The Colorado Court of Appeals ruled a county could not bar the operation of a commercial composting business in a zoning district where the business was not permitted as a matter of right, because it could not produce a zoning map establishing the property’s zoning (The Rohrbach family operates a horse manure composting facility on their 80-acre parcel of land in an unincorporated area of Elbert County, on the eastern plains about midway between the Denver and Colorado Springs metropolitan areas. A county official informed them in 2005 that the facility was not permitted as a use by right in the agriculture zone, and that they needed a temporary or special use permit. The Rohrbachs applied for temporary use permit, but withdrew the application before the county commissioners could act upon it. The board of commissioners then sued for an injunction against the operation. The trial court found in favor of the board, ruling it had established that its zoning regulations were properly adopted and that the parcel was zoned agricultural.
In their appeal, the Rohrbachs argued the board could not establish that their parcel was zoned agriculture because it had no copy of the official zoning map incorporated in the zoning regulations by reference. The appeals court noted that at trial the board introduced copies of zoning regulations adoptedin1983 that reference the “Official Zoning Map of Elbert County.” The regulations also state that the official zoning map and any amendments to it are to be filed in the county clerk’s office and made available to the public. The county clerk testified she had seen the map but could not locate it. In fact, the board was not able to produce either the original map or a copy of it. In an effort to establish the parcel’s zoning classification it introduced four historic maps. A 1966 map made part of the county’s 1966 regulations indicated the parcel was zoned agricultural. Those regulations were repealed in 1973. A 1973 map accompanying the 1974 zoning regulations also indicated the parcel was zoned agricultural. The 1974 regulations were repealed in 1978. An undated map accompanying the county’s 1978 zoning regulations, repealed in 1983, did not indicate the classification of the Rohrbachs’ parcel. A draft 1983 map that did not accompany the zoning regulations also did not indicate the classification of the parcel.
The court noted the issue before it was one of first impression in Colorado, and turned to the case law of other states for guidance. It discussed decisions from Illinois, Florida and New York, all of which concluded that lacking a zoning map, the zoning ordinance could not establish the location of zoning districts. For example, in the New York case, the municipality presented three maps, all dated 1962, in an attempt to establish the zoning districts. The court said it could not determine which map was the official one, effectively vitiating the ordinance. It said the determination in what zoning district property is located “should not be left to the village officials to decide from time to time by whim or caprice which one of three maps is the ‘official’ one.”
In this case, there was no question that the 1983 zoning regulations control the zoning of the Rohrbachs’ land, the court said. But because the text of the regulations relies on the map to establish zoning and the map was not produced, the trial court could not determine what zoning the board adopted. Therefore, as a matter of law, the board did not establish the zoning classification of the parcel. The court rejected the board’s argument that the other maps presented at trial established the zoning of the Rohrbachs’ land. Even assuming the content of the regulation could be established by secondary proof, the maps introduced were not enough to show the content of the regulation the board adopted in 1983.
Board of County Commissioners of Elbert County v. Rohrbach, 2009 WL 2782684 (Colo. App. 9/3/2009).
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Special thanks to James Lawlor, editor of the Land Use Legal Report for this abstract. For subscription information contact Jim at firstname.lastname@example.org