Montezuma County’s denial of a high-impact permit for a Dollar General store just off Highway 145 has been upheld.
In a July 8 order, District Judge Todd Plewe wrote that the motion for summary judgment by the plaintiff, Leaf Properties, was denied.
Leaf Properties is a corporation that owns the 3.78-acre parcel in question at the corner of Highway 145 and County Road N.
The county commissioners twice voted to deny the application. Both times the vote was 2-1, with Chair Jim Candelaria dissenting.
The county Planning and Zoning Commission had also recommended denial, voting unanimously.
The plaintiff sued to challenge the commission’s decision.
In his ruling, Plewe wrote that the plaintiff filed a motion for summary judgment based on three arguments:
- That the county land-use code and its high-impact-permit process created “a fully discretionary review” whenever a proposed use exceeded any of 33 threshold standards;
- That the HIP process doesn’t apply to uses by right; and
- That the county lacks legal authority to deny a use by right by adding a discretionary approval process.
The order says that the motion for summary judgment was denied.
“This Court finds that Montezuma County has the statutory authority to create a discretionary review process for applications under the Code,” Plewe wrote.
The two legal cases the plaintiff’s attorneys, who were with the Denver law firm Otten, Johnson, Robinson, Neff, & Ragonetti, P.C, cited in support of their motion were not relevant, the order says.
“The Court finds that the Code, despite its weaknesses, is sufficiently specific to notify ‘all users and potential users of land’ that they will have to complete the High Impact Permit process if the proposed use will have 15 or more round-trip vehicle trips per day. . . .The Code does not create a limitless, fully discretionary review process.”
Leaf Properties’ argument that “uses by right” cannot be restricted by further discretionary review is incorrect, Plewe found.
“… there is not any legal restriction on counties writing their codes unartfully, regardless of the ensuing confusion that may cause,” the order says.
It continues, “A full and complete reading of the Code makes it evident that use by right as used in the Code does not mean automatic approval and that uses by right are still subject to the High Impact Permit process. . . .The term use by right in the Code is clumsy, but it does not invalidate the Code or the High Impact process.”
The plaintiff also sought a CRCP 106(a)(4) judicial review, which permits judicial review of a governmental body’s quasi-judicial action. Such a review is “limited to a determination of whether the body or officer has exceeded its discretion, based on the evidence in the record.”
In the ruling, Plewe wrote that there was negative community sentiment towards the Application voiced at public hearings, but, “Most of the public criticism of the Application does not constitute competent evidence.”
However, the order says, the plaintiff’s argument that “expert testimony” negates or overrides the lay testimony of the public at the hearings is an incorrect analysis.
“Colorado case law in jury trials provides that the weight to be accorded expert testimony is a question solely for the jury. . . . A BOCC hearing is not a jury trial; however, the BOCC acted as the finder of fact, like a jury, in reviewing this Application, and is not bound by the testimony of an expert.”
He said the county’s written reasons for denying the application were:
- Concerns about the danger of dramatically increased traffic;
- The property is in a rural area and the proposed use didn’t create a transition from rural to urban;
- There is no cluster of similar urban-level commercial uses around the subject property;
- The surrounding land uses are agricultural and large-lot residential and there are no similar uses in adjacent properties;
- The use would negatively impact the uses and property values of surrounding areas;
- It would create an unacceptable fire risk; and it would not preserve the rural character of the community.
The court rejected all the reasons as insufficient but the first – traffic concerns. That one, the order states, was sufficient for denial.
In conclusion, Plewe stated:
“For the reasons set forth hereinabove, the denial of the High Impact Permit by the BOCC withstands C.R.C.P. 106(4) scrutiny. The denial is supported by competent evidence and properly applies governing law set forth in the Code. The Applicant was afforded due process. The Code was properly applied. The Plaintiff had every opportunity to offer evidence that the Application would not have a significant adverse
impact.
“Increased traffic that creates ‘significant adverse impacts on other property in the area’ is a basis for denial under Section 2202.8 of the Code.
“The denial of the Application by the BOCC is upheld.”
