Matthew W said:
> Unfortunately the victory tonight is bittersweet.
> beekeeping will be allowed by "special review".
> the application fee for any "Special Review" is $1,185.00!
Not to worry. You don't have to spend that much.
You don't have to spend a dime.
You appear to have the ultimate trump card in your hand.
Always look at the cards you are dealt. All the cards.
Colorado, like most all US states, has a "Right To Farm" law.
Anyone can read their own state's "Right To Farm" law here:
http://www.farmlandinfo.org/fic/laws/kwrtf.html
and all state "farmland protection laws" are listed here:
http://www.farmlandinfo.org/fic/laws/fpkeytab.html
Colorado's law specifically includes beekeeping.
Colorado's law clearly says that the ordinance is "void".
Let them write their ordinance if they wish. Even though Castle
Rock, CO is a "home rule" locality, they would need a voter-initiated
"initiative" or "referendum", and the support of the majority of the voters
to make it legal.
Usual warning - I am not a lawyer. I employ lawyers to do contracts and
such, and I have learned enough from the experience to understand the
concepts presented here. You should ask a practicing lawyer (one from
another town, of course) about this, since it seems to be a clear and
compelling example of "an issue of law", without any "issues of fact"
to muddy the waters.
Colorado's version of "Right To Farm" is very interesting, in that the
wording is very clear, allowing a beekeeper to:
a) Overturn any/all local ordinances that restrict beekeeping
with no more than a simple pleading in municipal court.
b) "Recover Costs", which means you can ask the court
to force the locality to pay the cost of bringing suit
against them.
The key is the official wording of Colorado State Law 35-3.5-102(5),
which says:
" Any ordinance or resolution of any unit of local government
that makes the operation of any agricultural operation a
nuisance or provides for the abatement thereof as a nuisance
under the circumstances set forth in this section is void; except
that the provisions of this subsection (5) shall not apply when an
agricultural operation is located within the corporate limits of any
city or town on July 1, 1981, or is located on a property that the
landowner voluntarily annexes to a municipality on or after July 1, 1981."
Read the following line care, since this is the crux of the matter:
"...shall not apply when an agricultural operation is located
within the corporate limits of any city or town on July 1, 1981..."
From the plain wording of the law, if you were not beekeeping
within the town on July 1, 1981, any ordinance is void by state law.
(If you were keeping bees on July 1, 1981, you are out of luck,
but I question how they might prove such a thing...)
"or is located on a property that the landowner voluntarily
annexes to a municipality on or after July 1, 1981."
If you did not voluntarily annex your land to the Town on/after
July 1, 1981, then the ordinance is also void by state law.
The town might try to pat you on the head and tell you
that you should read the legislation as:
"shall not apply when an agricultural operation is located
within the corporate limits of any city or town on OR AFTER
July 1, 1981..."
but the legislature clearly did NOT write that, the legislature has
made several revisions to the law, and would have corrected any
wording errors by now, so the town cannot read the law differently
from the "plain wording of the law". (If they want to change the
wording of the law, they should ask their state representative to
sponsor a bill... hehehe)
A well-known precept of judicial review of legislation is that judges
are required to interpret what the law specifically says, and to not
attempt any interpretation, or even rule that the legislature made
"a typo".
Given that the state law uses the term "abatement", the state
law prohibits the town from putting any limits on your beekeeping.
The case is a slam-dunk for any lawyer capable of filing even the
most basic paperwork, but it will require a lawyer with an ironic
sense of humor. Find one who is in the business of dealing with
rural property law, or get a referral from the local Farm Bureau.
Below is the full text of the appropriate sections of Colorado law,
and links to each specific section:
35-3.5-102 - Agricultural operation deemed not nuisance - state agricultural commission
- attorney fees - exceptions.
(1) (a) Except as provided in this section, an agricultural operation shall not be found to be a
public or private nuisance if the agricultural operation alleged to be a nuisance employs
methods or practices that are commonly or reasonably associated with agricultural production.
(b) An agricultural operation that employs methods or practices that are commonly or
reasonably associated with agricultural production shall not be found to be a public or
private nuisance as a result of any of the following activities or conditions:
(I) Change in ownership;
(II) Nonpermanent cessation or interruption of farming;
(III) Participation in any government sponsored agricultural program;
(IV) Employment of new technology; or
(V) Change in the type of agricultural product produced.
(2) (a) Notwithstanding any other provision of this section to the contrary, an agricultural
operation shall not be found to be a public or private nuisance if such agricultural operation:
(I) Was established prior to the commencement of the use of the area surrounding such agricultural
operation for nonagricultural activities;
(II) Employs methods or practices that are commonly or reasonably associated with agricultural
production; and
(III) Is not operating negligently.
(b) Employment of methods or practices that are commonly or reasonably associated with agricultural
production shall create a rebuttable presumption that an agricultural operation is not operating negligently.
(3) The court may, pursuant to sections 13-16-122 and 13-17-102, C.R.S., award expert fees, reasonable
court costs, and reasonable attorney fees to the prevailing party in any action brought to assert that
an agricultural operation is a private or public nuisance. Nothing in this section shall be construed as
restricting, superseding, abrogating, or contravening in any way the provisions of sections 25-7-138 (5),
C.R.S., and 25-8-501.1 (8), C.R.S.
(4) As used in this article, "agricultural operation" has the same meaning as "agriculture", as defined in
section 35-1-102 (1).
(5) Any ordinance or resolution of any unit of local government that makes the operation of any agricultural
operation a nuisance or provides for the abatement thereof as a nuisance under the circumstances set
forth in this section is void; except that the provisions of this subsection (5) shall not apply when an
agricultural operation is located within the corporate limits of any city or town on July 1, 1981, or is
located on a property that the landowner voluntarily annexes to a municipality on or after July 1, 1981.
(6) This section shall not invalidate any contracts made prior to September 1, 2000, but shall be applicable
only to contracts and agreements made on or after September 1, 2000.
(7) A local government may adopt an ordinance or pass a resolution that provides additional protection for
agricultural operations; except that no such ordinance or resolution shall prevent an owner from selling
his or her land or prevent or hinder the owner in seeking approval to put the land into alternative use.
http://64.78.178.12/cgi-dos/statdspp.exe?LNP&doc=35-3.5-102
35-1-102 - Definitions
As used in this article, unless the context otherwise requires:
(1) "Agriculture" means the science and art of production of plants and animals
useful to man, including, to a variable extent, the preparation of these products for
man's use and their disposal by marketing or otherwise, and includes horticulture,
floriculture, viticulture, forestry, dairy, livestock, poultry, bee, and any and all forms
of farm products and farm production.
http://64.78.178.12/cgi-dos/statdspp.exe?LNP&DOC=35-1-102
jim
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