Opinion
Aug. 13, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Stephen S. Marsters, Denver, for plaintiffs-appellants.
Harden & Napheys, George H. Hass, Fort Collins, Holme, Roberts & Owen, Donald C. McKinlay, Lawrence L. Levin, Denver, for defendants-appellees.
VAN CISE, Judge.
Plaintiffs appeal from a summary judgment in favor of defendants County Commissioners of Larimer County (Commissioners), from a denial of plaintiffs' motion for preliminary injunction, and from a dismissal of the complaint against defendant Martin Marietta Corp. (Martin). We affirm.
The issue presented for review is whether a use permit, valid under the county zoning resolutions at time of issuance, is voided on enactment of a later amendment to the zoning resolution.
On June 15, 1972, the Commissioners heard and approved the application of Martin for permission to excavate and extract limestone from deposits located in 545 acres of land owned by Martin in Larimer County. Part of the Martin land is in an area zoned O, Open District (O--Open); the rest of Martin's land is in an area zoned FA1, Farming District (FA--1). Conditions with regard to dust control, specific delineation of areas of extraction, and the meeting of state requirements for reclamation were included in the permit.
Plaintiffs are all residents of or owners of land adjacent to or within a one-mile radius of the proposed quarry site. No plaintiff was notified that the application had been made or was to be acted upon, and no one of them was present when the permit was granted.
Under the provisions of the zoning resolution then in effect, quarrying was a permitted use in FA--1 and no approval by the Commissioners was required. In O--Open, 'all uses not otherwise prohibited by law' were permitted, except that 'uses which may be obnoxious, offensive, or hazardous' were not authorized unless approved by the Commissioners. Subsequent to the granting of the permit by the Commissioners, Martin proceeded with applications to the Colorado Department of Natural Resources and to the Colorado Air Pollution Commission for authorization to operate the quarry. Most of the plaintiffs, through their same attorney and many of them in person, attended and actively participated in opposition to Martin at hearings before both of these agencies. Permission with strict conditions imposed, was ultimately granted by both agencies.
On April 26, 1973, the Commissioners enacted amendments to the zoning resolutions. No changes were made in the provisions applicable to O--Open. In FA--1, quarrying was changed from a permitted use to a use allowable only after special review. Requirements for special review were detailed.
Following the enactment of the 1973 zoning amendments, plaintiffs, either in person or through their attorney, made known to the Commissioners their objections to Martin's proceeding with its quarry operation (which had not yet been started because the final hearing before the Air Pollution Commission had not been completed), but the Commissioners declined to take any further action on the matter.
On June 1, 1973, plaintiffs commenced this action against the County Commissioners of Larimer County and the Commissioners individually. Martin was added later as an additional defendant. Plaintiffs asked the court to require the Commissioners to hold a 'special review' of Martin's proposed quarry use, to enter a preliminary injunction against Martin 'pending final hearing of the cause,' and, upon final hearing, to enter a permanent order enjoining Martin from preparing or operating a limestone quarry on its land. In support of their complaint and their motion for a preliminary injunction, plaintiffs filed affidavits claiming possible adverse effects to family members or to property from the quarrying operation. The Commissioners filed motions to dismiss and for summary judgment which were granted by the trial court.
For plaintiffs to prevail, this court would have to hold that the provisions of the 1973 zoning amendments applied retroactively and nullified the permit properly issued under the use provisions in effect at the time of grant. That is not the law in Colorado. City and County of Denver v. Denver Buick, Inc., 141 Colo. 121, 347 P.2d 919.
Cline v. City of Boulder, 168 Colo. 112, 450 P.2d 335, upheld the rezoning and resultant voiding of a county building permit issued for a filing station use authorized under a prior zoning resolution. However, in that case the permit had been obtained from Boulder County only a week before the effective date of a Boulder city ordinance annexing and rezoning Cline's property. The service station was in the 'dream stage,' and, prior to the rezoning, Cline had done nothing except to obtain the permit. The court ruled 'that the owner must take some steps in reliance on the permit before his rights vest thereunder.' In Crawford v. McLaughlin, 172 Colo. 366, 473 P.2d 725, an amendment to the zoning ordinance limiting the height of buildings was held inapplicable where there had been action in reliance on a building permit issued prior to the enactment of the amendment.
In Denver Buick, Supra, a zoning ordinance enacted November 7, 1956, provided for an effective date of February 11, 1955. In considering the retroactive feature of the ordinance, the court stated, in 141 Colo. at page 140, 347 P.2d at page 930:
'It is sufficient to say that the Constitution of Colorado provides that no law 'retrospective in its operation' shall be passed by the General Assembly. What the legislature cannot do at the state level in this connection, the city council cannot do in municipal affairs.
'It follows that any person who applied for a building permit prior to November 7, 1956, was entitled to have his application considered under the only zoning law in force at that time, and that law was the zoning ordinance of 1925, as amended.'
The trial court found, based on undisputed facts presented at the hearing, that Martin, in reliance on the permit from the Commissioners, sought additional permits from the Colorado Department of Natural Resources and the Colorado Air Pollution Commission, and expended substantial sums of money in preparing for and appearing at detailed and extended hearings before these agencies. We hold that the amendments are not to be applied retroactively and that Martin's permit remains in force and effect.
There being no disputed fact issues, the motion to dismiss, treated as a motion for summary judgment, was properly granted in favor of the Commissioners. The action against Martin became moot with the upholding of the use permit and the refusal to order a special review by the Commissioners.
COYTE and SMITH, JJ., concur.