Colorado § 30-28-111 - Zoning plan.

§ 30-28-111. Zoning plan.

(1) The county planning commission of any county may, and upon order by the board of county commissioners in any county having a county planning commission shall, make a zoning plan for zoning all or any part of the unincorporated territory within such county, including both the full text of the zoning resolution and the maps, and representing the recommendations of the commission for the regulation by districts or zones of the location, height, bulk, and size of buildings and other structures, percentage of lot which may be occupied, the size of lots, courts, and other open spaces, the density and distribution of population, the location and use of buildings and structures for trade, industry, residence, recreation, public activities, or other purposes, access to sunlight for solar energy devices, and the uses of land for trade, industry, recreation, or other purposes. To the end that adequate safety may be secured, the county planning commission may include in said zoning plan provisions establishing, regulating, and limiting such uses on or along any storm or floodwater runoff channel or basin as such storm or floodwater runoff channel or basin has been designated and approved by the Colorado water conservation board in order to lessen or avoid the hazards to persons and damage to property resulting from the accumulation of storm or floodwaters.

(2) The county planning commission or the board of adjustment of any county, in the exercise of powers pursuant to this article, may condition any portion of a zoning resolution, any amendment thereto, or any exception to the terms thereof upon the preservation, improvement, or construction of any storm or floodwater runoff channel designated and approved by the Colorado water conservation board.

Source: L. 39: p. 299, § 10. CSA: C. 45A § 10. CRS 53: § 106-2-10. C.R.S. 1963: § 106-2-10. L. 66: p. 42, § 5. L. 79: (1) amended, p. 1160, § 3, effective May 25.

ANNOTATION

Law reviews. For article, "Winning the Rezoning", see 11 Colo. Law. 634 (1982). For article, "Judicial Review, Referral and Initiation of Zoning Decisions", see 13 Colo. Law. 387 (1984). For article, "Substantive Due Process and Zoning Decisions", see 25 Colo. Law. 71 (Mar. 1996).

In Colorado zoning resolutions by counties are authorized by statute which have been held constitutional. Di Salle v. Giggal, 128 Colo. 208, 261 P.2d 499 (1953).

And the principal constitutional limitation is that zoning provisions must be reasonable and for the promotion of the public welfare, this must be determined by the court from the facts, circumstances, and locality in the particular case. Di Salle v. Giggal, 128 Colo. 208, 261 P.2d 499 (1953).

Zoning regulations must bear a real and substantial relationship to the public health, safety, morals, or welfare. Bd. of County Comm'rs v. Echternacht, 194 Colo. 311, 572 P.2d 143 (1977).

The purpose of this section is to regulate the density of population and use of lands, and where not so designated, the act clearly implies such intended purposes. Di Salle v. Giggal, 128 Colo. 208, 261 P.2d 499 (1953).

Courts will indulge every intendment in favor of a zoning resolution and that the presumption of constitutionality casts the heavy burden upon one who seeks a declaration of invalidity of proving beyond a reasonable doubt that the resolution is unconstitutional. Bd. of County Comm'rs v. Thompson, 177 Colo. 277, 493 P.2d 1358 (1972); Famularo v. Bd. of County Comm'rs, 180 Colo. 333, 505 P.2d 958 (1973).

A zoning plan is presumed to be constitutional, and one challenging such a plan has the burden of demonstrating its unconstitutionality. Bd. of County Comm'rs v. Echternacht, 194 Colo. 311, 572 P.2d 143 (1977).

To sustain an attack upon the validity of a zoning limitation, the aggrieved property owner must show that the enforced restriction upon his property will preclude its use for any purpose to which it is reasonably adapted, so where the reasonableness of a zoning ordinance is fairly debatable, it must be upheld. Famularo v. Bd. of County Comm'rs, 180 Colo. 333, 505 P.2d 958 (1973).

And a board of county commissioners, as the legislative body, has a wide prerogative in classifying and regulating uses of land for trade, industry, recreation, and other purposes, and it is not the function of the courts to determine how uses shall be defined or what uses shall be permitted in various districts under comprehensive zoning resolutions. Bd. of County Comm'rs v. Thompson, 177 Colo. 277, 493 P.2d 1358 (1972).

Thus, whether one use of land is more or less objectionable than another is for legislative determination in classifying land uses in respective zoning districts. Bd. of County Comm'rs v. Thompson, 177 Colo. 277, 493 P.2d 1358 (1972).

And a zoning ordinance is not to be held unconstitutional because it prohibits the most desirable and convenient use of the land. Bd. of County Comm'rs v. Thompson, 177 Colo. 277, 493 P.2d 1358 (1972).

Nor is a zoning ordinance required to permit most profitable use of land. The due process and just compensation clauses of the state and federal constitutions do not require that zoning ordinances permit a landowner to make the most profitable use of his property. For there to be a taking, the landowner must show he has been deprived of all reasonable uses of his land. C.F. Lytle Co. v. Clark, 491 F.2d 834 (10th Cir. 1974).

No denial of due process or equal protection. Where land users make no showing that other land users within the same zoning district are permitted to do what they have been denied the right to do, a court finds no denial of due process or equal protection. Bd. of County Comm'rs v. Thompson, 177 Colo. 277, 493 P.2d 1358 (1972).

And where zoning regulations relating to mineral conservation districts provide for sufficient uses, such uses of land are limited, but limitation upon land use is one of the fundamental purposes of zoning necessary to achieve the purposes of the mineral conservation district, and such regulations, on their face, do not amount to a taking of property without due process of law. Famularo v. Bd. of County Comm'rs, 180 Colo. 333, 505 P.2d 958 (1973).

Submission to county board required. This section does require the county planning commission, when it formulates a zoning plan or plans, to submit both the full text of the zoning resolution and the maps representing its recommendations to the board of county commissioners. Holly Dev., Inc. v. Bd. of County Comm'rs, 140 Colo. 95, 342 P.2d 1032 (1959).

The fact that the planning department and not the planning commission itself prepared zoning plan does not violate the provision of this section requiring the planning commission to make a zoning plan. Raygor v. Bd. of County Comm'rs, 21 P.3d 432 (Colo. App. 2000).

Minimizing adverse traffic conditions is a legitimate zoning objective. Western Paving Const. Co. v. Bd. of County Comm'rs, 689 P.2d 703 (Colo. App. 1984).

The regulation of the number of families to a given lot area is of vital importance to the orderly development of a rapidly growing territory adjoining a city, particularly for reasons of sanitation therein. Di Salle v. Giggal, 128 Colo. 208, 261 P.2d 499 (1953).

Landowner cannot create his own hardship and then require that zoning regulations be changed to meet that hardship. C.F. Lytle Co. v. Clark, 491 F.2d 834 (10th Cir. 1974).

Master plan not binding on zoning discretion. The master plan in only one source of comprehensive planning, and is generally held to be advisory only, and not the equivalent of zoning, nor binding upon the zoning discretion of the legislative body. Theobald v. Bd. of County Comm'rs, 644 P.2d 942 (Colo. 1982).

Applied in Western Paving Constr. Co. v. Bd. of County Comm'rs, 181 Colo. 77, 506 P.2d 1230 (1973); Bd. of County Comm'rs v. City of Thornton, 629 P.2d 605 (Colo. 1981); C & M Sand & Gravel v. Bd. of County Comm'rs, 673 P.2d 1013 (Colo. App. 1983).