Opinion
No. 85CA1515
Decided December 24, 1987. Rehearing Denied January 21, 1988. Certiorari Granted South Creek April 18, 1988 (88SC62).
Appeal from the District Court of Boulder County Honorable Joseph J. Bellipanni, Judge
Berrenbaum Weinshienk, Barry M. Permut, Amy Therese Loper, for Plaintiff-Appellant.
Martin, Knapple, Humphrey Tharp, Andrew M. Gaydosh, for Defendant-Appellee.
Plaintiff, South Creek Associates, appeals the summary judgment entered in favor of defendant, Bixby and Associates, Inc. (Bixby). The trial court found that Bixby was entitled to parking privileges upon plaintiff's property. We affirm.
In 1977, McStain Enterprises (McStain) proposed the development of a shopping center within the city of Boulder. As owner of the entire area of land, McStain filed a formal application for the development of a planned unit development (P.U.D.). A detailed plan was submitted and approved on December 1, 1977, by the Planning Board.
The P.U.D. plan proposed the development of a shopping center, residential area, and a private school. The school was to be located next to a parking lot adjacent to the shopping center. In addition to on-site parking for the school, the plan provided that the adjacent parking lot was intended to be available for the mutual use of the school and the shopping center tenants.
In April 1978, McStain and the City of Boulder entered into a subdivision agreement whereby McStain agreed to complete all conditions of the P.U.D. plan. The agreement stated: "development of this subdivision is controlled by an approved Planned Unit Development (P77-5) approved by the Planning Board with conditions . . . in addition to City Land use and Zoning Regulations." This agreement was later recorded with the Boulder County Clerk and Recorder's Office, but it made no reference to the school's asserted right to use the parking facility.
Thereafter, a plat was designed and recorded. Although this plat showed numerous easements and encumbrances throughout the P.U.D. area, there was nothing indicating the mutual use of the parking facility.
Bixby subsequently acquired that portion of the property described in the P.U.D. that was designated for a private school. At that time, in 1978, the only documents recorded were the subdivision agreement and the plat, neither of which made any reference to Bixby's asserted right to park on the adjacent lot.
In 1982, McStain transferred the interest in the shopping center to the plaintiff by way of warranty deed. Included in the transfer were the interests in the adjacent parking facility. The deed conveyed the property free of all encumbrances excepting only those matters contained in an exhibit attached to the deed which specifically mentioned the subdivision agreement. This exhibit contained numerous references to covenants, restrictions, easements, and other encumbrances of the property. However, although reference was made to the subdivision agreement, nothing in the attachments made any reference to the mutual use of the parking facility for the benefit of the school.
Subsequently, after completion of the project, Bixby began and continued using the disputed parking facility. After numerous, unsuccessful attempts were made to prohibit Bixby's use of the property, plaintiff brought this action seeking to quiet title to the property. Plaintiff argued that no easement was ever recorded in favor of Bixby, and therefore, plaintiff had no notice of the school's claimed right to use the parking facility. Bixby countered that it was entitled to use the parking area by virtue of statements contained in the P.U.D. plan.
Both parties then moved for summary judgment. The trial court found that the mention of the P.U.D. was sufficient notice of Bixby's asserted right to use the parking facility and, accordingly, entered summary judgment in favor of Bixby.
Bixby asserts its right to park upon plaintiff's property by virtue of the following statement contained in the P.U.D.:
"Six spaces will be provided on-site for the exclusive use of the school personnel. In addition, the adjacent parking lot will be available for the mutual use of the school and the commercial facility."
Also, defendant points to another sentence in the P.U.D. which provides:
"The parking on the southeast portion of the site is intended for the mutual use of the school and the shopping center tenants."
Section 24-67-106(2), C.R.S. (1982 Repl. Vol. 10) of the Planned Unit Development Act of 1972 provides that:
"All provisions of the plan shall run in favor of the residents, occupants, and owners of the planned unit development, but only to the extent expressly provided in the plan and in accordance with the terms of the plan . . . ."
Based mainly on information contained in the deed, the trial court ruled that plaintiff was on notice of these parking restrictions. We agree.
The deed by which plaintiff obtained the property mentioned the recorded P.U.D. subdivision agreement which, in turn, referred to the P.U.D. There is no dispute that plaintiff had notice of the P.U.D; but rather, it asserts no actual notice of the specific parking provision. However, we hold that once having been put on notice, it was incumbent upon plaintiff to peruse the provisions of the P.U.D. which contained these parking restrictions. Page v. Fees-Krey, Inc., 617 P.2d 1188 (Colo. 1980).
The P.U.D. was properly filed and, upon its adoption, became, in effect, a rezoning even though there was no specific rezoning ordinance passed. See Tri-State Generation Transmission Co. v. City of Thornton, 647 P.2d 670 (Colo. 1982); Sundance Hills Homeowners Ass'n v. Board of County Commissioners, 188 Colo. 321, 534 P.2d 1212 (1975). The adoption of the plan thereafter restricted the use of the land to the provisions of the plan. See Moore v. City of Boulder, 29 Colo. App. 248, 484 P.2d 134 (1971). Thus, Bixby could enforce the parking restrictions at law or in equity. Section 24-67-106(2), C.R.S. (1982 Repl. Vol. 10).
The judgment is affirmed.
JUDGE METZGER concurs.
JUDGE VAN CISE dissents.