Clark v. City of Boulder
| Citation | 362 P.2d 160,146 Colo. 526 |
| Decision Date | 22 May 1961 |
| Docket Number | No. 19531,19531 |
| Parties | Lawrence B. CLARK, Allan B. Rogers, Jr., O. Lynn Evans, Louis Dible, Plaintiffs in Error, v. CITY OF BOULDER, a municipal corporation, Leonard A. Jones, Director of Finance and Record and Ex-Officio City Clerk, and Clayton H. Meyring, City Building Inspector, Defendants; L. H. Luckett and Harvey C. Luckett, Intervenors, Defendants in Error. |
| Court | Supreme Court of Colorado |
Roepnack, Orahood & Maloy, Arvada, for plaintiffs in error.
Guy A. Hollenbeck, Boulder, for defendants in error City of Boulder, a municipal corporation, Leonard A. Jones, Director of Finance and Record and Ex-Officio City Clerk, and Clayton H. Meyring, City Building Inspector.
Hutchinson & Hutchinson, Boulder, for defendants in error L. H. Luckett and Harvey C. Luckett, Intervenors.
This writ of error is directed to a judgment of the trial court dismissing a declaratory judgment action challenging the validity of a zoning ordinance of the City of Boulder. The parties will be referred to as they appeared in the trial court, where plaintiffs in error were plaintiffs and defendants in error were defendants.
Plaintiffs' complaint attacks the validity of Ordinance No. 2193, enacted by the City Council of Boulder on January 13, 1959, alleging that the ordinance results in 'spot zoning'; is illegal, arbitrary and contrary to the recommendations of the City Planning Board; and asks for a declaratory judgment declaring said ordinance void and for an order restraining the Building Inspector from issuing a building permit for the erection of improvements on the property subject to the ordinance--namely, Lots 7, 8 & 9, Block 3, Interurban Park Addition to the City of Boulder. It is alleged that plaintiffs are property owners either adjacent to or in the immediate vicinity of the property involved.
A temporary restraining order was issued on February 2, 1959, and thereafter the owners of the three lots were permitted to intervene.
Both the intervenors and defendants by answer admitted that the plaintiffs were owners of property adjacent to or in the immediate vicinity of the subject lots, and intervenors admitted that they had made application for a building permit for business construction. Defendant City of Boulder admitted that the ordinance was not published at least ten days before its final passage and this fact was stipulated by the parties prior to trial.
A supplemental complaint was filed by plaintiffs, alleging that following institution of the action the City Council of Boulder enacted Ordinance No. 2258 ordering a referendum on Ordinance No. 2193, the rezoning ordinance; that a referendum election had not been held, and that the ordinance was therefore void. Intervenors and defendants admitted that the referendum had been ordered and the election had not been held, but denied that adoption of the referendum ordinance suspended operation of Ordinance No. 2193.
Trial was to the court on March 8, 1960. At the close of plaintiffs' evidence defendants and intervenors moved to dismiss for failure to state a claim. This motion was granted and the complaint dismissed.
Plaintiffs' principal grounds for reversal are: (1) that the ordinance constitutes spot zoning and is void; and (2) that the ordinance is invalid under the Charter of the City of Boulder.
Viewing the evidence in the light most favorable to the plaintiffs, as we must do under the circumstances, the record reveals the following:
The area in which the property involved is located was zoned Residence 1 under a comprehensive plan and ordinance adopted in 1954. Under that plan an area to the east of the tract in dispute and immediately across the street, was zoned for business and was developed as a shopping center in which various retail outlets, including a filling station, were erected.
Intervenors, petroleum products distributors and operators of filling stations, acquired an option to purchase these lots during 1954. This ripened into purchase in June 1955. In January 1955 application was made for a change to business zoning which was denied. Seven months later, in February 1956, this was again applied for and was again denied but the land was then re-zoned to Residence 2. Two years later, in January 1958, these lots along with some others were re-zoned Residence 3. In November 1958 intervenors applied for the commercial zone change now in dispute. The latter application was made without any showing of change in conditions affecting these lots except that the area had been developing under the comprehensive plan. On January 13, 1959, Ordinance No. 2193 was introduced, read, adopted and passed, re-zoning the three lots from Residential 3 to Business 1. This change was made in opposition to the recommendations of the Planning Board.
Since the adoption of the comprehensive zoning plan the area generally, except for the aforesaid planned shopping center, a variance or two and public or governmental buildings, has been developed for single family houses and other uses permitted in residential districts.
In the instant case there is no indication that the zoning change was intended to further the comprehensive general plan. Rather, it has all the earmarks of a special act enabling the intervenors to build a filling station on property previously zoned as residential.
In Freeman v. Yonkers (1954), 205 Misc. 947, 129 N.Y.S.2d 703, an area in residential neighborhood was re-zoned to permit construction of a filling station. There the court noted that the particular zoning change was sought and granted solely for the purpose of permitting the landowners to establish the station, and stated that the fact that the use of the lot for any of the purposes authorized in a residential district might be impractical did not justify a re-zoning.
Defendants next contend that the change of zoning here is not spot zoning but constitutes an extension of adjacent zoning to the subject property. In Miller v. Town Planning Commission of Manchester (1995), 142 Conn. 265, 113 A.2d 504, ...
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