City and County of Denver v. American Oil Co.

• Decision Date: 25 June 1962
• Docket Number: No. 19530,19530
• Citation: 374 P.2d 357,150 Colo. 341
• Parties: CITY AND COUNTY OF DENVER, J. D. Arehart, as Zoning Administrator of the City and County of Denver, and Walter J. Krstich, as Chief Building Inspector of the City and County of Denver, Plaintiffs in Error, v. AMERICAN OIL COMPANY, a Maryland Corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 357

374 P.2d 357

150 Colo. 341

CITY AND COUNTY OF DENVER, J. D. Arehart, as Zoning

Administrator of the City and County of Denver, and Walter

J. Krstich, as Chief Building Inspector of the City and County of Denver, Plaintiffs in Error, v. AMERICAN OIL COMPANY, a Maryland Corporation, Defendant in Error.

No. 19530.

Supreme Court of Colorado, En Banc.

June 25, 1962.

Rehearing Denied Sept. 17, 1962.

Robert S. Wham, Earl T. Thrasher, Hans W. Johnson, Denver, for plaintiffs in error.

Winner, Berge & Martin, Robert D. Inman, A. W. Krauss, Denver, for defendant in error.

SUTTON, Justice.

This writ of error concerns the validity of a zoning ordinance of the City and County of Denver. The action began as a declaratory judgment suit by Francis M. and Prudence M. Green, who later transferred title to the land in question to the American Oil Company, a Maryland Corporation. We shall refer to the parties as Denver and American.

American is now the owner of the northwest corner of South Federal Boulevard and West Jewell Avenue within Denver's corporate limits. The tract of land is rectangular in shape and extends 100 feet along Federal and 250 feet along Jewell. The Federal frontage and 125 feet of the Jewell frontage are involved in this controversy.

The immediate area surrounding this site is zoned as follows: The R-4 Zone extends almost three blocks to the north of this site; there is a residential R-1 Zone in the block immediately across Federal to the east; and there is a large R-1 Zone to the west and southwest except for a one block B-3 Zone directly south across Jewell. The two blocks north of the R-1 on the east of Federal are zoned R-4; however, the south east corner of Jewell and Federal is in Arapahoe County and has a filling station on it. Other residential and commercial zones alternately appear beyond the immediate neighborhood.

In 1955 this land was zoned R-4 which includes such uses as churches, art museums, private clubs, hospitals, parks and play grounds, schools, single and multiple dwellings, office buildings, dental and medical clinics, hotels, motels, tourist homes, rooming and boarding houses and mortuaries. In 1957 American's predecessor in title desiring to erect a gasoline filling station on the property sought to have it rezoned as a B-3 zone where such use would be lawful. The zoning authorities denied the request, suit was brought and the trial court reversed, holding that the ordinance as applied to this land was unconstitutional.

From the evidence and the findings of the trial court it appears that the value of the site as zoned R-4 is from $10,000.00 to $25,000.00 depending on the witness, and if rezoned for the new use it would have a value of $47,500.00.

The trial court determined that:

1. The character of the surrounding area is predominantly business and will become more so with the passage of time;

2. The corner in question is most appropriately suited for use as a filling station;

3. A filling station will not reduce the value of surrounding properties; and

4. No substantial objections were voiced by surrounding property owners.

The trial court entered its judgment on April 15, 1960, at which time it did not have the benefit of our decision in Baum et al. v. City and County of Denver, 147 Colo. ----, 363 P.2d 688 (1961), which is controlling here.

In Baum the principles applicable to this type of constitutional attack were set out, and we need not reiterate all of them here. We point out, however, that classification or use of adjacent or nearby property is only one factor to be considered in determining the validity of a zoning ordinance. The fact that other land nearby may be zoned for business uses does not necessarily render restrictions to residential or other limited uses discriminatory as to property such as involved here. Baum supra.

The fact that the land is worth more for a different use is not a sufficient ground to order rezoning. Baum supra and Clark v. Boulder, 146 Colo. 526, 362 P.2d 160 (1961).

The last two reasons given by the trial court, viz., value of adjoining property not affected and lack of protest, though having some weight as to whether rezoning should be granted where it is otherwise proper to do so, are insufficient as legal grounds for declaring a zoning ordinance unconstitutional at the instance of one who seeks a zone change.

In Baum the rule is laid down that a landowner must establish beyond a reasonable doubt that his property cannot be devoted to any reasonable, lawful use under such zoning ordinance before the courts can interfere with the discretion of zoning authorities in drawing zoning boundaries, or hold an ordinance to be unconstitutional as violative of due process. No such finding was made here nor on the facts presented could it be. We recently cited Baum...