Cherry Hills Resort Development Co. v. City of Cherry Hills Village

Citation790 P.2d 827
Decision Date30 April 1990
Docket NumberNo. 88SC502,88SC502
PartiesCHERRY HILLS RESORT DEVELOPMENT COMPANY, a Colorado limited partnership, Temple H. Buell, as Trustee and Beneficiary under the Temple H. Buell Trust, and Richard L. Nathan, as Trustee under the Temple H. Buell Trust, Petitioners, v. The CITY OF CHERRY HILLS VILLAGE; The City of Cherry Hills Village City Council; Robert St. Clair, Roy A. Watts, Theodore B. Washburne, George Anderman, Ann M. Plumbus, Donald J. Egan and Merle Chambers, as present members of the City of Cherry Hills Village City Council, Respondents.
CourtSupreme Court of Colorado

Holme Roberts & Owen, Lawrence L. Levin and Larry S. Schwartz, Denver, for petitioner Cherry Hills Resort Development Co.

Greengard & Senter, Richard D. Greengard, Denver, for petitioners Temple H. Buell and Richard L. Nathan.

Morris, Lower & Sattler, Robert L. Morris and P. Kathleen Lower, Denver, for respondents.

Justice ROVIRA delivered the Opinion of the Court.

Petitioners, the developers of real property in the City of Cherry Hills Village, seek review of the court of appeals determination in Cherry Hills Resort Development Co. v. Cherry Hills Village, No. 83CA0428 (Colo.App. Aug. 25, 1988) (not selected for publication), that (1) the zoning classification in which the property is located precludes the construction of condominiums, and (2) review of the remaining conditions imposed by the Cherry Hills City Council would be premature. We hold that the court of appeals erred in interpreting the zoning ordinance and in failing to address the additional conditions imposed on the development of the property, and accordingly, we reverse and remand with directions.

I

This dispute involves the development of a 68.8 acre parcel of property in the City of Cherry Hills Village (City). In 1957, Temple Buell owned approximately 116 acres of land at the corner of Hampden Avenue and University Boulevard. This land was zoned R-1, a residential district with a minimum lot area of 2 1/2 acres for single family dwellings. Buell proposed to the City the construction of a "residential and resort hotel" complex which would include the development of a luxury hotel, residences, a lake, golf course, shops and other amenities. As a result, 68.8 acres of Buell's land was rezoned to RA-1, which permitted the land to be used for a "residential and resort hotel" and any other use permitted in an R-1 residential district.

The proposed complex was never constructed. In 1980, the Cherry Hills Resort Development Company (Developer) entered into an agreement with the Temple H. Buell Trust (Trust) to lease and develop the property. In July 1982, the Developer submitted two alternative development plans to the Cherry Hills Village City Council (city council). The plans were identical except that the first plan required the City to permit a golf course on a portion of the property zoned R-1 or to rezone that area as RA-1. The second plan placed the golf course in a portion of land which was already zoned RA-1, thus requiring no further zoning action. Both plans proposed a 600 room hotel and a 200 room structure or structures committed either to condominiums or apartments.

In September 1982, the city council passed a resolution approving the second development plan, but made its approval subject to twenty restrictions and conditions. Two of these conditions completely eliminated the proposed construction of luxury condominiums or apartments. The remaining conditions placed significant limitations on the development of the proposed hotel and surrounding grounds.

In October 1982, the Developer, Buell, and the trustees for the Trust filed a complaint in the Arapahoe County District Court. The complaint contained five counts: (1) a request for certiorari review, pursuant to C.R.C.P. 106(a)(4), of the conditions and restrictions imposed by the city council; (2) a procedural due process claim; (3) a request for declaratory judgment; (4) an inverse condemnation claim; and (5) a claim for damages. In September 1983, the district court dismissed counts 3, 4, and 5 of the complaint, and directed briefing only on count 1. In March 1984, the district court ruled in favor of the plaintiffs on count 1, ordering the city council to delete or modify fourteen of the conditions. The court held that by imposing these conditions, the city council exercised discretion not afforded to it under the City's zoning ordinances, thereby exceeding its jurisdiction. The court entered a final judgment pursuant to C.R.C.P. 54(b), and the City appealed.

In February 1986, the court of appeals held that the district court lacked jurisdiction to review the city council's resolution because the council was not acting in a quasi-judicial capacity in adopting the resolution. Cherry Hills Resort Dev. Co. v. Cherry Hills Village, 720 P.2d 992 (Colo.App.1986). We reversed, holding that the district court had jurisdiction under C.R.C.P. 106(a)(4) to review the city council's decision. Cherry Hills Resort Dev. Co. v. Cherry Hills Village, 757 P.2d 622 (Colo.1988).

On remand, the court of appeals held that the city council properly interpreted its zoning ordinances to preclude use of the subject property for condominiums. The court declined to address the remaining eighteen non-condominium conditions on the ground that it would be premature.

II

The city council imposed two conditions as part of its approval of the development plan which, in effect, prohibited the Developer from building the 200 unit residential portion of the proposed residential and resort hotel complex. Condition I states that "[t]his preliminary approval is granted with the specific understanding and condition that the City's current Zoning Code does not permit for this project condominiums, timesharing units, luxury residences, or other long-term arrangements in the sense of continuous year-round tenancy." Further, condition K mandates that "[t]he entire project shall not exceed 600 hotel units totaling a maximum 620,000 square feet."

The trial court held that these conditions conflicted both with the City's zoning regulations and the Colorado Condominium Ownership Act, §§ 38-33-101 to -112, 16A C.R.S. (1982), and thus constituted an abuse of discretion. The court of appeals reversed, holding that because condominium ownership concerns residents who are predominantly permanent in the sense of continuous year-round tenancy, the condominiums were prohibited by the City's zoning regulations. Because we do not agree that the City's zoning regulations prohibit the construction of condominiums, apartments or other long term arrangements in an RA-1 zone, we reverse.

Uses permitted within an RA-1 zone include "a Residential and Resort Hotel," which is defined as:

A building, or associated group of buildings, designed for the entertainment of transients as guests for compensation, the residents of which are not predominately [sic] permanent (in the sense of continuous year-round tenancy), and do not have exclusive possession and control of the rented facilities, and the conveniences and facilities of which include, but not by way of limitation, public dining areas, meeting rooms and facilities, retail outlets, room service and housekeeping and maid services. No more than twenty five percent (25%) of the rooms available for rent shall have cooking facilities.

Cherry Hills Village, Co., City Code § 6-1-1 (1980) (Code). The City has conceded that this definition contemplates the presence of some permanent year-round residents, so long as they do not predominate. Even without this concession, it is obvious that the city council and the court of appeals erred in interpreting this zoning regulation to preclude permanent residents.

A statute or ordinance should be construed so as to give effect to every word, and a construction should not be adopted which renders a word superfluous. See Colorado General Assembly v. Lamm, 700 P.2d 508 (Colo.1985). An interpretation of this ordinance which precludes permanent residents makes the words "predominantly" and "residential" superfluous. To prohibit permanent residents, the definition need simply have stated "the residents of which are not permanent." The inclusion of the word "predominantly," indicates that permanent residents were contemplated, but that they could not predominate over the transient guests. Further, the term "residential and resort hotel" itself implies that something more was contemplated than a hotel for transient guests.

The City suggests that the long-term residences contemplated by the ordinance must be rooms or suites in the hotel, rather than the separate "luxury residences" proposed by the Developer. It argues that the language "no more than twenty five (25%) of the rooms available for rent shall have cooking facilities" manifests an intent to restrict the long-term units to hotel rooms with kitchen facilities.

First, nothing in the quoted sentence precludes the development of separate apartments or condominiums. Moreover, the zoning history of this tract of land indicates that the city council's predecessor, the Board of Trustees, intended to allow the development of separate year-round residences when it created the RA-1 zone. When the original "residential and resort hotel" complex was proposed in 1957, the plans included apartments as part of the complex. Finally, the minutes of the January 20, 1958 meeting of the Board of Trustees state that "[t]he Trustees asked to have hotel, apartment and apartment hotel included in the definitions in the proposed ordinance." Although these terms were not included in the definition, this suggests that the term "residential and resort hotel" was intended to include apartments as a permissible use.

The City next argues that the "luxury residences" portion of the development plan was properly rejected because the permanent residences predominated over the hotel portion of the plan. The plan provided for...

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