City of Sheridan v. Keen, 73--261
| Decision Date | 16 July 1974 |
| Docket Number | No. 73--261,73--261 |
| Citation | 34 Colo.App. 228,524 P.2d 1390 |
| Parties | The CITY OF SHERIDAN, a municipal corporation, Plaintiff-Appellant, v. J. P. KEEN et al., Defendants-Appellees. . II |
| Court | Colorado Court of Appeals |
Hemminger, McKendree, Vamos & Elliott, P.C., Gary H. Hemminger, Richard D. Greengard, Denver, for plaintiff-appellant.
Cooke, Gilles, Johnson & Schaefer, Joffre M. Johnson, Denver, for defendants-appellees.
The City of Sheridan, plaintiff, appeals from a judgment in favor of defendants J. P. Keen, Arthur B. Ballah, and Viking Logging & Construction Co. in a suit seeking declaratory and injunctive relief for alleged violations of the City's zoning ordinances. We reverse.
The City's complaint alleged that defendants maintain a mobile home as a residence on property zoned 'industrial,' in violation of the following ordinances:
'Section VIII. 'E' Industrial District Regulations
Uses: Buildings and land may be used for any use, Except residential uses, not in conflict with any ordinance of the City of Sheridan regulating nuisances . . ..' Sheridan Code of Ordinances, App. A. § VIII (emphasis added).
Sheridan Code of Ordinances § 24--6.
Undisputed evidence in the record established the following facts. Viking Logging & Construction Co., doing business as Statewide Trucking, originally operated a general trucking business at a location outside the City of Sheridan. In October 1971 the company was notified that its lease would not be renewed. Between December 1971 and March 1972 the company relocated on a nearby site, within the Sheridan city limits. Defendant Ballah, president of the company, testified that although he realized the new location was in Sheridan, he did not investigate the zoning ordinances applicable to the property. However, Ballah did have several conversations with the Sheridan Building Inspector regarding the company's building plans, plotting of ground, and fencing.
The subject of the dispute is a mobile home which is used as a residence by defendant Keen, Statewide's night watchman, and his family. Since approximately 1965, Statewide has employed a resident watchman, who also serves as an emergency truck driver and night dispatcher. Mr. Keen's mobile home was relocated at the new site of the business in Sheridan. Much of the record consists of testimony regarding the necessity of having a night watchman on the premises. The watchman is often required to leave on emergency calls during late hours of the night, and at those times his wife acts as watchman and dispatcher. There is some evidence in the record, although it is disputed, to support the trial court's finding that the City Building Inspector knew that the company planned to use the trailer as a residence prior to the time the trailer was moved to the new location. The trailer was actually moved onto the property on March 12, 1972.
Ballah was first notified that the trailer might conflict with zoning ordinances in a conversation with the Building Inspector on March 13. On March 16, he received a letter from the Building Inspector confirming that use of the mobile home as a residence violated the Sheridan Code of Ordinances. The letter advised defendant to appear before the Board of Adjustments on April 11 to seek a variance. Ballah attended this meeting and was told by the chairman that if there were any problems concerning the use of the trailer on the property, the company would be notified within three days. Ballah ceased making improvements on the property, but when he had received no word from the Board of Adjustments after four or five days, he resumed construction activities, which consisted of hauling in fill rock, dirt and topsoil for the planting of grass. The trailer had been moved in and hooked up to utilities a month earlier. Defendant did not at any time apply for a variance or pay the required fee. We note that the president and owner of the trucking company had built approximately 500 homes in the Denver University area prior to going into the trucking business and thus is quite familiar with zoning ordinances in general. On June 6, the company was served with a criminal summons alleging violation of the zoning ordinance. The complaint in this action was filed by the City in October 1972, and the court stayed proceedings on the criminal complaint pending disposition of this case.
The trial court, sitting without a jury, held that the residential characteristics of the use of the trailer on the property were so incidental to a valid industrial use as not to be in violation of the Sheridan Code. In addition, the court held that the City was estopped to complain about the use of the trailer because of the actions of the City's agents. We agree with the City's contentions that the trial court erred in both of these rulings.
An accessory or incidental use has been defined as a use customarily incident to the principal use, and so necessary or commonly to be expected in conjunction therewith that it cannot be supposed the ordinance was intended to prevent it. Zahn v. Board of Ajustment, 45 N.J.Super. 516, 133 A.2d 358; See Board of County Commissioners v. Thompson, 177 Colo. 277, 493 P.2d 1358. In other words, an accessory use is one which is deemed to be permitted by implication where the ordinance is silent on the particular use in issue. The concept of accessory use relieves a municipality from attempting to enumerate in the statute every possible approved use, and allows courts to determine on a case by case basis whether permission for the proposed use has been impliedly granted. See E. Bassett, Zoning 100; 1 A. Rathkopf, The Law of Zoning and Planning ch. 23 (3d ed.).
However, by definition, a use which is expressly prohibited in the zoning ordinance cannot be an accessory or incidental use. Although, as in this case, the use may be 'incidental' within the nontechnical meaning of that word, it cannot be an incidental use in legal terms if the governing body has expressly prohibited it. Rathkopf, Supra, at 23--4.
Both of the ordinances relied upon by the City explicitly disallow use of the trailer as a residence on defendants' property. It is undisputed that Mr. Keen and his family live in the mobile home. This constitutes 'residential use' of the trailer, and it is irrelevant, for the...
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