City and County of Denver v. Denver Buick, Inc., 18699

Citation347 P.2d 919,141 Colo. 121
Decision Date05 December 1959
Docket NumberNo. 18699,18699
PartiesCITY AND COUNTY OF DENVER, a Municipal Corporation, and John D. McLucas, as Zoning Administrator of the City and County of Denver, Plaintiffs in Error, v. DENVER BUICK, INC., a Colorado Corporation, Mollie Cohan, Lou Cohan, and Salco Corporation, a Colorado corporation, Rainbo Bread Company, a Delaware corporation, Weaver-Beatty Motor Company and Roy J. Weaver, Defendants in Error.
CourtSupreme Court of Colorado

John C. Banks, Earl T. Thrasher, Hans W. Johnson, Denver, for plaintiff in error.

Theodore Epstein, Creamer & Creamer, Denver, for defendants in error Denver Buick, Salco Corp. and Cohan.

Dayton Denious, Omer L. Griffin, Denver, for defendants in error Weaver-Beatty Motor Co. and Roy J. Weaver.

Grant, Shafroth & Toll, Denver, for defendant in error Rainbo Bread Co.

MOORE, Justice.

This cause is here on writ of error to review a judgment of the district court of the City and County of Denver entered in an action there filed to test the validity of certain portions of the zoning ordinance of the city.

Plaintiffs in error were defendants, and the Denver Buick, Inc., Mollie Cohan, Lou Cohan, and Salco Corporation were plaintiffs, in the trial court. Rainbo Bread Company, Weaver-Beatty Motor Company and Roy J. Weaver were permitted to intervene as additional parties plaintiff. In this opinion we will refer to defendants in error as plaintiffs or interveners or by their individual names, and plaintiffs in error will be referred to as defendants or by name. All parties plaintiff attacked the validity of Ordinance No. 392, Series of 1956, adopted by the City and County of Denver. They prayed for a judgment, declaring their rights thereunder, and for a decree restraining defendants from enforcing the ordinance.

Defendants filed a motion to dismiss the action on the ground that the complaints of plaintiffs and interveners failed to state a claim upon which relief could be granted. This motion was overruled. Defendants thereupon filed an answer and the cause was tried to the court without the intervention of a jury.

Although the complaint of plaintiffs, which was adopted by interveners, contained seventeen different claims for relief, the trial court, with the consent of counsel for the parties, grouped all of said claims, except the fifteenth, under five main issues, as follows:

'(1) Is the ordinance unconstitutional because of its title under the Charter?

'(2) Was the ordinance passed in conformity with the Charter concerning notice to the property owners?

'(3) Was a public hearing held as contemplated under the Charter?

'(4) If the ordinance was passed as provided by the Charter, is that portion of the ordinance which restricts the owners of the district which is designated C on Defendants' Exhibit No. 6 unconstitutional for any of the reasons set forth in the plaintiffs' or interveners' complaint?

'(5) Is the answer of the defendant City and County pertaining to the affirmative defense of resorting to administrative remedies a good defense?'

The fifteenth claim of plaintiffs, relating to nonconforming uses, was considered apart from the issues above stated.

Under the questioned ordinance as originally adopted all the property involved herein was located in a district classified as B-4. This classification was changed to B-6 by an amendment as appears from the first affirmative defense contained in the answer of defendants, as follows:

'On December 29, 1956, pursuant to Ordinance No. 451, Series of 1956, that land and that property alleged by plaintiffs to be theirs was classifid, among other lands, as a B-6 District under the Zoning Ordinance of the City and County of Denver and was made subject to the restrictions and regulations established for that district by Ordinance No. 450, Series of 1956, effective December 29, 1956 (a copy of which Ordinance No. 450, marked Exhibit 'A' is attached hereto and by such reference is made a part hereof.)'

Plaintiffs answered the above allegations in the following language:

'7. That the said B-6 Classification is meaningless, arbitrary, capricious, and void, and is an endeavor to circumvent the clearly discriminatory and abusive provisions of the B-4 District, while conferring none of the benefits of the B-5 District, all directly in violation of the rights of the Plaintiffs as set forth in their Ninth through Seventeenth Claims for Relief, each of which is incorporated herein and made specifically a part hereof, with specificreference to the said purported ordinances 450 and 451.'

A second affirmative defense contained in the answer of defendants alleges in substance that all the ordinances under attack provide for administrative relief from the provisions thereof, and that plaintiffs have not availed themselves of these remedies. Plaintiffs allege that these allegations state no defense for the reason that the ordinance is unconstitutional and void.

April 4, 1958, the trial court entered its findings and judgment. That portion of the decree to which defendants object and which is now before us for review reads as follows:

'Wherefore, It Is Ordered, Adjudged And Decreed:

'1. That the B-6 District is a part in law and use of the B-5 District, and subject to the same regulations.

'2. That Article 614 of Ordinance 392 of the Series of 1956 as it relates to the so-called B-6 District requiring off-street parking violates the City Charter and particularly Chapter 219 B, in that the regulations are not uniform.

'3. That Article 614 of Ordinance 392, Series of 1956, is unconstitutional and violates Article II, Section 15, and Article II, Section 25 of the Colorado State Constitution.

'4. That Article 614 of Ordinance 392, Series of 1956, is unconstitutional in that it is oppressive, discriminatory and an invasion of the plaintiffs' and interveners' rights to use of their property.

'5. That off-street parking is a public and municipal function, and a property owner's property cannot be taken for a public use without just compensation.

'6. That the properties of the plaintiffs and interveners are subject to the regulations pertaining to the so-called B-5 District and none other.

'7. That Councilman's Bill 403, Ordinance 392, Series of 1956, repeals Ordinance 14, Series of 1925.

'8. That the operation of an apartment by the plaintiff Salco Corporation is a conforming use under the Ordinance.'

Questions to be Determined

First. Where a zoning ordinance of a municipality contains provisions which purport to require the installation of off-street parking facilities by the owner of land as a condition which must be fulfilled before such owner will be permitted to make use of his land for business purposes authorized in the district within which the land is located; are such provisions unconstitutional when tested by the due process clause of the state and federal constitutions and by Article II, Section 15, of the State Constitution which provides, inter alia, that 'private property shall not be taken or damaged, for public or private use, without just compensation'?

We answer this question in the affirmative, and hold that such provisions are repugnant to each of said constitutional guarantees. We think it essential to again state some basic principles of constitutional law to which we are indebted as a nation of freedom loving people, and to which we must steadfastly adhere if individual freedoms and liberties are to survive.

In City and County of Denver v. Thrailkill, 125 Colo. 488, 244 P.2d 1074, 1079, this court held that the restraint upon the freedom of one who provides transportation for hire to make use of public streets was 'completely out of harmony with the American constitutional concept of fundamental freedoms and liberties, under which the individual has the right to engage in a lawful business which is harmless in itself and useful to the community, unhampered by unreasonable and arbitrary governmental interference or regulation.' Without reservation we are firm in our adherence to the principle that 'the privilege of a citizen to use his property according to his own will is not only a liberty but a property right, subject only to such restraints as the common welfare may require.' People ex rel. Schimpff v. Norvell, 368 Ill. 325, 13 N.E.2d 960, 961. If a restriction upon the use of property is to be upheld as a valid exercise of the police power it must bear, 'a fair relation to the public health, safety, morals or welfare,' and have 'a definite tendency to promote or protect the same.' In determining the validity of restraints upon freedom imposed by statute or ordinance, 'The determination we are called upon to make is whether the ordinance has a real and substantial relation to the accomplishment of those objectives which form 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 States asserted that:

'Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property.' (Italics ours.)

As forcefully stated by the former Chief Justice of the Supreme Court of the United States, Charles Evans Hughes, at ceremonies commemorating the establishment of a government of free people:

'We protect the fundamental right of minorities in order to save democratic government from destroying itself by the excesses of its own power. The firmest ground for confidence in the future is that more than ever we realize that, while democracy must have its organization and controls, its vital breath is individual liberty.' (...

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