City of Greeley v. Ells

• Decision Date: 21 October 1974
• Docket Number: No. 26397,26397
• Citation: 527 P.2d 538,186 Colo. 352
• Parties: CITY OF GREELEY, Colorado, Plaintiff-Appellee, v. John ELLS, Jr., Defendant-Appellant.
• Court: Colorado Supreme Court

Page 538

527 P.2d 538

186 Colo. 352

CITY OF GREELEY, Colorado, Plaintiff-Appellee, v. John ELLS, Jr., Defendant-Appellant.

No. 26397.

Supreme Court of Colorado, En Banc.

Oct. 21, 1974.

Rehearing Denied Nov. 11, 1974.

William E. Shade, Greeley, for plaintiff-appellee.

John Ells, Jr., pro se.

KELLEY, Justice.

This case involves the applicability of the Zoning Code of Greeley, a home rule city, to certain property owned by John Ells, Jr., on which he claims the right to maintain a mobile home park and carry on a salvage or junk yard operation. The constitutionality of the Greeley Zoning Code is also challenged. Ells was the defendant below and appellant here. The City of Greeley was the plaintiff below and is the appellee here. The parties will be referred to as City and defendant.

The City filed its petition to enjoin the defendant from using his property in violation of the use provisions of the City Zoning Code. A preliminary injunction was issued. After a hearing on the merits, the court entered a decree granting a permanent injunction enjoining the defendant from extending or enlarging certain uses not in conformity with the zoning code beyond the nonconformities which existed as of a date prior to which the subject property was annexed to the City. We affirm.

The City conceded and the court recognized that the defendant had had six spaces for trailer houses or mobile homes prior to county zoning and that he had used other limited areas of the subject property as a junk or salvage yard prior to zoning, and consequently, was entitled, after annexation, to continue those uses as nonconforming uses under the terms of the City Zoning Code. The defendant, however, contended that he was entitled to extend or enlarge the nonconforming uses and that the denial of that right was arbitrary, unreasonable, and confiscatory.

The court made comprehensive and detailed findings of fact relating to every issue raised by the parties. Its findings disclose the following factual background on which it based its decree.

From its acquisition by the defendant in 1960 until 1964, the subject property was outside the City limits and was not within the zoned area of Weld County. On August 19, 1964, Weld County adopted a resolution placing the subject property in the 'I' Industrial District. The 'I' Industrial District did not provide for the use by right of mobile homes except, as an accessory use, one mobile home was permitted per lot to house an employee on the property for purposes of protection or control of the principal use of the lot.

On April 4, 1972, unincorporated territory, including the defendant's property, was annexed to the City. The annexation ordinance became effective April 15, 1972. On July 11, 1972, the City Council zoned the subject property as M--1 (Medium Manufacturing District). Because of certain defects in the annexation ordinance, it was necessary to subsequently validate it. This was done by appropriate action. Sanborn v. Boulder, 74 Colo. 358, 221 P. 1077 (1923). The City Zoning Code does not permit as a use of right either mobile homes or salvage yards or junk yards in an M--1 district.

An aerial photograph, taken late in 1962 or early 1963, shows only two mobile homes on the property. In 1965, during the period the property was subject to county zoning, the Board of County Commissioners recognized the prior use of six trailer spaces by the Defendant as a nonconforming use. At various times the defendant applied for additional spaces, but his applications were consistently denied by the Board.

As evidenced by another aerial photograph, the defendant maintained the trailer park operation at the level of not more than six mobile homes, until at least 1969. This exhibit shows only four mobile homes on the property, plus two structures identified as cabins which, it appears, had been moved in on timbers. Expansion of defendant's trailer court occurred sometime subsequent to the 1969 photograph and was in violation of the county zoning resolution.

The defendant, prior to county zoning, 'commenced a business which in its various permutations has been referred to as a junk yard, salvage business, or recycling operation.' It was a continuous business, but limited in area to ascertainable portions of the property, both as of the time of the passage of the county zoning resolution and the adoption of the City Zoning Code.

There are basically six issues raised by the defendant which may be summarized as follows:

1. The court erred in placing the burden of proof on the defendant to prove that the Greeley Zoning Code was being unconstitutionally applied to him.

2. The enforcement of the City Zoning Code limiting the extent of defendant's nonconforming uses is an invalid exercise of the City's police power.

3. The City Zoning Code, as applied, is unconstitutional. The defendant was denied the equal protection of the law, because nearby property was zoned to permit mobile home use as of right.

4. The proscribing of uses of land which predated the zoning ordinance amounts to the retrospective application of the law and is unconstitutional.

5. The issuance by the state of an annual trailer park license beginning prior to county zoning and the subsequent surveying and staking out of 150 mobile home spaces creates a vested right which cannot be revoked by the retrospective application of a zoning law. Such an application of the law is unconstitutional as a denial of due process under the Fourteenth Amendment to the Constitution of the United States.

6. The issuance by the City, after annexation, of a trailer park license for 56 units estops the City from denying the defendant the right to maintain 56 spaces.

I.

The defendant contends that the court erroneously placed the burden of proof on him to prove the unconstitutionality of the Greeley Zoning Code. The defendant argues against well established principles. He maintains that the burden is on the City to establish the validity of its codes.

We are here dealing with two zoning acts: (1) the Weld County Zoning Resolution, and (2) the Zoning Code of Greeley. C.R.S. 1963, 106--2--1 is a delegation of authority by the state to the boards of county commissioners of the respective counties to zone unincorporated areas of the state. The statutes permit the counties to develop a comprehensive zoning scheme to promote the orderly physical development of the county. Weld County adopted such an ordinance. The defendant did not attempt to show any failure on the part of Weld County to comply with the terms of the delegation of authority. We therefore, proceed on the assumption that the county zoning resolution is constitutional. Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Huneke v. Glaspy, 155 Colo. 593, 396 P.2d 453 (1964); Baum v. City and County of Denver, 147 Colo. 104, 363 P.2d 688 (1961).

Greeley is a home rule city and possesses every power possessed by the legislature as to all matters of local concern. Zoning is a matter of local concern. Service Oil Co. v. Rhodus, Colo., 500 P.2d 807 (1972).

The Greeley City Zoning Code is a legislative enactment which is presumed to be valid unless it is shown that the City Council exceeded its powers or has acted in an arbitrary or unreasonable manner. Huneke v. Glaspy, Supra; Marker v. City of Colorado Springs, 138 Colo. 485, 336 P.2d 305 (1959); Nelson v. Farr, 143 Colo. 423, 354 P.2d 163 (1960); Kurtz, Recent Developments in Zoning in Colorado, 39 Dicta 211 (1962). This presumption imposes upon the litigant challenging the ordinance's validity the burden of proving that the ordinance is unconstitutional by 'clear and convincing' evidence. Roeder v. Miller, 159 Colo. 436, 412 P.2d 219 (1966); Littleton v. Quelland, 153 Colo. 515, 387 P.2d 29 (1963); Denver v. American Oil Co., 150 Colo. 341, 374 P.2d 357 (1962).

The trial court found that the defendant had not met this test. In fact, the defendant, contrary to the well extablished law, refused to assume the burden. He must fail on this point.

II.

The defendant contends that the enforcement of the City Zoning Code in such a manner as to limit the expansion or enlargement of his nonconforming use constitutes as invalid exercise of the City's police power. The court limited the defendant's nonconforming uses to the extent recognized by the county commissioners while the property was subject to county zoning. The county zoning resolution provided that 'a non-conforming use shall not be extended.' (Section VII, 7.5). The City had a provision of similar import (Sec. 23.41). Inasmuch as the uses in issue here were nonconforming under both jurisdictions, they were properly limited in the manner ordered by the court. Service Oil Co. v. Rhodus, Supra. The court found that

'no evidence of the improper application of the ordinance to the Defendant was introduced. . . . The Greeley Zoning Code may validly be applied to Defendant's property.'

In Washinger v. Miller, 154 Colo. 61, 388 P.2d 250 (1964), relied upon by the trial court, we held, Inter alia, that where the record is replete with evidence of defendant's expansion of both the area and quantity of use, in violation of the zoning resolution, an injunction prohibiting such expanded use was neither arbitrary nor capricious. In Wasinger we noted:

'It has long been acknowledged that a zoning resolution may legally restrict the right to extend or enlarge a non-conforming use. (Citations omitted). In fact, non-conforming uses represent conditions which should be reduced to conformity as speedily as is compatible with justice. Also, the stopping of an expansion of a non-conforming use...