Settling Land Use Disputes Under Rule 106(a)(4)

• Publication year: 1997
• Pages: 97

26 Colo.Law. 97 Colorado Lawyer 1997.

1997, November, Pg. 97. Settling Land Use Disputes Under Rule 106(a)(4)

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97

Vol.26, No. 11, Pg.97

The Colorado Lawyer
November 1997
Vol. 26, No. 11 [Page 97]

Specialty Law Columns
Local Government Newsletter
Settling Land Use Disputes Under Rule 106(a)(4)
by Chad G. Asarch

Zoning disputes typically involve a challenge to a zoning board's decision denying approval of a landowner's variance request or other land use application, such as the determination of a valid nonconforming use. Under Rule 106(a)(4) of the Colorado Rules of Civil Procedure, such decisions may be appealed to district court by an aggrieved party.1 However, once judicial review of the zoning decision has been sought, the zoning board and the aggrieved landowner may choose to settle the dispute rather than pursue costly litigation. While courts generally recognize a board's authority to settle a dispute to which it is a party,2 courts have disagreed sharply over the proper mechanisms and safeguards that must be employed prior to settlement of litigation by a zoning board.3

As a result, the settlement of Rule 106 (a)(4) appeals of zoning decisions raises a number of unresolved questions First, must the board comply with applicable statutory procedural requirements regarding zoning decisions, such as holding a public hearing before settling the appeal? Of course, there would be no question if a state statute (or a local ordinance in home rule counties or municipalities) explicitly mandated adherence to statutory procedures prior to settlement. However, most counties have not enacted such requirements

Second, even if settling a zoning dispute does not trigger statutory procedures, should a hearing be required anyway to protect the public interest and meet due process concerns Finally, if a hearing is required, may the court rely on a judicial hearing in lieu of a formal hearing by the board? These issues all pose the same basic question: do statutory procedures governing zoning decisions apply to the settlement of zoning disputes once a court obtains jurisdiction over the matter? While this question remains unresolved by Colorado courts, this article suggests that courts might allow a zoning board to settle a lawsuit outside the confines of statutory procedures, provided that a court reserves the power to approve or deny the settlement after holding some type of hearing in which all interested parties are able to participate.

Sufficiency of Judicial Review

Long-standing judicial policy promotes and favors settlement of legal disputes.4 However, Colorado courts have held that settling challenges to administrative actions cannot proceed without approval by the court because an agency loses jurisdiction to act independently on decisions once they become subject to judicial review.5 As a result, a zoning lawsuit probably cannot be settled unless the court, exercising its independent judgment, approves the agreement.6

The question remains, though, whether the court still must require the board to follow relevant statutory zoning procedures before finalizing the proposed settlement despite judicial review of the agreement. For example, Colorado law provides that before adopting any zoning resolution, a "board of county commissioners shall hold a public hearing" after providing adequate community notice.7 Some courts have expressed serious doubts over whether independent judicial review of a settlement agreement alone is sufficient to protect the interests of the public, arguing that because agreements settling zoning disputes substantially alter the application of existing zoning ordinances, a settlement cannot be ratified unless the zoning board first follows the mandatory statutory procedures that would regularly apply to approving a variance application.8 A contrary result, these courts have feared, would enable the zoning board to short-cut the procedures necessary for granting a variance by engaging in impermissible "contract zoning" with the landowner through settlement.9

Such a conclusion finds support in Colorado court decisions holding that a zoning board may not act without substantially complying with the statutory provisions "required for lawful enactment of a zoning change."10 In addition, one of the...