Opinion
No. 78-666
Decided December 7, 1978.
From a judgment requiring county board of adjustment to issue a building permit to plaintiffs, board of adjustment appealed.
Affirmed
1. ZONING — Thirteen Foot Strip — Conveyed — Contiguous 40 Acre Tract — Not Result — Any Parcel — Less Than 35 Acres — Not Constitute — Creation of "Subdivision" — Violation of Statute. The detaching of thirteen foot strip from a 40-acre tract and conveying that 1.67 acre parcel to a contiguous 40-acre tract did not result in any parcel of less than 35 acres since, for subdivision purposes, the title to the 1.67 acres would merge into the grantee's original tract; consequently, such conveyance did not constitute the creation of a "subdivision" in violation of § 30-28-101(10)(a), C.R.S. 1973.
Appeal from the District Court of the County of Adams, Honorable Jean J. Jacobucci, Judge.
Berger Rothstein, P.C., David Berger, for plaintiffs-appellees.
S. Morris Lubow, County Attorney, Jennifer K. Brown, Assistant County Attorney, for defendants-appellants.
The Adams County Board of Adjustment and Mac O. Larson appeal from a judgment of the trial court directing the Board to issue a building permit to plaintiffs. We affirm.
A section of land was divided into 40-acre parcels and sold to various persons. In order to have access to the interior 40-acre parcels seller reserved a 40-foot strip of land along the boundary line from each 40-acre parcel, making an 80-foot access way to the interior 40-acre parcels. Plaintiffs purchased one of the 40-acre interior parcels and then obtained a deed from the original owner to a strip of land 13 feet wide that was contiguous to plaintiff's property and which extended along the east and south boundary lines of plaintiff's property and then south to the maintained county road. They then applied for a building permit to the building inspector, who denied the application as did the Adams County Board of Adjustment on appeal.
The Adams County Building Code § 504(a) and the Adams County Zoning Regulations § 8.230 provide respectively as follows:
"Section 504(a). Buildings shall adjoin or have access to a public space, yard, or street on not less than one side. Required yard shall be permanently maintained."
"Section 8.230. No building or occupancy permit shall be issued for any structure except fences if: . . . the lot on which the structure is proposed to be located does not have frontage on a dedicated constructed and maintained right-of-way except by variance or conditional use approval."
The Board took the position that the 13-foot strip was obtained merely as a means to circumvent the above sections. But, the court found as a matter of law the 13-foot strip had been obtained by plaintiffs in order for them to be able to comply with the requirements of the regulations. The regulations do not require any minimum amount of frontage, and the building inspector was unable to testify as to any standard adopted by the building department.
Counsel for the Board in effect conceded at oral argument that the 13-foot strip connecting plaintiff's property to the maintained county road brought their property into compliance with the above-mentioned county regulations, but maintained that the conveyance of the 13-foot strip from the original owner to plaintiffs was void because it amounted to a "subdivision" prohibited by § 30-28-101(10)(a), C.R.S. 1973. We disagree.
[1] Testimony before the Board revealed that the original owner owned five of the lots and the 80-foot right-of-way. The detaching of 1.67 acres (the 13-foot strip) from a 40-acre tract and conveying the 1.67 acres to a contiguous 40-acre tract does not result in any parcel of less than 35 acres since the title to the 1.67 acres would merge into plaintiffs original tract for subdivision purposes. Such conveyance is expressly permitted by § 30-28-101(10)(b), C.R.S. 1973. This is no different than when two 50 acre tracts are contiguous, and one owner sells 5 acres to the other, then one would own 55 acres and the other would own 45 acres — clearly a permissible conveyance under the subdivision statute.
Accordingly, we affirm the judgment of the trial court.
JUDGE PIERCE and JUDGE KELLY concur.