CITY AND COUNTY OF DENVER, acting By and Through its BOARD OF WATER COMMISSIONERS, Petitioner, v. BOARD OF COUNTY COMMISSIONERS OF GRAND COUNTY, the Northwest Colorado Council of Governments, and Board of County Commissioners of the County of Eagle, Respondents.
No. 88SC358.
Supreme Court of Colorado, En Banc.
Nov. 13, 1989.
782 P.2d 753
Anderson, Johnson & Gianunzio, Mark T. Pifher, Colorado Springs, for amici curiae Cities of Aurora and Colorado Springs.
Justice VOLLACK delivered the Opinion of the Court.
Petitioner, the City and County of Denver (Denver), acting by and through its Board of Water Commissioners (the Denver Water Board), petitioned for certiorari review of the court of appeals decision in City and County of Denver v. Board of County Commissioners, 760 P.2d 656 (Colo.App.1988). The court of appeals held that sections
I.
In 1974 the Colorado legislature adopted the Land Use Act in response to the “rapid growth and development of the state and the resulting demands on its land resources.”
Article 65.1 of the Land Use Act, §§
[s]ubject to the procedures set forth in part 4 of this article, a local government may designate certain activities of state interest from among the following:
(a) Site selection and construction of major new domestic water and sewage treatment systems;
...
(h) Efficient utilization of municipal and industrial water projects....
Section
In 1978 the Board of County Commissioners of Grand County (the Grand County Board) designated site selection and construction of major new domestic water and sewage treatment systems to be an activity of state interest. Grand County Admin. Regs. for Areas and Activities Designated as Matters of State Interest, Resolution No. 1978-5-4, book 245, p. 4. The Grand County Board also adopted regulations governing activities it declares to be of state interest (the Grand County regulations or the regulations). Id., Resolution No. 1978-5-4, book 245, p. 4. The regulations require those who wish to construct major new domestic water systems in Grand County to apply to the Grand County Board for a permit. Id., § 1-301(1), book 245, p. 14; id., § 3-302(1), book 245, p. 25.
In 1980 the Eagle County Board of County Commissioners (the Eagle County Board) designated site selection and con-
Denver brought two separate actions against Eagle and Grand Counties to obtain declaratory judgments that it need not obtain permits from the Eagle or Grand County Boards to construct or operate water collection and diversion facilities in Eagle and Grand Counties. The Grand County case began on November 23, 1979, when the Northern Colorado Water Conservancy District and its municipal subdistrict (the Northern Colorado Water District) and Denver, acting by and through the Denver Water Board, filed a complaint against the Grand County Board. The complaint al-1leged that Denver, acting through the Denver Water Board, was in the process of extending its raw water collection facilities in Grand County in order to take advantage of water rights it held in Grand County. The complaint also alleged that the Northern Colorado Water Conservancy District annually diverted water from Grand County to northeastern Colorado, and that its municipal subdistrict planned to construct and operate water diversion facilities in Grand County. The complaint sought a declaratory judgment invalidating the Grand County Board‘s regulations requiring Denver to apply to the Grand County Board for permits to construct and operate the water diversion facilities. Defendants, the Grand County Board, and plaintiffs, Denver and the Northern Colorado Water District, moved for summary judgment. The district court entered a summary judgment order in favor of the Grand County Board.
The Eagle County case began on October 26, 1981, when Denver, acting by and through the Denver Water Board, filed a complaint against the Eagle County Board. The complaint alleged that the Denver Water Board was in the process of developing water rights in Eagle County to provide a larger and more dependable water works system for Denver. The complaint sought a declaratory judgment invalidating the Eagle County regulations requiring the Denver Water Board to apply to the Eagle County Board for a permit to extend its water works operations in Eagle County. The complaint also sought a declaratory judgment that the Colorado Land Use Commission‘s1 approval of Eagle County‘s regulations was void. The district court entered summary judgment in favor of the Eagle County Board.
Denver, acting through the Denver Water Board, appealed the summary judgments entered against it in both the Grand
County and Eagle County cases. Denver appealed the Grand County case to this court and we ordered the case transferred to the court of appeals pursuant to section
II.
Denver contends that the Land Use Act delegates legislative authority to local governments in violation of article V, section 1, of the Colorado Constitution. We hold that the Act satisfies the constitutional standards which measure legislative delegations of authority.
The legislative power of the state is vested in the General Assembly “consisting of a senate and house of representatives, both to be elected by the people.”
whether there are sufficient statutory standards and safeguards and administrative standards and safeguards, in combination, to protect against unnecessary and uncontrolled exercises of discretionary power. The guiding consideration is whether these constraints are sufficient to ensure that administrative action will be rational and consistent in the first instance and that subsequent judicial review of that action is available and will be effective.
We concluded in Cottrell, 636 P.2d at 709-710, that “the appropriate analysis is to determine first whether sufficient statutory safeguards exist to fulfill these functions.... [I]f those standards and safeguards are inadequate, it must be determined whether additional administrative standards and safeguards accomplish the necessary protection from arbitrary action.”
In the course of upholding statutory delegations of power to agencies, we have noted that it would be impossible for the legislature to prescribe every agency action without “destroying the flexibility necessary to effectuate obvious legislative goals in dealing with complex economic and social problems.” Lowrie, 761 P.2d at 781. For example, in Mountain View Electric Association v. Public Utilities Commission, 686 P.2d 1336, 1341 (Colo.1984), we held that the authority of the Public Utilities Commission (PUC) to regulate public utilities in the interest of public safety authorized it to order an electric association to relocate or bury an electric transmission line because the line posed a safety threat to a nearby airport. We held in Mountain View, 686 P.2d at 1340, that a statutory provision which gave the PUC the power to “make general or special orders, rules or regulations or otherwise to require each public utility to maintain and operate its ... electrical wires ... in such manner as to promote and safeguard the health and safety of ... the public” authorized the PUC to order the electric association to move or bury the power line.
In Beaver Meadows v. Board of County Commissioners, 709 P.2d 928, 935 (Colo.1985), we held that although Colorado‘s master plan, zoning, subdivision and Planned Unit Development (PUD) enabling
In People v. Lowrie, 761 P.2d at 783, we held that the Colorado Liquor Code authorized the Executive Director of the Department of Revenue (the Director) to adopt regulations prohibiting specific suggestive acts in the live entertainment provided in licensed taverns. The enabling statutes at issue in Lowrie were more general than the Director‘s regulations. The statutes authorized the Director to promulgate rules for the proper regulation of the sale of alcoholic beverages on such subjects as “practices unduly designed to increase the consumption of alcoholic beverages” and “standards of cleanliness, orderliness and decency.” Id.
Like the statutes involved in Mountain View, Beaver Meadows, and Lowrie, the Land Use Act contains sufficient standards and safeguards to protect against unnecessary and uncontrolled exercises of discretionary power.
A. Local Government Designations of Activities of State Interest
Denver argues that the Land Use Act unconstitutionally delegates legislative power to local governments because subsection
Subsection
Part 4 of the Act, sections
[a] designation shall: (a) Specify the boundaries of the proposed area; and, (b) State reasons why the particular area or activity is of state interest, the dangers
that would result from uncontrolled development of any such area or uncontrolled conduct of such activity, and the advantages of development of such area or conduct of such activity in a coordinated manner.
Section
Section
The Act sufficiently directs and limits the authority of local governments to make declarations of activities of state interest. We therefore reject Denver‘s argument that section
B. Standards for Local Government Regulations
The Act‘s guidelines for local government administration of activities of state interest provide additional protections against uncontrolled exercise of discretionary power by local governments. Subsection
The Eagle County Board also designated site selection and construction of major new water and sewage treatment facilities to be an activity of state interest pursuant to subsection
[m]unicipal and industrial water projects shall emphasize the most efficient use of water, including, to the extent permissible under existing law, the recycling and reuse of water. Urban development, population densities, and site layout and design of storm water and sanitation systems shall be accomplished in a manner that will prevent the pollution of aquifer recharge areas.
The Act therefore requires local governments to adopt regulations administering activities of state interest which are consistent with subsections
Denver argues that section
We conclude that the provisions of the Act governing local government designation and administration of activities of state interest do not unconstitutionally delegate legislative authority to local governments.
C. Local Government Response to Permit Applications
The permit application procedures imposed on local governments by the Act further protect against the uncontrolled exercise of discretionary power by local governments. Subsection
Subsection
[w]henever a state agency or commission denies a permit, the denial must specify:
(a) The regulations, guidelines, and criteria or standards used in evaluating the application;
(b) The reasons for denial and the regulations, guidelines, and criteria or standards the application fails to satisfy; and
(c) The action that the applicant would have to take to satisfy the state agency‘s or commission‘s permit requirements.
Subsection
Finally, the Act provides for judicial review of local government decisions to deny applications for permits to conduct activities of state interest. Section
Section
“A delegation of authority is not invalid simply because its terms are broad and general.” Beaver Meadows, 709 P.2d at 936. As we stated in Lowrie, 761 P.2d at 781, “it will often be impracticable for the General Assembly to fix rigid standards to guide agency action, particularly in situations involving the exercise of the police power, without destroying the flexibility necessary to effectuate obvious legislative goals in dealing with complex economic and social problems.” The provisions of the Land Use Act which establish standards and procedures for local government designations and administration of activities of state interest provide a sufficient measure of protection against the uncontrolled exercise of discretionary power by local governments. The permit application procedures imposed on local governments by the Act ensure effective judicial review of local government designations and administration of activities of state interest. The Act allows local governments to address complex land use issues encompassing a range of environmental and developmental problems. The Act allows each local government which regulates designated matters of state interest to address in its regulations local land use concerns. Thus the Act allows local governments to address individual land use concerns, yet it provides sufficient standards and protections, including judicial review, to ensure that such local regulation will not be arbitrary or uncontrolled. The Act allows local governments to regulate efficiently without delegating legislative authority to local governments in violation of article V, section 1, of the Colorado Constitution.
III.
Denver contends that the Land Use Act violates article XX, sections 1 and 6, of the Colorado Constitution by impermissibly infringing upon the exercise of Denver‘s home rule powers. We conclude that the Land Use Act does not infringe upon the exercise of Denver‘s home rule powers in violation of article XX, sections 1 and 6, of the Colorado Constitution.
Article XX, section 1, of the Colorado Constitution establishes “the City and County of Denver,” and identifies it as a
the power, within or without its territorial limits, to construct, condemn and purchase, purchase, acquire, lease, add to, maintain, conduct, and operate water-works, light plants, power plants, transportation systems, heating plants, and any other public utilities or works or ways local in use and extent, in whole or in part, and everything required therefore [sic], for the use of said city and county and the inhabitants thereof, and any such systems, plants, or works or ways, or any contracts in relation or connection with either, that may exist and which said city and county may desire to purchase, in whole or in part, the same or any part thereof may be purchased by said city and county which may enforce such purchase by proceedings at law as in taking land for public use by right of eminent domain, and shall have the power to issue bonds upon the vote of the taxpaying electors, at any any special or general election, in any amount necessary to carry out any of said powers or purposes, as may by the charter be provided.
The Land Use Act gives Grand County and Eagle County the power to regulate, but not to prohibit, Denver‘s operation of extraterritorial waterworks projects. See Town of Glendale v. City and County of Denver, 137 Colo. 188, 194-95, 322 P.2d 1053, 1057 (1958); cf. City of Thornton v. Farmer‘s Reservoir and Irrigation Co., 194 Colo. 526, 533, 575 P.2d 382, 388 (1978) (Water Rights Condemnation Act violated article XX because it gave municipal commissions power to prevent acts of condemnation by home rule cities). The powers granted to Denver in article XX, section 1, do not prevent other local governments from regulating the activities identified in that section.
Since Denver‘s water projects in Eagle and Grand Counties are not insulated from the Eagle and Grand County regulations by article XX, sections 1 and 6, whether Denver must submit to the regulations depends upon whether, with respect to Denver, the activities at issue are matters of state, local, or mixed state and local concern. In matters of local and municipal concern, the enactments of a home rule city supersede enactments of the General Assembly.
“The respective legislative bodies of a municipality and the state are the judges in the first instance of whether a matter is of local or statewide concern.” City and County of Denver, 696 P.2d at 741. We agree with the legislature‘s determination, expressed in subsections
We reached a similar conclusion in Denver & Rio Grande, 673 P.2d at 354. In that case we held that Denver exceeded its jurisdiction by initiating proceedings to require three railroads to pay for construction of the West Eighth Avenue Viaduct. Id. at 355. We recognized that Denver had a “considerable interest in the construction of railroad-highway crossings within its municipal limits.” Id. at 358. We also noted, however, that the viaduct would affect people residing outside of Denver, and that the state had an interest in regulating railroad safety at railroad crossings and overpasses. Id. at 358-59. We therefore held that the construction of the viaduct was a matter of mixed state and local concern. Id. at 360. The same reasoning applies in this case. Denver‘s construction and operation of water projects outside of its boundaries is a matter of concern to the people of Denver, but those projects are also a matter of concern to the people in counties in which Denver builds and operates the water projects. Furthermore, the Land Use Act makes the thoughtful and coordinated development of such projects a matter of state interest. The activities at issue in the present case are matters of mixed state and local concern.
Because the activities at issue here are of mixed state and local concern, Denver‘s refusal to submit to the permit application process established in the Act and the Eagle and Grand County regulations is unauthorized to the extent that Denver‘s rights under its charter to construct a waterworks system within or without its territorial limits conflict with provisions of the Act. See Denver & Rio Grande, 673 P.2d at 360. The Eagle County Board and the Grand County Board adopted regulations pursuant to the Land Use Act which require Denver to apply for permits for its water projects. The permit application process is specifically authorized by the Act.
We hold that the Land Use Act does not impermissibly infringe on the powers conferred on Denver by article XX of the Colorado Constitution.
IV.
Denver argues that it should not have to apply to the Eagle or Grand County Boards for permits for its water projects because sections
A. Sections 24-65.1-105 to -107
Denver‘s first argument is that it should not have to apply to the Eagle or Grand County Boards for permits for its water projects because section
The relevant portions of section
(1) With regard to public utilities, nothing in this article shall be construed as enhancing or diminishing the power and authority of municipalities, counties, or the public utilities commission....
(2) Nothing in this article shall be construed as enhancing or diminishing the rights and procedures with respect to the power of a public utility to acquire property and rights-of-way by eminent domain to serve public need in the most economical and expedient manner.
Denver argues that under our decision in Board of County Commissioners v. Denver Board of Water Commissioners, 718 P.2d 235, 244 (Colo.1986) (Tri Counties), the Denver Water Department is a public utility. Denver argues further that subsections
The first sentence of subsection
In Tri Counties, 718 P.2d at 245, we held that section
The blanket exemption Denver asks for under subsections
Denver‘s second argument is that it should not have to apply to the Eagle or Grand County Boards for permits for its water projects because section
Section
(1) Nothing in this article shall be construed as:
(a) Enhancing or diminishing the rights of owners of property as provided by the state constitution or the constitution of the United States;
(b) Modifying or amending existing laws or court decrees with respect to the determination and administration of water rights.
We conclude that this section does not grant to Denver a blanket exemption from the Act for projects related to Denver‘s
Denver‘s third argument is that it should not have to apply to the Eagle or Grand County Boards for permits for its water projects because subsection
Denver‘s reading of this section is inconsistent with other provisions in the Act which give local governments the power to regulate certain activities of other local governments. If subsection
B. Sections 37-92-501 and 25-8-104
Denver argues that it should not have to apply to the Eagle or Grand County Boards for permits for its water projects because sections
Section
Section
C. Subsection 30-28-110(1)(c)
Finally, Denver argues that it should not have to apply to the Eagle or Grand County Boards for permits for its water projects because its water projects are completely exempt from the Act under subsection
“Statutes upon the same subject are to be construed together and reconciled if possible, and ‘particular statutes prevail over general, and later provisions over former.‘” State Dep‘t of Revenue v. Borquez, 751 P.2d 639, 643 (Colo.1988) (quoting Burton v. Denver, 99 Colo. 207, 211, 61 P.2d 856, 858 (1936)). Subsection
D. Particular Regulations Are Not At Issue
We have only addressed the question whether the statutory provisions upon which Denver relies grant Denver a blanket exemption from regulations adopted pursuant to Act. This case does not present a justiciable controversy involving particular Eagle or Grand County regulations. “Whether a particular plaintiff has standing to invoke the jurisdiction of the courts is a preliminary inquiry designed to ensure that the judicial power is exercised only in the context of a case or controversy.” Colorado Gen. Assembly v. Lamm, 700 P.2d 508, 515-16 (Colo.1985). Because Denver has not submitted to the permit application process established by the Eagle and Grand County regulations there is no justiciable case or controversy involving particular regulations.
The Land Use Act does not unconstitutionally delegate legislative authority to local governments. Sections 1 and 6 of article XX of the Colorado Constitution do not exempt Denver‘s water projects from the Eagle and Grand County regulations. Neither sections
MULLARKEY, J., dissents.
Justice ERICKSON specially concurring:
Although I agree with the result reached by the majority, I write separately to emphasize the narrowness of the issues decided here. The court of appeals did not have jurisdiction to review the constitutional issues in this case. Section
- Does the Colorado Land Use Act, §§
24-65.1-101 to-502 , 10 C.R.S. (1982), violate art. V, § 1, of the Colorado Constitution because the Act constitutes an unconstitutional delegation of lawmaking authority to the counties? - Does the Colorado Land Use Act, §§
24-65.1-101 to-502 , 10 C.R.S. (1982), violate art. XX, §§ 1 and 6, of the Colorado Constitution by impermissibly infringing upon the exercise of Denver‘s home rule powers? - Are Denver‘s water diversion projects in Eagle and Grand Counties exempt from land use regulation because of §§
24-65.1-105 to-107 , 10 C.R.S. (1982)? - Are Denver‘s water diversion projects in Eagle and Grand Counties exempt from land use regulation because of the Colorado Planning Statute,
§ 30-28-110(1)(c) , 12 A C.R.S. (1986)?
We granted certiorari on the constitutional issues to consider only whether the delegation of legislative power by the General Assembly in the Land Use Act violated article V, section 1, or article XX of the Colorado Constitution. The reasonableness or validity of the regulations promulgated by Grand County or Eagle County pursuant to the Land Use Act is not before us, since the petitioners did not invoke or pursue the administrative process in either county before bringing these declaratory judgment actions.
The question before us on this facial challenge to the Act, therefore, is whether the petitioners have proven beyond a reasonable doubt that the Land Use Act is unconstitutional under either article V, section 1, or article XX of the Colorado Constitution. Lloyd A. Fry Roofing Co. v. Department of Health, 179 Colo. 223, 227, 499 P.2d 1176, 1178 (1972). The petitioners have failed to meet this heavy burden and for that reason I would affirm the district courts. As the majority states, the delegation of legislative authority issue involves matters of both local and statewide interest. Insofar as the projects at issue are a matter of local concern to both Denver and Eagle and Grand Counties, the delegation of legislative authority to a political subdivision of the state such as a county is not prohibited. Asphalt Paving Co. v. Board of County Comm‘rs, 162 Colo. 254, 261, 425 P.2d 289, 292-93 (1967).
I would also conclude that the petitioners have not proven beyond a reasonable doubt that the statutory standards and procedures, in combination with the administrative standards and safeguards, will not adequately protect against the unnecessary and uncontrolled exercise of discretionary power. Cottrell v. City & County of Denver, 636 P.2d 703, 709-10 (Colo.1981).
In addition to being of local concern, however, I also agree that the projects here involve matters of statewide interest. Thus, the Land Use Act does not, on its face, violate
Justice MULLARKEY dissenting:
I respectfully dissent from the court‘s construction of subsection
To limit the term “electorate” as the majority has done makes the exemption meaningless. The only project in Grand or Eagle county which would qualify for the exemption would be a project which the voters of that county had approved. Surely if the Grand or Eagle county electorate had authorized its own project prior to 1974, the county would not then use its powers under this Act to prevent the project from going forward. No exemption would be needed.
In construing statutes we first look to their plain and ordinary meaning. Parrish v. Lamm, 758 P.2d 1356 (Colo.1988); People v. District Court, 713 P.2d 918, 921 (Colo.1986). It is, thus, significant that the term “electorate” in subsection (1)(b) is used alone and it is the only subsection where the words “appropriate local government” or “appropriate government authority” are omitted. The majority asserts that since the specific wording of section
I find this argument of statutory construction unpersuasive. Courts are generally hesitant to insert words and clauses into statutes in order to effectuate the legislative intent or statutory meaning. “It is always a dangerous business to fill in the text of a statute from its purposes, and it is utterly unwarranted unless the omission from, or corruption of, the text is plain.” 2A N. Singer, Sutherland Statutory Construction, § 47.38 (4th ed. 1984). Furthermore, words should not be inserted in a statute “where the court simply would think it wise to do so,” or “where the omission is not plainly indicated,” or “where words are purposely omitted.” Id. Therefore, I think the majority has overstepped its bounds in inserting the term “local government” where it is likely that such language was purposefully omitted and where the insertion is not clearly necessary.
The legislative history of this Act shows that the legislature did not take the narrow position which the majority adopts. Subsection
Thus, I would interpret the term electorate to mean the electorate of the governmental unit which was paying for the project and would be its owner. In my view, these Denver water projects are exempt from the Land Use Act.
Because of my disposition of this issue, I would not reach the constitutionality of the statute.