Posted by: Patricia Salkin | October 29, 2007

Tenth Circuit Holds Settlement Agreement with a Third Party Does Not Create Property Interest for Different Applicant

The plaintiffs, owners of a ranch in Colorado located in a zoning district that does not permit commercial mining operations, desired to construct a pond on their property, and sought permission from the county to allow them to sell the top soil removed during the construction. The Planning Director opined that because the Code permits “low-intensity, tourist-oriented recreational uses by Special Use Permit…the temporary sale of topsoil in preparation of expanded recreational use of the property could be considered a temporary, accessory use and regulated through the Special Use Permit if approved by the Board…” The Board did grant the special use permit, requiring construction to be completed within three years, prohibiting retail sale of material directly from the site, and prohibited any screening or processing of material on site.  A year later, the plaintiffs sought a modification of the special use permit to lift the restrictions on screening and stockpiling, and while the Board allowed the materials to remain on site to drain overnight, they did not lift the prohibition on on-site screening.  About five months later, the plaintiffs again sought a similar modification of the special use permit, but this time, they based their request on a settlement agreement the County had entered into with another property owner that permitted limiting screening and stockpiling of topsoil on that person’s property. After being denied the requested modification, the plaintiffs went to court arguing that that their substantive and procedural due process rights had been violated. 

The Court quickly dismissed the due process claims, finding that the plaintiffs did not have a constitutionally protected property right in the approval of their last request to modify their special use permit. The Court noted that the fact that the Board entered into a settlement agreement with another property owner regarding a different piece of land and under different circumstances, “does not transform the terms and conditions of that settlement into a constraint on the [Board’s] discretion in other cases.”  The court noted that the plaintiffs were neither parties to the settlement agreement nor third-party beneficiaries to it.   

Nichols v. Board of County Commissioners, 2007 WL 3054348 (C.A. 10(Colo.) 10/22/07).  The opinion can be accessed at:

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