Judge dismisses zoning case | PostIndependent.com

Judge dismisses zoning case

A 9th Judicial District judge on Tuesday threw out a Carbondale landowner’s petition to have his commercially zoned property removed from the town and put back into unincorporated Garfield County.Judge James B. Boyd’s dismissal of the case, filed late last year by Crystal River Development LLC, effectively cancels a trial that was to begin Feb. 8, 2005.A Tuesday morning pre-trial motions hearing was vacated after Boyd issued a ruling in favor of Carbondale’s motion to dismiss the case, on the argument that a recently adopted home rule ordinance supersedes state law in the matter.Crystal River Development, in December of last year, filed a petition in District Court to disconnect, or “de-annex,” its 24 acres of commercial property along State Highway 133 where the Crystal River Marketplace development was formerly proposed. The petition was based on a provision of state law governing the disconnection of property from statutory towns.However, Carbondale became a “home rule” municipality in July 2003, removing the town from certain state statutes whenever local ordinances are adopted related to matters of local concern. At the time CRD filed its court petition for disconnection, no local disconnection ordinance existed.But on April 27 of this year, the Carbondale Board of Trustees adopted such an ordinance, which spells out a process for land to be removed from the town boundaries, including a public hearing and a decision to be rendered by the town board.An attorney for CRD argued at the time that the new ordinance constituted an unconstitutional property “takings,” and that it shouldn’t apply to CRD because the District Court case was already in progress.Eric Gross, the Carbondale attorney representing California developer Brian Huster and CRD, could not be reached Tuesday for comment on the ruling.Addressing the town board at the time the ordinance was adopted, Gross said, “We believe this is another in a series of actions … that takes from our clients’ property rights.”Gross also charged that the ordinance was directed solely at CRD. However, Boyd disagreed in his Tuesday ruling.”The Disconnection Ordinance applies retroactively only in the sense it applies to a disconnection proceeding commenced, but not completed,” the judge wrote. “The disconnection sought by Crystal River was not a completed transaction at the time the [town’s] Disconnection Ordinance was adopted and became effective.”The town’s disconnection ordinance also did not exceed the town’s authority under its own charter, Boyd ruled.”Obviously, we’re pleased,” Carbondale Town Attorney Bob Emerson said. “We think the judge’s ruling is correct and, if an appeal is made, that the decision will be upheld.”CRD can appeal the ruling to the Colorado Court of Appeals, or it could drop the case and seek disconnection of the property according to provisions of the town ordinance.The town and CRD had been at odds for some time over Huster’s plans to develop the property into a shopping center prior to Huster’s petition for disconnection.A proposal for a 250,000 square foot shopping center, anchored by a 125,00-square-foot “big box” store, was approved by the town board in early 2003, but was subsequently rejected by voters in July of that year following a successful citizens referendum to put the question on the ballot.Huster, through his attorney, claimed that the move to de-annex the property was intended to eventually return the property back to its original agricultural zoning under Garfield County land-use regulations, and avoid the higher property taxes associated with vacant commercial property.However, some critics feared the move was designed to place the property back into Garfield County’s jurisdiction, where a new development proposal might stand a better chance of getting approved.

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