Bauer v. City of Wheat Ridge, 25980
| Decision Date | 20 August 1973 |
| Docket Number | No. 25980,25980 |
| Citation | 513 P.2d 203,182 Colo. 324 |
| Parties | Mervin L. BAUER and Shirley J. Bauer, Plaintiffs-Appellees. v. CITY OF WHEAT RIDGE, a municipal corporation, et al., Defendants-Appellants. |
| Court | Colorado Supreme Court |
Holley, Boatright & Villano, David C. Deuben, George Alan Holley, Wheat Ridge, for plaintiffs-appellees.
Maurice F. Fox, Wheat Ridge, for defendants-appellants.
The Plaintiffs Mr. and Mrs. Bauer own real property in the City of Wheat Ridge. The property is located in an area designated by ordinance as a flood plain. As zoned, the Bauers could build an apartment house on this property, provided they met the criteria in the flood plain ordinance for a 'special exception.' Bauers' application for the 'special exception' was denied by the city council.
Bauers appealed the city council's denial to the district court pursuant to C.R.C.P. 106(a)(4). The district court found that the council had acted arbitrarily in denying the 'special exception' permit and entered a judgment ordering the council to issue the permit. From that judgment, the city council appealed to this court. We affirm the district court's judgment.
As provided in C.R.S.1963, 139--60--1, Wheat Ridge, a statutory city, enacted a flood plain ordinance. The city council performed a legislative function when it adopted this ordinance. In deciding whether or not to grant a 'special exception' permit under the ordinance, the city council acted in an adjudicative capacity.
The flood plain ordinance establishes the criteria upon which the 'special exception' will be granted. If the council believes that other reasons should be used in denying an application, then the appropriate procedure is to amend the flood plain ordinance. Once an applicant applies under the ordinance, only those factors which apply generally to all applicants may be considered. Western Paving Construction Co. v. Board of County Commissioners, Colo., 506 P.2d 1230 (1973).
After reviewing the record and exhibits in this case, we believe the district court correctly characterized the city council's action when it ruled:
Under C.R.C.P. 106(a)(4), the role of review of the district court '. . . shall not be extended further than to determine whether the inferior tribunal has exceeded its jurisdiction or abused its discretion.' The proper function of the district court is to affirm the council where there is 'any competent evidence' to support the council's decision. Civil Service Commission v. Doyle, 174 Colo. 149, 483 P.2d 380 (1971).
The findings which the city council made when it denied the permit were very brief, and were extremely vague as to any substantial reason for its action. The flood plain ordinance clearly lists certain mandatory factors which must be...
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