City of Aspen v. Marshall
| Decision Date | 04 March 1996 |
| Docket Number | No. 94SC650,94SC650 |
| Citation | 912 P.2d 56 |
| Parties | The CITY OF ASPEN and Aspen Planning and Zoning Commission, Petitioners, v. Ronnie MARSHALL, Respondent. |
| Court | Colorado Supreme Court |
John P. Worcester, City Attorney, David E. Bellack, Assistant City Attorney, Aspen, for Petitioners.
Garfield & Hecht, P.C., Patrick D. McAllister, Aspen, for Respondent.
David W. Broadwell, Denver, for Amicus Curiae Colorado Municipal League.
In spring of 1990, Ronnie Marshall built a hot tub and deck in her back yard, located above Hallam Lake in Aspen, Colorado. Thereafter, Marshall applied for a building permit, and the Aspen Planning and Zoning Commission (the Commission) denied Marshall's application. Marshall sought review of that denial in the district court. The district court denied relief, granted summary judgment in favor of the City of Aspen (the City) and the Commission, and granted the City and the Commission an injunction ordering removal of the hot tub and deck from the property. Marshall v. City of Aspen, No. 92CV47, slip op. at 12 . The district court also held that the City was not estopped from enforcing its Municipal Code. Id. at 9-10. The court of appeals reversed. Marshall v. City of Aspen, 892 P.2d 394 (Colo.App.1994). We reverse the decision of the court of appeals and remand this case to that court with directions.
Marshall's property lies within a Historic Preservation District and is a designated historic landmark. The property also lies partially within an area now designated as the Hallam Lake Bluff Environmentally Sensitive Area (ESA), which overlooks the Aspen Center for Environmental Studies nature preserve. Marshall constructed a hot tub and deck on her property in spring of 1990 without applying for or obtaining the proper permits or variances. On May 31, 1990, the City issued a stop-work order on the construction. On June 14, 1990, Marshall applied for a building permit.
On June 29, 1990, the Commission undertook consideration of a new land use ordinance creating the Hallam Lake Bluff ESA and restricting development within the ESA. See Aspen, Colo., Municipal Code § 24-7-501(D). On July 19, 1990, the Commission published a notice of hearing. On October 2, 1990, the Commission recommended adoption of the ESA ordinance. On November 12, 1990, the City adopted the ESA ordinance. See Aspen, Colo., Municipal Code § 24-7-506.
Under the Municipal Code, before obtaining a building permit, Marshall had to obtain: (1) approval from the Historic Preservation Committee (HPC) because her site was a historical landmark, see Aspen, Colo., Municipal Code § 24-7-601; and (2) a variance from the Board of Adjustment (BOA) because thirty-two inches of the deck protruded more than thirty inches above natural grade, see Aspen, Colo., Municipal Code § 24-3-101 (). See also Aspen, Colo., Municipal Code § 24-6-206 (). On June 14, 1990, when Marshall submitted her initial application for a building permit, she had neither applied for nor obtained either the approval of the HPC or a variance from the BOA.
Marshall applied for HPC approval on July 26, 1990. On August 22, 1990, the HPC granted Marshall approval conditioned on the provision of landscaping along the Hallam Lake side of the deck. Marshall installed $1000 of landscaping. In November 1990, a representative of the HPC inspected the landscaping and informed the Zoning Department that the landscaping was sufficient to satisfy HPC development review standards.
On March 8, 1991, Marshall applied for a variance from the BOA. According to the minutes of the June 1991 BOA meeting, the BOA granted Marshall a variance subject to the requirement "that they go back and meet the buildings [sic] codes with respect to railings and the ESA and HPC for that railing to ascertain if it is appropriate."
In October 1991, Marshall applied for ESA review. In December 1991, the Commission denied Marshall's application as proposed because her hot tub and deck did not comply with the ESA requirements. At the same time, the Commission proposed an alternate location in Marshall's back yard at which the Commission would approve the hot tub and deck. The Commission reconsidered and reaffirmed its decision on January 21, 1992.
Marshall appealed the Commission's decision to the district court pursuant to C.R.C.P. 106(a)(4), asserting that the Commission abused its discretion and exceeded its jurisdiction by denying Marshall's application for ESA approval. Marshall also requested that the City be estopped and permanently enjoined from applying the Hallam Lake Bluff ESA requirements to Marshall's hot tub and deck.
The City and the Commission filed an answer and counterclaim, alleging that Marshall had violated the Municipal Code and seeking injunctive relief which would require Marshall to remove the hot tub and deck. The City and the Commission also moved for summary judgment on their counterclaim and on Marshall's second claim for relief.
The district court denied Marshall's C.R.C.P. 106(a)(4) claim and found that, by the time Marshall received the necessary variance from the Board of Adjustment, the ESA ordinance was in effect and that that ordinance governed Marshall's application. Marshall, slip op. at 5-6, 12. The court found that Marshall had no vested property rights in the deck and hot tub which would eliminate the requirement that she comply with the ESA ordinance. Id. at 6-8. The court held that the City was not estopped from enforcing the ordinance and granted summary judgment in favor of the City and the Commission. Id. at 9-12.
The court of appeals reversed the dismissal and vacated the injunction, Marshall, 892 P.2d 394, holding that: (1) the pending ordinance doctrine 1 did not apply to Marshall's application because Marshall filed her application before consideration or adoption of the ESA, id. at 396-97; (2) the law on the date of initial application controls the issuance of a permit, id. at 397; and (3) the vesting of Marshall's rights was not dispositive but, because Marshall "applied for the permit prior to ESA consideration or adoption, she [was] entitled to have her application considered under the laws in effect at the time of the application." Id. The court of appeals did not address Marshall's estoppel claims.
We granted certiorari to consider: (1) "Whether Aspen abused its discretion or exceeded its jurisdiction in applying an ordinance duly enacted and adopted after [Marshall] filed her building permit application but before her building permit was denied;" and (2) "[w]hether the court of appeals properly applied the pending ordinance doctrine as defined in Crittenden v. Hasser, 41 Colo.App. 235, 585 P.2d 928 (1978), and National Advertising Company v. City and County of Denver, 912 F.2d 405 (10th Cir.1990)."
Two standards of review are appropriate to this case: (1) the standard of review of an agency's decision pursuant to C.R.C.P. 106(a)(4); and (2) the standard of review of the district court's grant of summary judgment.
In reviewing the Commission's decision, we are limited to matters contained within the record of the proceeding before the Commission. C.R.C.P. 106(a)(4)(I); see Hessling v. City of Broomfield, 193 Colo. 124, 125, 563 P.2d 12, 13 (1977). We must examine that entire record and uphold the Commission's decision unless no competent evidence supports it. See King's Mill Homeowners Ass'n v. City of Westminster, 192 Colo. 305, 311, 557 P.2d 1186, 1190 (1976).
"Summary judgment is a drastic remedy and is never warranted except on a clear showing that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Churchey v. Adolph Coors Co., 759 P.2d 1336, 1339-40 (Colo.1988). In determining whether summary judgment is appropriate in this case, Marshall must receive the benefit of all favorable inferences which we may reasonably draw from the undisputed facts. Mancuso v. United Bank of Pueblo, 818 P.2d 732, 736 (Colo.1991).
Marshall was required to obtain all development orders required by the land use regulations in the Aspen Municipal Code before she could "proceed to apply for a building permit from the chief building official." See Aspen, Colo., Municipal Code § 24-6-206. The procurement of these underlying development orders constituted the initial, preliminary steps to Marshall's application for a building permit. 2 Indisputably, Marshall needed at least two development orders before applying for a building permit: (1) approval from the HPC for development of an historic landmark; and (2) a variance from the BOA to allow the deck's protrusion of more than thirty inches above natural grade. See Aspen, Colo., Municipal Code § 24-3-101 (). 3
Marshall argues that "[t]he Court of Appeals correctly held that 'the law in existence at the time of the permit application governs the right to the issuance of the permit.' " Respondent's Answer Brief at 5. Even assuming that this argument is correct, we conclude that Marshall's hot tub project is subject to the ESA ordinance. Any application Marshall made before procuring the appropriate development orders was incomplete and ineffective. Marshall herself admits in an affidavit to the district court that she "reapplied for a buiding [sic] permit after having obtained a zoning variance from the Board of Adjustment" in June of 1991. See Exhibit C to Respondent's Answer Brief at 1. At the time of the "reapplication," the ESA ordinance was in effect and should govern the grant or denial of her reapplication. Accordingly, the Commission did not abuse its discretion or exceed its jurisdiction in...
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