v. Bd. of Cty. Commr's for Boulder Cty

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
February 13, 2020
2020COA28
No. 18CA2454, Hajek v. Bd. of Cty. Commr’s for Boulder Cty. —
Government — Local Government Regulation of Land Use —
Adequate Water Supply for Development
Section 29-20-303, C.R.S. 2019, requires that when a local
government is considering a development permit it must review the
adequacy of the proposed water supply if the development includes
“new water use,” as used in section 29-20-103(1)(b), C.R.S. 2019, in
an amount exceeding a defined threshold. In a matter of first
impression, a division of the court of appeals concludes that the
phrase “new water use” encompasses a change in either the
quantity of the water used or the purpose for which the water is
used.
COLORADO COURT OF APPEALS 2020COA28
Court of Appeals No. 18CA2454
Boulder County District Court No. 18CV30183
Honorable Thomas F. Mulvahill, Judge
Sara Susie Hajek,
Plaintiff-Appellant,
v.
Board of County Commissioners for Boulder County, Colorado; Fair Farm, LLC,
a Colorado limited liability company; and Walter F. Pounds,
Defendants-Appellees.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE TOW
Webb and Terry, JJ., concur
Announced February 13, 2020
Spencer Fane LLP, Jacob F. Hollars, Gilbert F. McNeish, Denver, Colorado, for
Plaintiff-Appellant
Ben Perlman, County Attorney, David Hughes, Deputy County Attorney,
Katherine A. Burke, Senior Assistant County Attorney, Boulder, Colorado, for
Defendant-Appellee Board of County Commissioners for Boulder County,
Colorado
Lyons Gaddis Kahn Hall Jeffers Dworak & Grant, P.C., Timothy J. O’Neill,
Longmont, Colorado, for Defendant-Appellees Fair Farm, LLC and Walter F.
Pounds
¶1 State law requires that before a local government approves a
development permit involving a significant “new water use,” the
local government must consider the adequacy of the development’s
proposed water supply. § 29-20-103(1)(b), C.R.S. 2019. In this
C.R.C.P. 106(a)(4) action, we must determine, as a matter of first
impression, whether the term “new water use” encompasses only
the use of additional water, or also includes water put to a different
purpose. We conclude that the legislature intended the term to
have the latter definition. In so doing, we conclude that the Board
of County Commissioners for Boulder County (Board) abused its
discretion by granting conditional approval of the application by
Walter F. Pounds and Fair Farm, LLC (collectively, Fair Farm) for
Site Plan Review (SPR) without considering the adequacy of the
proposed water supply. As a result, we reverse and remand with
directions.
I. Background
¶2 Fair Farm sought to transition the use of its property from
primarily grazing and hay production to an organic farm that would
include “laying hens in mobile houses in rotation with vegetable
production.” Because Fair Farm’s proposed operation required
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building new structures on vacant land subject to a protective
conservation easement owned by Boulder County, the construction
was subject to SPR under the Boulder County Land Use Code.
Accordingly, Fair Farm submitted an application for SPR to the
Boulder County Land Use Department (Department).
¶3 In its application and accompanying narrative, Fair Farm
proposed building twelve mobile chicken houses, four greenhouses,
and structures for processing and storing eggs and harvested crops.
When Fair Farm later submitted the Fair Farm Operating Plan &
Best Management Practices (Operating Plan), it reported that each
chicken house would contain approximately four hundred hens. 1
While Fair Farm had originally listed the Little Thompson Water
District as its proposed water supply for the operation, the
Operating Plan specified that Fair Farm would instead use a thirty
acre-foot water right from the Hessler Slough, though it never
identified how much water the operation would require.
¶4 The Director of the Department conditionally approved Fair
Farm’s application, opening a fourteen-day public comment period
1 Thus, the operation would house approximately 4800 hens.
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during which members of the community, including the appellant,
Sara Hajek (the owner of a parcel adjacent to the proposed
operation), submitted written comments voicing concerns over air
and water quality, odors, increased traffic, attraction of natural
predators to the area, and the adequacy of the water supply. The
Director then referred the application to the Board to determine
whether a public hearing would be required. The Board determined
that a hearing was not necessary and, in doing so, finalized the
Director’s conditional approval of Fair Farm’s application.
¶5 Hajek challenged the Board’s decision under C.R.C.P. 106.
The district court affirmed the Board’s decision. Hajek now
appeals.
II. Standard of Review
¶6 “Review of a governmental body’s decision pursuant to Rule
106(a)(4) requires an appellate court to review the decision of the
governmental body itself rather than the district court’s
determination regarding the governmental body’s decision.” Bd. of
Cty. Comm’rs v. O’Dell, 920 P.2d 48, 50 (Colo. 1996). Our review is
limited to deciding whether the governmental body’s decision was
an abuse of discretion, based on the evidence in the record before
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it, or was made in excess of its jurisdiction. C.R.C.P. 106(a)(4)(I);
Whitelaw v. Denver City Council, 2017 COA 47, ¶ 7.
¶7 A governmental body abuses its discretion if it misinterprets or
misapplies the law or if no competent record evidence supports its
decision. Alpenhof, LLC v. City of Ouray, 2013 COA 9, ¶ 9; Berger v.
City of Boulder, 195 P.3d 1138, 1139 (Colo. App. 2008). There is no
competent evidence in the record if “the governmental body’s
decision is ‘so devoid of evidentiary support that it can only be
explained as an arbitrary and capricious exercise of authority.’”
O’Dell, 920 P.2d at 50 (quoting Ross v. Fire & Police Pension Ass’n,
713 P.2d 1304, 1309 (Colo. 1986)). Thus, we will reverse the
Board’s decision if we determine that it erroneously interpreted the
law or made a decision that is unsupported by the record. Nixon v.
City & Cty. of Denver, 2014 COA 172, ¶ 12.
¶8 Whether the Board abused its discretion in this instance turns
on the interpretation of several Colorado statutes, which we review
de novo. Friends of the Black Forest Pres. Plan, Inc. v. Bd. of Cty.
Comm’rs, 2016 COA 54, ¶ 15.
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III. Discussion
A. The Phrase “New Water Use” Includes Water Put to a Different
Purpose
¶9 Hajek contends that the Board failed to comply with section
29-20-303(1), C.R.S. 2019, which provides in pertinent part:
A local government shall not approve an
application for a development permit unless it
determines in its sole discretion, after
considering the application and all of the
information provided, that the applicant has
satisfactorily demonstrated that the proposed
water supply will be adequate.
As relevant here, section 29-20-103(1)(b), C.R.S. 2019, limits the
definition of “[d]evelopment permit” to
an application regarding a specific project that
includes new water use in an amount more
than that used by fifty single-family
equivalents, or fewer as determined by the
local government.
¶ 10 The Board and Fair Farm respond that the statute does not
apply to Fair Farm’s application because the proposed laying hen
operation did not involve a “new water use.” Therefore, they
contend, the Board’s SPR was not the approval of a “development
permit.”
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¶ 11 To resolve this threshold issue, we must consider the meaning
of “new water use” as it is used in section 29-20-103(1)(b). When
interpreting a statute, our goal is to “ascertain and give effect to the
legislature’s intent.” Roup v. Commercial Research, LLC, 2015 CO
38, ¶ 8. To do so, we look first to the language of the statute and
give words their plain and ordinary meaning. Id. Unless the
statutory language is ambiguous, we presume the General
Assembly meant what it said. United Airlines, Inc. v. Indus. Claim
Appeals Office, 993 P.2d 1152, 1157 (Colo. 2000). In addition, we
construe the statute as a whole to give consistent, harmonious, and
sensible effect to all its parts, and we presume that the legislature
intended the entire statute to be effective. People v. Buerge, 240
P.3d 363, 367 (Colo. App. 2009). We also avoid interpretations that
would render any words or phrases superfluous or would lead to
illogical or absurd results. People v. Null, 233 P.3d 670, 679 (Colo.
2010).
¶ 12 Our inquiry centers on the meaning of the word “new” in this
context. In our view, it can be understood in two ways. “New” can
be interpreted here as meaning “additional” — as in an additional
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quantity of water — and as meaning “different” — as in a different
purpose for which water is used.
¶ 13 While the word “new” can be defined in a number of ways
depending on the context, the applicable dictionary definitions here
are “having originated or occurred lately,” “being other than the
former or old,” and “different or distinguished from a person, place,
or thing of the same kind or name that has longer or previously
existed.” Webster’s Third New International Dictionary 1522 (2002).
Under any of these definitions, the word “new” does not exclusively
mean additional. Rather, “new” is broad enough to also include a
use that differs from prior use. Thus, giving the word “new” its
plain and ordinary meaning, we construe the phrase “new water
use” to encompass both the use of additional quantities of water
and the use of water for a different purpose.
¶ 14 Notably, when sections 29-20-303(1) and 29-20-103(1)(b) were
enacted, the General Assembly also added language defining an
“[a]dequate” water supply as one that “will be sufficient for
build-out of the proposed development in terms of quality, quantity,
dependability, and availability to provide a supply of water for the
type of development proposed . . . .” § 29-20-302(1), C.R.S. 2019.
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Thus, in determining if a water supply is adequate for a proposed
development under section 29-20-303(1), a local government is
required to consider not only the quantity of the water to be used,
but the quality as well. Id. Because water quality is only relevant
in the context of the purpose for which it is used, we draw two
conclusions.
¶ 15 First, considering the quality of a water supply would not be
necessary if the General Assembly had been solely concerned about
development involving additional, as opposed to different, water
use. But “quality” in this context indicates the General Assembly
was also interested in the purpose for which water is used. Thus, a
development’s use of water for a different purpose is a sufficient
“new water use” to trigger section 29-20-303(1) oversight.
¶ 16 Second, if the General Assembly had intended section 29-20-
303(1) to apply only where additional quantities of water are used
and not where water is merely used for a different purpose, the
reference to water quality would be unnecessary. Because we must
avoid interpretations that render words or phrases superfluous, we
cannot construe “new water use” to exclude instances where the
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same quantity of water is used for a different purpose. Null, 233
P.3d at 679.
¶ 17 Therefore, we conclude that the phrase “new water use” in
section 29-20-103(1)(b) refers to the use of additional quantities of
water as well as the use of a similar quantity of water for a different
purpose. Thus, a “development permit” as referenced in section 29-
20-303(1) includes approval of an application for a specific project
where either (1) an additional use of water is required in the
threshold amount set forth in section 29-20-103(b)(1) or (2) an
amount of water exceeding the threshold set forth in section 29-20-
103(b)(1) is to be used for a different purpose.2
B. The Fair Farm Application Implicated Section 29-20-303(1)
¶ 18 We next turn to whether the approval of the Fair Farm
application was a “development permit” within the meaning of
section 29-20-103(1)(b) and thus triggered section 29-20-303(1).
¶ 19 The Board and Fair Farm argue that Fair Farm’s SPR
application was strictly limited to seeking approval to build the
2We note that “new water use” is not specifically defined in any
Colorado statute. However, in several other Colorado statutes,
“water use” implies purpose and not volume. See, e.g., § 37-75-
105(3)(a), C.R.S. 2019; § 37-97-103(5), C.R.S. 2019.
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structures associated with the proposed operation, not for the
operation itself. Indeed, as the Board and Fair Farm also point out,
based on how the property is zoned, Fair Farm is already permitted
by right to use the land for the envisioned laying hen operation
without any special review or authorization. See Boulder County
Land Use Code 4-502(D), Use Table 4-502.
¶ 20 Even so, because the proposed structures are intended to
facilitate the operation, which includes water use, building the new
structures necessarily implicates any “new water use” associated
with the operation. Moreover, the Department conditioned approval
in part on implementing prescribed management practices related
to potential wildlife interactions with the hens and obtaining a
permit for producing eggs, which indicates that the Department was
also reviewing the operation as a whole in addition to the
construction of the structures. For these reasons, we conclude that
the approval of Fair Farm’s application for SPR is within the scope
of a development permit. § 29-20-103(1).
¶ 21 However, as noted, such a development permit only falls
within the ambit of section 29-20-303(1) if the operation “includes
new water use in an amount more than that used by fifty
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single-family equivalents.”3 § 29-20-103(1)(b). Although neither the
statute nor any regulation referenced by the parties establishes how
much water would be used by fifty single-family equivalents, Hajek
alleged in her complaint that “[a] single family equivalent is typically
in the range of 0.4 to 0.6 acre-feet . . . [t]hus ‘fifty single-family
equivalents would require between 20 acre-feet and 30 acre-feet of
water.” She also alleged that Fair Farm’s operation would require
more than thirty acre-feet of water. On appeal, neither the Board
nor Fair Farm argues that the amount of water required would be
below this threshold.
¶ 22 In sum, because Fair Farm’s operation includes “new water
use,” the statute required the Board to consider whether the
amount of water used exceeded the threshold, and thus whether
the Board had to review the application as a development permit
under section 29-20-303(1). Because the Board did not do so, it
3 While section 29-20-103(1)(b), C.R.S. 2019, allows a local
government to set the standard at fewer than fifty single-family
equivalents, Boulder County has not done so. Accordingly, the fifty
single-family equivalent threshold provided in section 29-20-
103(1)(b) applies.
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abused its discretion by approving Fair Farm’s application. 4 See
O’Dell, 920 P.2d at 50.
C. The Record Does Not Demonstrate Adequate Water Supply
¶ 23 The Board and Fair Farm argue that, even if the statute
applies to Fair Farm’s application, reversal is not required because
the record evidence demonstrates that the proposed water supply is
adequate. We disagree.
¶ 24 First, while the Fair Farm application and Operating Plan
alluded to two possible sources of water, nowhere did the
application or other material Fair Farm submitted to the
Department or Board indicate how much water the operation would
require. In fact, the only indication in the record of the amount of
water necessary for the operation is public comments submitted
about the possible inadequacy of the supply. Without any estimate
of how much water Fair Farm’s operation will require, the Board
could not have considered whether the proposed water supply
4 We note that, in addition to considering the adequacy of the
proposed water supply, the statute required the Board to consider
the documentation outlined in section 29-20-304, C.R.S. 2019,
which Fair Farm never submitted. § 29-20-305(a), C.R.S. 2019.
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would be adequate.5 Similarly, if the record does not reflect how
much water will be required by the operation, it cannot possibly
contain sufficient evidence for us to conclude that the proposed
water supply is adequate.
¶ 25 Moreover, as we have noted, a consideration of the adequacy
of the water supply includes exploring the quality as well as the
quantity of the water available. Yet the record contains no
information regarding whether the new operation will require water
of a different quality than that required for the simple irrigation that
has been occurring.
¶ 26 The Board and Fair Farm also essentially contend that the
Board need only consider whether the applicant has proposed a
water supply, and that it does not matter whether the applicant
presently has the rights to that water. While the latter half of this
argument is correct, it only goes so far.
5 Indeed, in the Board’s answer to Hajek’s complaint in the district
court, its response to the allegations regarding the volume of water
the operation would require was that the Board was “without
knowledge and information sufficient to form a belief as to the truth
of the allegations.” The Board’s earlier disavowal of any knowledge
regarding the amount of water involved cannot be reconciled with
its assertion on appeal that the record reflects an adequate water
supply.
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¶ 27 True, the statute provides that the applicant does not have to
“own or have acquired the proposed water supply or constructed
the related infrastructure at the time of the application.” § 29-20-
303(2). This means precisely what it says: the Board cannot reject
a development permit solely because the applicant has not yet
obtained the rights to the water it proposes to use. But the Board
must still consider whether, assuming the rights are obtained, the
proposed water supply is adequate. Here, Fair Farm’s proposed
water supply was a “thirty acre-foot water right.” Yet, as noted, the
Board did not consider, and cannot say now, that this source would
be adequate in terms of either quality or quantity.
¶ 28 Finally, the Board points out that “all determinations required
under the enumerated provisions are made in the County’s ‘sole
discretion’” and notes that it can delay addressing the adequacy of
the water supply to a later date “if it became a relevant issue in the
future.” First, we reject any implication that a local government’s
decisions regarding the adequacy of a development’s water supply
are unreviewable by a court merely because such decisions are
entrusted to the local government’s “sole discretion.” The district
and appellate courts are clearly empowered to review such
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decisions for an abuse of that discretion. See C.R.C.P. 106(a).
Second, the Board’s claim that it can consider the adequacy of the
water supply whenever it deems it appropriate is contrary to the
unequivocal statutory mandate that this consideration occur before
any development permit is approved. § 29-20-303(1).
IV. Conclusion
¶ 29 The judgment is reversed, and the case is remanded to the
trial court with directions to vacate the Board’s conditional approval
and remand the case to the Board to determine whether the
development’s water requirements exceed fifty single-family
equivalents, and, if so, whether the applicant’s proposed water
supply is adequate.
JUDGE WEBB and JUDGE TERRY concur.
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