Bethlehem Evangelical Lutheran Church v. City of Lakewood

• Decision Date: 06 April 1981
• Docket Number: No. 28521,28521
• Citation: 626 P.2d 668
• Parties: BETHLEHEM EVANGELICAL LUTHERAN CHURCH, a Colorado Non-profit Corporation, and Tamminga Construction Company, Inc., a Colorado Corporation, Plaintiffs- Appellees, v. CITY OF LAKEWOOD, a Colorado Corporation, the City Council of the City of Lakewood; Carolyn Bacher, Sharon Carr, Don DeDecker, Carl Neu, Gaylor Smith, Paul Thompson, Lester Willson, Bill Wilson and Robert Wright as members thereof; City of Lakewood Planning Commission; Kenneth Cameron, Sarah Masterson, Howard Revie, Anthony Sabatini and John Kelly as members thereof; and Charles L. Gillett, Superintendent of Code Enforcement and Chief Building Official of the City of Lakewood, County of Jefferson, State of Colorado, Defendants-Appellants.
• Court: Colorado Supreme Court

Page 668

626 P.2d 668

BETHLEHEM EVANGELICAL LUTHERAN CHURCH, a Colorado Non-profit Corporation, and Tamminga Construction Company Inc., a Colorado Corporation Plaintiffs- Appellees, v. CITY OF LAKEWOOD, a Colorado Corporation, the City Council of the City of Lakewood; Carolyn Bacher, Sharon Carr, Don DeDecker, Carl Neu, Gaylor Smith, Paul Thompson, Lester Willson, Bill Wilson and Robert Wright as members thereof City of Lakewood Planning Commission; Kenneth Cameron, Sarah Masterson, Howard Revie, Anthony Sabatini and John Kelly as members thereof; and Charles L. Gillett, Superintendent of Code Enforcement and Chief Building Official of the City of Lakewood, County of Jefferson, State of Colorado Defendants-Appellants.

No. 28521.

Supreme Court of Colorado, En Banc.

April 6, 1981.

As Modified on Denial of Rehearing April 27, 1981.

Donald E. Mielke, Lakewood, for plaintiffs-appellees.

Gorsuch, Kirgis, Campbell, Walker & Grover, Robert E. Warren, Jr., Solomon & Zimmerman, David A. Solomon, Denver, for defendants-appellants.

LEE, Justice.

This case arises out of the action of the appellant, City of Lakewood (City), in imposing certain conditions upon the issuance of a building permit sought by appellee, Bethlehem Evangelical Lutheran Church (Church), for the construction of a gymnasium. The Church successfully brought a C.R.C.P. 106 review proceeding combined with a declaratory judgment action and petition for injunctive relief to have declared void and unconstitutional the action of the City in imposing conditions on the issuance of a building permit. From the adverse ruling of the district court, the City brings this appeal. We reverse the judgment.

The Church, in addition to its church facilities, owns and operates the Bethlehem Lutheran School on its property located at the intersection of 22nd Avenue and Wadsworth Boulevard in the City of Lakewood. In 1975 the Church embarked on a program to enlarge its school facilities by construction of a gymnasium. It applied for a building permit and, in accordance with the requirements of section 14.13.010 of the Lakewood Municipal Code, the application for a building permit was referred to the Department of Community Services for review. Section 14.13.010 provides:

"Public Improvements. City of Lakewood Municipal Code.

"Applications for building permits shall be reviewed by the Department of Community Services to determine whether the proposed construction will require the installation or construction of public improvements, such as street paving, curbs, gutters, sidewalks, drainage facilities, or other public improvements.

"If it is determined by the Department of Community Services that any such public improvements are necessitated by the proposed construction, the Department of Community Services shall so inform the Building Official, and in such event a condition shall be inserted in the building permit which shall require the construction of such public improvement or public improvements by the permittee and the dedication thereof to the city. The cost of any such improvements shall be borne by the permittee, and the construction thereof shall be at the sole cost, risk and expense of the permittee, subject to the provisions of any applicable city ordinance, regulations or policies.

"In addition, any contractor holding a building license pursuant to Section 14.04.060 is subject to the suspension or revocation procedures set forth in Section 14.04.060. Failures to comply with the provisions for public improvements required by this section shall be violations of this building code and, as such, shall constitute grounds for the suspension or revocation of a license.

"All such improvements are to be constructed in full compliance with the City of Lakewood Engineering Regulations, Design Standards and Construction Specifications as adopted by city council Resolution 71-3, as amended."

As a result of this review procedure, the Department of Community Services, as a condition for the issuance of the building permit, required that the Church make certain street improvements and dedicate certain land to the City for its use. In particular, the City required that

" * * * (A) The following property is to be dedicated as public right of way:

"(1) To the City of Lakewood, the east 25 feet for Vance Street and

"(2) To the City of Lakewood, approximately the north 15 feet for West 22nd Avenue. The new right of way line is to be 6 in back of the existing walk and

"(3) To the State of Colorado, approximately the west 8 feet of the south 280 feet for Wadsworth Blvd. The new right of way line is to be 6 inches behind the new 5 foot attached concrete sidewalk. * * * "

In addition, the City required that the Church construct and pay for curb, gutter, sidewalk, and street improvements on a portion of those dedicated strips. The estimated cost of the improvements was $16,900, including a 50% contingency for inflation.

The Church appealed the decision of the Department of Community Services to the Planning Commission pursuant to section 14.04.050 of the municipal code. After an evidentiary hearing, the Planning Commission affirmed the determination of the Department of Community Services. The Church then commenced the district court action for review and for declaration of invalidity and injunctive relief. ¹

The district court found that the ordinance relied upon to validate this action, section 14.13.010, Lakewood Municipal Code, was without standards to guide administrative action; that the requirement that the Church dedicate the parcels to the City and State was a taking of property without compensation in violation of the United States Constitution, Amend. XIV, and Art. II, sec. 25, of the Colorado Constitution; and that the requirement that the Church pay for the improvements was a violation of freedom of religion guaranteed by the United States Constitution, Amend. I, and Art. II, sec. 4, of the Colorado Constitution.

I.

The Church argued here and in the district court that section 14.13.010 of the Lakewood Municipal Code improperly delegates legislative authority without the imposition of standards sufficient to guide the discretion of the Department of Community Services. We do not agree.

Initially, we observe, as has been so often stated, that a legislative enactment is presumptively valid and one who challenges it has a heavy burden to establish its unconstitutionality beyond a reasonable doubt. Fry Roofing Co. v. Dept. of Health, 179 Colo. 223, 499 P.2d 1176 (1972). Furthermore, such an enactment must be read as a whole to ascertain whether adequate standards have been provided.

It is clear that, as a statutory city, the exercise of its power through its Building Department and Planning Commission in imposing conditions pursuant to section 14.13.010 of the municipal code derives from its authority to provide for and regulate the streets, alleys, sidewalks, crosswalks, curbs and gutters, and traffic. Section 31-15-702, C.R.S.1973.

The ordinance in question requires that the Department of Community Services determine whether the proposed construction will require the installation or construction of public improvements, such as street paving, curbs, gutters, sidewalks, drainage facilities, or other public improvements. In making this determination, the department must inquire whether the "public improvements are necessitated by the proposed construction." If so, conditions may be imposed on the issuance of the building permit. In our view, the standard of "necessity" is a sufficient standard to guide the Department of Community Services in making its determination, considering the broad power of the City to provide for and regulate the use of streets, alleys, and sidewalks and the City's correlative obligation and duty to maintain the same for the users thereof. Implicit in the standard of "necessity" is the requirement that the City make provision for the safety and welfare of the general public, particularly in relation to increased vehicular and pedestrian traffic that may be generated by the construction of a proposed building here, a school gymnasium. Although it is a general and broad standard, "necessity" as a standard for the guidance of an administrative agency has been held sufficient in the context of other statutes delegating legislative authority. Colo. Auto. & Truck Wreckers v. Dept. of Rev., Colo., 618 P.2d 646 (1980); Fry Roofing v. Dept. of Health, supra; State v. Arizona Mines Supply Co., 107 Ariz. 199, 484 P.2d 619 (1971). See also American Power & L. Co. v. S. E. C., 329 U.S. 90, 67 S.Ct. 133, 91 L.Ed. 103 (1946); Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943). See generally Asphalt Paving Co. v. County Commissioners, 162 Colo. 254, 425 P.2d 289 (1967); Swisher v. Brown, 157 Colo. 378, 402 P.2d 621 (1965); Hazlet v. Gaunt, 126 Colo. 385, 250 P.2d 188 (1952). We find that the standard of necessity is sufficient in the context in which it is used in the ordinance under consideration.

Holding as we do that the standard of "necessity" is sufficient, the ordinance does not leave the imposition of conditions to the whim of the Department of Community Services, but as heretofore noted the conditions must be related to the public safety of the user of the sidewalks and streets. Moreover, the ordinance requires that such improvements be constructed in full compliance with legislatively adopted "engineering regulations, design standards and construction specifications." Thus, the delegated discretion is circumscribed as to the nature and extent of the improvements that may be required. As an additional safeguard from arbitrary abuse, the imposition of the conditions is subject to review by the Planning Commission. In the present case, review was had, extensive testimony presented, and the determination of the Department of Community Services was affirmed.

II.

In the context of this case, we note that...