City of Englewood v. Apostolic Christian Church

• Decision Date: 01 May 1961
• Docket Number: No. 19519,19519
• Citation: 362 P.2d 172,146 Colo. 374
• Parties: CITY OF ENGLEWOOD, a municipal corporation, the Board of Adjustment and Appeals of the City of Englewood, and Tymer Rice, Kenneth P. Carlson, William Clayton, E. B. Cartwright, and R. E. Kinney, In their capacity as and being The Board of Adjustment and Appeals of the City of Englewood, and Beryl A. Wallace, as Building Inspector of the City of Englewood, State of Colorado, Plaintiffs in Error, v. APOSTOLIC CHRISTIAN CHURCH, a corporation existing under and by virtue of the laws of the State of Colorado, Herman Hess and Esther Hess, Defendants in Error.
• Court: Colorado Supreme Court

Page 172

362 P.2d 172

146 Colo. 374

CITY OF ENGLEWOOD, a municipal corporation, the Board of Adjustment and Appeals of the City of Englewood, and Tymer Rice, Kenneth P. Carlson, William Clayton, E. B. Cartwright and R. E. Kinney, In their capacity as and being The Board of Adjustment and Appeals of the City of Englewood, and Beryl A. Wallace, as Building Inspector of the City of Englewood, State of Colorado, Plaintiffs in Error, v. APOSTOLIC CHRISTIAN CHURCH, a corporation existing under and by virtue of the laws of the State of Colorado Herman Hess and Esther Hess, Defendants in Error.

No. 19519.

Supreme Court of Colorado, En Banc.

May 1, 1961.

Joseph W. Esch, Englewood, for plaintiffs in error.

Creamer & Creamer, Denver, for defendants in error.

MOORE, Justice.

Plaintiffs in error will be referred to as Englewood, and defendants in error as the church or by the names of the individuals as circumstances may require.

The action was commenced by the church and Herman and Esther Hess against Englewood, its Board of Adjustment and Appeals and its Building Inspector, seeking relief by declaratory judgment and otherwise with relation to certain portions of the Englewood Zoning Ordinances which they alleged to be invalid.

The case was tried upon stipulated facts, which so far as pertinent are as follows: Mr. and Mrs. Hess had arranged to give the church a tract of land for the purpose of constructing a church building thereon and plans and specifications therefor were prepared. Application was made to Englewood for a building permit, which was denied.

In none of the single-family or two-family residence districts established by the zoning ordinance of Englewood can land be used for church purposes as a use of right. Instead, it is provided that 'religious and educational institutions,' which by definition in the ordinance includes churches and other places of worship including Sunday School buildings and other accessory buildings and incidental nonprofit recreational facilities, are permitted as 'conditional uses,' 'provided the public interest is fully protected and * * * uses are approved by the board;' meaning the defendant Board of Adjustment.

Only in R-3 apartment districts is a church a use by right, it being provided in section 8 of the ordinance that permitted principal uses in an R-3 multifamily residential district include '(g) Institutions--educational, philanthropic, religious and eleemosynary.' In the commercial and industrial districts a church is barred and may not exist at all, being neither a permitted use nor a conditional use.

In an endeavor to comply with the prescribed administrative procedures of the City of Englewood, Mr. and Mrs. Hess and the church, having been denied a permit to build a church edifice, in February 1960 filed a petition for relief before the Board of Adjustment and Appeals which considered the petition at a special hearing on February 10, 1960. At that hearing 'verification was made that the applicant had met requirements of the Board and the above premises had been posted as designated. Mr. Hess and attorney for the applicant, Walter Irwin, presented a drawing of the proposed church and explained seating capacity, showing that parking is adequate for the building.' The Board of Adjustment and Appeals denied the petition asserting that '* * * the public interest would not be fully protected as set forth in Article IV, section 3, paragraph 12 of the Zoning Ordinance.'

The trial court reversed the order of the Board of Adjustment and Appeals and directed the city to issue a permit for the erection of the church building. Englewood seeks review of that judgment by writ of error.

As grounds for reversal it is contended by counsel for Englewood that the ordinance prohibiting the erection of a church building in single-family and double-family residence districts contains sufficient standards for the use and direction of the Board of Adjustment and Appeals and does not offend constitutional provisions with relation to the existence of such standards; that Englewood has the power to restrict the uses to which real estate may be put and to prevent by zoning ordinances the erection of church buildings in such areas as it shall determine; and that the constitutional rights of the church and Mr. and Mrs. Hess are not violated by the zoning ordinance of Englewood.

Counsel for the plaintiffs present pertinent argument under four captions as follows:

'A. The restrictions placed by Colorado upon its zoning laws preclude any limitations upon use or vestiture in administrative bodies of discretion to bar uses for church purposes in residential districts.

'B. The Courts of this land have uniformly, save for an eccentric and improper California rule, held that a church may not be barred from any area by a zoning ordinance, and that administrative discretion of the sort here sought to be countenanced is void.

'C. The decision of the City of Englewood with relation to churches is apparently a decision of the administrative board, given discretion to allow churches, to adopt a policy of refusal of churches on some sort of nebulous public welfare ground. A fixed policy of exclusion would be void.'

We restate and give adherence to the basic concepts of constitutional law. In Jones et al. v. Board of Adjustment, 119 Colo. 420, 204 P.2d 560, 563, we said:

'The right to the use and enjoyment of property for lawful purposes is the very essence of the incentive to property ownership. The right to thus use property is a property right fully protected by the due process clause of the federal and state Constitutions. The use to which an owner may put his property is subject to a proper exercise of the police power. The so-called police power is the authority under which zoning ordinances have been universally upheld. In every ordered society the state must act as umpire to the extent of preventing one man from so using his property as to prevent others from making a corresponding full and free use of their property. Thus, under the police power, zoning ordinances are upheld imposing limitations upon the use of land, provided, however, that the regulations are reasonable, and provided further that the restrictions in fact have a substantial relation to the public health, safety, or general welfare.

'It is elementary that an owner of property has the right to put his property to any legitimate use, unless the contemplated use is prohibited by the legislative arm of government through a proper exercise of the police power. * * *'

In People ex rel. Schimpff v. Norvell, 368 Ill. 325, 13 N.E.2d 960, 961, we find the following pertinent statement:

'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, and, while new burdens may be placed on the property when the public welfare demands it, this power is limited to enactments having direct reference to the public health, comfort, safety, morals, and welfare.' (Emphasis supplied.)

The term 'property' as used in the due process clause of the constitutions, both state and national, Const. art. 2, § 25; U.S.Const. Amend. 14, includes the right of the citizen to make any legitimate use or disposition of the asset owned, and he cannot be deprived of any of these essential attributes of property unless the restraint is reasonably necessary in the protection of the public morals, health, safety or welfare.

In Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 18, 62 L.Ed. 149, we find the following:

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

It is well established in the law that whether an act of a legislative body adopted as a police regulation has any reasonable connection with public health, morals, safety or welfare, is a question for the determination of the judiciary. This court has stated that any such regulation 'must bear a fair relation' to those objectives and must 'tend to promote or protect the same.' Sapero v. State Board of Medical Examiners, 90 Colo. 568, 11 P.2d 555, 559. To hold otherwise would be to examine an act without reference to its constitutional validity thus surrendering the jurisdiction of the courts to legislative findings in constitutional matters.

We agree with the conclusion of the Supreme Court of Washington as expressed in State ex rel. Wenatchee Congregation of Jehovah's Witnesses v. City of Wenatchee, 50 Wash.2d 378, 312 P.2d 195, 197, from which we quote the following:

'Generally, zoning ordinances which wholly exclude churches in residential districts have been held to be unconstitutional. Apparently, such provisions have not survived court review for the generally-stated reason that an absolute prohibition bears no substantial relation to the public health, safety, morals, or general welfare of the community.'

The opinion of the Washington court cites numerous cases.

In Curran Bill Posting & Distributing Co. v. City of Denver, 47 Colo. 221, 107 P. 261, 264, 27 L.R.A.,N.S., 544, we find pertinent language as follows:

'The cut of the dress, the color of the garment worn, the style of the hat, the architecture of the building or its color may be distasteful to the refined senses of some; yet government can neither control nor regulate in such affairs. The doctrines of the commune invest such authority in the state, but ours is a constitutional government based upon the individuality and intelligence of the citizen, and does not seek, nor has it the power, to control him, except in those matters where the rights of others are injuriously affected or...