Bartnick v. City of Englewood
| Decision Date | 30 June 2012 |
| Docket Number | Case Number: 2009CV1942 |
| Parties | William Bartnick, Laura Bartnick Appellants v. City of Englewood Appellee |
| Court | U.S. District Court — District of Colorado |
THIS MATTER comes before the Court on Appellants' Opening Brief and Appellee's Answer Brief. The Court has reviewed the briefs, the record on appeal, and relevant law, and now AFFIRMS in part and OVERTURNS in part.
William and Laura Bartnick ("Bartnicks") have been residents of Englewood, a Home Rule Municipality, ("the City") since 2007. The Bartnick home located at 3029 S. Pearl, Englewood, Colorado was zoned R-1-C pursuant to the Englewood Zoning Ordinances. The Bartnicks wished to open their house for boarding purposes. In February of 2007, the Bartnicks hired Welch Construction to act as a general contractor for the renovation. There was initial work on the house by a plumbing, electrical, and general construction contractor and permits were pulled for these purposes. In August of 2007, the City completed "rough-in" inspection of the work and had no issues. On August 13, 2007, Welch Construction informed the City of its "departure as General Contractor from 3029 So. Pearl Street, permit #2007-00052." See Plaintiff's Exhibit 2. The Contractor stated, Exhibit 2. Castle Plumbing also informed the City that they had not performed any work since the rough plumbing in July of 2007 and had not performed any final plumbing work.1
In October, the Bartnicks applied for "home-owner" permits to complete the construction. This form of permit contemplates that the homeowner will complete the construction on their own and that no compensation will be paid to any contractor for the work. However, the work was not being completed by the Bartnicks. They were using unlicensed contractors to complete the work and were paying them between $10.00 and $15.00 per hour or compensating them with steak dinners. Ms. Bartnick stated on an application for a mechanicaland plumbing permit that "my husband's friend helped us" and that the price of the work was "two steak dinners" and "1 lunch + 1 dinner." Ms. Bartnick also admitted in her "My Space" page on October 9, 2007, that See Exhibit 12.
By the date of this MySpace post, the work was substantially done. The Bartnicks had added a second floor and had divided that space into four additional "self-contained" living spaces. Ms. Bartnick also admits that as of this post Thus, by October 9, 2007 the home was being used as a boarding house.
One of the Bartnicks' neighbors, Ronald Noffsinger, objected to this use. He notified the city and complained of the Bartnicks' use of the home as a boarding house. He told the Bartnicks that he was going to complain to the city and threatened to "shut them down." The City investigated. Originally, the Bartnicks had hired a contractor who had obtained permits for construction. On January 10, 2008, after determining that the contractor was no longer working on the project, the City invalidated the permits retroactively. The "home-owner" permits were denied on the same day. No notice was given to the Bartnicks of the revocation of the contractor permits nor were they given an opportunity for a hearing or appeal of the invalidation.2
The City brought zoning violation charges against the Bartnicks which were eventually filed in Englewood Municipal Court. These cases are denominated as Case No. 5760M, B291, and B292. Case No. 5760M was dismissed by the City. The cases concerned a number of alleged violations of the Englewood Municipal Code ("the Code or EMC"). The Bartnicks admittedly were operating a boarding house allegedly in violation of city ordinances, had made improvements upon their residence without valid building permits, and had allegedly violated a number of requirements to license a business with the City. On December 9, 2008, both Mr. and Mrs. Bartnick received a summons informing them that they had been charged with violations of several provisions of the Code. These violations included violation of sections 16-1-5(E)(1); 16-5-2; 8-1 -1; 16-5-4; 16-5-4(C)(1)(e);and 5-1-2. See Summons and Complaint filed December 8, 2008 Record on Appeal ("ROA") 11,13, J1, J3.
EMC section 16-1-5(E)(1) provides that "[n]o building, structure, or land may hereafter be erected, constructed, moved or altered except in conformity with all regulations of this Title." Section 16-5-2(A)(7) provides in pertinent part:
EMC section 8-1-8(E) provides that:
It shall be unlawful for any person to do or cause to be done, or perform, or cause to be performed any act contrary to or in violation of any of the provisions of this Code or any other code, ordinance, rule or regulation promulgated thereunder including the following:
E. Permits. To excavate, erect, construct, enlarge, remodel, alter, repair, move, improve, remove, convert, or demolish any building structure or utility in the City without first obtaining a permit in accordance with the provisions of this Code.
EMC §8-1-8(E). The maximum punishment for violation of the ordinances was $1,000.00 per violation or 60 days in jail or both. ROA MM 17.
The Bartnicks sought to take the case to arbitration on January 14, 2009. ROA V1. The municipal court denied this motion finding that there was no authority for the court to submit the matter to Binding Arbitration. ROA W1. The Bartnicks then filed a document entitled "Joint, Verified Defendants' Complaint, Counterclaims and Cross-Claims." ROA Y1. This 22 page document attempted to raise a number of issues which the Bartnicks sought the court to review. These issues included: failure to join an indispensible party; issuing a warrant or subpoena on a citizen's complaint; allegations of religious discrimination; conspiracy; and a number of other issues. Twenty-one pages of the document contained a recounting of the factual situation leading up to the case, the alleged conspiracy between the Bartnicks' neighbors and employees of the City or the City Council and Mayor, and statements of legal principles which the Bartnicks believed acted as an affirmative defense to the action. The Bartnicks also filed a Joint Motion to Dismiss Cases with Prejudice or for Summary Judgment.
The Cases were consolidated on January 14, 2009. On February 11, 2009, the municipal court declined to issue a summons and warrant on the Citizen Complaint and found that the procedures of counterclaims and cross-claims were civil in nature. The instant complaint being criminal in nature, the municipal court declined to add the counter-claims and cross claims. ROA CC1-2. In an additional order, the municipal court denied the Bartnicks' Joint Verified Motion to Dismiss Cases with Prejudice or for Summary Judgment. ROA DDI.
The Bartnicks demanded a jury and were tried before an Englewood Municipal Court. They appeared with counsel before the municipal court. The Bartnicks filed multiple pretrial motions and the municipal court judge ruled on each motion either prior to trial, or, if they were raised in violation of his pretrial order, at trial. On August 14, 2009, the Bartnicks were each convicted of violating Englewood Municipal Codes §§ 16-5-2(A)(7) and 8-l-8(E). Judgment entered against them on October 9, 2009. The Bartnicks were sentenced to one year probation with mandatory compliance hearings.
Bartnicks appeal their convictions pursuant to section 13-10-116, and Colorado Rule of Criminal Procedure 37 as adopted by Municipal Court Rules of Procedure 237. The Bartnicks appear pro se. In their opening brief, the Bartnicks filed numerous allegations of error. Generally, the Bartnicks contend that the pertinent sections of the Code are unconstitutional as applied under the United States Constitution and the Colorado Constitution, and may be in conflict with various existing statutes and ordinances. The Bartnicks also generally contend that the jury verdict should be set aside as there was no factual support for the verdicts. The Bartnicks were ordered to specifically provide a statement of the issues on appeal in their opening brief. Pursuant to agreement of the parties, the Bartnicks seek appeal on the eleven issues contained in their Reply Brief submitted March 11, 2011. These issues will be considered below.
The standard of review is whether the verdict is supported by substantial, competent evidence on the record or reasonable inferences therefrom. People v. Anderson, 177 Colo. 84, 86, 492 P.2d 844, 845 (Colo. 1972). In reviewing the record, the Court is mindful that "the role of the...
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