the unincorporated areas of the county, such regulations shall be no less stringent than the regulations promulgated by the Colorado land use commission under this subsection (1)....”

Section 30-28-101(10)(a), C.R.S. 1973 (1981 Supp.) defines “subdivision” or “subdivided land” to include, in pertinent part, “any parcel of land in the state, which is to be used for condominiums, apartments, or any other multiple-dwelling units ... or which is divided into two or more parcels, separate interests, or interests in common, unless excepted under paragraph (b) ... of this subsection 10.” Subsection 30-28-101(10)(b), C.R.S. 1973 (1977 Repl.Vol. 12), excepts from this statutory definition “any division of land which creates parcels of land each of which comprises thirty-five or more acres of land and none of which is intended for use by multiple owners.”

I interpret section 30-28-133(1) as a mandate to counties to regulate subdivisions as defined in subsection 30-28-101(10)(a), and not as a prohibition from regulating parcels comprising 35 acres or more. If the legislature intended section 30-28-133(1) as a prohibition only, then I am at a loss to explain why this same statute expressly authorizes a county to adopt “its own subdivision regulations for land within the unincorporated areas of the county,” so long as such regulations are “no less stringent than the regulations promulgated by the Colorado land use commission under this subsection (1).” The conclusion I draw from the language of *921section 30-28-133(1) is that the legislature intended to impose upon counties a duty to adopt subdivision regulations for those parcels of land described in section 38-20-101(10)(a) which are less than 35 acres without, however, restricting their authority to adopt subdivision regulations for parcels of land exceeding in size those within the counties’ statutory duty to regulate.

This conclusion is consistent with the authority conferred upon counties by the Land Use Act, section 29-20-101 et seq. The legislative intent to confer upon units of local government, such as counties, expansive powers of subdivision regulation is apparent from the legislative declaration in section 29-20-102 of the Land Use Act:

“The general assembly hereby finds and declares that in order to provide for planned and orderly development within Colorado and a balancing of basic human needs of a changing population with legitimate environmental concerns, the policy of this state is to clarify and provide broad authority to local governments to plan for and regulate the use of land within their respective jurisdictions....”

Section 29-20-104 of this act resolves any doubt about the scope of a county’s authority in the matter of land use regulation. That section provides:

“(1) Without limiting or superseding any power or authority presently exercised or previously granted, each local government within its respective jurisdiction has the authority to plan for and regulate the use of land by:
“(a) Regulating development and activities in hazardous areas;
“(b) Protecting lands from activities which would cause immediate or foreseeable material danger to significant wildlife habitat and would endanger a wildlife species;
“(c) Preserving areas of historical and archaeological importance;
“(d) Regulating, with respect to the establishment of, roads on public lands administered by the federal government; this authority includes authority to prohibit, set conditions for, or require a permit for the establishment of any road authorized under the general right-of-way granted to the public by 43 U.S.C. 932 (R.S. 2477) but does not include authority to prohibit, set conditions for, or require a permit for the establishment of any road authorized for mining claim purposes by 30 U.S.C. 21 et seq., or under any specific permit or lease granted by the federal government;
“(e) Regulating the location of activities and developments which may result in significant changes in population density;
“(f) Providing for phased development of services and facilities;
“(g) Regulating the use of land on the basis of the impact thereof on the community or surrounding areas; and
“(h) Otherwise planning for and regulating the use of land so as to provide planned and orderly use of land and protection of the environment in a manner consistent with constitutional rights.”

These demographic and ecological objectives are impossible to achieve if a county’s subdivision authority over land use control is limited to parcels comprising less than 35 acres.

The majority, while conceding that the Land Use Act represents a grant of broad powers to local governments, paradoxically construes the act to prohibit a county from adopting any definition of subdivision different from that contained in section 30-28-101(10) of the County Planning Statute. It does this by interpreting section 29-20-107 of the Land Use Act as somehow transforming this statutory definition of “subdivision” in the County Planning Statute into the full measure of a county’s power under the Land Use Act with respect to subdivision regulations. I believe the majority reads far too much into section 29-20-107. That section states:

“Where other procedural or substantive requirements for the planning for or regulation of the use of land are provided by law, such requirements shall control.”

This section, in my opinion, does no more than make clear to a county that, in exercis*922ing its authority under the Land Use Act, it must not ignore the specific mandate of the County Planning Statute to adopt subdivision regulations for parcels of land encompassed within the statutory definition of “subdivision” in section 30-28-101(10)(a). The majority’s conclusion that a county has no power to adopt a definition of subdivision which includes tracts of land comprising 35 acres or more simply cannot be reconciled with the statutory scheme contemplated by the Land Use Act. Such construction tends to relegate the Land Use Act to an enigmatic statutory redundancy without purpose or effect.

It is presumed that the general assembly in enacting a statute intended it to be effective. Section 2-4-201(l)(b), C.R.S. 1973 (1980 Repl.Vol. IB). The provisions of the County Planning Statute, section 30-28-101 et seq., and the Land Use Act, section 29-20-101 et seq., are in pari materia and should be construed together in order to effectuate the object sought to be attained by the legislature. Section 2-4-203(l)(a), C.R.S. 1973 (1980 Repl.Vol. IB). The legislative object, I believe, is to impose upon counties the duty to adopt and enforce subdivision regulations for those subdivisions defined in section 30-28-101(10)(a) and comprising less than 35 acres, while at the same time to permit counties to adopt and enforce reasonable subdivision regulations with respect to larger tracts of land in order to achieve an orderly development consistent with basic human needs and legitimate environmental concerns.

In my opinion the district court properly harmonized the County Planning Statute and the Land Use Act so as to authorize the county to exercise subdivision authority to regulate parcels comprising 35 acres or more. Therefore, I would affirm the judgment of the district court.

I am authorized to say that Justice Du-bofsky joins me in this dissent.