Bohn v. Board of Adjustment of City and County of Denver
| Decision Date | 21 June 1954 |
| Docket Number | No. 17293,17293 |
| Citation | 271 P.2d 1051,129 Colo. 539 |
| Parties | BOHN v. BOARD OF ADJUSTMENT OF CITY AND COUNTY OF DENVER. |
| Court | Colorado Supreme Court |
Walter F. Scherer, Denver, for plaintiff in error.
John C. Banks, Earl T. Thrasher, Frank A. Elzi, Denver, for defendant in error.
The parties appear in our Court in the same order as in the trial court. We herein refer to plaintiff in error as relator; to the Board of Adjustment under the zoning ordinance of the City and County of Denver as the Board; and to the Chief Building Inspector as Inspector.
Relator applied to the Inspector for a permit to construct an addition to his existing motel on eight lots owned by him since 1922 in the block which faces east on Wolff Street between West Colfax Avenue and West 16th Avenue. The property in this block is zoned as Residence 'B'. The permit was refused. Relator appealed to the Board which sustained the Inspector; he then instituted the instant action in the District Court pursuant to the Denver Charter and the Zoning Ordinance. After hearing, the District Court held against him, sustaining the action of the Board. To review the judgment so entered relator prosecutes a writ of error. The sole question involved is whether the evidence entitled relator to the relief demanded, to wit, the issuance of a permit to add to his existing motel property.
The Board consists of five members and the Denver Charter requires the affirmative vote of four of such members to grant a petition. In the instant case three members of the Board voted affirmatively to grant relator the permit requested and two members voted in the negative. The permit, therefore, was denied.
When relator's petition, in which he asked for a variation from the requirements of the Zoning Ordinance under the discretionary power vested in the Board, came before it, no protests or objections thereto were presented.
The minutes of the Board, made a part of its return, disclose that its findings of fact are as follows:
'Facts: * * * 1. That the premises under consideration in the instant case is an 8 lot unimproved parcel of land having a frontage of 200 feet on Wolff Street and a lot depth of 177 feet, said lots being situate in a Residence 'B' Zone.
'2. That said lots are situate on the west side of Wolff Street, 275 Feet north of West Colfax Avenue and 175 feet north of the zone line separating Residence 'B' Zone from a Business 'C' Zone, adjacent to West Colfax Avenue.
'3. That applicant is the owner and operator of a restaurant and gasoline service station, said used being located on the N. W. corner of West Colfax Avenue on 4 lots located in the Business 'C' Zone.
'4. That applicant is also the owner and operator of a motel located adjacent to and north of the restaurant and service station, said motel being situate on Lots 28 to 34, Inc., Tabor and Kindel's Subdivision, re-sub of Block 11, Sloans Lake Subdivision, said motel being situate adjacent to and north of the Business 'C' Zone.
'5. That applicant proposes to erect on lots 35 to 42, inc., of said Block 11, a motel, consisting of 12 sleeping units, said motel to be an addition to applicant's present motel.'
It then is recited in the 'Facts' that the block situate on the east side of Wolff Street formerly was used as a nursery for the propagation and sale of trees, shrubs, etc., and is vacant except that the former nursery has a sales building on the corner of Wolff Street and West Colfax Avenue. That the area north, northeast and northwest of applicant's premises is zoned Residence 'B' and is improved with one and two-family dwellings and bungalow courts. That the west half of the block in which applicant's property is situated is vacant. That the frontage on the west side of Xavier Street (the block west of Wolff street) and extending north from West Colfax Avenue to West 16th Avenue is occupied by the Florence Crittenden Home, a philanthropic institution, and the Mary Donaldson Memorial Hospital. That the frontage along West Colfax Avenue, extending for many blocks to the east and west, is zoned Business 'C' and Commercial 'A' and is improved with business and commercial zone uses.
Section 219A-7 of the Denver charter provides:
Pursuant to this provision of the charter the trial court directed the taking of testimony, it appearing that the Board did not make a record of the testimony offered by relator at the time his petition was considered by it.
It is not disputed that in 1946 and 1947 the Board granted relator a variance exactly like the one he now requests for the construction of the five last units of his motel which he erected on the lots immediately south of the site in question.
The testimony presented to the trial court disclosed the following facts in addition to those set forth in the return of the Board: The lots in question have for over 30 years been used as a public baseball park; that the Florence Crittenden Home is some 60 years old; that other houses in the neighborhood are 50 to 60 years old and some in bad disrepair; that one house north of the hospital and west of relator's property is 65 years old, with barns as outbuildings; one house immediately north and east of relator's property was described in the evidence as 'an old barn that hasn't any water in it, no bathroom, no modern facilities of any kind, * * * containing an outdoor privy.' On the corner east and south of relator's property a used car business is conducted, and immediately south of West Colfax Avenue on Wolff Street is an eight-apartment house building built in the last...
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...the basis of police regulation.' City and County of Denver v. Thrailkill,supra (emphasis supplied.) Bohn v. Board of Adjustment of City and County of Denver, 129 Colo. 539, 271 P.2d 1051. In Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 18, 62 L.Ed. 149, the Supreme Court of the United Stat......
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...and for an excellent and complete annotation on this general subject see 74 A.L.R.2d 379. In Bohn v. Board of Adjustment of City and County of Denver, 129 Colo. 539, 271 P.2d 1051, 1054, this Court said: 'It is a fundamental principle recognized by all the authorities that any regulation or......
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...morals or general welfare, cannot be sustained as a proper exercise of the police power of a municipality.' Bohn v. Board of Adjustment, 129 Colo. 539, 271 P.2d 1051 (1954). The decision of the district court is reversed, and the cause remanded with instructions to vacate the injunction aga......
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THE COLORADO APPELLATE RULES
...v. Oliver, 129 Colo. 479, 271 P.2d 1055 (1954); Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038 (1954); Bohn v. Bd. of Adjustment, 129 Colo. 539, 271 P.2d 1051 (1954); Am. Nat'l Bank v. Hereford State Bank, 139 Colo. 345, 338 P.2d 1032 (1959); Colo. Interstate Gas Co. v. Logan Props. Corp......
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