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

• Decision Date: 03 October 1972
• Docket Number: No. 72--048,72--048
• Citation: City and County of Denver v. Board of Adjustment of City and County of Denver, 505 P.2d 44, 31 Colo.App. 324 (Colo. App. 1972)
• Parties: CITY AND COUNTY OF DENVER, a municipal corporation, and Anthony H. Jansen, or his successor in office, Zoning Administrator of the City and County of Denver, Plaintiffs-Appellants, v. BOARD OF ADJUSTMENT OF the CITY AND COUNTY OF DENVER et al., Defendants-Appellees. . II
• Court: Colorado Court of Appeals

Page 44

505 P.2d 44

31 Colo.App. 324

CITY AND COUNTY OF DENVER, a municipal corporation, and Anthony H. Jansen, or his successor in office Zoning Administrator of the City and County of Denver, Plaintiffs-Appellants, v. BOARD OF ADJUSTMENT OF the CITY AND COUNTY OF DENVER et al Defendants-Appellees.

No. 72--048.

Colorado Court of Appeals, Div. II.

Oct. 3, 1972.

Rehearing Denied Oct. 25, 1972.

Certiorari Denied Dec. 18, 1972.

Max P. Zall, Earl T. Thrasher, Robert M. Kelly, Denver, for plaintiffs-appellants.

Hoffman, Goldstein & Armour, P.C., Abe L. Hoffman, Gilbert Goldstein, Denver, for defendants-appellees Henry Bruggenthies, Shirley Bruggenthies, Louis B. Bruggenthies, Francis B.Bruggenthies and Marie Bruggenthies.

ENOCH, Judge.

This appeal concerns the provisions of the zoning ordinance of the City and County of Denver relative to non-conforming uses and structures.

The City and County of Denver and its zoning administrator, plaintiffs-appellants, initiated this action in the Denver District Court pursuant to C.R.C.P. 106(a)(4), to review a decision of the Board of Adjustment. The appellants bring this appeal from a judgment of the court affirming the board's decision. For reasons stated hereinafter we reverse that judgment.

The facts are not in dispute. For approximately fifty years, members of the Bruggenthies family, defendants-appellees, have owned a five-acre tract of land on which they have conducted a commercial greenhouse business. The owners have maintained seventeen various structures or buildings on the premises related to the operation of this business. Prior to annexation by the City and County of Denver, the business use of the property was in conformity with the Arapahoe County zoning resolutions. At all times since annexation by the city the property has been and is classified under the city zoning ordinances as part of an area zoned R--1 (residential district). Under provisions of the ordinance, the structures on the property and the use made of the property are classed as non-conforming on an R--1 zone, but have been allowed to continue as such under the provisions of section 617.1--2 of the municipal ordinance.

On September 2, 1970, the owners applied to the Denver Department of Zoning Administration for a permit to raze the structures housing their operation and to erect a multiple unit dwelling. The department denied the application on the ground that it was prohibited by the municipal zoning ordinance, and appeal was taken to the Board of Adjustment. The board determined that the Bruggenthies had been wrongfully denied the permit to change their non-conforming industrial use to a non-conforming residential use and granted the permit. It is this decision of the board which was affirmed by the district court and is the subject of this appeal.

I.

Before considering the merits of this appeal, there are two procedural issues which have been raised by the appellees which must be determined. Appellees assert that the city and the zoning administrator are not proper parties to bring this appeal. We do not agree.

The zoning ordinance of the City and County of Denver, as a comprehensive piece of legislation, creates and defines zoning classifications and provides a system for administering its provisions. Denver Revised Municipal Code 610, et seq. The Department of Zoning Administration was established pursuant to section 611.5 of that ordinance. That section gives the department the power to intervene in decisions of the Board of Adjustment and to have those decisions reviewed 'in a court of proper jurisdiction.' Section 611.6--6(1) of the same ordinance provides for review of board decisions initiated by '(A)ny person aggrieved, any taxpayer, the municipality or any officer or department of the municipality,' as provided by the rules of civil procedure. Thus, the city and the zoning administrator are proper parties to bring this matter before the district court under C.R.C.P. 106, and ultimately before this court.

We also find no merit in appellees' contention that appellants' notice of appeal was not timely filed. Their contention is that since the hearing before the trial court did not involve controverted issues of fact, a motion for new trial is not, under C.R.C.P. 59(h), a prerequisite to appeal, that the appellants' filing of such motion was superfluous and, therefore, could not have extended the time for filing a notice of appeal beyond thirty days following the entry of judgment by the trial court as required by C.A.R. 4.

The trial judge specifically granted appellants twenty days in which to file a motion for new trial. Within that time, the appellants filed such a motion in conjunction with a motion to alter or amend judgment. The notice of appeal was filed two days following the judge's final ruling on that motion, which was, however, more than thirty days from the date of the judgment on the merits.

The trial judge's extension of the time for filing the motion for new trial, from ten to twenty days, was within his discretion under C.R.C.P. 59(b). C.R.C.P. 59(f) makes the filing of a motion for new trial a condition precedent to obtaining review in all cases except as provided in section (h) of that rule. C.R.C.P. 59(h) does not preclude the filing of the motion under the circumstances specified therein. Rather, its language is permissive, saying that an appeal 'may' be taken without the necessity of filing the motion. Here, the appellants' filing of such motion with the judge's approval, even if obviated by C.R.C.P. 59(h), had the same effect in extending the time for filing the notice of appeal as would a required filing of a motion under C.R.C.P. 59(f).

II.

The decisive question of substantive law raised by appellants is whether appellees have the right to change an existing, non-conforming use and structure to a more restrictive, non-conforming use and structure. The change would involve the destruction of the structures which presently house the greenhouse operation and the construction of four...