Board of Adjustment of City and County of Denver v. Handley

• Decision Date: 23 October 1939
• Docket Number: 14598.
• Citation: 105 Colo. 180,95 P.2d 823
• Parties: BOARD OF ADJUSTMENT OF CITY AND COUNTY OF DENVER v. HANDLEY et al.
• Court: Colorado Supreme Court

95 P.2d 823

105 Colo. 180

BOARD OF ADJUSTMENT OF CITY AND COUNTY OF DENVER v. HANDLEY et al.

No. 14598.

Supreme Court of Colorado

October 23, 1939

Rehearing Denied Nov. 13, 1939.

In Department.

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Proceeding by Albert D. Handley and others for a writ of certiorari to review an order of the Board of Adjustment of the City and County of Denver granting a permit to operate a bowling alley in a certain building. Judgment reversing the order, and the Board brings error.

Reversed and remanded, with instructions.

Malcolm Lindsey Robert J. Kirschwing, and David H Morris, all of Denver, for plaintiff in error.

George R. Armstrong, Jr., and Christopher O'Neill, both of Denver, for defendants in error.

YOUNG Justice.

On March 13, 1939, Sigman and Burkhardt, who were the owners of five lots located at 1463 York street in the city of Denver which had improvements thereon consisting of a large brick and cement building, a part of which was one story, and a portion two stories, high, formerly occupied by the Mountain States Telephone and Telegraph Company as a telephone exchange, applied to the building inspector of the City and County of Denver for a permit to operate a bowling alley in the building. The inspector denied the permit for the reason that the building was located in a Residence C zone and the law did not vest in him any discretion to vary the regulations in such case. An appeal was taken from the ruling of the inspector to the Board of Adjustment as provided by the city charter and ordinances relative to zoning. The Board of Adjustment, in pursuance of what are alleged to be its discretionary powers vested in it by law, granted the permit upon certain conditions therein set forth. Thereafter the petitioners herein sued out a writ of certiorari from the district court to review the findings of the board. The trial court reversed the ruling of the board upon the grounds, (a) That the Board of Adjustment exceeded its jurisdiction in granting said permit and, (b) That the Board of Adjustment grossly abused its discretion in granting said permit. The board prosecutes a writ of error in this court and by appropriate assignments raises the question whether the findings and judgment of the court holding the permit granted by the Board of Adjustment null and void are proper on the record as submitted, within the scope of the review permitted by the Code sections on certiorari.

The pertinent provisions of the Code of Civil Procedure with respect to certiorari are as follows:

'§ 331. The writ of certiorari may be denominated the writ of review.'

'§ 332. The writ may be granted on application by any court of record, or upon the order of any judge thereof. The writ shall be granted in all cases where an inferior tribunal, board or officer exercising judicial functions, has exceeded the jurisdiction or greatly abused the discretion of such tribunal, board or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate remedy.'

'§ 338. The review upon the writ shall not be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer.' ' 35 C.S.A., vol. 1, c. 29.

As we view the matter there are but two questions that require determination: Did the board exceed its jurisdiction in granting the permit? and, Did it grossly abuse its discretion in doing so? The district court specifically found that the board had no jurisdiction to grant the permit and that it grossly abused its discretion in doing so. In County Court v. People ex rel., 55 Colo. 258, 133 P. 752, 753, we said: 'It is elementary that when a writ of this character is granted upon a proper petition, and the inferior tribunal certifies its record in response thereto, the limit of the power of the reviewing court is to ascertain from that record alone whether the inferior tribunal regularly pursued its authority, and thereupon pronounce judgment accordingly. Section 337, Code Civil Proceed. 1908; County Court v. Eagle Rock Co., 50 Colo. 365, 115 P. 706; Morefield v. Koehn, 53 Colo. 367, 127 P. 234.'

The record discloses that a large number of property owners in the vicinity of the premises involved filed their written protest to the granting of a permit to operate a bowling alley in the old telephone building. A plat filed with the record discloses that the building faces easterly, that it extends from York street on the east to the alleyway on the west, that the lots immediately adjacent to the building on the north face East Colfax avenue, that these lots are occupied by three store buildings, one of which contains a dry cleaning and dyeing plant. The record discloses that the Board of Adjustment met March 21, 1939. The applicants for the permit were present in peron and represented by attorney. Thirteen protestants were present in person or by representatives. The minutes of the board contain the following recitals:

'Facts: The Board having heard and examined witnesses with reference to the case, having heard all interested persons insofar as they desired to be heard, and having made a personal inspection of the premises and being fully advised finds the facts to be as follows:

'1. That the premises under consideration consists of a large one and two story building of brick and cement construction formerly used by the Mountain States Telephone Company as a telephone exchange, known as the 'York Exchange'.

'2. That the building is located on a lot having a frontage of 87 1/2 feet on York Street and extending back to the public alley between York Street and Gaylord Street, the north line of said lot being distant 100 feet south of the south line of Colfax Avenue.

'3. That the premises under consideration is located in a Residence 'C' Zone and is contiguous to Business 'C' Zone, the zone line separating the two zones being the north lot line of said premises.

'4. That the Residence 'C' Zone extends south along York Street for several blocks and the Business 'C' Zone extends in an easterly and westerly direction along Colfax Avenue for many blocks.

'5. That the Business 'D' Zone contiguous to applicant's premises is improved with retail store buildings, filling station, public garages, and similar uses, and there is a store building and dry cleaning and dyeing plant directly north of said premises.

'6. South and west of said premises and extending for several blocks the lots are improved with residences, many of which have been converted into rooming houses and apartment houses, and the east side of York Street between the business zone and E. 14th Avenue is improved with similar uses.

'7. That the present building which has been used by the Mountain States Telephone and Telegraph Company, as a telephone exchange and which was designed for such use and was erected Before the passage of the Zoning Ordinance, is not suited for residence use on account of its construction and design, and the conversion of same into a residence use would be impracticable,

and to compel the present owners to remodel said building for such use would result in unnecessary hardship to said applicants who are the present owners of the premises.

'8. That the premises in question is located contiguous to a business zone which is improved...