Colby v. Board of Adjustment

• Decision Date: 18 April 1927
• Docket Number: 11505.
• Citation: 255 P. 443,81 Colo. 344
• Parties: COLBY et al. v. BOARD OF ADJUSTMENT et al.
• Court: Colorado Supreme Court

255 P. 443

81 Colo. 344

COLBY et al. v. BOARD OF ADJUSTMENT et al.

No. 11505.

Supreme Court of Colorado, En Banc.

April 18, 1927

Error to District Court, City and County of Denver; Charles C Butler, Judge.

Certiorari by Willis W. Colby and another, doing business as Colby Bros., a copartnership, against the Board of Adjustment created by Ordinance No. 14, Series of 1925, of the City and County of Denver, Colo., and others. Judgment for defendants and petitioners bring error.

Affirmed.

Pershing, Nye, Tallmadge & Bosworth, Lewis A Dick, and John Pershing, all of Denver, for plaintiffs in error.

Henry E. May and Thomas H. Gibson, both of Denver, for defendants in error.

ADAMS J.

Plaintiffs in error, petitioners below, brought certiorari in the district court against the board of adjustment, created by a Denver municipal ordinance, and against the members of the board. Respondents had judgment, and petitioners bring the case here for review.

The suit involves a comprehensive building zone ordinance. The city building inspector denied the application of Colby and his brother, copartners, for a permit to operate a brickmaking plant on some five acres of petitioners' land lying within the confines of a residence district zone in Denver. The Colbys appealed to the board of adjustment, pursuant to ordinance. The board, after listening to petitioners and certain protestants, confirmed the inspector's refusal, and said:

'Whereas, the public convenience and welfare will not be substantially served and the appropriate use of neighboring property will be substantially and permanently injured, be it resolved by the board of adjustment that the application be and is hereby denied and that the chief building inspector be so notified.'

This was done. The proceedings in certiorari against the board and its members were to review their action in denying relief to petitioners. The trial court heard the case de novo and, upon consideration of the merits, sustained the board. We are now considering petitioners' assignments of error involving above.

Denver is a home rule city operating under the Twentieth Amendment to the state Constitution (see Laws 1913, p. 669). Pursuant thereto, on May 15, 1923, the citizens of Denver voted in favor of charter amendment section 219-A, which empowers the city council to pass a comprehensive zoning ordinance. The first three sections of the amendment outline its general purpose and character. They read:

'Section 1. Grant of Power.--For the purpose of promoting health, safety, morals or the general welfare of the community, the council of the city and county of Denver is hereby empowered to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes.

'Sec. 2. Districts.--For any or all of said purposes, the council may divide the city and county of Denver into districts of such manner, shape and area as may be deemed best suited to carry out the purposes of this amendment; and within such districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of buildings throughout each district, but the regulations in one district may differ from those in other districts.

'Sec. 3. Purposes in View.--Such regulations shall be made in accordance with a comprehensive plan, and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provisions of transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the city and county of Denver.'

A zoning commission was created by the amendment and appointed by the city council. Its functions were to recommend the original boundaries of zoning districts and appropriate regulations to be enforced therein. It did so, after extended study and various hearings; it reported to the council in the form of a proposed ordinance, accompanied by maps 'showing the location, present use and area of lot occupancy of all buildings in the city, and also other data, such as assessed valuation, population density, trend and rate of growth of the city, present and future car lines and principal traffic streets.' The city gave public notice of the proposed ordinance; several sessions were had at which parties in interest and citizens were heard, and on February 9, 1925, the ordinance in its main features as recommended by the commission was adopted. It was duly published and has been in force ever since without modification as to any matter here involved.

The board of adjustment is committed with important duties and is vested with wide discretionary powers. It hears appeals from the decisions of administrative officials in the enforcement of the charter amendment, or of any ordinance adopted pursuant thereto. It may 'in appropriate cases and subject to appropriate conditions and safeguards make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained.'

The zoning ordinance separates district uses into four classes, to wit: (1) Residential, (2) business, (3) commercial, and (4) industrial purposes. Petitioners' property is within a zone known as 'Residence B' district. The establishment of a brickmaking plant is not permitted in such district. Another brickyard has been in operation close by for many years, from which large deposits of clay have been removed and the supply is still unexhausted. The ordinance makes provision as to the use of property existing at the time of the passage of the ordinance, and how the board of adjustment may, under certain conditions, permit the continuance of such. The old brick plant is said to be about 25 years old. The board may also, under section 24 B(4) of the ordinance, grant in undeveloped sections of the city temporary and conditional permits for not more than five-year periods for any structure or use.

In October, 1924, after the adoption of the charter amendment, but before the passage of the zoning ordinance, petitioners bought their five acres above mentioned. It contains valuable clay deposits, suitable for the making of brick, and the land was acquired by petitioners for the purpose of manufacturing brick on the premises. In January, 1925, petitioners made a contract for $5,000 worth of machinery and equipment. They relied upon statements of two men, presumably employees in the office of the building inspector, that no permit would be required of them and to go ahead with the work, which they testify they did. They had also read in a local newspaper that the forthcoming ordinance would not apply to works under construction before its passage. Petitioners had no permit, but on June 8, 1925, they applied for one, which was denied, and the order was appealed from as above stated.

In addition to the above facts, the testimony shows that the territory in question is in a residence district with splendid possibilities; a new schoolhouse has been recently built three or four blocks distant from the Colby yard and is in use; the growth of the city trends in the direction of the district; it is the extension of a highly desirable residential section, but its growth is retarded and land values in the neighborhood of the old brickyard have been so destroyed by its presence as to result in many unredeemed tax sales; the smell, smoke, and dirt arising from the brick kilns are injurious and unhealthful to the inhabitants; citizens have protested against the granting of the permit; the brickyard is not merely a nuisance there, but a menace, and another brickyard will make the situation correspondingly worse, dangerous to the safety, health, and welfare of school children and adult residents as long as it exists. The evidence as to above, while contradicted in part, is clear.

1. When this case was brought, there was a great variety of opinion among state courts as to the validity of general zoning ordinances under the due process clause, U.S. Amend. 14, but recently the Supreme Court of the United States has set the matter at...