Corper v. City and County of Denver

• Decision Date: 12 July 1976
• Docket Number: C--734 and C--737,Nos. C--727,s. C--727
• Citation: 552 P.2d 13,191 Colo. 252
• Parties: Catherine C. CORPER et al., Petitioners, v. The CITY AND COUNTY OF DENVER et al., Respondents. The CITY AND COUNTY OF DENVER et al., Petitioners, v. The MOUNT AIRY FOUNDATION et al., Respondents. The MOUNT AIRY FOUNDATION, Petitioner, v. Catherine C. CORPER et al., Respondents.
• Court: Colorado Supreme Court

Page 13

552 P.2d 13

191 Colo. 252

Catherine C. CORPER et al., Petitioners, v. The CITY AND COUNTY OF DENVER et al., Respondents.

The CITY AND COUNTY OF DENVER et al., Petitioners, v. The MOUNT AIRY FOUNDATION et al., Respondents.

The MOUNT AIRY FOUNDATION, Petitioner, v. Catherine C. CORPER et al., Respondents.

Nos. C--727, C--734 and C--737.

Supreme Court of Colorado, En Banc.

July 12, 1976.

Rehearing Denied Aug. 3, 1976.

Wagner, Wyers & Vanatta, Harold B. Wagner, Denver, for Catherine C. Corper, The Volunteers of America, Inc., Karen S. Kidneigh, Ann Rickoff, Bernardo R. Valdez and Marvia Valdez.

Long & Jaudon, James A. Dierker, Denver, for The Mount Airy Foundation.

Max P. Zall, City Atty., Robert M. Kelly, John L. Stoffel, Jr., Asst. City Attys., Denver, for The City and County of Denver and Larry J. Perry, et al, as members of the City Council of the City and County of Denver.

KELLEY, Justice.

We granted certiorari to review Corper v. Denver, Colo.App. 536 P.2d 874 (1975). Three petitions for certiorari were filed by the several parties directed to a single judgment. Although all three petitions were granted separately, they have been consolidated and will be reviewed collectively.

The opinion of the court of appeals sets forth both the procedural and the substantive facts. They will not be repeated here except as necessary to the discussion.

There are two principal issues which command our attention: (1) Did the method by which the trial court dealt with this matter constitute reversible error under the circumstances of this case; and (2) was there sufficient evidence before the city council to justify its amendment of the official zoning map? For the reasons hereinafter set forth, we affirm the judgment of the trial court upholding the rezoning action of the city council.

There are other issues raised which are ancillary to the above-enumerated principal issues, which will be discussed in the course of this opinion.

I.

Subsequent to the issuance of the court of appeals opinion in Corper, supra, this court announced its decision in Snyder v. Lakewood, Colo., 542 P.2d 371 (1975), in which we held that the amendment of a general zoning ordinance is a quasi-judicial act reviewable under C.R.C.P. 106(a)(4). We further held such method of review to be,

'an exclusive remedy to challenge a Rezoning determination where the entire General zoning ordinance is not challenged and where a review of the record would be an adequate remedy.'

Snyder also held that:

'In order to support a finding that the action of a municipal legislative body is quasi-judicial (rather than legislative) all of the following factors must exist: (1) a state or local law requiring that the body give adequate notice to the community before acting; (2) a state or local law requiring that the body conduct a public hearing, pursuant to notice, at which time concerned citizens must be given an opportunity to be heard and present evidence; and (3) a state or local law requiring the body to make a determination by applying the facts of a specific case to certain criteria established by law.'

Denver is an Article XX home rule city. It has a comprehensive zoning ordinance which was adopted in 1956. Chapter 618 of that ordinance is devoted to zoning amendment procedure. It meets the criteria for quasi-judicial action set forth in the preceding quotation. Although the ordinance refers to the action of the council and its zoning committee as 'legislative', we perceive it to be quasi-judicial in the context of our rules as delineated in Snyder. Labels do not control our determination; substance does.

The trial court foreclosed the adjacent homeowners (plaintiffs in the trial court who challenged the rezoning decision of the city council) from having the record of proceedings before the city council certified to the district court by dismissing the C.R.C.P. 106(a)(4) petition. However, the matter proceeded to trial, and the court permitted the parties to, in effect, reconstruct the record of the proceedings before the city council. There are, therefore, before this court the same exhibits which were before the city council: a history of the zoning of the subject property; the efforts to rezone over a long period of time; the action and recommendations of the board of adjustment, the planning committee and the city council; as well as a transcript of the testimony at the city council hearing.

Under the state of the record here, the same standards of review obtain as if we were considering the matter on a record made at the rezoning hearing before the city council and certified by it to the district court.

A court subjecting a rezoning decision of a city zoning authority to C.R.C.P. 106(a)(4) review must uphold the decision unless there is no competent evidence to support it. Ford Leasing Develop. Co. v. Board of County Commissioners, 186 Colo. 418, 528 P.2d 237 (1974). One claiming the invalidity of a rezoning ordinance has the burden of establishing its invalidity beyond a reasonable doubt. Wright v. City of Littleton, 174 Colo. 318, 483 P.2d 953 (1971); Bird v. City of Colorado Springs, 176 Colo. 32, 489 P.2d 324 (1971).

Consequently, the weighing of the evidence and the determinations of fact are not matters for consideration by the reviewing court, but are functions of the rezoning authority acting in its quasi-judicial capacity. If the trial court finds that the record shows compliance by council with the procedural requirements and there is competent evidence of a factual basis for the rezoning decision, it must affirm the action of the zoning authority.

The trial court, in detailed findings, found that all procedural requirements had been fulfilled by both the city and the applicant, Mount Airy Foundation, and that the rezoning ordinance had been passed in the manner required by law. Our review of the record confirms the correctness of the trial court rulings on these issues.

II.

The single most important issue raised by the homeowners relates to the amendment procedure. Denver Revised Municipal Code 618.1. This provision states the criteria which governs the council in all rezoning situations. It reads:

'.1. Declaration of Public Policy. For the purpose of establishing and maintaining sound, stable and desirable development within the territorial limits of the municipality, this ordinance, and as here used the term ordinance shall be deemed to include the official map, shall not be amended except to correct a manifest error in the ordinance or, because of changed or changing conditions in a particular area or in the municipality generally, to rezone an area or extend the boundary of an existing district, or the change the regulations and restrictions thereof, only as reasonably necessary to the promotion of the public health, safety or general welfare. . . .'

On this issue, the homeowners in their petition for writ of certiorari seemingly conceded that there was evidence of changed or changing conditions in the municipality generally, but contended that there was a failure to show changed or changing conditions in the particular area. Having thus conceded, they nevertheless contended that

'(i)t was therefore incumbent upon Mount Airy to produce evidence of change in the immediate area, that is the land within 200 feet of the area proposed for a change. There was no such evidence. In passing the zone amendment ordinance, the council disregarded the rules which it had established.'

The homeowners disregard the clear, unequivocal language employed. Specifically, after admitting that there was evidence of 'changed...