CO Code § 30-28-110 (2021)
2021 Colorado Code|Title 30 - Government - County|Article 28 - County Planning and Building Codes|Part 1 - County Planning|§ 30-28-110. Regional Planning Commission Approval - Required When - Recording

     Whenever any county planning commission or, if there is none, any regional planning commission has adopted a master plan of the county or any part thereof, no road, park, or other public way, ground, or space, no public building or structure, or no public utility, whether publicly or privately owned, shall be constructed or authorized in the unincorporated territory of the county until and unless the proposed location and extent thereof has been submitted to and approved by such county or regional planning commission.    In case of disapproval, the commission shall communicate its reasons to the board of county commissioners of the county in which the public way, ground, space, building, structure, or utility is proposed to be located. Such board has the power to overrule such disapproval by a vote of not less than a majority of its entire membership. Upon such overruling, said board or other official in charge of the proposed construction or authorization may proceed therewith.    If the public way, ground, space, building, structure, or utility is one the authorization or financing of which does not, under the law governing the same, fall within the province of the board of county commissioners or other county officials or board, the submission to the commission shall be by the body or official having such jurisdiction, and the commission's disapproval may be overruled by said body by a vote of not less than a majority of its entire membership or by said official. In the case of a utility owned by an entity other than a political subdivision, the submission to the commission shall be by the utility and shall not be by the public utilities commission; however, the commission's disapproval may be overruled by the public utilities commission by a vote of not less than a majority of its entire membership.    The acceptance, widening, removal, extension, relocation, narrowing, vacation, abandonment, change of use, or sale or lease of or acquisition of land for any road, park, or other public way, ground, place, property, or structure shall be subject to similar submission and approval, and the failure to approve may be similarly overruled.    The failure of the commission to act within thirty days after the date of official submission to it shall be deemed approval, unless a longer period is granted by the submitting board, body, or official.         In any geographic area of common planning jurisdiction, which area consists of part or all of several counties for which a regional plan has been duly adopted, the district, county, or municipal planning commission shall refer to the regional planning commission for review any proposed new or changed land use plan, zoning amendments, subdivision proposals, housing codes, sign codes, urban renewal projects, proposed public facilities, or other planning functions which clearly affect another local governmental unit, or which affect the region as a whole, or which are the subject of primary responsibility of the regional planning commission.    In any geographic area of common planning jurisdiction which involves part or all of only one county for which a regional plan has been duly adopted, the district, county, or municipal planning commission shall refer to the regional planning commission for review any proposed new or changed land use plan, zoning amendments, subdivision proposals, housing codes, sign codes, urban renewal projects, proposed public facilities, or other planning functions which clearly affect another local governmental unit, or which affect the region as a whole, or which are the subject of primary responsibility of the regional planning commission.    The regional planning commission shall, within thirty days after the receipt of such referral, report to the district, county, or municipal planning commission on the effect of the referred matter on the regional plan. This time may be extended by mutual agreement. If, during the review time, a satisfactory adjustment in the referred matter cannot be worked out, the regional planning commission may report to the district, county, or municipal planning commission that this referred matter is inconsistent with the regional plan. In that case, if the district, county, or municipality has theretofore adopted the regional plan for the development of its area, the concurrent vote of two-thirds of the total membership of the district, county, or municipal planning commission shall be required to issue a different independent report on such matters. In all instances, the regional planning commission may also forward its report on the referred matter to the governing body of the governmental unit having authority to decide the matter.    The failure of the regional planning commission to reply within thirty days after the receipt of the referral, or within the agreed extension of time, shall be deemed approval of the matter referred.    A failure on the part of any district, county, or municipal planning commission to refer to the regional planning commission any plan or authorization provided for in paragraphs (a) and (b) of this subsection (2) shall be deemed a determination by such district, county, or municipal planning commission that the matter is local in nature.    The regional planning commission, on its own initiative, may initiate a review of any matter involving its regional planning functions, whether such matter has been referred to it or not, if the subject of the review affects two or more local jurisdictions and may make a report of the result of such review to the governing bodies of the jurisdictions involved.    The provisions of this subsection (2) shall not apply to any proposed business or industrial zoning change of less than twenty acres nor to any proposed residential zoning change or subdivision of less than forty acres.         All plans of streets or highways for public use, and all plans, plats, plots, and replots of land laid out in subdivision or building lots and the streets, highways, alleys, or other portions of the same intended to be dedicated to a public use or the use of purchasers or owners of lots fronting thereon or adjacent thereto, shall be submitted to the board of county commissioners for review and subsequent approval, conditional approval, or disapproval. It is not lawful to record any such plan or plat in any public office unless the same bears thereon, by endorsement or otherwise, the approval of the board of county commissioners and after review by the appropriate planning commission.    The approval of said plan or plat by such commission shall not be deemed an acceptance of the proposed dedication by the public. Such acceptance, if any, shall be given by action of the governing body of the municipality or by the board of county commissioners. The owners and purchasers of such lots shall be presumed to have notice of public plans, maps, and reports of such commission affecting such property within its jurisdiction.         unless the indictment, information, complaint, or action for the same is instituted prior to the expiration of eighteen months after the recordation or filing in the office of the county clerk and recorder of the instrument transferring or selling such subdivided land. The board of county commissioners may provide for the enforcement of subdivision regulations by means of withholding building permits. No plat for subdivided land shall be approved by the board of county commissioners unless at the time of the approval of platting the subdivider provides the certification of the county treasurer's office that all ad valorem taxes applicable to such subdivided land, for years prior to that year in which approval is granted, have been paid.    The board of county commissioners of the county in which the subdivided land is located has the power to bring an action to enjoin any subdivider from selling subdivided land before a final plat for such subdivided land has been approved by the board of county commissioners.    The board of county commissioners shall distribute, or cause to be distributed, the sets of plans or plats submitted to the agencies as referred to in section 30-28-136 (1).    Any violation of paragraph (a) of this subsection (4) is prima facie evidence of a fraudulent land transaction and shall be grounds for the purchaser to void the transfer or sale.    This subsection (4) applies only with respect to parcels of land less than thirty-five acres in area.         Notice of the filing of preliminary plans of any type required by this section to be submitted to a district, regional, or county planning commission or to the board of county commissioners, if the situs of these plans lies wholly or partially within two miles of the corporate limits of a municipality but not within the corporate limits of another municipality, shall be referred to the town or city clerk of such municipality by the county planning commission or, if there be none, by the board of county commissioners. Within fourteen days of the receipt of such plans, the municipality, by action of its city council or town board, or, if one exists, by action of its planning commission, may make its recommendations to the board of county commissioners, which shall forward the same to the district, regional, or county planning commission, if any. Failure of the town board, city council, or agents designated by them to make any recommendation within fourteen days of the receipt of such plans shall constitute waiver of its right to make such recommendation.    If such recommendation is made by the municipality, it shall be taken into consideration by the board of county commissioners and district, regional, or county planning commission, if any, before action is taken upon the plans. The board of county commissioners and district, regional, or county planning commission, if any, shall take no action on such plans until the recommendation of the municipality is received or until fifteen days after receipt of the preliminary plans, whichever is sooner.        History. Source: L. 39: P. 298, § 9. CSA: C. 45A, § 9. CRS 53: § 106-2-9. L. 59: P. 619, § 4. L. 61: P. 592, § 3. C.R.S. 1963: § 106-2-9. L. 72: Pp. 498, 499, §§ 2, 3. L. 79: (4)(a) amended, p. 1166, § 1, effective June 15. L. 83: (1)(c) amended, p. 1252, § 1, effective June 3; (4)(a) and (4)(b) amended and (4)(d) and (4)(e) added, p. 1250, § 2, effective July 1. History. Source: L. 39: P. 298, § 9. CSA: C. 45A, § 9. CRS 53: § 106-2-9. L. 59: P. 619, § 4. L. 61: P. 592, § 3. C.R.S. 1963: § 106-2-9. L. 72: Pp. 498, 499, §§ 2, 3. L. 79: (4)(a) amended, p. 1166, § 1, effective June 15. L. 83: (1)(c) amended, p. 1252, § 1, effective June 3; (4)(a) and (4)(b) amended and (4)(d) and (4)(e) added, p. 1250, § 2, effective July 1.    Cross references:   For required monumentation within a subdivision before sales contract is executed, see § 38-51-105 (3) and (4).   ANNOTATION   Law reviews. For article, ”Recent Developments in Zoning Law in Colorado“, see 39 Dicta 211 (1962). For article, ”1974 Land Use Legislation in Colorado“, see 51 Den. L.J. 467 (1974). For article, ”Inverse Condemnation -- A Viable Alternative“, see 51 Den. L.J. 529 (1974).   The powers of the board of county commissioners must be construed strictly. Bd. of County Comm'rs v. Pfeifer, 190 Colo. 275 , 546 P.2d 946 (1976).   Express and implied county powers. As a political subdivision of the state, a county possesses only those powers which are expressly granted to it and those implied powers which are reasonably necessary to execute the express powers. Bd. of County Comm'rs v. Pfeifer, 190 Colo. 275 , 546 P.2d 946 (1976).   One of the purposes of this section is to provide a method by which the county through its planning commission can inform an advise other governmental units of the effects of their proposed actions upon the county and its residents. Blue River Defense Comm. v. Town of Silverthorne, 33 Colo. App. 10, 516 P.2d 452 (1973).   This section does not provide that county approval of a plat is sufficient in itself to permit construction of any improvement. The effect of the approval and recording of a plat is to permit the owner to transfer or sell land by reference to the plat without penalty. Beyond that, the approval has no specific effect by statute. SK Fin. SA v. La Plata County, Bd. of Comm'rs, 126 F.3d 1272 (10th Cir. 1997).   It is incumbent upon entity having jurisdiction over project to submit proposal to county planning commission, even though such entity has authority to later override the planning commission's disapproval. Blue River Defense Comm. v. Town of Silverthorne, 33 Colo. App. 10, 516 P.2d 452 (1973).   In order that county residents may present objections and views. Even though a town may affirmatively overrule a county's decision regarding the town's proposed construction of a sewage plant, the residents of the county are entitled to an opportunity to present their objections and views and to have these considered as part of the planning commission's approval or disapproval and to require that if construction is to proceed, the town must determine to proceed in the face of county's objection. Blue River Defense Comm. v. Town of Silverthorne, 33 Colo. App. 10, 516 P.2d 452 (1973).   Subsection (1)(a) of this section is limited by the public utilities commission's exercise of its police power to regulate transmission lines in the interest of public safety pursuant to § 40-4-106 . Mtn. View Elec. Ass'n v. Pub. Utils. Comm'n, 686 P.2d 1336 (Colo. 1984).   Subsection (4) is in derogation of the common law and must be construed strictly. Bd. of County Comm'rs v. Pfeifer, 190 Colo. 275 , 546 P.2d 946 (1976).   Although subsection (4) does not address who bears the burden of obtaining a survey and exemption, the trial court possesses broad discretion in fashioning equitable remedies and did not abuse its discretion in ordering that the defendants shall bear the cost of the survey and the responsibility for obtaining the exemption required prior to the sale of a subdivided parcel of land. Schreck v. T&C Sanderson Farms, Inc., 37 P.3d 510 (Colo. App. 2001).   Subsection (4)(a) of this section is constitutional. Hopkins v. Bd. of County Comm'rs, 193 Colo. 230 , 564 P.2d 415 (1977).   General assembly intended the permitting process under § 24-65.1-501 to apply to utility projects that involve designated activities of state interest and this section to apply to any other utility project. Colo. Springs v. Eagle Cty. Bd. of County Comm'rs, 895 P.2d 1105 (Colo. App. 1994).   Restriction on free alienation of property. The statutory provision requiring approval of the plat by a board prior to the conveyance places a restriction on the free alienation of property, which is one of the essential attributes of common-law property ownership. Bd. of County Comm'rs v. Pfeifer, 190 Colo. 275 , 546 P.2d 946 (1976).   Board remedies limited. The general assembly has clearly and expressly established the remedies available to the board in order to enforce its subdivision requirements, and they are so limited. Bd. of County Comm'rs v. Pfeifer, 190 Colo. 275 , 546 P.2d 946 (1976).   Subsection (4) specifies the relief a county would be entitled to where land is transferred in violation of the terms of this section; namely, injunction prior to sale or initiation of prosecution for a misdemeanor following sale. Bd. of County Comm'rs v. Pfeifer, 35 Colo. App. 89, 532 P.2d 51 (1974), modified, 190 Colo. 275 , 546 P.2d 946 (1976).   Subsection (4)(a) confers no power on court to set aside conveyance at request of board. Hinton v. Lake Fork Dev. Co., 35 Colo. App. 94, 531 P.2d 974 (1974), aff'd, 190 Colo. 394 , 548 P.2d 122 (1976).   Word ”enjoin“ as used in subsection (4)(b) does not authorize the setting aside of a conveyance which occurred without the filing of a plat. Bd. of County Comm'rs v. Pfeifer, 35 Colo. App. 89, 532 P.2d 51 (1974), modified, 190 Colo. 275 , 546 P.2d 946 (1976).   Although C.R.C.P. 65(f), provides for the issuance of a mandatory injunction, the strict construction of subsection (4) precludes the availability of such relief to a county. Bd. of County Comm'rs v. Pfeifer, 190 Colo. 275 , 546 P.2d 946 (1976).   Misdemeanor and fine adequate. A person who violates subsection (4)(a) may be fined and found guilty of a misdemeanor, but a county has no authority under subsection (4)(b) to seek the setting aside of a conveyance. Bd. of County Comm'rs v. Pfeifer, 190 Colo. 275 , 546 P.2d 946 (1976).   This section creates a problem for the counties in preventing the sales of land where the sale is completed and the deed recorded before the county has had the opportunity to secure an injunction. However, the general assembly has sought to deter violations by making such conduct a misdemeanor. The general assembly apparently determined that this would be an adequate remedy. Bd. of County Comm'rs v. Pfeifer, 190 Colo. 275 , 546 P.2d 946 (1976).   Continuing violation. Ordinarily, actual or proposed use itself would constitute ”violation“ under this section. However, where alleged violation is the failure to secure the approval of the plat by the board, this violation will continue until the board actually approves the plat and, therefore, the board's claim for relief adequately pleaded the necessary facts upon which relief may be granted. Bd. of County Comm'rs v. Pfeifer, 190 Colo. 275 , 546 P.2d 946 (1976).   Town exercising eminent domain beyond corporate limits must comply with section. A town must comply with county zoning procedures enunciated in this section when the town exercises its power of eminent domain for construction of sewage facilities beyond its corporate limits pursuant to § 38-6-122 . Blue River Defense Comm. v. Town of Silverthorne, 33 Colo. App. 10, 516 P.2d 452 (1973).   Disregard of zoning regulations. Even without definite statutory direction, as found in this section, courts of last resort have recognized that districts, authorities, and other state authorized governmental subdivisions have the power to overrule or disregard the restrictions of county or municipal zoning regulations. Reber v. S. Lakewood San. Dist., 147 Colo. 70 , 362 P.2d 877 (1961); Hygiene Fire Prot. Dist. v. Bd. of County Comm'rs, 205 P.3d 487 (Colo. App. 2008), aff'd, 221 P.3d 1063 (Colo. 2009).   BOA did not abuse its discretion by not requiring location and extent review prior to approval of mountain roller coaster development. Subsection (1)(a) and the regional development code contain a single express exception to the general rule that location and extent review is required only for public projects. The general assembly did not intend to include other privately owned entities, such as parks and recreation facilities, within their reach. Apart from one table in the code, every other indication in the code is that only public projects and (and privately owned utilities) are subject to location and extent review. The BOA concluded as much when it affirmed the staff decision without ordering a location and extent review. That decision was not an abuse of the BOA's discretion or a misunderstanding of the code. Yakutat Land Corp. v. Langer, 2020 CO 30, 462 P.3d 65.   Statutory county may not refuse to process an otherwise complete application for location and extent review of a public project under subsection (1)(a) on the basis that the applicant political subdivision must first seek modification of a planned unit development (PUD). The override authority of political subdivisions with special statutory purposes, codified in subsection (1), is applicable to the PUD act. Bd. of County Comm'rs v. Hygiene Fire Prot. Dist., 221 P.3d 1063 (Colo. 2009).   The extent and exact location as referred to in this section could not be determined in eminent domain proceedings until the question of necessity had been decided. Miller v. Pub. Serv. Co., 129 Colo. 513 , 272 P.2d 283 (1954), appeal dismissed, 348 U.S. 923, 75 S. Ct. 338, 99 L. Ed. 724 (1955).   Application by town to the state water pollution control commission for approval of location for sewage treatment facilities did not constitute submission to the county planning commission as contemplated by this section where one page of the application contained a signature of approval on behalf of the planning commission. Blue River Defense Comm. v. Town of Silverthorne, 33 Colo. App. 10, 516 P.2d 452 (1973).   Denver did not need to first obtain the consent of Arapahoe county to the acquisition, for an airport, of lands already zoned for airport purposes by the Arapahoe county officials. City & County of Denver v. Bd. of Comm'rs, 113 Colo. 150 , 156 P.2d 101 (1945).   The master plan is only one source of comprehensive planning, and is generally held to be advisory only, and not the equivalent of zoning, nor binding upon the zoning discretion of the legislative body. Theobald v. Bd. of County Comm'rs, 644 P.2d 942 (Colo. 1982).   The requirement of a metes and bounds description of a tract for purposes of qualifying the tract for exemption from the limitations of subsection (4)(a) was not unreasonable or arbitrary, and the denial of the exemption was not an abuse of discretion. Hopkins v. Bd. of County Comm'rs, 193 Colo. 230 , 564 P.2d 415 (1977).   Statute as basis for jurisdiction. See Bd. of County Comm'rs v. Hinton, 190 Colo. 394 , 548 P.2d 122 (1976).   Applied in McArthur v. Zabka, 177 Colo. 337 , 494 P.2d 89 (1972); Bd. of County Comm'rs v. City of Thornton, 629 P.2d 605 (Colo. 1981).