Opinion
No. 74-128
Decided December 10, 1974. Rehearing denied December 31, 1974. Certiorari granted March 10, 1975.
Because sale of property was allegedly in violation of certain county subdivision regulations and state subdivision laws, board of county commissioners brought action seeking that sale be set aside and held void. From dismissal of the complaint, board appealed.
Affirmed
1. LAND DEVELOPMENT REGULATION — County Commissioners — Enjoin — Sale — Subdivided Land — Statute — No Right — Vitiate — Estate Vested. Although land development regulation statute empowered board of county commissioners to bring an action to enjoin subdivider from selling subdivided land before plat of such land had been approved, nothing in the statute purported to confer upon, or had the effect of vesting in, the board of county commissioners the right to disturb, undo, or vitiate an estate already vested by force of an unapproved conveyance.
2. County Commissioners — Enjoin — Sale — Subdivided Land — Rule of Procedure — Mandatory Injunction — Not Authorize — Set Aside — Completed Conveyance. Where land development regulation statute authorized board of county commissioners to bring an action to enjoin the sale of subdivided land the plat of which had not been approved, the rule of procedure providing for the issuance of a mandatory injunction did not authorize the trial court to grant board of county commissioners a decree setting aside a completed conveyance of such subdivided land.
3. Buying or Selling Land — Not — "Use" — No Basis — Set Aside Conveyances — Violation of Regulations. The act of buying or selling land is an end in itself that does not include enough activity and service of the land to be characterized as a "use"; therefore, statute providing that it is unlawful to use any land in violation of any regulation of the board of county commissioners did not serve as a basis upon which board of county commissioners could obtain a decree setting aside the conveyance of certain land in violation of its regulation.
Appeal from the District Court of the County of Pitkin, Honorable George E. Lohr, Judge.
Clark, Oates, Austin McGrath, J. Nicholas McGrath, Jr., for plaintiff-appellant.
Davis, Graham Stubbs, Randall Weeks, Morgan, Lewis Bockius, for defendant-appellee Friedl Pfeifer.
Slemon Mazza, P.C., Anthony J. Mazza, John D. LaSalle, for defendant-appellee Capital Improvement Corporation.
Defendant Pfeifer sold a 23.44 acre parcel of land in Pitkin County from a larger parcel to defendant Capital Improvement Company. Plaintiff Board of County Commissioners, contending that the sale was in violation of Pitkin County Subdivision Regulations and of the State Subdivision laws as set forth in C.R.S. 1963, 106-2-1 et seq., demanded that the sale be set aside and held void. As a second claim for relief, plaintiff asked that Capital Improvement Company be enjoined and restrained from any use of the property unless and until the applicable state subdivision law and local subdivision regulations be complied with. Plaintiff claimed that the sale was a "use" under the statutes.
After hearing, the court dismissed the complaint against Capital for failure to state a cause of action. Thereafter, Pfeifer filed a motion for summary judgment on the basis that Capital was an indispensable party to the relief demanded in plaintiff's complaint against Pfeifer. The parties stipulated that judgment be entered in favor of Pfeifer on the motion for summary judgment so as to terminate the proceeding in the trial court without prejudice to the right of any of the parties to appeal on factual issues. Judgment of dismissal of plaintiff's complaint as to Pfeifer was thereupon entered. Plaintiff appeals, contending that the above-referenced statutes apply and that it was entitled to void the sale. We affirm the trial court's dismissal of the action.
The Pitkin County regulations and the state planning statutes are substantially identical. The case revolves around the construction of Colo. Sess. Laws 1972, ch. 81, 106-2-9(4) which reads, in part, as follows:
"(a) Any subdivider, or agent of a subdivider, who transfers or sells or agrees to sell or offers to sell any subdivided land before a final plat for such subdivided land has been approved by the board of county commissioners and recorded or filed in the office of the county clerk and recorder shall be guilty of a misdemeanor and shall be subject to a fine not to exceed five hundred dollars for each parcel or interest in subdivided land which is sold or offered for sale . . . . "
"(b) The board of county commissioners of the county in which the subdivided land is located shall have the power to bring an action to enjoin any subdivider from selling, agreeing to sell, or offering to sell subdivided land before a final plat for such subdivided land has been approved by the board of county commissioners."
Colo. Sess. Laws 1972, ch. 81, 106-2-33(3)(a) defines "subdivision" as being, with certain exceptions, a parcel of land divided into two or more parcels, one of which is less than 35 acres. Both defendants stipulated for purposes of this appeal that Pfeifer is a subdivider, i.e., one who participates in the formation of a subdivision.
Plaintiff contends that the word "enjoin" as used in Colo. Sess. Laws 1972, ch. 81, 106-2-9(4)(b), authorizes the setting aside of the conveyance which defendants admit occurred without the filing of a plat; and that, if the total sale were enjoined, the statute would of necessity apply to the buyer unmentioned in the statute as well as to the seller. We disagree.
[1] Colo. Sess. Laws 1973, ch. 406, 135-1-101 et seq., require that in construing a statute that is explicit and free from ambiguity, words are to be given their approved and common meaning. See City of Montrose v. Niles, 124 Colo. 535, 238 P.2d 875. The intent of the statute alone, as evidenced by its words, is clear. The legislature considered what might happen should a sale be consummated in violation of the statute and provided the remedy of a fine. If it had wanted to void the sale, it could have so provided in the statute. The word "enjoin" has the common meaning of "to stop, to prevent." This is emphasized by its being followed by "from," leading to a total connotation of prevention of a future occurrence. Construing an almost identical statute, the court in City of Newark v. Padula, 26 N.J. Super. 251, 97 A.2d 735, came to the same conclusion when it stated:
"Clearly, the object of the injunctive remedy was to arrest the transfer before it became an accomplished fact. Nothing in the statute . . . purported to confer upon, or had the effect of vesting in, the municipality the right to disturb, undo or vitiate an estate already vested by force of an unapproved conveyance . . . . "
. . . .
"There is nothing in the statute which declares [the] action in taking the deed to be unlawful or the conveyance itself void."
" [2] Plaintiff contends that C.R.C.P. 65(f) authorizes the trial court to grant the relief requested. This contention has no merit. C.R.C.P. 65(f) provides:
"If merely restraining the doing of an act or acts will not effectuate the relief to which the party is entitled, an injunction may be made mandatory." (emphasis supplied)
Here the relief to which the plaintiff is entitled is specifically provided by the legislature, namely, injunction prior to sale or initiation of prosecution for a misdemeanor following sale. C.R.C.P. 65(f) would authorize the trial court to issue a mandatory injunction only if the statute empowered the county to set aside the sale and a mandatory injunction was required for that purpose.
[3] Alternatively, plaintiff contends that the sale or buying of the land is a "use" prohibited by C.R.S. 1963, 106-2-23, and setting aside the sale would be an "appropriate remedy." We disagree. Under C.R.S. 1963, 106-2-23, it is unlawful to use any land in violation of any regulation of the board of county commissioners. As regards such unlawful use, the board is given the power to fine violators, enjoin the unlawful use, or take any other appropriate action.
The act of buying or selling land is an end in itself and does not include enough activity and service of the land to be characterized as a "use." As defined in Murphy v. Traynor, 110 Colo. 466, 135 P.2d 230, "use" means "to employ" or "to be the subject of customary practice, employment, or occupation." Absent legislative intent to the contrary, we must apply the commonly accepted meaning of the term "use." We find no such contrary intent, and thus the term may not be construed to include a sale. See Blanchard v. Griswold, 121 Colo. 29, 214 P.2d 362.
The second claim for relief sought to enjoin future use of the land in violation of the subdivision statutes and regulations, but it contained no allegation as to a contemplated use of the land, other than the sale. Hence, the court correctly dismissed the second claim for relief. The eventual use to which Capital may put the land is not before us.
As the complaint states no cause of action against either defendant whereby the sale could be declared void, we do not discuss the issue of indispensable parties.
Judgment affirmed.
JUDGE RULAND and JUDGE VAN CISE concur.