No. 99CA2135Colorado Court of Appeals.
November 9, 2000
Appeal from the District Court of El Paso County, Honorable Gil Martinez, Judge, No. 99CV0797.
JUDGMENT AFFIRMED
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[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 434
Craig Raygor, Pro Se
Vaughan DeMuro, Gordon L. Vaughan, Sara Ludke Cook, Colorado Springs, Colorado, for Defendant-Appellee
Division IV Marquez and Casebolt, JJ., concur
Opinion by JUDGE TAUBMAN
[1] Plaintiff, Craig Raygor, appeals the trial court’s summary judgment in favor of defendant, Board of County Commissioners of the County of El Paso (BOCC), approving the BOCC’s adoption of a zoning plan for the unzoned eastern portion of El Paso County. We affirm. [2] On November 12, 1998, the BOCC directed the county planning department to prepare a zoning plan for the unzoned portion of El Paso County. [3] In February 1999, a postcard was mailed to over 3,000 owners of unzoned property in El Paso County informing them of the proposed zoning plan. The residents were informed of a special planning commission meeting, two public informational meetings, and the BOCC meeting where the zoning plan would be considered for adoption. All of these meetings were open to the public. A second letter was mailed to the same residents later that month reminding them of the meetings and requesting that they return a survey regarding the proposed zoning plan. [4] On March 9, 1999, the planning commission certified the zoning plan created by the planning department to the BOCC. On March 25, 1999, the BOCC voted to adopt the proposed zoning plan by a vote of 3-2. Plaintiff thereafter initiated this action, and the judgment at issue here resulted. Summary Judgment
[5] Initially, we note that, despite the BOCC’s contention that many of the issues raised by
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Raygor may not be considered on appellate review because they were not raised in the trial court, our review of the record indicates that these issues were properly presented there.
[6] Raygor argues that the trial court erred in granting summary judgment because: (1) material facts remain in issue, (2) the trial court did not allow him to complete discovery, and (3) the trial court did not rule on his motion to strike an affidavit submitted by the BOCC before granting its motion for summary judgment. We perceive no error. [7] Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56. The burden is on the moving party to establish that no genuine issue of fact exists and any doubts in this regard must be resolved against the moving party. Greenberg v. Perkins, 845 P.2d 530 (Colo. 1993). Where evidence is susceptible of a contradictory, yet reasonable interpretation, summary judgment is not appropriate. Blitz v. Marino, 786 P.2d 490 (Colo.App. 1989). [8] When determining whether to grant a motion for summary judgment, a trial court must consider the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits. C.R.C.P. 56(c). The nonmoving party is entitled to the benefit of all favorable inferences that may reasonably be drawn from the undisputed facts. Moffat County State Bank v. Told, 800 P.2d 1320 (Colo. 1990). [9] Appellate review of a summary judgment is de novo. Cung La v. StateFarm Auto Insurance Co., 830 P.2d 1007 (Colo. 1992).A. Material Facts in Issue
[10] Raygor contends that the trial court erred in granting the BOCC’s motion for summary judgment because there are material facts in dispute. We disagree.
B. Discovery
[16] Raygor further argues that the trial court abused its discretion in granting the BOCC’s motion for summary judgment when discovery was not complete. We disagree.
C. Motion to Strike
[18] Raygor next contends that the trial court erred in not addressing his motion to
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strike an affidavit filed by the BOCC. We disagree.
[19] According to C.R.C.P. 56(e), parties may submit affidavits in support of their motion for summary judgment. Here, Raygor challenged the veracity of an affidavit submitted in support of the BOCC’s summary judgment motion, and, in his cross-motion for summary judgment, he filed numerous exhibits. However, contrary to the requirement of C.R.C.P. 56(e), he did not file a counter-affidavit specifically contesting the affiant’s statements. Instead, he later filed a motion to strike the affiant’s affidavit on the grounds that it was misleading and false. The trial court did not rule on this motion. [20] Even if we assume that it was appropriate to file a motion to strike in these circumstances, the contentions of Raygor’s motion were conclusory. Thus, we conclude that the trial court’s failure to rule on Raygor’s motion to strike was harmless error. Notice Section 30-28-112
[21] Raygor contends that the BOCC erred in not providing timely notice to the public, under § 30-28-112, C.R.S. 2000, of its meeting to consider adoption of the zoning plan. Specifically, he contends that, contrary to the statute, the BOCC notified the public of the hearing before, rather than after, it received a certified zoning plan from the commission. We disagree.
[23] On February 23, 1999, the BOCC published a “Notice of Public Hearing Proposed Change to El Paso County Zoning Resolutions and Maps” in The Gazette, a newspaper with a major circulation in Colorado Springs. The notice stated that the hearing was to be held on March 25, 1999. [24] Contrary to Raygor’s contention, the plain language of the statute does not require a board of county commissioners to give notification of a public hearing after the date the zoning plan is certified by the planning commission. Rather, the plain language requires only that the public receive fourteen days advance notice of the hearing before the board of county commissioners. See Sandomire v. Denver, 794 P.2d 1371The county planning commission shall certify a copy of the plans for zoning . . . to the board of county commissioners of the county. After receiving the certification of said zoning plans from the commission and 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 by one publication in a newspaper of general circulation in the county. . . .
(Colo.App. 1990) (statute should be interpreted to give effect to plain meaning of words used). [25] Since the notice here was published on February 23, 1999, and the hearing was held on March 25, 1999, the public received over thirty days notice of the hearing. Therefore, the notice requirement of §30-28-112 was met.
Adequacy of Notice
[26] Next, Raygor argues that the notice of the public hearing regarding the proposed zoning plan was ambiguous. We disagree.
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It specified the date, time, and location of the hearing; the specific portions of El Paso county that were affected by the proposed zoning plan; and it informed the public that a certified copy of the planning commission’s action and proposed zoning plan would be available at the office of the planning department.
[29] In our view, the notice was sufficiently clear and understandable to accomplish the purpose required by the statute. Indeed, Raygor saw the notice and appeared at the meeting, along with numerous other concerned citizens. Therefore, the notice published by the BOCC was adequate.See Board of County Commissioners v. Conder, supra. C. Section 30-28-202
[30] Raygor further contends that the BOCC erred in not providing proper notice to the public under § 30-28-202, C.R.S. 2000, which applies to the adoption of a building code. Again, we disagree.
[32] Raygor argues that the BOCC failed to comply with this statutory notice requirement because it applies to the adoption of “any building code.” The BOCC concedes that it did not provide a new notice to comply with this provision. However, it argues that it was not adopting a new building code or “any building code” but was extending an existing building code to a newly zoned area and that, therefore, this section does not apply. Further, it asserts that proper notice was given when the building code was first approved. We agree with the BOCC.The county planning commission of any county, upon request from the board of county commissioners of the county, may designate part or all of the county for the adoption of a building code. The county planning commission shall certify a copy of the building code to the board of county commissioners of the county. After receiving the certification of said building code from the county planning commission and before the adoption of any building code, the board of county commissioners shall hold a public hearing on the proposed text. The time and place of the hearing shall be designated in a notice to be given by publication once weekly for four consecutive weeks in a newspaper of general circulation in the county. . . .
BOCC Resolutions and Actions
[33] Raygor next contends that the BOCC violated two of its own resolutions in the adoption of the zoning plan. We find no reversible error.
Four-Day Notice
[34] Raygor argues that the BOCC failed to give four days public notice before its November 12, 1998, meeting, as required by a BOCC resolution. We are not persuaded.
B. Thirty-Day Notice
[39] In addition, Raygor argues that the BOCC violated an amendment made to its own motion on November 12, 1998, requiring it to wait thirty days after certification of the zoning plan by the planning commission before it held a hearing to consider approval of
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such plan and requiring the zoning plan to be made with “maximum public participation and consultation.” We disagree.
[40] At the BOCC’s November 12, 1998, meeting, it unanimously passed an amendment to its motion to draft a zoning plan, requiring it to wait for thirty days after the zoning plan was certified by the planning commission before it held a public hearing. [41] The planning commission certified the zoning plan on March 9, 1999, and the public hearing on this matter was held on March 25, 1999. At the public hearing, it was brought to the BOCC’s attention that its meeting violated the November 12th decision requiring a period of thirty days between certification of the zoning plan and the public hearing. By a vote of 3-2, the BOCC voted to ignore the November 12, 1998, resolution and continue with the hearing. [42] The record supports the BOCC’s argument that the adoption of the thirty-day delay was intended to enable the BOCC to comply with the El Paso County Land Development Code (LDC), Chapter IV, Section 3,4(b), requiring thirty days between the date of public notice and the hearing. [43] The BOCC did comply with the LDC notice provision because thirty days elapsed between February 23, 1999, the date public notice was given, and March 25, 1999, the date the hearing was held. [44] Although the BOCC failed to comply with the requirements of its own amendment, it still complied with the LDC. Further there is no reason a board of county commissioners cannot decide to change its internal operating procedures at a subsequent meeting. Cf. Forbes v. Goldenhersh, 899 P.2d 246 (Colo.App. 1994) (a trial court has discretion to reconsider a prior ruling on a partial motion for summary judgment before the final judgment is entered).C. Public Participation
[45] Raygor further argues that the BOCC disregarded its amendment requiring maximum public participation and consultation when it limited each public speaker to ninety seconds in which to voice his or her opinion. We disagree.
Land Development Code
[48] Raygor argues that the BOCC did not comply with the LDC in four respects. We are not persuaded.
A.
[49] Raygor first argues that the BOCC violated Chapter IV, Section 3,1(b) of the LDC, requiring the planning department to review each individual piece of property that the zoning plan affected. We disagree.
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[53] It would be a time-consuming and impractical use of resources for the planning department to conduct an on-site review of each of the more than 3,000 parcels affected. We conclude that the measures taken by the planning department were sufficient to meet the requirements set forth in the LDC, Chapter IV, Section 3,1(b). B.
[54] Raygor further argues that the BOCC did not comply with Chapter IV, Section 3.1(d) of the LDC because it failed to notify all of the property owners who could be affected by the zoning plan. We disagree.
C.
[57] Raygor next contends that the BOCC failed to follow Chapter VIII of the LDC, which requires the BOCC to comply with all other zoning regulations in the state of Colorado. We are not persuaded.
(1972). [61] Additionally, there is ample evidence in the record that the BOCC carefully considered public health, safety, and welfare in making its decisions regarding the zoning plan. See BOCC Resolution No. P-98-028 (stating that the zoning plan was enacted in the best interest of “public health, safety, morals, convenience, order, prosperity, and welfare”). [62] Therefore, we reject Raygor’s contention that the BOCC violated Chapter VIII of the LDC.
D.
[63] Because it was raised for the first time on appeal, we decline to address Raygor’s contention that the BOCC violated the LDC by scheduling the review of the zoning plan for a special meeting, rather than at a regularly scheduled meeting. See Cedar Land Investments v. AmericanRoofing Supply of Colorado Springs, Inc., 919 P.2d 879 (Colo.App. 1996).
Authority of Planning Department
[64] Finally, Raygor contends that the BOCC violated § 30-28-111(1), C.R.S. 2000, which requires the planning commission, and not the planning department, to prepare a zoning plan. The BOCC contends that it did not violate § 30-28-111 because the planning department is staff to the planning commission, and because its request directed to the planning department was in keeping with the statutory requirement. We agree with the BOCC.
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plan, and states in pertinent part: “The county planning commission of any county may, and upon order by the board of county commissioners in any county having a county planning commission shall, make a zoning plan for zoning all or any part of the unincorporated territory within such county. . . .”
[66] Here, at its November 12, 1998, meeting, the BOCC requested the planning department, not the planning commission, to prepare a zoning plan. [67] On March 9, 1999, the planning commission adopted the zoning plan created by the planning department, and certified the plan to the BOCC. [68] Based on § 30-28-104, C.R.S. 2000, which grants the planning commission authority to employ a staff, we conclude that the planning department is “staff” to the planning commission. Accordingly, it has the authority to perform tasks on behalf of the planning commission. Therefore, the BOCC’s direction to the planning department instead of the planning commission complied with the requirements of § 30-28-111. [69] Judgment affirmed. [70] JUDGE MARQUEZ and JUDGE CASEBOLT concur.