Adams County Ass'n for Retarded Citizens, Inc. v. City of Westminster

• Decision Date: 10 July 1978
• Docket Number: No. 27697,27697
• Citation: 196 Colo. 79,580 P.2d 1246
• Parties: ADAMS COUNTY ASSOCIATION FOR RETARDED CITIZENS, INC., Ralph Veatch, Individually and as Parent, Natural Guardian, and Next Friend of Victor Veatch, Francis Veatch, Individually and as Parent, Natural Guardian, and Next Friend of Victor Veatch, Victor Veatch, Cecilia Wilkinson, Individually and as Parent, Natural Guardian, and Next Friend of David Wilkinson, and David Wilkinson, Plaintiffs-Appellees and Cross-Appellants, v. The CITY OF WESTMINSTER, a Colorado Municipal Corporation, the City Council of the City of Westminster, Vi June, Fran Blazek, Fred Allen, Kenneth E. Harris, Jr., George Hovorka, Chester McPherson, and Rodney Sheffer, as Members of the City Council of the City of Westminster, Everett Northup, as Chief Building Inspector for the City of Westminster, Steve Garman, as the City Manager of the City of Westminster, Defendants-Appellants and Cross-Appellees, v. The PEOPLE of the State of Colorado, Intervenors-Appellees and Cross-Appellants.
• Court: Colorado Supreme Court

Page 1246

580 P.2d 1246

196 Colo. 79

ADAMS COUNTY ASSOCIATION FOR RETARDED CITIZENS, INC., Ralph

Veatch, Individually and as Parent, Natural Guardian, and

Next Friend of Victor Veatch, Francis Veatch, Individually

and as Parent, Natural Guardian, and Next Friend of Victor

Veatch, Victor Veatch, Cecilia Wilkinson, Individually and

as Parent, Natural Guardian, and Next Friend of David

Wilkinson, and David Wilkinson, Plaintiffs-Appellees and Cross-Appellants, v. The CITY OF WESTMINSTER, a Colorado Municipal Corporation,

the City Council of the City of Westminster, Vi June, Fran

Blazek, Fred Allen, Kenneth E. Harris, Jr., George Hovorka,

Chester McPherson, and Rodney Sheffer, as Members of the

City Council of the City of Westminster, Everett Northup, as

Chief Building Inspector for the City of Westminster, Steve

Garman, as the City Manager of the City of Westminster, Defendants-Appellants and Cross-Appellees, v. The PEOPLE of the State of Colorado, Intervenors-Appellees

and Cross-Appellants.

No. 27697.

Supreme Court of Colorado, En Banc.

July 10, 1978.

Epstein & Gilbert, P. C., Joseph M. Epstein, Denver, for plaintiffs-appellees and cross-appellants.

Stitt, Wittenbrink & Roan, P. C., James R. Stitt, Randall J. Davis, Westminster, for defendants-appellants and cross-appellees.

J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., James L. Kurtz-Phelan, Asst. Atty. Gen., Denver, for intervenors-appellees and cross-appellants.

Susan K. Griffiths, Gen. Counsel, Dee P. Wisor, Staff Atty., Wheat Ridge, for amicus curiae Colorado Municipal League.

Robin S. Freedman, Denver, for amicus curiae Colorado Bar Ass'n.

PRINGLE, Chief Justice.

The Adams County Association for Retarded Citizens filed a complaint against the City of Westminster alleging that the City had illegally refused to issue a special use permit for the establishment of a state licensed group home for the mentally retarded. After a hearing, the trial court directed the City to issue the special use permit. The case is now before us on direct appeal because the constitutionality of a state statute was placed at issue. We reverse the trial court's order.

In 1975, the Colorado Legislature enacted Senate Bill 135 commonly known as the "Bill of Rights for the Developmentally Disabled" which, in pertinent part, was codified into sections 27-10.5-101 Et seq., C.R.S.1973 (1976 Supp.) and 31-23-301, Et seq., C.R.S.1973 (1977 Repl.Vol.). This act creates a statutory right to treatment in the least restrictive environment and requires that each facility in which developmentally disabled people reside "implement a program so that each resident may live as Normally as possible." (Emphasis added.) Sections 27-10.5-101 and 112, C.R.S.1973 (1976 Supp.). The general assembly also declared that one of the purposes of the act was "to ensure the fullest measure of privacy, dignity, rights, and privileges to persons who are developmentally disabled." Section 27-10.5-101(1)(c), C.R.S.1973 (1976 Supp.).

Pursuant to these goals and purposes, the general assembly provided for state licensed group homes as one mechanism for the furnishing of care and treatment in the least restrictive setting possible. Section 27-10.5-133, C.R.S.1973 (1976 Supp.).

Testimony at the trial court hearing established that the function of these group homes for the developmentally disabled is "to provide a residence in the community and a training base to develop the skills of the individual to a maximum potential that will allow them to function in the community." Expert witnesses testified that a group home was an excellent setting for learning domestic and community skills such as food preparation, money management, use of public transportation, shopping, and personal grooming. In other words, the purpose of these group homes is to enable developmentally disabled persons to live as normally as possible.

The following sections, enacted as a part of Senate Bill 135, are directly at issue here.

Section 31-23-301(4), C.R.S.1973 (1977 Repl.Vol.):

"No statutory or home rule city or town or city and county shall enact an ordinance prohibiting the use of a state-licensed group home for the developmentally disabled which serves not more than eight developmentally disabled persons and appropriate staff, as a residential use of property for zoning purposes. As used in this subsection (4), the phrase 'residential use of property for zoning purposes' includes all forms of residential zoning and specifically, although not exclusively, single-family residential zoning."

Section 31-23-303(2), C.R.S.1973 (1977 Repl.Vol.):

"(a) The general assembly declares that the establishment of state-licensed group homes for the exclusive use of developmentally disabled persons is a matter of statewide concern and that a state-licensed group home for eight developmentally disabled persons is a residential use of property for zoning purposes. As used in this subsection (2), the phrase 'residential use of property for zoning purposes' includes all forms of residential zoning and specifically, although not exclusively, single-family residential zoning. 'Developmentally disabled' in this section means those persons having cerebral palsy, multiple sclerosis, mental retardation, autism, and epilepsy. . . . (b) Nothing in this subsection (2) shall be construed to supersede the authority of municipalities and counties to regulate such homes appropriately through local zoning ordinances or resolutions, except insofar as such regulations would be tantamount to prohibition of such homes from any residential district. This section is specifically not to be construed to permit violation of the provisions of any zoning ordinance or resolution with respect to height, setbacks, area, lot coverage or external signage or to permit architectural designs substantially inconsistent with the character of the surrounding neighborhood. This section is also not to be construed to permit conducting of the ministerial activities of any private or public organization or agency or to permit types of treatment activities or the rendering of services in a manner substantially inconsistent with the activities otherwise permitted in the particular zoning district. If reasonably related to the requirements of a particular home, a local zoning or other development regulations may, without violating the provisions of this section, also attach specific location requirements to the approval of the group home, including the availability of such services and facilities as convenience stores, commercial services, transportation, and public recreation facilities."

Pursuant to these statutory provisions, the Adams County Association for Retarded Citizens in early 1976 purchased a house and sought to establish a group home in a single-family residential district in the City of Westminster.

In accordance with directions from city officials, the Association applied for a special use permit. Westminster City Ordinance No. 909 sets out the procedures and criteria for obtaining a special use permit.

Pursuant to this ordinance, a hearing was held before the Special Uses and Licenses Board and the Board recommended approval of the application. In considering the Board's recommendation the City Council held an additional hearing. Following this hearing, the City Council denied the application and adopted certain findings of fact.

The Association filed a complaint contesting the City's authority for such denial and requested the following forms of relief: a finding pursuant to C.R.C.P. 106(a)(4) that the City Council had abused its discretion and exceeded its jurisdiction; a declaratory judgment that the state statute was constitutional and that Ordinance No. 909 was unconstitutional; and an order requiring defendants to issue the required permit. Because the constitutionality of a state statute was involved, the Attorney General intervened in the case.

Trial to the court was held in November of 1976. At the conclusion of the hearing the trial court made the following findings of fact: (1) relevant sections of Senate Bill 135 are constitutional; (2) the establishment of group homes for the developmentally disabled is a matter of statewide concern; (3) Ordinance No. 909 conflicts with the state statute; and (4) the Westminster City Council exceeded its jurisdiction and abused its discretion in denying the special use permit. On the basis of these findings, the trial court ordered the matter to be remanded to the City Council with directions to issue the special use permit. The City of Westminster appealed this order. The Association and the Attorney General cross-appealed asking that the judgment of the trial court be denominated a declaratory judgment as well as a judgment pursuant to Rule 106(a)(4). Because of our disposition of this case, we do not reach the issue presented by the cross-appeal.

I

This appeal presents several questions for review. As a preliminary matter, we address the question of whether the state statute is unconstitutional in that it...