Opinion
Dec. 31, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Joseph C. French, County Atty., Boulder, for plaintiff-appellant.
No Appearance by defendants-appellees.
RULAND, Judge.
Plaintiff, the Board of County Commissioners of the County of Boulder (Board), appeals from a judgment dismissing its complaint for an injunction to require defendants, Norman Stamp and Bertha Stamp, to move a barn located on County Road 41 allegedly constructed in violation of the setback requirements of the Boulder County Zoning Resolution. We affirm in part and remand the case for further proceedings. The material facts relevant to this opinion are not disputed. The Board adopted tis zoning resolution on October 11, 1965. Section 18.4 of the resolution provided that 'major arterials' were designated on the zoning district maps of the county and that all buildings must be constructed not less than 110 feet from the 'centerline of the right-of-way' of a major arterial. In May of 1970, the Board adopted the 'Boulder County Circulation Plan Map' on which the Board designated County Road 41 as a major arterial.
According to the testimony of the Boulder County engineer, a major arterial is a class I, type II road, as described in the 'Boulder County Road Development Policies, Standards and Specifications,' adopted by the Board on July 28, 1969, as follows:
'(H)igh-type, hard-surfaced roads constructed and maintained by the County or other governmental agency, to provide year long, all weather routes for high volume public traffic.'
Major arterials therefore are designed to accommodate motor vehicle speeds of 50 to 60 m.p.h., and the specifications require, Inter alia, a 120 foot minimum right of way.
County Road 41 runs generally north and south. In 1964 Bertha Stamp acquired agricultural property located south and west of the intersection of County Road 41 with State Highway 66. This property is adjacent to County Road 41, and the section of the road involved here proceeds from the intersection with State Highway 66 south for approximately 400 feet.
This section of the road was established sometime prior to 1912. In approximately 1912 the road was moved 40 to 50 feet west of its original location so as not to interfere with construction of McCall Lake. At that time the road was approximately 12 feet wide. By the late 1940's, the roadway had been expanded to approximately 30 feet. After acquiring their property, the Stamps widened the road at different points and the road varied in width from 26 to 50 feet. According to the county engineer, no survey had been discovered which described the location of the road, and at the time of trial it consisted of a gravel surface which did not meet any type of engineering design specifications used by the county. Those witnesses who testified relative to the centerline of the road agreed that it could not be definitely established. No easement or right of way has ever been granted to the county for the roadway, and the public's rights thereto have been acquired by adverse use.
The county planning director testified that the purpose of the circulation map was generally to preserve specific corridors for major transportation facilities in the future. As of the time of trial, no design or construction plans had been prepared to erect a major arterial along County Road 41, no centerline had been established for the proposed arterial, and no date had even been projected for the preparation of such plans and specifications.
The Stamps commenced construction of the barn in the fall of 1970. Shortly thereafter they were informed by the Boulder County Building Inspector that a building permit was required, that the structure was not in compliance with the county setback requirements, but that a variance probably could be obtained from the Board of Adjustment. Following denial of their request for a building permit, Stamps applied to the Board of Adjustment for a variance, and the application was ultimately denied. Nevertheless, Stamps completed their work on the barn and used the structure. The County therefore commenced this action.
Trial was to the court which determined that County Road 41, at the location in question here, was a public highway, that the zoning resolution and maps were constitutional, and that the setback requirements for a major arterial applied to the Stamp property. However, the court ruled that the Board of Adjustment had unreasonably and arbitrarily denied Stamps a variance for the barn. In this appeal, the Board challenges the trial court's ruling relative to the action of the Board of Adjustment. Because of the result we reach, we do not deal with that issue.
Insofar as material to this review, the Board's claim for injunction is based upon the failure of the Stamps to comply with the setback requirements relating to major arterials. Assuming, without deciding, that a county may enforce setback requirements relative to an arterial road to be constructed at some indefinite date in the future, to support a claim for injunction it must appear that the setback requirements have been violated. The evidence fails, as a matter of law, to show any such violation.
The setback requirements for a major arterial in the zoning resolution are based upon distances measured from the 'centerline of the right-of-way.' No plans or specifications having been prepared for the major arterial, there is no basis upon which the trial court could ascertain the location of the centerline of the arterial in order to determine whether the barn was in violation of the setback requirements. See Householder v. Town of Grand Island, 36 Misc.2d 862, 114 N.Y.S.2d 852. Hence, the record before us fails to disclose any basis upon which a violation of the setback requirements could be found. Therefore the judgment is affirmed as the dismissal of the Board's complaint based on a violation of section 18.4 of the zoning resolution.
The Board also contends that Stamps are in violation of other setback requirements which are not dependent upon the classification of County Road 41 as a major arterial, and that this was an issue before the trial court. While some evidence was admitted on this issue, the trial court made no specific findings or conclusions relative thereto. Therefore, the cause must be remanded to the trial court for its determination as to whether a violation of other setback requirements is in fact an issue in this case, and, if so, for determination of that issue.
Judgment affirmed in part and cause remanded for further proceedings not inconsistent with the views expressed in this opinion.
SMITH and VanCISE, JJ., concur.