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<br />1. The V~lidity of Zoning <br /> <br />The ability of flood plain zoning in general is not particu- <br />larly vulnerable to attack. It is provided by statute in <br />connection with general county police powers that the zoning <br />is within the pOlice power. C.R.S. 1963, Sec. 106-2-l4 <br />(Supp. 1967). In addition, the authorizing legislation for <br />the Urban Drainage District describes the general police <br />power necessity for the district, C.R.S. 1963, Sec. 69-21-2 <br />(Supp. 1969), and specifically delegates the power to adopt <br />flood plain "oning, C.R.S. 1963, Sec. 89-21-23 (7) (Supp. <br />1969). The normal presumption of statutory validity, together <br />with the common sense importance of protection against <br />property damage and personal harm would surely answer any <br />general police power question. <br /> <br />residential to business zones, all involving large diff~r- <br />cnces in the owners' land value, the zoning was upheld. <br />One is not necessarily entitled to the highest use of the <br />oroperty, so long as every reasonable use is not prohibited. <br />The basic principle of Denver Buick, which is based on <br />Justice Holmes' theory ~n penns~lvania Coal, supra, seems <br />to be the diminution in value t eory - zoning so severe as <br />to seriously reduce the value of property amounts to a taking, <br />The Colorado cases after Denver Buick have left the principle <br />intact but have evolved a requ~rement of a degree of <br />. . <br />diminution so large as to be almost total. The test ~s <br />whether there is any reasonable use of the land remaining. <br /> <br />Any attack on the zoning validity would probably follow a <br />narrower approach. It is required that any particular <br />ZOning ordinance and its application must have a minimum <br />rational connection to a valid police power objective, <br />Nectow v. City of Cambridge, 277 U.S. 183 (1928), and must <br />not be so restr~ct~ve as to amount to a taking or a compensa- <br />tion, Pennsylvania Coal Co. v. Mahon, 260 u.s. 393 (1922). <br />In one out-of-state case, a part~cular application of flood- <br />plain zoning was invalidated as being confiscatory, Dooley v. <br />Town Plan and zonint Com'n of Town of Fairfield, 151 Conn. <br />304, 197 A. 2d 770 ( 964). In that case, the zoning permitted <br />uses of parks, playgrQunds, clubhouses, or marinas, but the <br />land which was a broad flood and tidal plain was not suitably <br />attractive or close to the water for these purposes. The <br />court conCluded that for all practical purposes the use of <br />the land had been rendered impossible, <br /> <br />There is a very good reason, however, why flood-plain zoning <br />along and closely conforming to a natural channel is not <br />confiscatory. That is that the land was already burdened <br />with a natural drainage easement in favor of upstream land- <br />owners or the public at large, Ambrosio v. Perl-Mack Construction <br />Co., supra. Uses of the land incons~stent w~th that easement <br />were not feasible before the zoning. As long as the zoning <br />is for no enlarged purpose and prohibits basically no more <br />than the natural easement, there can be no taking. <br /> <br />Colorado view toward confiscatory zoning is set out in <br />and Count of Denver v. Denver BuiCk, 141 Colo. 12l, <br />P.2 I 6 There, a ccrta~n zoning ordinance <br />classified areas adjacent to the downtown area with the <br />restriction that off-street parking must be provided with <br />any neW development. Chief Justir.;e O. Otto Muore found it <br />to be simply too much, agreed with the trial court that it <br />was "confiscatory, unreasonable, discriminatory, oppressive <br />amI unconstitutional," and struck the oICdinance. The opinion <br />is broad and has not been closely followed. <br /> <br />In special situations along the channel, however, questions <br />still remain. At the small on-stream reservoirs and the <br />public street crossings, the flood profile is actually widened <br />beyond its historic channel for a comparable frequency flood. <br />Just what the exact boundaries of the natural easement are <br />has not been clearly determined by any case. Indeed, the <br />propriety of encasing the modified civil law drainage con- <br />cept into a rigid form of easement is suspect. It is the <br />nature of things that some flood will occur in the future, <br />however remote, that will surpass the size of the last known <br />laroe flood. For this reason the actual extent of the <br />drainage channel is indeterminate. In addition, although <br />the natural easement conce t is a ood one to descr~be the <br />u ~c s r~ .ts t e c~t or t e ~str~ct as to ta e t e <br />c ann" as ~t ~n s ~t, not ~n ~ts pr~st~ne natura con ~tion. <br />Art~f~c~al obstruct~ons ~n the channel ~n fact exist and for <br />perfectly valid purposes. It would seem entirely reasonable <br />and necessary for the flood plain zOne boundaries to follow <br />the actual high water line even where there is artificial <br />widening. <br /> <br />In Baum v. Dcnver, 147 Colo. 104, 363 P.2d 688 (1961), Denver <br />v. American o~l Co., 150 Colo. 341, 374 P.2d 357 (1%2), Colby <br />v. Board of Adjustment of Denver, 81 Colo. 344, 255 P. 443 <br />(1927). C~ty of Colo. Sprgs. v. Miller, 95 Colo. 337, 36 P.2d <br />161 (1934), and Hoskinson v. City of Arvada, 136 Colo. 450, <br />319 P.2d 1090 (19581, all inv(Jlv~ng ilttempted rezonings from <br /> <br />The problem of artificial widening is different at different <br />locations. Where the widening is caused by a reservoir, the <br />problem is essentially moot. The reservoir will or Should <br />have an easement or OWnership to cover the entire bed of the <br />reservoir for reservoir purposes, and there is nO change in <br />the use of the rcscrvoir bed when storm flows arc occasionally <br /> <br />5 <br /> <br />, <br />