Opinion
No. 82CA1137
Decided May 10, 1984.
Appeal from the District Court of Jefferson County Honorable Michael C. Villano, Judge
Robinson Scheurer, P.C., Richard J. Scheurer, for plaintiff-appellee.
Patrick R. Mahan, County Attorney, H. Lawrence Hoyt, Assistant County Attorney, for defendant-appellant.
Division I.
Pursuant to C.R.C.P. 106, plaintiff, Webster Properties, sought review of the denial of a plat application by the Jefferson County Board of County Commissioners (Board). Plaintiff's complaint also set forth claims seeking a declaration of its rights under C.R.C.P. 57 and damages for denial of due process, equal protection, and violation of 42 U.S.C. § 1983. The trial court bifurcated plaintiff's claims and proceeded only with respect to plaintiff's C.R.C.P. 106 claims. Final judgment on these claims was entered pursuant to C.R.C.P. 54(b), reversing the Board's denial of the plat application. Thereafter, the Board perfected this appeal. We reverse the trial court.
On October 27, 1981, the Board conducted a public hearing to review the plat submitted by plaintiff. During this hearing, evidence was adduced showing that the plat did not conform with the Jefferson County Zoning Regulations in that plaintiff proposed to construct more than one building unit per lot. To enable plaintiff to amend the plat, the hearing was continued until November 3, 1981, for further testimony and decision.
Prior to the second hearing, plaintiff discovered a March 8, 1971, resolution which purported to amend the zoning regulations to allow more than one building unit per lot. However, the 1971 resolution stated on its face that it was adopted without compliance with statutory procedures.
At the November 3 public hearing, plaintiff submitted a revised plat with minor changes to conform to the 1971 resolution; however, on the basis of the 1971 resolution, plaintiff did not change the plat to remove the multiple buildings from the single lot. At the conclusion of testimony, the Board continued the matter until November 17, 1981, for decision, at which time the Board adopted a resolution denying the plat application on the grounds that it did not comply with the single building per lot, the minimum lot area, or the setback zoning regulations. In so doing, the Board concluded that the 1971 resolution was "null, void and of no effect" in that it was adopted without public notice and hearing as required by statute.
The trial court, in reversing the Board's decision, concluded that: "No recognized procedure was employed to challenge the 1971 resolution and the [Board's] sua sponte attempt to declare it invalid was arbitrary and in excess of its jurisdiction." In addition, the trial court concluded that plaintiff had acted in reliance on the 1971 resolution and, in order to prevent manifest injustice, estopped the Board from denying its validity.
I.
The Board first contends that the trial court erred in concluding that it acted arbitrarily and in excess of its jurisdiction in determining that the 1971 resolution was null, void, and of no effect. We agree.
An amendatory zoning resolution requires strict compliance with statutory provisions for notice and public hearing. Hallmark Builders Realty v. City of Gunnison, 650 P.2d 556 (Colo. 1982); Holly Development, Inc. v. Board of County Commissioners, 140 Colo. 95, 342 P.2d 1032 (1959). Before final adoption of any amendatory zoning resolution, the board of county commissioners is required to hold a public hearing thereon and to publish notice thereof at least 30 days before the hearing. Section 30-28-115, C.R.S. (in 1971 — C.R.S. 1963, 106-2-15). And, where no such notice is given, the board of county commissioners is without jurisdiction to proceed with a hearing on the proposed amendatory zoning resolution; to do so constitutes an abuse of discretion and an arbitrary and capricious act. Holly Development, Inc. v. Commissioners, supra.
Here, we construe the 1971 resolution as amendatory of the counties' zoning regulations. It states on its face that it was adopted without compliance with the statutory requirements of notice and hearing. Therefore, the Board properly concluded that it was null, void, and of no effect.
II.
The Board also contends that the trial court erred in applying the doctrine of estoppel in pais to prevent it from denying the validity of "a zoning resolution which had been in effect for ten years." Again, we agree.
Estoppel may be available against a governmental agency to prevent manifest injustice if the party seeking its application can show that he reasonably relied on agency action. Colorado Water Quality Control Commission v. Town of Frederick, 641 P.2d 958 (Colo. 1982); Roderick v. Colorado Springs, 193 Colo. 104, 563 P.2d 3 (1977).
Here, however, the uncontested facts do not support, but rather refute, the trial court's conclusion that plaintiff reasonably relied upon the 1971 resolution in submitting the proposed plat for approval. First, the existence of the 1971 resolution was not discovered until after the first public hearing on plaintiff's proposed plat. Second, it was discovered by plaintiff while browsing through files in the planning department. Third, the resolution was void on its face in that it recited that it was adopted without prior notice and public hearing. Thus, plaintiffs could not have reasonably relied upon the void 1971 resolution.
The judgment of the trial court is reversed and the cause is remanded with directions to enter judgment for the Board on plaintiff's C.R.C.P. 106 claim and for further proceedings on plaintiff's remaining claims.
JUDGE PIERCE concurs.
JUDGE STERNBERG dissents.