Apple v. City and County of Denver
| Decision Date | 17 February 1964 |
| Docket Number | No. 20494,20494 |
| Citation | 390 P.2d 91,154 Colo. 166 |
| Parties | Olga M. APPLE, Plaintiff in Error, v. The CITY AND COUNTY OF DENVER, a Municipal Corporation, Board of Health & Hospitals of the City and County of Denver, and Le Grand Byington, Manager of the Board of Health & Hospitals of the City and County of Denver, Defendants in Error. |
| Court | Colorado Supreme Court |
Lee, Bryans, Kelly & Stansfield, Fletcher Thomas, Denver, for plaintiffs in error.
Max P. Zall, City Atty., Brian H. Goral, Asst. City Atty., Denver, for defendants in error.
Plaintiff in error Apple, hereinafter referred to as plaintiff or by name, owns and resides in a building at 841 Galapago Street in Denver, Colorado. She bought the property in 1952. At that time it contained five apartments and she has, since her purchase, made no changes in it except for routine maintenance. At all times material to the issues here, a couple with two small children occupied a two bedroom apartment in the basement and the plaintiff lived alone in four rooms on the main floor. Three tenants occupied three separate apartments on the second floor.
In 1955 the City and County of Denver enacted Ordinance 170, Series of 1955 (Article 631, Revised Municipal Code of the City and County of Denver), commonly known as the Housing Code, which is enforced by the Board of Health and Hospitals of the city. In 1958 the plaintiff's property was inspected. Thereafter, a 'notice of violations' was served upon the plaintiff advising her that certain conditions existing on the premises at 841 Galapago Street constituted violations of the Housing Code. The violations complained of can be briefly summarized as follows: apartments which were being used for cooking, eating and sleeping on the second floor and in the basement were not equipped with kitchen sinks; occupants of the upstairs apartments shared a single lavatory which was equipped with a bathtub with an inlet pipe located lower than the bathtub overflow drain, a condition commonly known as a submerged inlet; space heaters and cook stoves were connected with two non-rigid lines which were suspectible to leaks; there were insufficient electrical convenience outlets, resulting in octupus type electrical connections plugged into a single outlet; the stairway intended for use by the tenants and guests of the tenants was not provided with a handrail; torn wallpaper, inadequate screening, broken and cracked windows and loose brick and mortar joints existed; one apartment was so small in size that it did not provide adequate living space; the ceiling in the basement apartment was less than seven feet from the floor as required by the ordinance.
Plaintiff appealed to the Board of Health and Hospitals, contending that the Housing Code was unconstitutional and that the changes required by the 'notice of violations' were unreasonable and arbitrary. A hearing was held upon this appeal and testimony was introduced showing the dangers to the public health and safety from each of the violations listed in the 'notice of violations.' For example, there was evidence presented which showed that the use of a submerged inlet could result in bath water backing up into the drinking supply and causing such diseases as infectious hepatitis and that the loose brick and mortar could result in damp walls which is a factor in causing respiratory and lung diseases. Testimony as to other violations was in a similar vein.
As a result of the hearing, the Board of Health and Hospitals granted the plaintiff a variance (1) permitting the tenants on the third floor to share the bath; (2) permitting the height of the ceiling in the basement to remain the same; and (3) permitting the occupancy of the apartment with less than 128 square feet to remain the same. The plaintiff was given two months to comply with the remaining provisions of the 'notice of violations.' The variance granted constituted a substantial reduction in the plaintiff's cost of compliance with the orders of the Board.
Thereafter, plaintiff filed a notice of rehearing with the Board, objecting to the Board's requiring sinks to be placed in the apartments, repair of the wallpaper, repair of the broken windows, installation of screening, requiring a handrail on the stairway, correcting the submerged inlet in the bathtub (which testimony disclosed would cost $10.00 to correct) and correction of the problem arising from insufficient electrical conveniences. This petition was denied.
Apple then brought an action in the district court contending that the Housing Code was unconstitutional and that the Board of Health and Hospitals erred in ordering the plaintiff to comply with the Housing Code with respect to those matters set forth in her petition for rehearing. The trial court granted a further variance by striking the requirements that the plaintiff replace torn wall paper and fix the cracked windows. The court upheld the order of the Board of Health and Hospitals in all other matters and held the Housing Code of the City and County of Denver to be constitutional in all respects. To review this judgment, plaintiff brings writ of error here.
In this Court, the plaintiff raises only the issue of the constitutionality of the ordinance. She contends that the Housing Code is unconstitutional because it denies due process in violation of the Fourteenth Amendment of the United States Constitution; that it is retrospective in nature; and that it violates the doctrine of separation of powers in that the ordinance unconstitutionally delegates legislative power. We find no merit in these contentions under the circumstances of this case.
The enactment of adequate measures by municipalities to insure safe and healthful living conditions through housing codes designed to protect the health and welfare of the public is, in our opinion, the exercise of the police power in its purest sense. The conservation of existing neighborhoods is one of the weapons by means of which a successful attack on urban blight may be launched. See Guandolo, Housing Codes in Urban Renewal, 25 Geo.Wash.L.Rev. 1, 14 ff.
The objective of housing codes was expressed in graphic detail in Adler v. Deegan, 251 N.Y. 467, 167 N.E. 705, 708, where the Court said:
In Adamec v. Post, 273 N.Y. 250, 7 N.E.2d 120, 122, 109 A.L.R. 1110, a landmark case in this field, Judge Lehman enunciates the following principles which we deem particularly appropriate here:
'* * * there has come a general recognition that dwellings which are unsafe or unsanitary or which fail to provide the amenities essential to decent living may work injury not only to those who live there, but to the general welfare * * * At the point where economic self-interest ceases to be a sufficiently potent force for the promotion of the general welfare, * * * the Legislature may intervene and require that buildings intended for use as tenement houses or multiple dwellings shall conform to minimum standards which may reasonably be regarded as essential for safe, decent, and sanitary dwelling places.
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'* * * The power of the State to place reasonable restrictions upon the use of property for the promotion of the general welfare is no longer subject to challenge and regulations governing the erection or use of buildings as multiple dwellings which are reasonably calculated to safeguard the public health and safety constitute a proper exercise of that power.
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'The imposition of the cost of the required alterations as a condition of the continued use of antiquated buildings for multiple dwellings may cause hardship to the plaintiff and other owners of 'old law tenements' but, in a proper case, the Legislature has the power to enact provisions reasonably calculated to promote the common good even though the result be hardship to the individual.'
The plaintiff contends, however, that even if it be a proper exercise of the police power to enact a housing code,...
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