Baum v. City and County of Denver

• Decision Date: 26 June 1961
• Docket Number: No. 19006,19006
• Citation: 363 P.2d 688,147 Colo. 104
• Parties: Michael J. BAUM, Jr., Nathan Lee Baum, Albert Hayutin, and Robert Hayutin, Plaintiffs in Error, v. CITY AND COUNTY OF DENVER, John D. McLucas, Zoning Administrator of the City and County of Denver, and Donald S. Harter, Chief Building Inspector of the City and County of Denver, Defendants in Error.
• Court: Colorado Supreme Court

Page 688

363 P.2d 688

147 Colo. 104

Michael J. BAUM, Jr., Nathan Lee Baum, Albert Hayutin, and Robert Hayutin, Plaintiffs in Error, v. CITY AND COUNTY OF DENVER, John D. McLucas, Zoning Administrator of the City and County of Denver and Donald S. Harter, Chief Building Inspector of the City and County of Denver Defendants in Error.

No. 19006.

Supreme Court of Colorado, En Banc.

June 26, 1961.

Rehearing Denied July 17, 1961.

Leslie A. Gross and Nathan Lee Baum, Denver, for plaintiffs in error.

Donald E. Kelley, Earl T. Thrasher, Hans W. Johnson, Denver, for defendants in error.

DAY, Justice.

This writ of error is directed to a judgment of the district court of the City and County of Denver, dismissing an action attacking the validity of a Denver zoning ordinance. The parties appear here in the same order as in the trial court, and we shall refer to them as plaintiffs and defendants or by name.

Plaintiffs by their complaint sought 'Injunction--Mandamus--Declaratory Judgment.' They allege that they are owners of an entire city block of unimproved land in Denver, bounded on the west by South Sheridan Boulevard, east by Zenobia Street, on the north by West Wyoming Avenue, and on the south by West Arkansas Avenue, presently zoned as Residence 1, restricting the property involved to single family dwellings and attendant uses. They assert that the nature and character of South Sheridan Boulevard in the area of their property has changed from a quiet rural Street to a principal commercial thoroughfare with a heavy flow of traffic; that the land in Denver fronting on South Sheridan Boulevard between West Louisiana and West Arizona Avenue is presently zoned for business and classified as B-2, and that lying immediately north thereof, extending from West Arizona Avenue to West Mississippi Avenue, the area is zoned for business and classified B-4; that the area immediately west of plaintiffs' property, in Jefferson County, extending from West Louisiana Avenue to West Florida Avenue is zoned and classified to permit virtually all types of retail trades and businesses; that changes in the nature and character of the area have made it 'undesirable, unfeasible and unrealistic' to construct single family residences or any other R-1 uses upon the property. Plaintiffs allege that the R-1 regulations applying to their land are not uniform with the B-2 and B-4 regulations which apply to the Denver land of similar nature to the north of plaintiffs' property, and with the business regulations which apply to the Jefferson County land to the west of said property.

It is contended that such lack of uniformity violates Sections 2 and 3 of the Denver charter amendment relating to zoning, which provides in part as follows:

'Section 2. * * * All such regulations shall be uniform for each class or kind of building throughout each district * * *.'

and

'Section 3. Purposes in View. * * * Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the City and County of Denver.'

Certain sections of the Zoning Ordinance are detailed in the complaint. Section 612.2-1 describes the R-1 District as composed of certain quiet, low-density residential areas of the city plus certain open areas where similar residential development appears likely to occur. They regulations for this district are designed to stabilize and protect the essential characteristics of the district, to promote and encourage a suitable environment for family life where children are members of most families and to prohibit all activities of a commercial nature except certain enumerated home occupations.

Section 612.9-1 describes the B-4 District as usually located in long narrow strips paralleling arterial highways in the city and composed of certain land and structures used primarily to provide retailing and personal services of all kinds, including temporary housing, for non-residents of the district and transients using the main arterial highways along which the district is located, to provide business services, such as warehousing and business machine supply companies and to provide locations for certain limited industrial activities which require a higher degree of protection from external effects of uses than is afforded in the principal industrial districts.

Plaintiffs claim that their property exactly conforms to the ordinance description of the B-4 district and particularly that the property parallels an arterial highway, abuts residential districts, and is suitable to provide retail and personal service businesses to the residents of nearby areas.

Plaintiffs also contend that classification of their property as R-1 prohibits 'Any uses, service or income to be derived from the property' and that such classification 'is inimical to the public good, capricious and arbitrary, confiscatory and contrary to the provisions, intent and purposes of the charter of the City and County of Denver and the zoning ordinances enacted thereunder'; that 'such regulations are tantamount to the taking of plaintiffs' property without the process of law and without compensation contrary to the provisions of the 5th and 14th Amendments to the Constitution of the United States and Article II, Sections 15 and 25 of the Constitution of the State of Colorado.'

It is alleged that plaintiffs 'propose to erect on their property a structure or structures suitable for use for business, commercial, office and associated recreational installations, together with certain transient residential accommodations such as a motor hotel' to be 'of modern architectural design and of substantial sound construction' and that 'it would enhance the appearance of the neighborhood, appreciate the value of surrounding properties, complement existing business uses, tend to improve business conditions generally and elevate the tax base of the City and County of Denver.' That because of the present zoning and classification of their property as R-1 they have been unable to develop final plans and specifications for such proposed structure or structures; that they have made no application to the Zoning Administrator or the Chief Building Inspector for any permits or licenses for the reason that such applications would be futile under the present zoning, nor have they resorted to proceedings before the Denver Board of Adjustment for a variance or other relief, because said board has no power to authorize any uses of plaintiffs' property which is not a use by right as defined in the zoning ordinance.

It is alleged that the 'continued refusal' of Denver and its officers 'to authorize plaintiffs to develop their property for the purposes hereinabove specified seriously and irreparably injuries and damages the plaintiffs' and that they have no plain, speedy or adequate remedy at law.

The defendants by answer put in issue every material allegation of the complaint.

Trial was to the court, and at the close of plaintiffs' case defendants orally moved for dismissal of the complaint. The motion was granted and judgment of dismissal entered. The trial court in its order of dismissal observed, inter alia:

'The proceedings here is not an attack on the zoning ordinance in its entirety but rather is an admission that everything necessary in the enactment of a valid ordinance was done in this case.

'It is a claim that the boundary line which the city council drew is wrong and plaintiffs are asking the court to sit as a legislative body to put the boundary line in a different place. For the court to interfere in this case would be in effect to have it sit as a zoning commission.

'The evidence shows that the property in question is a square block, completely unimproved: On the north, south and west vacant unimproved property abuts, and on the east is a row of homes in which people are living. The question here seems to be whether this residence area can be reserved from the encroachment of business establishments.

'It is admitted that plaintiffs have made no application to the Zoning Administrator nor the Building Inspector nor to the Board of Adjustment for relief. It is clear as well they have made no application to the Denver City Council for relief.'

The assignments of error present two specific questions for determination. The first, assigned as cross error by Denver on the court's refusal to dismiss the action on motion made before answer on the ground that the complaint itself was insufficient to invoke the jurisdiction of the court, relates to remedial law, and poses the question:

Can a property owner, without exhausting available administrative remedies, challenge the constitutionality of a Zoning Ordinance classifying his property as R-1 and restricting the use thereof to single family residences?

This question is answered in the affirmative.

Defendants contend that the specific remedies of injunction, mandamus and declaratory judgment are not available to plaintiffs. Their argument is grounded on the general rule requiring a party to exhaust available administrative remedies, it being admitted by the pleadings and established by the evidence that plaintiffs made no application for a building permit and did not apply to the Zoning Administrator for any appropriate and available relief afforded by the Zoning Ordinance.

The plaintiffs' contention is that the zoning ordinance results in a confiscatory reduction in the value of plaintiffs' property, prohibits the use thereof for business and commercial purposes, and prevents 'any use, service or income to be derived from the property.' This attack is directed to the entire ordinance as it affects their property and not to any specific provision or provisions thereof. They contend that the ordinance, in effect, constitutes a present...