July 17, 2019

Colorado Court of Appeals: Despite Man-Made Diversion, Hazard of Creek Flood is Inherently Natural and Therefore Mitigation by Developers Necessary

The Colorado Court of Appeals issued its opinion in Alpenhof, LLC v. City of Ouray on Thursday, January 17, 2013.

Flooding Risk as Part of Zoning Code.

Plaintiff Alpenhof, LLC raised an unresolved question in Colorado: whether flooding risk from a diverted natural waterway channel involves either a “geologic condition” or a “natural hazard” within the meaning of a zoning code. The Court of Appeals concluded that it does and affirmed the trial court’s order.

Skyrocket Creek basin “is characterized by steep slopes averaging approximately 80% [in grade],” descending from an elevation of 10,400 feet to the City of Ouray (City) approximately 2,800 feet below. In 1929, to protect against historically severe flooding from cloudbursts and spring runoff, the City diverted the creek. It had previously drained south of what is now Alpenhof’s property. Since the diversion, it has flowed north of Alpenhof’s property.

In 1997, the city approved subdivision of most of the property as the Ouray Vista Subdivision. It is located in the alluvial fan of the creek. Parcel C, adjacent to the north diversionary channel, was not subdivided, but was marked on the plat for future possible development.

In January 2011, Alpenhof submitted the preliminary plat application to subdivide Parcel C. The Ouray Planning Commission conditionally approved it, provided that Alpenhof would mitigate potential damage from future floodwater and debris. Alpenhof requested approval by the City Council without the mitigation requirements. The City Council determined that mitigation could be required under § 7-7-D-10 of the Ouray City Code, titled “Natural Hazard Mitigation,” and the “broad discretion” granted by the note on the plat stating the parcel “may not be developed in any fashion until further approval” by the City. The application was denied for insufficient mitigation.

Alpenhof petitioned the district court for relief under CRCP 106(a)(4). The district court denied the claim and certified its order under CRCP 54(b).

Section 7-7-D-10 requires developers to mitigate hazards when “geologic conditions and/or natural hazards are indentified in the Engineering Geology Report that could adversely affect the development.” Alpenhof argued that because the City’s diversion channel altered the flow of the creek, the current erosion and flood risk to Parcel C cannot be considered “natural” under the section. The Court found that the hazard to Parcel C is necessarily intertwined with the natural features and geologic conditions of the area, particularly the steep descent from its headwaters.

In addition, Alpenhof’s contention runs afoul of the “broad authority [granted] to local governments to plan for and regulate the use of land within their respective jurisdictions.” The City Council made specific findings about the public safety risks associated with Parcel C and rightly concluded that the section allowed subdivision approval to be conditioned on mitigation of these risks. The Court found ample record support for the City Council’s decision and the order was affirmed.

Summary and full case available here.

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