Corper v. City and County of Denver

• Decision Date: 06 May 1975
• Docket Number: No. 74--161,74--161
• Citation: 536 P.2d 874,36 Colo.App. 118
• Parties: Catherine C. CORPER et al., Plaintiffs-Appellants, v. The CITY AND COUNTY OF DENVER et al., Defendants-Appellees. . I
• Court: Colorado Court of Appeals

Page 874

536 P.2d 874

36 Colo.App. 118

Catherine C. CORPER et al., Plaintiffs-Appellants, v. The CITY AND COUNTY OF DENVER et al., Defendants-Appellees.

No. 74--161.

Colorado Court of Appeals, Div. I.

May 6, 1975.

Rehearing Denied May 28, 1975.

Certiorari Granted July 7, 1975.

Wagner, Wyers & Vanatta, P.C., Harold B. Wagner, Denver, for plaintiffs-appellants.

Max P. Zall, Earl T. Thrasher, Robert M. Kelly, Denver, for defendants-appellees the City and County of Denver and members of the City Council thereof.

Long & Jaudon, P.C., James A. Dierker, Denver, for defendant-appellee The Mount Airy Foundation.

KELLY, Judge.

Plaintiffs are residents and landowners near Mount Airy Hospital in Denver. They brought suit against the City and County of Denver, its individual council members, and the Mount Airy Foundation, for relief under C.R.C.P. 106(a)(4), for a declaratory judgment, and for an injunction. The purposes of the action were to set aside a Denver ordinance rezoning property belonging to Mount Airy and to enjoin the issuance of a building permit for construction of a hospital on the rezoned property.

The trial court initially issued an Exparte order to show cause, a temporary restraining order, and an order for certification of the transcript of the rezoning proceedings before the Denver City Council. After hearings on motions by the city and its council members, however, these orders were vacated and the plaintiffs' complaint seeking certiorari relief was dismissed on the ground that the Denver City Council was acting in a legislative capacity in adopting the rezoning ordinance and that, therefore, its proceedings were not subject to review under C.R.C.P. 106(a)(4). There was no judgment entered after this dismissal under the the provisions of C.R.C.P. 54(b); thus no appeal could be taken until final disposition of the case.

After the filing of responsive pleadings, trial was to the court on plaintiffs' claims for declaratory and injunctive relief. The trial court entered judgment for defendants and dismissed the complaint. We affirm in part and reverse in part.

The underlying facts are not in dispute. Denver's comprehensive zoning ordinance was amended in 1967 to authorize the use or property zoned R--5 for institutions. In July 1972, Mount Airy Foundation filed an application for rezoning of a number of lots and parts of lots on and near Clermont Street in Denver from R--1 and R--3 to R--5. The R--1 lots were being used by Mount Airy as a non-conforming use. The use of the R--3 lots for hospital purposes was conforming.

The application alleged changing conditions in the area, and stated that Mount Airy was planning 'to construct a threestory addition immediately north of and attached to its existing hospital facility.' The application further stated that Mount Airy was 'seeking an R--5 zone to insure the institutional use of the property . . . and also to protect the surrounding residental (sic) area from continued multi-family, high-rise apartment development.'

After the filing of this application, the property was posted for hearing on September 18, 1972. A number of protestants appeared at this hearing, and as a result, the city council took no action on the matter. Instead, it was suggested to the plaintiffs that they attempt to resolve their differences with Mount Airy.

There were several conferences between the parties and additional hearings before the city council, after which mount Airy directed a letter dated October 16, 1972, to the Denver Department of Zoning Administration. In this letter, Mount Airy requested an amendment of the legal description on its application reducing the area for which rezoning was sought. The property was again posted for hearing on December 26, 1972, and after the hearing, the amendment was approved and the ordinance enacted. This lawsuit followed.

The trial court ruled against the plaintiffs on every material allegation of their complaint and plaintiffs assert the error of each of these rulings as a ground for reversal. In addition, plaintiffs contend that the trial court erred in dismissing their complaint for relief under C.R.C.P. 106(a)(4). We agree that plaintiffs were entitled to review in the nature of certiorari and we therefore reverse on that ground alone. In all other respects, the judgment of the trial court is affirmed.

I. Relief in the Nature of Certiorari

In connection with their argument that the trial court should have granted review under C.R.C.P. 106(a)(4), plaintiffs contend that the court erred in admitting evidence outside the record of proceedings before the city council. We need not consider this contention, since the trial court did not hear the case as a Rule 106 action and was not limited in its admission of evidence by the restrictive rule applicable to certiorari review. See City of Colorado Springs v. District Court, Colo., 519 P.2d 325; Dillon Companies, Inc. v. City of Boulder, Colo., 515 P.2d 627; C.R.C.P. 106(a)(4).

Plaintiffs' argument that the trial court should have granted review in the nature of certiorari is predicated on the allegedly quasi-judicial nature of Denver's rezoning procedures, which plaintiffs assert are reviewable under C.R.C.P. 106(a)(4). The city and Mount Airy, on the other hand, contend that in Denver, the rezoning function is legislative in character and is, therefore, not susceptible to judicial scrutiny by way of certiorari.

Many of the Colorado cases decided a decade or more ago appear to support the position of the city and Mount Airy that the enactment of zoning ordinances is a legislative function. See, e.g., Orth v. Board of County Commissioners, 158 Colo. 540, 408 P.2d 974; Huneke v. Glaspy, 155 Colo. 593, 396 P.2d 453; Frankel v. Denver, 147 Colo. 373, 363 P.2d 1063; Baum v. Denver, 147 Colo. 104, 363 P.2d 688. In more recent cases, however, rezoning procedures have been reviewed under C.R.C.P. 106(a)(4) as quasi-judicial activities. See, e.g., City of Colorado Springs v. District Court, Supra; Dillon Companies, Inc. v. City of the Boulder, Supra; Ford Leasing Development Co. v. Board of County Commissioners, Colo., 528 P.2d 237; Board of County Commissioners v. Simmons, 177 Colo. 347, 494 P.2d 85.

The apparent conflict in the Colorado cases is largely superficial and arises out of the varying procedures employed and the kinds of relief sought by the litigants. See Englewood v. Daily, 158 Colo. 356, 407 P.2d 325; Kizer v. Beck, 30 Colo.App. 569, 496 P.2d 1062. We have not been directed to any Colorado authority, nor have we found any, which treats the problem in the present procedural posture. The principle to be gleaned from careful analysis of the Colorado cases, however, has been expressly stated in Fasano v. Board of County Commissioners, 264 Or. 574, 507 P.2d 23, 26, in which the Oregon Supreme Court said:

'Ordinances laying down general policies without regard to a specific piece of property are usually an exercise of legislative authority, are subject to limited review, and may only be attacked upon constitutional grounds for an arbitrary abuse of authority. On the other hand, a determination whether the permissible use of a specific piece of property should be changed is usually an exercise of judicial authority and its propriety is subject to an altogether different test.'

The reasons for the distinction are compellingly stated in Fleming v. City of Tacoma, 81 Wash.2d 292, 502 P.2d 327, in which the court said:

'Generally, when a municipal legislative body enacts a comprehensive plan and zoning code it acts in a policy making capacity. But in amending a zoning code, or reclassifying land thereunder, the same body, in effect, makes an adjudication between the rights sought by the proponents and those claimed by the opponents of the zoning change. The parties whose interests are affected are readily identifiable. Although important questions of public policy may permeate a zoning amendment, the decision has a far greater impact on one group of citizens than on the public generally.

'Another feature of zoning amendment decisions, which distinguishes them from other types of legislative action, is their localized applicability. Other municipal ordinances which affect particular groups or individuals more than the public at large apply throughout an entire geographic area within the municipal jurisdiction, whereas ordinances that amend zoning codes or reclassify land thereunder apply only to the immediate area being rezoned.

'Finally, legislative hearings are generally discretionary with the body conducting them, whereas zoning hearings are required by statute, charter, or ordinance. The fact that these hearings are required is itself recognition of the fact that the decision making process must be more sensitive to the rights of the individual citizen involved.'

While the Colorado cases do not explicitly state this distinction between a comprehensive zoning ordinance as a legislative enactment and a rezoning amendment as an adjudicative process, when viewed in this light, our cases become harmonious and are in accord with the modern trend in zoning law. See West v. City of Portage, 392 Mich. 458, 221 N.W.2d 203; Fasano v. Board of County Commissioners, Supra; Fleming v. City of Tacoma, Supra; Comment, Zoning Amendments--The Product of Judicial or Quasi-Judicial Actions, 33 Ohio St.L.J. 130; Freilich, Fasano v. Board of County Commissioners of Washington County: Is Rezoning an Administrative or Legislative Function?, 6 Urban Lawyer vii (1974). The more recent Colorado cases, emphasizing the distinctively quasi-judicial character of the rezoning function and the propriety of C.R.C.P. 106(a)(4) review, indicate Colorado's preference for the more progressive view. See, e.g., Board of County Commissioners v. Simmons, Supra; and Cf. Sundance Hills Homeowners Association v. Board of County Commissioners, Colo., 534 P.2d 1212, announced April 28, 1975. The distinction...