When two forms of local government disagree on an issue, who wins?

Well, according to the Colorado Supreme Court, it depends on the language, legislative history, and interrelationship of the specific statutes at issue. As applied in the recent case Board of County Commissioners of the County of Boulder v. Hygiene Fire Protection District,  the special district prevailed.

In the Hygiene case, the fire protection district wanted to acquire a parcel of land and build a fire station on it in order to provide improved fire service to citizens in that area of the district, but Boulder County was opposed and had platted the parcel as common open space.

County Planning Act
State law provides that whenever a public or private entity proposes to construct a road, park, public building or structure, or public utility in an unincorporated portion of a county, the proposed location and extent thereof must be submitted to and approved by the county or regional planning commission. This article in the statutes is commonly referred to as “the Planning Act,” and this review mechanism is commonly referred to as a “location and extent review.”

A location and extent review provides the opportunity for the county to review and approve or disapprove of the proposed project in relation to the county’s master plan. In the case of a public entity applying for a location and extent review, the planning commission’s role functions as a sort of “courtesy review” because if the commission disapproves of the proposal, the governing body of the other public entity (in this case the board of directors of the special district) can overrule the commission’s disapproval by the majority vote of the entire membership of the governing body.

In discussing this feature of the Planning Act, the Court explained that although counties are given authority to govern the use and development of land, a county may not use its zoning authority to frustrate the efforts of other political subdivisions to carry out their statutory duties.

Planned Unit Development Act
The parcel of land for the Hygiene Fire Protection District fire station was located in a planned unit development (“PUD”). A PUD is an area of land to be developed under a unified plan for a number of uses (residential, commercial, educational, recreational, and/or industrial) the plan for which does not correspond in various ways to the existing land use regulations.

Once approved by resolution of the county, a PUD can be subsequently modified by following the procedure set forth in statute, which includes holding a public hearing, as well as satisfying other locally adopted provisions.

When the fire district applied to the county for the location and extent review, the county refused to accept the district’s application on the basis that the district first needed to seek a modification of the PUD through the local land use code and hold the necessary public hearing, after which, the county would process the district’s location and extent review. The district then sued the county.

Court Decision
In its opinion, the Colorado Supreme Court described the PUD Act as a flexible zoning mechanism that functions as a supplement to the Planning Act. The opinion interpreted section 30-28-110(1)(c), C.R.S. “as part of a legislative design to coordinate the zoning authority of counties and the authority of other political subdivisions to carry out public projects. The practical effect of section 30-28-110(1) is that a public entity, such as a special district, must apply for location and extent review of a proposed project to accommodate, where feasible, the zoning interests of the county, but the governing body of that entity ultimately has authority to override county disapproval of the project.” The Court’s discussion of the interrelationship of the Planning Act and the PUD Act concluded by holding that the override authority of political subdivisions applies equally to the PUD Act, and that the fire district was not required to seek a modification to the PUD prior to applying for location and extent review for the construction of a new fire station.

SDA Participation
The Special District Association joined with the Northern Colorado Water Conservancy District and Northern Colorado Water Conservancy District Municipal Subdistrict to file an Amicus Curiae brief on behalf of the fire district in this case, and we are very pleased at the Supreme Court’s ruling affirming the Colorado Court of Appeals.