Agenda - Planning Commission - 01/05/2017

Home

Zoning Bulletin November 25, 2016 1 Volume 10 1 Issue 22 Citation: Onyx Properties LLC v.Board of County Commissioners of Elbert County, 2016 WL 5720529(10th Cir 2016) The Tenth Circuit has jurisdiction over Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming. TENTH CIRCUIT(COLORADO)(10/03/16)—This case addressed the is- sue of whether the Due Process Clause of the United States Constitution requires notice and public hearings prior to the adoption of zoning regulations. It also addressed the issue of whether a county board of commissioners' purported conduct was sufficiently egregious so as to violate affected land- owners' substantive due process rights. The Background/Facts: In 1983, the Board of County Commissioners of Elbert County(the"Board")enacted comprehensive zoning regulations.Those zoning regulations referred to an official county zoning map. By 1997, the Board discovered that its files contained only six pages of the regulations and no zoning map. The Board authorized the County's Planning Director, Ken- neth Wolf, to research historical zoning information and report his findings in a series of replacement maps and zoning regulations(the"Wolf Documents"). Although no public proceedings were conducted to approve the Wolf Docu- ments,county officials treated them as authoritative. Between 1997 and 2008, a number of landowners in Elbert County (the "County") sought to subdivide their properties. County officials informed them that their properties were zoned A-Agriculture, and that County regula- tions required the parcels to be rezoned as A-1 in order to be subdivided.At substantial expense, the landowners applied to the Board for rezoning, paid required fees, and obtained approval of their rezoning applications. Subse- quently, however, the landowners became aware that, the Wolf Documents, which required the rezonings, had not been formally adopted in accordance with Colorado law. Colorado law requires that"before the adoption of any zoning resolutions, the board of county commissioners 'shall hold a public hearing thereon, the time and place of which at least fourteen days' notice shall be given."(Colo.Rev. Stat. § 30-28-112.) One group of landowners brought a lawsuit alleging that the Board's ac- tions violated their substantive and procedural due process rights.Another group of landowners brought another suit,raising the same claims. The land- owners argued that after the Board lost the original documents reflecting the 1983 comprehensive zoning ordinance, the Board created the Wolf Docu- ments without following proper state law procedures for enacting an ordi- nance—in violation of the landowners' rights to procedural due process.The landowners also alleged that the Board covered up their misconduct thus violating the landowners' substantive due process rights. The Due Process Clause of the Fourteenth Amendment of the United States Constitution prohibits the state from depriving any person"of life,liberty, or property, without due process of law." (U.S. Const. amend. XIV, § 1.) "Procedural due process ensures the state will not deprive a party of property without engaging fair procedures to reach a decision, while substantive due process ensures the state will not deprive a party of property for an arbitrary reason regardless of the procedures used to reach that decision." In other words,procedural due process rights ensure that an affected party will receive ©2016 Thomson Reuters 3