Opinion · Supreme Court of Colorado
Theobald v. Board of County Commissioners, Summit County
Theobald v. Bd. of County Comm’rs, Summit County, 644 P.2d 942 (Colo. 1982)
- Type
- Opinion
- Court
- Supreme Court of Colorado
- Jurisdiction
- Colorado
- Date
- 1982-05-03
- Topic
- litigation
How later courts describe this case
- "[T]he master plan itself is only one source of comprehensive planning, and is generally held to be advisory only, and not the equivalent of zoning, nor binding upon the zoning discretion of the legislative body.”
- plaintiffs asserted only property interests, to which there was no actual injury
Citator
UpLaw has not yet analyzed Theobald v. Board of County Commissioners, Summit County. The absence of a flag is not a finding that it is good law.
- Cited by
- 22 opinions
THEOBALD v. BD. OF COUNTY COMM.,644 P.2d 942(Colo. 1982)
Robin G. Theobald, Plaintiff-Appellee, v. The Board of County
Commissioners, Summit County, State of Colorado, Summit County Regional
Planning Commission, Defendants-Appellants. Frank Plaut, Linda Plaut,
Robert A. Theobald Co., a General Partnership, and Lois G. Theobald Co., a
General Partnership, Plaintiffs-Appellees, v. Board of County
Commissioners of Summit County, State of Colorado, Summit County Regional
Planning Commission, Defendants-Appellants. Steven Grossbard,
Plaintiff-Appellee, v. L. Scott Gould, County Commissioner; Elizabeth H.
Etie, County Commissioner; Tor Brunvand, County Commissioner; The Board of
County Commissioners of Summit County, Colorado; Richard Rixon, Regional
Planning Commissioner; Gerald Young, Regional Planning Commissioner; M. L.
Etie, Regional Planning Commissioner; Robert Reisdorff, Regional Planning
Commissioner; John Haley, Regional Planning Commissioner; Kate Stonington,
Associate Regional Planning Commissioner; Verna Enyeart, Regional Planning
Commissioner; Winthrop C. Lockwood, Jr., Regional Planning Commissioner;
George Culbreath, Regional Planning Commissioner; Joe Lacy, Associate
Regional Planning Commissioner; Nancy Fulton, Associate Regional Planning
Commissioner; Anneke Whatley, Associate Regional Planning Commissioner;
Kathy Shriver, Associate Regional Planning Commissioner; Regional Planning
Commission of Summit County, Colorado; David Vince, Director of Planning;
Linda M. Rhea, Treasurer of Summit County; Mary Ann Arcieri, County
Assessor of Summit County; and the Board of Equalization, Summit County,
Colorado, Defendants-Appellants. Peerless Development Corporation, a
Colorado Corporation, Plaintiff-Appellee, v. L. Scott Gould, County
Commissioner; Elizabeth H. Etie, County Commissioner; Tor Brunvand, County
Commissioner; the Board of County Commissioners of Summit County, Colorado;
Richard Rixon, Regional Planning Commissioner; Gerald Young, Regional
Planning Commissioner; M.L. Etie, Regional Planning Commissioner; Robert
Reisdorff, Regional Planning Commissioner; John Haley, Regional Planning
Commissioner; Kate Stonington, Associate Regional Planning Commissioner;
Verna Enyeart, Regional Planning Commissioner; Winthrop C. Lockwood, Jr.,
Regional Planning Commissioner; George Culbreath, Regional Planning
Commissioner; Joe Lacy, Associate Regional Planning Commissioner; Nancy
Fulton, Associate Regional Planning Commissioner; Anneke Whatley, Associate
Regional Planning Commissioner; Kathy Shriver, Associate Regional Planning
Commissioner; Regional Planning Commission of Summit County, Colorado;
David Vince, Director of Planning; Linda M. Rhea, Treasurer of Summit
County; Mary Ann Arcieri, County Assessor of Summit County; and the Board
of Equalization, Summit County, Colorado, Defendants-Appellants. Red Ltd.,
a Partnership, Plaintiff-Appellee, v. L. Scott Gould, County Commissioner;
Elizabeth H. Etie, County Commissioner; Tor Brunvand, County Commissioner;
the Board of County Commissioners of Summit County, Colorado; Richard
Rixon, Regional Planning Commissioner; Gerald Young, Regional Planning
Commissioner; M.L. Etie, Regional Planning Commissioner; Robert Reisdorff,
Regional Planning Commissioner; John Haley, Regional Planning Commissioner;
Kate Stonington, Associate Regional Planning Commissioner; Verna Enyeart,
Regional Planning Commissioner; Winthrop C. Lockwood, Jr., Regional
Planning Commissioner; George Culbreath, Regional Planning Commissioner;
Joe Lacy, Associate Regional Planning Commissioner; Nancy Fulton, Associate
Regional Planning Commissioner; Anneke Whatley, Associate Regional Planning
Commissioner; Kathy Shriver, Associate Regional Planning Commissioner;
Regional Planning Commission of Summit County, Colorado; David Vince,
Director of Planning; Linda M. Rhea, Treasurer of Summit County; Mary Ann
Arcieri, County Assessor of Summit County; and the Board of Equalization,
Summit County, Colorado, Defendants-Appellants.
Page 943
The Dunkin Group, a Joint Venture; Henry P.
Broadhurst and Betty P. Broadhurst and Susan
Ann B. Fonda; Juniata-Oreornogo, a Joint
Venture; P.F.E. Mining Co., a Colorado
Corporation; Robert M. Perry; Barbara P.
Cosel; Kennard P. Perry; Ann K. Perry; The
Monarch Company; Breckenridge I, a Colorado
Partnership; Keith M. Williams, Trustee for the
Countess Company; Breckenridge II; William R.
York and Olga F. York; Roy A. Jones, M.D.,
Trustee for the P.C. Profit Sharing Trust; Roy
W. Jones and Donna R. Jones;
Breckenridge-Dillon Land Ltd., a Colorado
Corporation; Leo O'Connor and George Rolfes;
Russel A. Pomeroy; Walter L. Fick; Robert R.
Munoz, Jr., ; Barney T. Brewer; Morris A. Long
and Edward A. Meany, Plaintiffs-Appellees, v.
L. Scott Gould, County Commissioner; Elizabeth
H. Etie, County Commissioner; Tor Brunvand,
County Commissioner; the Board of County
Commissioners of Summit County, Colorado;
Richard Rixon, Regional Planning Commissioner;
Gerald Young, Regional Planning Commissioner;
M.L. Etie, Regional Planning Commissioner;
Robert Reisdorff, Regional Planning
Commissioner; John Haley, Regional Planning
Commissioner; Kate Stonington, Associate
Regional Planning Commissioner; Verna Enyeart,
Regional Planning Commissioner; Winthrop C.
Lockwood, Jr., Regional Planning Commissioner;
George Culbreath, Regional Planning
Commissioner; Joe Lacy, Associate Regional
Planning Commissioner; Nancy Fulton, Associate
Regional Planning Commissioner; Anneke
Whatley, Associate Regional Planning
Commissioner; Kathy Shriver, Associate Regional
Planning Commissioner; Regional Planning
Commission of Summit County, Colorado; David
Vince, Director of Planning; Linda M. Rhea,
Treasurer of Summit County; Mary Ann Arcieri,
County Assessor of Summit County; and the Board
of Equalization, Summit County, Colorado,
Defendants-Appellants. Blue Valley, Ltd., a
Colorado Limited Partnership; Alpine Meadows
Development Co., a Colorado Corporation;
Ptarmigan Associates, a Colorado General
Partnership; and David A. Ray and Ptarmigan
Properties, Ltd., a Colorado Limited
Partnership, its General Partners,
Plaintiffs-Appellees, v. L. Scott Gould, County
Commissioner; Elizabeth H. Etie, County
Commissioner; Tor Brunvand, County
Commissioner; the Board of County Commissioners
of Summit County, Colorado; Richard Rixon,
Regional Planning Commissioner; Gerald Young,
Regional Planning Commissioner; M.L. Etie,
Regional Planning Commissioner; Robert
Reisdorff, Regional Planning Commissioner; John
Haley, Regional Planning Commissioner; Kate
Stonington, Associate Regional Planning
Commissioner; Verna Enyeart, Regional Planning
Commissioner; Winthrop C. Lockwood, Jr.,
Regional Planning Commissioner; George
Culbreath, Regional Planning Commissioner; Joe
Lacy, Associate Regional Planning
Commissioner; Nancy Fulton, Associate Regional
Planning Commissioner; Anneke Whatley,
Associate Regional Planning Commissioner; Kathy
Shriver, Associate Regional Planning
Commissioner; Regional Planning Commission of
Summit County, Colorado; David Vince, Director
of Planning; Linda M. Rhea, Treasurer of Summit
County; Mary Ann Arcieri, County Assessor of
Summit County; and the Board of Equalization,
Summit County, Colorado,
Defendants-Appellants. Blue River Investment
Company, a Colorado Limited Partnership,
Plaintiff-Appellee, v. L. Scott Gould, County
Commissioner; Elizabeth H. Etie, County
Commissioner; Tor Brunvand, County
Commissioner; the Board of County Commissioners
of Summit County, Colorado; Richard Rixon,
Regional Planning Commissioner; Gerald Young,
Regional Planning Commissioner; M.L. Etie,
Regional Planning Commissioner; Robert
Reisdorff, Regional Planning Commissioner; John
Haley, Regional Planning Commissioner; Kate
Stonington, Associate Regional Planning
Commissioner; Verna Enyeart, Regional Planning
Commissioner; Winthrop C. Lockwood, Jr.,
Regional Planning Commissioner; George
Culbreath, Regional Planning Commissioner; Joe
Lacy, Associate Regional Summit County,
Colorado; Summit County, Colorado, v. v.
No. 79SA405
Supreme Court of Colorado.
Decided May 3, 1982.
Mitchem and Mitchem, P.C., Allen P. Mitchem, for plaintiff-appellees, Steven Grossbard and Peerless Development Corporation.
Grant, McHendrie, Haines and Crouse, P.C., Donald B. Gentry, for plaintiff-appellee, Red, Ltd.
Gorsuch, Kirgis, Campbell, Walker and Grover, Joseph M. Montano, Shayne M. Madsen, for plaintiff-appellee, The Dunkin Group,et al.
Philip A. Rouse, Tinkler Carwin, Stephen E. Tinkler, for plaintiff-appellee, Blue Valley, Ltd.,et al.
Holme, Roberts Owen, Spencer T. Denison, W. Dean Salter, for plaintiff-appellee, Blue River Investment Company.
Wegher Fulton, P.C., Richard W. Breithaupt, J. C. Tim Scates, David R. Demuro, for plaintiff-appellee, Columbia Savings and Loan Association.
Richard D. Lynton, for defendants-appellants, The Board of County Commissioners of Summit County Colorado, The Planning Commission of Summit County, and the County Officials of Summit County.
Hall Evans, Harvey W. Curtis, for defendants-appellants, The Board of County Commissioners of Summit County, Colorado, and the Regional Planning Commission of Summit County.
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy, Mary J. Mullarkey, Solicitor General, Marshall D. Brodsky, Assistant Attorney General, Marcia Hughes, Assistant, for defendants-intervenors-appellants, Colorado Land Use Commission and State of Colorado.
Perry P. Burnett, for amicus curiae, Colorado Counties, Inc.
Blake T. Jordan, for amicus curiae, Colorado Municipal League.
Gerald E. Dahl, Susan J. Baluzy, for amicus curiae, The Northwest Colorado Council of Governments, Special counsel to amici curiae, The Boards of County Commissioners of the Counties of Eagle and Grand, Colorado.
Beth A. Whittier, for amicus curiae, County of Eagle, Colorado.
Daniel J. Kaup, for amicus curiae, County of Jackson, Colorado.
Ronald W. Stock, for amicus curiae, City of Aspen, Colorado.
Sandra M. Stuller, for amicus curiae, Board of County Commissioners of Pitkin County, Colorado.
Harden, Schmidt Hass, P.C., George H. Hass, Rick Zier, for amicus curiae, Board of County Commissioners of Larimer County, Colorado.En Banc.
[2] Certain of the complaints also sought damages on the theory of inverse condemnation. Some of the complaints also claimed damages from the individual defendants for an alleged conspiracy and damages under42 U.S.C. § 1983. Upon motion the district court dismissed the inverse condemnation claims without prejudice and the other damage claims against the individual defendants with prejudice. Several of the appellants cross-appealed from the court's dismissal of their damage claims; however, the cross-appeals were dismissed by this court for failure to brief the issues raised by the cross-appeals.
[3] We reverse the judgment declaring the CLUC invalid and unconstitutional.1
I.
[4] Historically, the CLUC emerged from the development of a master plan by the Summit County Regional Planning Commission, certified to the board of county commissioners. In 1963, pursuant to the authority of section30-28-101,et seq., C.R.S. 1973 (1977 Repl. Vol. 12), the original master plan for the physical development of the unincorporated territory of Summit County was adopted by the Summit County Planning Commission.2The policy of the master plan was to promote concentrated growth in established communities while preserving the county's scenic qualities to protect future tourism potential. Consistent with the master plan, the first county zoning resolution was adopted by the board of county commissioners in 1969. The zoning resolution included a classification designated as A-1 Agricultural, under which one of the permitted uses was a 20 acre minimum lot size for a single family dwelling in the rural sections of the county. That zoning classification has remained in effect up to the time these actions were filed in 1978.
[5] Summit County experienced rapid growth and a population increase. In 1975 the Summit County Regional Planning Commission3adopted an Interim Land Use Guide as an aid in evaluating land use and development proposals submitted by developers to the planning commission. The intent of the commission as expressed in the Interim Land Use Guide was to discourage commercial and high-density development outside existing growth centers. The same year a study was begun by the county's planning department to design a new master plan for the county and as a result, the CLUC was formulated and adopted by the Summit County Regional Planning Commission on April 20, 1978.4
[6] After public meetings at which some citizen concerns were voiced, the CLUC was readopted with amendments by resolution of the regional planning commission on July 6, 1978. The plan was then certified to the Board of County Commissioners of Summit CountyPage 947and was approved on July 10 by motion of the board sitting as a planning commission. On August 8, 1978, the civil actions challenging the CLUC were filed, and a court order was issued staying the implementation of the CLUC. On August 21, 1978, on recommendation of counsel that the July 10th motion for and adoption of the CLUC may have been ineffective, the board of county commissioners sitting as the planning commission adopted the CLUC by resolution.
[7] The basic land use policies of the CLUC emphasize the following general land use goals:
[8] (1) To encourage high density and commercial development to locate within existing growth centers and to discourage such development from locating outside such centers;
[9] (2) To preserve and maintain Summit County's rural character;
[10] (3) To encourage land uses which will stabilize and diversify the economy.
[11] In accordance with these general policies, the CLUC identified certain "growth centers" by boundaries and restricted certain types of development to the growth centers. By this means it sought to preserve the rural character of the undeveloped areas of the county and to avoid "sprawl" development throughout the county and to prevent "strip" development along the highways.
[12] The appellees' quarrel with the CLUC resulted from their disagreement with the boundaries drawn identifying the growth centers and with the limitations proposed on the use of their property by reason of its exclusion therefrom and its classification as rural in nature. They contended in the trial court that the CLUC amounted to a rezoning of their property without due process, hearing, or compliance with the statutory procedures required for rezoning. They argued that the Code as adopted was unreasonable and arbitrary with regard to the treatment of their land and the designation of growth center boundaries which excluded their property, and unfairly and irrationally limited commercial growth. They sought to invalidate the CLUC, and also claimed damages in inverse condemnation, arguing that their property values had been lowered by the adoption of the CLUC.
[13] Trial was to the court. The inverse condemnation claims and other damage claims were dismissed on motion of the appellants and the sole issue tried was the validity of the CLUC. The district court held that the adoption of the CLUC was legislative action; that the CLUC was in reality a zoning measure rather than a master plan; and that since the statutory procedures for zoning had not been followed, the enactment of the CLUC was invalid. The court also reviewed the constitutionality of the CLUC and held it to be unconstitutional beyond a reasonable doubt, both on its face and as applied to the plaintiffs.
[14] Although the CLUC was enacted by resolution as a master plan for the county to be utilized as the guideline for future development for a period of four years, and thereafter to be reviewed and revised as believed necessary, the court found that the CLUC amounted to permanent zoning, directly affecting those landowners whose property was outside the designated growth centers.
II.
[15] Recognizing that rapid growth and uncontrolled development may destroy Colorado's great resource of natural scenic and recreational wealth, the General Assembly in enacting the Local Government Land Use Control Enabling Act of 1974 declared:
[16] "[I]n 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." Section29-20-102, C.R.S. 1973 (1977 Repl. Vol. 12).
[17] Although growth and development are matters of state concern and state involvement, certain areas have been left to local control by the General Assembly. Section29-20-101,et. seq., C.R.S. 1973 (1977 Repl. Vol. 12). Section29-20-104provides:Page 948
[18] "Powers of local governments. (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:
[19] (a) Regulating development and activities in hazardous areas;
[20] (b) Protecting lands from activities which would cause immediate or foreseeable material danger to significant wildlife habitat and would endanger a wildlife species;
[21] (c) Preserving areas of historical and archeological importance;
[22] (d) Regulating, with respect to the establishment of, roads of 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 by43 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 by30 U.S.C. § 21et seq., or under any specific permit or lease granted by the federal government;
[23] (e) Regulating the location of activities and developments which may result in significant changes in population density;
[24] (f) Providing for phased development of services and facilities;
[25] (g) Regulating the use of land on the basis of the impact thereof on the community or surrounding areas; and
[26] (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."
[27] While both the planning and zoning power of local governments are related to rational development and regulation of land uses, the Colorado statutory scheme clearly distinguishes between the two functions.Seesection30-28-101,et seq., C.R.S. 1973. The duty of creating and adopting the master plan is assigned to the regional or county planning commissions, section30-28-106, C.R.S. 1973. In carrying out this duty the planning commission:
[28] "[S]hall make careful and comprehensive surveys and studies of the existing conditions and probable future growth of the territory within its jurisdiction. The county or regional master plan shall be made 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." Section30-28-107, C.R.S. 1973.
[29] The master plan is the planning commission's recommendation of the most desirable use of land.See Mott's Realty Corp. v. Town Plan andZoning Commission,152 Conn. 535,209 A.2d 179(1965); 1A. Rathkopf, Lawof Zoning and Planning§ 12.05 (4th Ed.). Conceptually, a master plan is a guide to development rather than an instrument to control land use. 3 4R. Anderson, American Law of Zoning§§ 21.15, 22.12 (2nd Ed.); 8E. McQuillin, Municipal Corporations, Zoning§ 25.08 (3rd Ed., 1976 Repl. Vol.). On the other hand, it is the task of the legislative body charged withPage 949zoning to individually apply the broad planning policies to specific property, consistent with the public interest, and with notions of due process and equal protection.See generally82Am.Jur. 2d Zoning andPlanning2; 1E. Yokely, Zoning and Practice1-2 (4th Ed. 1978). As stated by the Oregon Supreme Court,, "[T]he [master] plan embodies policy determination and guiding principles; the zoning ordinances provide the detailed means of giving effect to those principles."Fasano v. Board ofCounty Commissioners of Washington County,264 Ore. 574,507 P.2d 23,27(1973).
[30] The general rule is that zoning should be enacted in conformance with the comprehensive plan for development of an area,Fasano, supra;Haar, In Accordance with the Comprehensive Plan, 68 Harv. L. Rev. 1154 (1955); 1E. Yokely, Zoning Law and Practice§ 2-1 (4th Ed. 1978). However, the master plan itself is only one source of comprehensive planning, and is generally held to be advisory only, and not the equivalent of zoning, nor binding upon the zoning discretion of the legislative body. 1 2A. Rathkopf, Law of Zoning and Planning§ 12.01,et seq., § 30.02 (4th Ed.);State Ex Rel. Rochester Ass'n ofNeighborhoods v. City of Rochester,268 N.W.2d 885(Minn. 1978);Holmgrenv. City of Lincoln,199 Neb. 178,256 N.W.2d 686(1977);Todrin v. Boardof Supervisors,27 Pa. Commw. 583,367 A.2d 332(1976);Coughlin v. Cityof Topeka,206 Kan. 552,480 P.2d 91(1971);Sharninghouse v. City ofBellingham,4 Wn. App. 198,480 P.2d 233(1971).
[31] This rule is embodied in our statute. While the statute provides for master planning on a county level, the board of county commissioners is specifically empowered, by majority vote, to disregard the recommendations of the planning commission as set forth in the master plan. Section30-28-110, C.R.S. 1973,see also Margolis v. District Court,638 P.2d 297,305(Colo. 1981).
[32] In conformity with the purposes of the county planning statutes, the Regional Planning Commission for Summit County adopted the CLUC by resolution, section30-28-108, C.R.S. 1973, and certified it to the board of county commissioners, section30-28-109, C.R.S. 1973. The regional plan became the official county plan when it was adopted by the county commissioners sitting as the county planning commission. Section30-28-106(2)(b).5
[33] The adopted resolution stated:
[34] "No. 78-201
[35] 2. The Board of County Commissioners sitting as the Summit County Planning Commission hereby adopts as and for the master plan for Summit County, Colorado, the Summit County Comprehensive Land Use Code, adopted by the Summit County Regional Planning Commission in its Resolution 78-2 on July 6, 1978."6
[36] Thus, the CLUC became the master plan for the county as contemplated by county planning statute, section30-28-101,et seq., C.R.S. 1973, and the "land use guidelines" and "development policies" expressed therein became the applicable criteria for future development in the county.
[37] The trial court failed to perceive the true nature of the Summit County Comprehensive Land Use Code when it viewed it as mandatory in effect and concluded that it was an attempt by the board of county commissioners to restrictively zone the appellees' property without following the statutory procedures for enacting zoning. This conclusion overlooked the expressed intent of the resolution adopting the CLUC as a "master plan." Moreover, the court misconceived the effect of our statutes which do not empower the planning commission to enact zoning, but rather circumscribe the authority of the commissionPage 950to that of making a "zoning plan" for certification to the board of county commissioners, which is the governmental body vested with the authority to enact county zoning resolutions. Sections30-28-102, -111, -112, and -113, C.R.S. 1973.See Board of County Com'rs. v. City ofThornton,629 P.2d 605(Colo. 1981);Famularo v. Board of CountyCommissioners,180 Colo. 333,505 P.2d 958(1973);DiSalle v. Giggal,128 Colo. 208,261 P.2d 499(1953);Crittenden v. Hasser,41 Colo. App. 235,585 P.2d 928(1978). As we have stated above, master planning is distinguishable from zoning, both in cause and effect, since they serve different purposes. The General Assembly has clearly stated its authorization and support of, and recognition of the need for, county and regional planning. Nothing in our review of this case indicates to us that the CLUC was anything other than a master plan, advisory in effect, for the development of Summit County.
III.
[38] We agree with the appellants that the trial court erred in not granting their motions to dismiss and for summary judgment on the basis that appellees lacked standing to challenge the validity of the CLUC because their challenges were premature.
[39] The appellees did not allege that they had applied for and been denied proposed uses of their properties based on the provisions of the CLUC. Since the master plan did not have an actual impact on their property interests, their claims for relief did not allege a direct injury to a legally protected interest which presented an actual controversy for adjudication.See Wimberly v. Ettenberg,194 Colo. 163,570 P.2d 535(1977);Heron v. City and County of Denver,159 Colo. 314,411 P.2d 314(1966). In our view, the claims of the appellees were not ripe for review.
[40] As the Supreme Court of the United States stated inInternationalLongshoreman's and Warehousemen's Union, Local 37 v. Boyd,347 U.S. 222,224(1954):
[41] "Determination of the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function."Id.
[42]See also L. Tribe, American Constitutional Law§§ 3-12 and 3-13 (1978).
[43] At the time this case was commenced in the trial court, the CLUC had not been applied to any specific property through enactment of zoning or otherwise. The master plan, as such, is not susceptible of this kind of challenge, because the appellees cannot realistically demonstrate that they have suffered any actual harm as a result of its adoption. Ripeness is often problematic in challenges to master plans.See Dale v. City ofMountain View,55 Cal.App.3d 101,127 Cal.Rptr. 520(1976);Penny v.Board of Supervisors, 53 Pa. D.C. 2d 329 (1971). As was stated inPenny, supra:
[44] "It is inherent in the recommendatory nature of the comprehensive planning concept that it neither can nor does have any specific or litigable impact such as to provide any practical or realistic occasion for judicial intervention. The formulation and adoption of a comprehensive plan are but intermediate and inconclusive steps in the planning process and in themselves are legally ineffective. No one's rights, pro or con, are affected thereby unless and until the recommendations thereof be implemented."Id.at 332.
[45] In order to have a direct effect on property rights, the master plan must be further implemented through zoning, with proper notice and hearing. Section30-28-112, C.R.S. 1973;Stephens v. Board of CountyCommissioners,41 Md. App. 494,397 A.2d 289,aff'd in part and rev'din part on other grounds,408 A.2d 1017(1979). At such time as a property owner has applied for and been denied a proposed use for his land under existing zoning or future rezoning based upon the master plan, he may challenge the plan and the denial of his asserted right. However, considered alone, a master plan is merely advisory and doesPage 951not affect legally protected interests of property owners so as to confer standing to challenge the plan.Stephens v. Board of CountyCommissioners, supra; Selby Realty v. City of San Buenaventura,10 Cal.3d 110,514 P.2d 111,109 Cal.Rptr. 799(1973);see also Board ofCounty Com'rs. v. City of Thornton, supra;7Wimberly v. Ettenberg,supra.
[46] Accordingly, we reverse the judgment of the trial court which declared the Summit County master plan invalid and unconstitutional and awarded costs to the plaintiffs. We remand the consolidated cases to the trial court for further proceedings consistent with the views expressed herein.
- We have been aided in our resolution of the issues in this case by amici briefs from the Boards of County Commissioners of Eagle County, Grand County, Jackson County, Larimer County, Pitkin County, and from the City of Aspen the Northwest Colorado Council of Governments, the Colorado Municipal League, and Colorado Counties, Inc. ↩
- The planning commission may be comprised of the members of the board of county commissioners, or may be a separate body appointed by the board of county commissioners. Section30-28-101(4) and -103(1), C.R.S. 1973. ↩
- Regional planning commissions are provided for in section30-28-105, C.R.S. 1973. ↩
- Before the adoption of the CLUC a series of meetings were held by the planning commission to discuss the proposed draft of the CLUC. A second series of meetings occurred between the county officials and the governing bodies of the municipalities of Summit County. As a result, some boundary line changes were made in the proposed growth centers. Also, cooperative land use agreements were signed between the planning commission and the towns of Dillon, Silverthorne, and Breckenridge concerning their common goals. ↩
- Since the county had no planning commission, the commissioners adopted the plan sitting as the planning commission. Section30-28-108, C.R.S. 1973. ↩
- The board had first adopted the plan by motion, but later adopted the plan by resolution on advice of counsel.Seesection30-28-108. The delay in adoption by resolution is not significant in view of the advisory nature of the plan. ↩
- This case is distinguishable fromBoard of County Com'rs. v. City ofThornton, supra.In that case the majority of this court held that the City of Thornton had standing to challenge the County of Adams rezoning of property lying adjacent to city owned property, which allegedly was diminished in value because of the county rezoning. The court stated: "[A] complaining property owner, such as the City here, has a legally protected interest in insulating its property from adverse effects caused by the legally deficient rezoning of adjacent property. . . ." In the present case zoning or rezoning had not yet occurred pursuant to the CLUC Master Plan. ↩