3 BAR J HOMEOWNERS ASS'S v. McMurry , 1998 Colo. J. C.A.R. 4961 ( 1998 )

Opinion by

Judge ROTHENBERG.

In this C.R.C.P. 106(a)(4) action, plaintiff, 3 Bar J Homeowners Association, Inc., appeals from the district court judgment dismissing as untimely its complaint challenging certain actions of defendants, Frank C. McMurry, Jim Thompson, and Glen Everett, in their official capacity as the Chaffee County Board of County Commissioners (collectively the Board), and Thomas H. Hale, as County Administrator. We affirm.

. In its complaint, plaintiff sought judicial review pursuant to C.R.C.P. 106(a)(4) of the county’s approval of the final plats of two proposed subdivisions. It is undisputed that, at a public meeting on March 4, 1997, the Board voted to approve the subdivisions at issue subject to certain conditions. The final plats of these subdivisions were signed by the developers and a county commissioner on behalf of the Board at a later date and were recorded on April 28 and April 29, 1997, respectively.

On May 28, 1997, plaintiff filed its complaint challenging these actions in the district court. Defendants moved to dismiss, asserting that plaintiffs action was untimely filed. The district court agreed and dismissed the action with prejudice for lack of subject matter jurisdiction.

Under C.R.C.P. 106(b), a complaint seeking judicial review pursuant to C.R.C.P. 106(a)(4) is required to be filed in the district court no later than thirty days after the “final decision” of the tribunal being challenged is rendered. This thirty-day limitations period is jurisdictional, and begins to run at the “point of administrative finality,” Cadnetix Corp. v. Boulder, 807 P.2d 1253, 1254 (Colo.App.1991), which occurs when “the action complained of is complete,” leaving “nothing further for the agency to decide.” Baker v. Dacono, 928 P.2d 826, 827 (Colo.App.1996).

The sole issue here is when the “point of administrative finality” occurred for purposes of judicial review under C.R.C.P. 106(a)(4). Defendants contend that the final decision took place on March 4, 1997, when the Board voted to grant conditional approval of the two subdivisions, and that the complaint was untimely because it was filed more than thirty days after March 4. Plaintiff contends that the final decisions occurred on April 28 and April 29, 1997, when the final plats of these subdivisions were signed by a county commissioner on behalf of the Board and recorded and, therefore, that its complaint was timely filed.

We agree with defendants and conclude that, for purposes of judicial review actions pursuant to C.R.C.P. 106(a)(4), a county’s final decision in the subdivision approval process takes place when the Board of County Commissioners votes at a public meeting to approve the subdivisions at issue, even though such approval may be subject to certain conditions. See §§ 30-28-110(3), 30-28-110(4), 30-28-133(5), 30-28-133.5, & 30-28-137(1), C.R.S.1998 (statutory provisions concerning final subdivision approval process); Snyder v. City of Lakewood, 189 Colo. 421, 542 P.2d 371 (1975) (where rezoning ordinance was challenged, time begins to run under C.R.C.P. 106(b) when the passage of the ordinance was complete, not when the plat was approved; final action may be conditional). See also Board of County Commissioners v. Bainbridge, Inc., 929 P.2d 691 (Colo.1996) (discussing subdivision approval process).

Under Chaffee County’s subdivision regulations, a final plat may not be offered or accepted for recording “until approved in writing” by the county. A final plat is then required to be filed for recording “immediately following the signing” of its approval by the county. See also § 30-28-110(3).

Here, the plats were not signed by county officials on March 4, but were dated and signed by the developers on March 21. They were signed by a county official at some later time as evidenced by the fact that, at the time of the signing, the county official obviously backdated the approval of the plats to March 4, the date of the Board’s earlier vote.

We are persuaded that certainty is required in the application of C.R.C.P. 106(b) and that the date of the public vote by the Board triggered the thirty-day time limit. Plaintiffs construction of the rule would lead to uncertainty because it would place objectors in the precarious position of not knowing exactly when finality had occurred for purposes of judicial review. Further, if approval of a subdivision could be challenged 30 days after all conditions were fulfilled, developers would be required to expend substantial sums to comply with a county’s conditions before learning whether the subdivision approval would be set aside on judicial review.

Nor does Luck v. Board of County Commissioners, 789 P.2d 475 (Colo.App.1990) require a different result, as plaintiff contends. There, on January 14, 1988, the Board of County Commissioners of Clear Creek County orally granted landowners a “conditional approval” of a rezoning application and authorized completion of an Official Development Plan (ODP), which was to contain certain specified conditions.

On February 29, 1988, the Clear Creek County Board then held another public meeting and, with the adoption of certain amendments to the ODP as drafted, it voted for final approval and execution of the ODP. The final ODP was executed by the Board the same day.

Plaintiff Luck filed his C.R.C.P. 106 complaint challenging the rezoning within thirty days of February 29, but not within thirty days of January 14. The district court dismissed the plaintiffs action as untimely. However, on appeal, a division of this court reversed and held that Luck’s action was timely because:

[T]he Board’s unwritten action on January 14th constituted only preliminary or tentative approval of the rezoning application, and that, as a matter of law, no final approval of the rezoning itself occurred until February 29th.

Luck v. Board of County Commissioners, supra, 789 P.2d at 477 (original emphasis).

There is no suggestion in Luck that the specified conditions required by the Clear Creek County Board on January 14 had actually been fulfilled by February 29, only that there had been “the adoption of certain amendments to the ODP as drafted.” Luck v. Board of County Commissioners, supra, 789 P.2d at 476. Thus, we do not read Luck as holding that when a county grants conditional approval of a subdivision, all conditions set by that county must be fulfilled in order to trigger the thirty-day time limit of C.R.C.P. 106(b).

Further, and in contrast to Luck, Chaffee County’s approval of the subdivisions here, subject to certain conditions, which occurred at the public meeting on March 4, 1997, was neither preliminary nor tentative. No future meetings were contemplated.

We therefore conclude that the point of administrative finality of Chaffee County’s approval of these subdivisions for purposes of C.R.C.P. 106(a)(4) occurred on March 4, 1997, when the Board of County Commissioners publicly voted to approve the subdivisions at issue subject to certain conditions. Because plaintiffs C.R.C.P. 106(a)(4) action was not filed within thirty days of that date, it was untimely and the district court did not err in dismissing it.

Judgment affirmed.

VOGT, J., concurs. TAUBMAN, J., dissents.-