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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
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