The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF ADAMS, State of Colorado; Peter M. Mirelez, John Campbell and James Covey, as members of the Board of County Commissioners of the County of Adams, State of Colorado; David Berger; Warren A. Moreau; Harry Fukaye; James Fukaye; Isamu Fukaye and Henderson Associates, Ltd., a Limited Partnership; Adams County Planning Commission; Lewis W. Stuckert, Walter Fischer, Pauline Carlock, Ray Romero, Alex Ramirez, as members of the Adams County Planning Commission, Petitioners, v. CITY OF THORNTON, Colorado, a Municipal Corporation of the State of Colorado, Respondent.
Nos. 79SC112, 79SC113
Supreme Court of Colorado, En Banc.
June 8, 1981.
629 P.2d 605
LOHR, Justice
The Code of Professional Responsibility,
Here, the petitioners gave their client notice of their intent to withdraw eighteen weeks before the preliminary hearing. Had the court granted their motion to withdraw, the defendant would have had approximately twelve weeks from the date of the hearing on the motion until the preliminary hearing to procure substitute counsel. Because the Colorado Rules of Criminal Procedure contemplate that a preliminary hearing will be held within thirty days of the date it is set, an attorney ordinarily has far less time to prepare for the preliminary hearing than would a substitute counsel engaged by Holness in this case.
It was incumbent upon the court to consider the petitioners’ motion to withdraw. From the material before us, it appears that the petitioners’ motion to withdraw was justified and that the petitioners took reasonable steps to avoid foreseeable prejudice to the rights of their client.
Rule made absolute.
S. Morris Lubow, County Atty., Linda Donnelly, John E. Bush, Jr., Asst. County Attys., Brighton, for petitioners Board of County Com‘rs of the County of Adams, State of Colo., Peter M. Mirelez, John Campbell, and James Covey, as members of the Board of County Commissioners of the County of Adams, State of Colorado.
Daniel, McCain & Brown, Leonard H. McCain, City Atty., Steven N. Koeckeritz, Asst. City Atty., Brighton, for respondent.
LOHR, Justice, delivered the Opinion of the Court.
We granted certiorari to review the decision of the Court of Appeals in City of Thornton v. Board of County Commission-ers, 42 Colo.App. 102, 595 P.2d 264 (1979), holding that the City of Thornton (City) has standing to challenge actions of the Adams County Planning Commission (Planning Commission) and the Board of County Commissioners of Adams County (Board) in amending the county‘s comprehensive plan and in rezoning certain property which is adjacent to the City boundary and to certain City-owned property. We now affirm the Court of Appeals’ decision.
The City of Thornton filed two actions in the Adams County District Court, naming as defendants the Board and its individual members, the Planning Commission and its individual members, and the owners of the rezoned land (we refer to all the defendants collectively as petitioners). In the first, brought under
In each case the defendants moved to dismiss the complaint, asserting, among other grounds, that the City lacks standing to bring the action. The district court agreed and dismissed both actions. On appeal, the Court of Appeals held that the City‘s pleaded averments that it owned property adjacent to and in the immediate vicinity of the rezoned property and that the City‘s property was reduced in value by reason of the amendment of the comprehensive plan and the later rezoning were sufficient to confer standing on the City to contest the legality of the Adams County actions.1
For convenience, we sometimes refer to the property which was rezoned as the PUD property and to the adjacent City-owned property as the City property. We also refer to Adams County‘s comprehensive plan as its master plan, the term used in our statutes. See
An outline of the relevant statutory framework for county planning and zoning will provide a useful general background for consideration of the issues which we must decide.
Each board of county commissioners is authorized “to provide for the physical development of the unincorporated territory within the county and for the zoning of all or any part of such unincorporated territory . . .”
The county planning commission has the duty to make and adopt a master plan for the physical development of the unincorporated territory of the county, showing the commission‘s recommendations for such development.2
Against this background, we consider the issues before us.
The petitioners assert that the trial court was correct in concluding that the City lacks standing to contend that the amendment to the master plan and the subsequent rezoning were accomplished in violation of applicable legal standards and requirements. We disagree and so affirm the decision of the Court of Appeals, which reversed the trial court‘s judgments.4
I.
In Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977), we held that “[t]he proper inquiry on standing is whether the plaintiff has suffered injury in fact to a legally protected interest as contemplated by statutory or constitutional provisions.” Accord, City of Colorado Springs v. State of Colorado, Colo., 626 P.2d 1122 (1980); Denver Urban Renewal Authority v. Byrne, Colo., 618 P.2d 1374 (1980); Dodge v. Department of Social Services, 198 Colo. 379, 600 P.2d 70 (1979). The City meets that test in this case.
Thornton is a home-rule city. As such, it has the power to “purchase, receive, hold, and enjoy or sell and dispose of, real and personal property. . . .”
In its complaints in the consolidated cases before us, the City avers that the amendment to the Adams County master plan and the subsequent rezoning of the PUD property have caused the City property to diminish in value.5 The City further avers that the master plan amendment and the rezoning were wrongful in that they were accomplished in violation of certain applicable legal requirements.6 The trial court concluded that the City lacks standing to assert the alleged violations and granted the petitioners’ motions to dismiss the complaints.
It cannot be doubted that diminution of value of the City property constitutes injury in fact. Therefore, if the City‘s interest in maintaining the value of its property is legally protected, the Wimberly test for standing has been met.
We have held that an owner of property adjacent to rezoned land has standing to challenge rezoning which adversely affects his property. Dillon Companies v. City of Boulder, 183 Colo. 117, 515 P.2d 627 (1973); accord, Bedford v. Board of County Commissioners, 41 Colo.App. 125, 584 P.2d 90 (1978); Snyder v. City Council, 35 Colo.App. 32, 531 P.2d 643 (1974). Implicit in these decisions is the conclusion that a complaining property owner, such as the City here, has a legally protected interest in insulating its property from adverse effects caused by the legally deficient rezoning of adjacent property.
Unless a different result is required because the City property is within the City limits, while the rezoning was accomplished by a separate governmental entity and is limited to property outside the City limits, the City should be recognized to have standing under Wimberly to challenge the County‘s actions. We now consider whether standing must be denied to the City because of an asserted disability of one governmental entity to challenge the zoning decisions of another or because of an asserted principle that property owners in one jurisdiction lack the right to challenge zoning changes made by an adjoining jurisdiction.
II.
The General Assembly has given the counties paramount authority to provide for the zoning of unincorporated territory within their boundaries. By
We start with the fundamental fact that Thornton is a home-rule city. The Colorado Constitution imposes constraints on legislative action impinging on the interests of home-rule cities.
Although the legislature has full power, within constitutional limits, to enact statutes dealing with matters of statewide concern, a home-rule city is not inferior to the General Assembly with respect to local and municipal matters. City of Colorado Springs v. State of Colorado, supra; Denver Urban Renewal Authority v. Byrne, supra; Four-County Metropolitan Capital Improvement District v. Board of County Commissioners, 149 Colo. 284, 369 P.2d 67 (1962). A home-rule city‘s powers with respect to local and municipal matters have their source in our state constitution.
Even though county planning and zoning regulations are of statewide concern, they may adversely affect matters of local and municipal concern. There is no dispute that such is the case here. Under such circumstances, we conclude that the Colorado Constitution mandates that a home-rule city be given the right to challenge the legality of the county‘s master plan and zoning ordinances in court. See City of Colorado Springs v. State of Colorado, supra, in which we found that the budgeting and taxation powers of a home-rule city give it standing to challenge the imposition of a large financial obligation upon the city by the legislature incident to a plan to make firemen‘s pension funds actuarially sound, a matter of statewide concern.
Additionally, we find no reason in policy to deny the landowner City the same right to challenge illegal zoning as we have accorded private landowners. Dillon Companies v. City of Boulder, supra; Bedford v. Board of County Commissioners, supra; Snyder v. City Council, supra. This is not a case in which the City wishes to challenge the County‘s discretionary land use decisions. The City seeks to question only the County‘s compliance with applicable legal standards in exercising the County‘s zoning powers. Recognition of standing in the City to prove its claims in this case will not permit this home-rule city to second-guess land use decisions properly within the purview of the County‘s discretion.
We hold that the legislature has not denied, and constitutionally could not deny, the home-rule city of Thornton the power to protect its property against loss of value caused by a county‘s illegal zoning of nearby property by testing the legality of that zoning in court.7
III.
The County also supports its contention that Thornton is without standing by urging that no owner of property within the territorial limits of one governmental entity can challenge the validity of the manner in which master plans and zoning ordinances are adopted by another governmental entity, even though the parcels be contiguous. In Clark v. City of Colorado Springs, 162 Colo. 593, 428 P.2d 359 (1967), we so held. However, that case does not mention our closely related holding in Roosevelt v. Beau Monde Co., 152 Colo. 567, 384 P.2d 96 (1963), which is logically inconsistent with Clark v. City of Colorado Springs, supra.
In Roosevelt v. Beau Monde Co., supra, we permitted persons residing and owning property in Cherry Hills Village to intervene in an action brought by a contractor to compel the City of Englewood to issue a building permit for a regional shopping center on certain land in Englewood. In defense, Englewood asserted that the property was zoned for residential use. The contractor contested the validity of that zoning. In granting the Cherry Hills Village landowners permission to intervene, we said:
“Thus we conclude that these residents of Cherry Hills Village are without any representation. They own property immediately adjacent to and abutting on the subject property. Building of the proposed shopping center confers similar if not identical benefits, or imposes similar if not identical detriments on the owners of abutting property in Englewood or Cherry Hills Village. Clearly those residing in Cherry Hills Village are entitled to
intervention and representation by counsel of their choosing.”8
152 Colo. at 574, 384 P.2d at 100.
As the Court of Appeals notes in its opinion which we review here, by the weight of authority in other jurisdictions an owner of property adjacent to property being rezoned but not within the territory of the zoning authority has standing to challenge the rezoning. See City of Thornton v. Board of County Commissioners, 42 Colo.App. 102, 595 P.2d 264 (1979). In support of that proposition the Court of Appeals lists the following authorities:
“See Scott v. Indian Wells, 6 Cal.3d 541, 99 Cal.Rptr. 745, 492 P.2d 1137 (1972); Hamelin v. Zoning Board, 19 Conn.Sup. 445, 117 A.2d 86 (1955); Whittingham v. Woodridge, 111 Ill.App.2d 147, 249 N.E.2d 332 (1969); Koppel v. City of Fairway, 189 Kan. 710, 371 P.2d 113 (1962); Allen v. Coffel, 488 S.W.2d 671 (Mo.App.1972); Dahman v. Ballwin, 483 S.W.2d 605 (Mo.App.1972); Bagley v. County of Sarpy, 189 Neb. 393, 202 N.W.2d 841 (1972); Roselle Park v. Union, 113 N.J.Super. 87, 272 A.2d 762 (1970); Borough of Creskill v. Borough of Dumont, 28 N.J.Super. 26, 100 A.2d 182 (1953), aff‘d 15 N.J. 238, 104 A.2d 441; Weinberg v. Clarkstown, 78 Misc.2d 464, 357 N.Y.S.2d 332 (1973). But see Arlington Heights v. Cook County, 133 Ill.App.2d 673, 273 N.E.2d 706 (1971); Mt. Prospect v. Cook County, 113 Ill.App.2d 336, 252 N.E.2d 106 (1969); Cablevision-Division of Sammons Communications Inc. v. Zoning Hearing Board, 13 Pa.Cmwlth. 232, 320 A.2d 388 (1974). See also Annot., 69 A.L.R.3d 805, and Annot., 49 A.L.R.3d 1126; . . .”
Id. at 104, 595 P.2d at 266.
As the California Supreme Court said in Scott v. Indian Wells, supra,
“Certainly it is clear that the development of a parcel on the city‘s edge will substantially affect the value and usability of an adjacent parcel on the other side of the municipal line.
To hold, under these circumstances, that defendant city may zone the land within its border without any concern for adjacent landowners would indeed ‘make a fetish out of invisible municipal boundary lines and a mockery of the principles of zoning.’ ‘[C]ommon sense and wise public policy . . . require an opportunity for property owners to be heard before ordinances which substantially affect their property rights are adopted . . . .’ [Citation omitted.] Indeed, the due process clause of the Fourteenth Amendment requires ‘at a minimum . . . that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing . . . .’ [Citation omitted.]”
Id., 6 Cal.3d at 548-49, 99 Cal.Rptr. at 749, 492 P.2d at 1141. Also recognizing a due process dimension to the question in a case involving a challenge by a municipal corporation to rezoning of land in New York on the basis that it affected adjoining land owned by the municipality in New Jersey is Town of River Vale v. Town of Orangetown, 403 F.2d 684 (2d Cir. 1968).
We find Roosevelt v. Beau Monde Co., supra, and the authorities cited above in support of the majority rule recognizing standing in parties situated in positions akin to that of the City here, to be persuasive. We conclude that Clark v. City of Colorado Springs, supra, was wrongly decided on the point at issue here and overrule it to that extent.
We affirm the decision of the Court of Appeals.
HODGES, C. J., dissents, and LEE and ROVIRA, JJ., join in dissent.
The majority today holds that a home-rule city has standing to challenge by court action a county‘s regulation of unincorporated territory adjacent to city owned property within the municipal boundaries. I respectfully dissent.
Applying the two-prong test to determine whether a party has standing as set forth by this court in Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977), and affirmed in City of Colorado Springs v. State of Colorado, Colo., 626 P.2d 1122 (1980); Denver Urban Renewal Authority v. Byrne, Colo., 618 P.2d 1374 (1980); and Dodge v. Department of Social Services, 198 Colo. 379, 600 P.2d 70 (1979), the majority concludes that the City of Thornton (the City) in this case has complained of an injury in fact to a legally protected interest. In my view, the City has not set forth a legally protected interest.1 A general allegation in the complaint that the value of adjacent city owned property will diminish because of the county‘s master plan does not constitute a legally protected interest.
Under the test for standing adopted by this court, a complaining party must assert an injury to a “legally protected interest as contemplated by statutory or constitutional provisions. The General Assembly has given the power to control the physical development of unincorporated territory to the respective counties where such land is located.
Municipalities have statutory authority to develop their own master and zoning plans.
From this statutory scheme, it is readily apparent that the General Assembly intended to place the ultimate control over plan-
“In our view, sections 31-23-106(1) [now section 31-23-206(1)] and 31-23-109 [now section 31-23-209] place the ultimate governmental authority in matters pertaining to land use in unincorporated areas in the county. In effect, a city is given only an advisory role.”
Nor is the City conferred a legally protected interest as contemplated by constitutional grant.
The majority today unnecessarily opens the doors to time-consuming litigation between political entities of the state. The regulation of unincorporated territory within the state of Colorado has been specifically conferred upon the county in which the land is situated. A neighboring city, home-rule or statutory, ought not be permitted to intrude upon the orderly and effective means of land use regulation as envisioned by the statutory scheme adopted by our General Assembly.
I would reverse the judgment of the court of appeals, and hold that the trial court properly dismissed the city‘s complaints for lack of standing.
I am authorized to say that Justice LEE and Justice ROVIRA join me in the dissent.
Notes
To constitute injury in fact with reference to private property, there must be an injury directly resulting from the action complained of. Wimberly v. Ettenberg, supra; Dodge v. Department of Social Services, supra. An injury which is incidental to the action complained of or an indirect result of the action cannot constitute injury in fact. The pecuniary injury the City complains of is indirect and incidental. Although tax revenues may decrease as a result of the depreciated value of the property within the municipal boundaries and adjacent to the rezoned property, it is the landowners themselves who are directly and adversely affected. The injury the City complains of is too remote to confer standing upon the City. Accord, City and County of Denver v. Board of Commissioners, 113 Colo. 150, 156 P.2d 101 (1945).
The rezoning is challenged for reasons including allegedly arbitrary and capricious action in its adoption, failure of the Board to make written supporting findings, failure to refer the proposed change to the regional planning commission, see