City of Colorado Springs v. Blanche

• Decision Date: 12 September 1988
• Docket Number: No. 87SA150,87SA150
• Citation: 761 P.2d 212
• Parties: The CITY OF COLORADO SPRINGS, a Home Rule City and a Colorado Municipal Corporation, Plaintiff-Appellee, v. Richard BLANCHE and Faith Bible Fellowship International, a Colorado Nonprofit Corporation, Defendants-Appellants.
• Court: Colorado Supreme Court

Page 212

761 P.2d 212

The CITY OF COLORADO SPRINGS, a Home Rule City and a Colorado Municipal Corporation, Plaintiff-Appellee, v. Richard BLANCHE and Faith Bible Fellowship International, a Colorado Nonprofit Corporation, Defendants-Appellants.

No. 87SA150.

Supreme Court of Colorado En Banc.

Sept. 12, 1988.

James G. Colvin, II, City Atty., Michael J. Heydt, Chief Litigation Atty., Colorado Springs, for plaintiff-appellee.

Roger W. Westlund, Thornton, for defendants-appellants.

Gibbs & Craze Co., L.P.A., David C. Gibbs, Jr., Charles E. Craze, Daniel Jon Lomis, Terry L. Hamilton, Cleveland, Ohio, for amicus curiae Christian Law Assn.

ERICKSON, Justice.

Richard Blanche (Blanche) and Faith Bible Fellowship International (Faith Bible), appellants, appeal the entry of a permanent injunction, and finding and penalty for contempt for violation of the injunction.

This appeal raises several constitutional and procedural issues which lack substantial merit. Preceding this appeal were several administrative proceedings, a civil rights action in the United States District Court for Colorado, a number of hearings that culminated in the district court's entry of a permanent injunction, and contempt proceedings for appellants' failure to comply with the district court's injunctive orders. Interlaced with the issues presented on this appeal are the same or similar issues that were first raised in the court of appeals, and dismissed when the appellants failed to perfect the appeal. We affirm the district court.

Faith Bible owned and operated a church in Colorado Springs that was sold in April 1985. Thereafter, Faith Bible purchased residential property at 2804 Country Club Circle in Colorado Springs. Subsequently, title was conveyed to Blanche and his wife. Faith Bible is a Colorado nonprofit corporation with 501(c)(3) tax exempt status from the Internal Revenue Service. Blanche and Faith Bible commenced, organized, and institutionalized religious activities within the residence knowing that the property was located in an R-1 6000 zone. In an R-1 6000 zone, religious institutions are not allowed as a permitted use, but may be allowed as a conditional use. In Colorado Springs, religious institutions are allowed as principal permitted uses in eight zones, ¹ and nine zones permit religious institutions as conditional uses. ² Neither of the appellants filed an application for permission to conduct religious activities as a conditional use.

Richard Blanche, who is the pastor for Faith Bible, and his family lived in the Country Club Circle home. The residence is a four bedroom home with a family room containing a piano and approximately 50 folding chairs set up in rows facing a podium. Blanche conducted religious services and other congregational activities at the home four times a week. These activities, which typically included sixty to seventy- five people, consisted of praying, singing, studying the bible, and teaching Sunday school.

Appellants were issued an Administrative Notice and Order in June, 1985, asserting that Blanche was operating a religious institution in violation of section 14-3-303 of the Code of the City of Colorado Springs (1980). Blanche appealed to the Colorado Springs hearing office. After a full hearing, the notice and order was upheld by the hearing officer. Blanche then appealed to the Colorado Springs City Council, which likewise affirmed the notice and order, and found Blanche in violation of section 14-3-303. In spite of this, Blanche and Faith Bible continued to hold these religious activities at their residence.

On October 4, 1985, the city filed a complaint in the district court seeking to permanently enjoin appellants from continuing to operate and maintain a religious institution in violation of the Colorado Springs zoning laws. The court issued a temporary restraining order against the appellants prohibiting them from maintaining "an establishment for the conduct of religious activities" at the Blanche residence in the R-1 6000 zone. The order did not restrain Blanche from "conducting prayer and religious study activities with groups of reasonable size so long as such activities do not create or increase problems of noise, traffic and parking within the neighborhood."

On October 29, 1985, the city filed a motion pursuant to C.R.C.P. 107(c) for civil contempt based on appellants' violation of the temporary restraining order. After an evidentiary hearing, the court fined Faith Bible $2,500 and sentenced Blanche to perform eighty hours of community service. The order provided that the contempt order and sanctions would not be enforced if, at the time of trial, there were no further violations of the court's orders and the appellants used "every reasonable effort to seek an appropriate alternative for their church activities." On January 8, 1986, based on stipulated facts, the judge issued a preliminary injunction, effective October 29, 1985, enjoining Blanche and Faith Bible's use of the home as a religious institution.

On January 13, 1986, the court held a second hearing and found that appellants violated the preliminary injunction and were guilty of contempt of court. After the issuance of the first contempt order, the court concluded that "since the entry of the ... injunction on October 29 and certainly on January 5 of this year [Blanche and Faith Bible] have repeatedly, consistently, knowingly, willfully and defiantly violated the orders of this court to cease operating a religious institution." Appellants were then fined, jointly and severally, $10,000.

On March 31, 1986, the court permanently enjoined Blanche and Faith Bible from maintaining a religious institution at 2804 Country Club Circle. Before the permanent injunction was issued, appellants entered into an agreement to use facilities owned by Village Christian Church for appellants' religious activities. However, at the end of May, 1986, Blanche violated the agreement and resumed conducting services at his residence. On July 23, 1986, the district court entered a third civil contempt order finding Blanche and Faith Bible in violation of the permanent injunction and fined both Blanche and Faith Bible an additional $10,000.

On appeal to this court, appellants defend their use of the residence for religious purposes by contending that: (1) the zoning ordinance is unconstitutional because it violates due process and equal protection; (2) the trial court's grant of injunctive relief was an abuse of discretion; (3) the term "religious institution," as contained in the zoning ordinance, is unconstitutionally vague; and (4) the permanent injunction was issued by a trial court which had no jurisdiction to do so.

I. Constitutional Issues

Blanche and Faith Bible claim that sections 14-3-504(2) ³ and 14-1-109 ⁴ of the Code of the City of Colorado Springs (1980) deny them due process and equal protection of the law by unconstitutionally abridging appellants' rights to freedom of speech, assembly, association, and religion. To support their claim, appellants rely upon City of Englewood v. Apostolic Christian Church, 146 Colo. 374, 362 P.2d 172 (1961).

The applicable zoning ordinance in City of Englewood provided that land located in single- and two-family districts could be used for religious purposes only if a conditional use permit was first obtained from the Englewood Board of Adjustment and Appeals. The Apostolic Church applied for a conditional use permit to build a church in a district zoned for single- and two-family housing. The Board of Adjustment and Appeals denied the church's application whereupon the church initiated an action against the Board in district court. The district court reversed the Board's order, finding that the zoning ordinance violated the first and fourteenth amendments to the United States Constitution and article II, section 25 of the Colorado Constitution. The court directed the City of Englewood to issue a permit for the construction of the church building. On appeal, this court affirmed the district court's order.

A majority of the court concluded that the ordinance was a blanket exclusion of churches from single- and double-family residence districts, and held the ordinance to be unconstitutional. 146 Colo. at 380, 362 P.2d at 175. By way of contrast, the special concurrence of Justice McWilliams construed the Englewood ordinance as permissive and upheld the constitutionality of the ordinance. Regardless of how the Englewood ordinance should have been characterized, we have no doubt that the ordinance involved in this case is permissive. The analysis of Justice McWilliams in City of Englewood is persuasive and is applicable in this case.

Zoning ordinances which purport to regulate and control the new construction of churches in a given zoned area are generally divided into three types: (1) those which expressly authorize the location of a church in a given zoned area; (2) those which purport to expressly exclude or ban churches from a given zoned area; and (3) those which are "permissive" as to the location of a church within a particular zoned area. The latter type permits a church to locate in a given zoned area only after obtaining a permit therefor as the result of favorable action by an administrative body designated to consider such requests. The zoning ordinance of Englewood with which we are here concerned is of the latter or "permissive" type. In other words the zoned area where plaintiff church ... seeks to locate is not one where the ordinance contains a blanket exclusion of all churches. Rather it is an area where the right of a church to locate therein is permissive rather than absolute.

146 Colo. at 380, 362 P.2d at 175-76 (emphasis added) (McWilliams, J. concurring).

Here, as in City of Englewood, the zoning ordinance at issue is the "permissive" type. A majority of jurisdictions have held these types of ordinances to be constitutional. See, e.g., Grosz v. City of Miami...