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City of Colorado Springs v. Board of County Commissioners of County of Eagle11/17/1994
In this action pursuant to C.R.C.P. 106, and C.R.C.P. 57, defendants, Eagle County; the Eagle County Board of Commissioners; George A. Gates, Johnette Phillips, and James E. Johnson, in their official capacities as individual members of the Eagle County Board of Commissioners; the Eagle County Planning Commission; Mark Donaldson, Robert Tether, Arlene Quenon, Robert Morris, and Donald Price, in their official capacities as individual members of the Eagle County Planning Commission (collectively the Board); Holy Cross Wilderness Defense Fund; and Vail Valley Consolidated Water District (Vail Valley), appeal from the judgment of the trial court vacating a denial of certain land use permits to plaintiffs, the City of Aurora and the City of Colorado Springs (the cities), and remanding the matter to the Board of County Commissioners. The cities cross-appeal from the trial court's dismissal of certain of their claims against the Board. We affirm in part and reverse in part.
The cities hold water rights in the Holy Cross Wilderness area, located in Eagle County. In order to complete a trans-basin water diversion project there, the cities applied to the Board for a special use permit, a permit to conduct a major extension of an existing water collection system, and a permit to conduct a municipal water project, pursuant to regulations enacted under § 24-65.1-101, et seq., C.R.S. (1988 Repl. Vol. 10B) (the Land Use Act) and § 29-20-101, et seq., C.R.S. (1986 Repl. Vol. 12A) (the Local Government Land Use Control Act). After a series of public hearings, the Board denied the permits, and the cities filed this C.R.C.P. 106 action protesting the denial. See § 24-65.1-502, C.R.S. (1988 Repl. Vol. 10B).
On review, the trial court found that certain of the land use regulations relied upon by the Board to deny the permits were preempted by various state and federal statutes. The trial court then found the remaining regulations, concerning wetlands protection and nuisance factors, to be valid under the Land Use Act, but concluded that it could not discern whether the Board would have denied the permits absent consideration of the preempted regulations. Thus, it vacated the denial of the permits and remanded the matter to the Board for reconsideration.
The Board denied the permits on remand and the cities again appealed. On different grounds, the trial court again vacated the Board's order and, in addition, ordered the Board to approve the permits because it found that the Board had violated due process by improperly refusing to consider a final wetlands mitigation report submitted to the Army Corps of Engineers.
On the Board's motion for reconsideration, the trial court deleted the portion of its order requiring approval of the permits and remanded the matter with instructions to consider the final wetlands mitigation report.
We will address the matters raised by defendants on appeal first and then consider the issues raised by the cities' cross-appeal.
I.
Defendants argue that the trial court's first order vacating the denial of the permits and remanding the matter to the Board was in error. We agree.
A.
Review of an agency decision under C.R.C.P. 106(a)(4) is limited to matters contained within the record of the proceeding before the agency and "the burden is on the [party] challenging the action to overcome the presumption that the agency's acts were proper." Fedder v. McCurdy, 768 P.2d 711, 713 (Colo. App. 1988).
Consequently, a
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