Crawford v. McLaughlin
| Decision Date | 10 August 1970 |
| Docket Number | No. 24424,24424 |
| Citation | 473 P.2d 725,172 Colo. 366 |
| Parties | Dana CRAWFORD, Robert L. Stearns, Jean K. Bain, William B. Chenoweth and Mildred Taylor, Plaintiffs in Error, v. Ronald C. McLAUGHLIN, Aubrey Brelsford, Paul Cella, Arthur Cowperthwaite andMarjorie Hornbein, as individuals and collectively, as constituting the Boardof Appeals as established by the Building Code of the City and County ofDenver, Gerald H.Phipps, Inc., a Colorado corporation and B. F. Swan, Defendants in Error. |
| Court | Colorado Supreme Court |
Holme, Roberts and Owen, A. Edgar Benton, Donald K. Bain, Denver, for plaintiffs in error.
George Louis Creamer, Anthony F. Zarlengo, Howard M. Kirshbaum, Denver, for defendants in error.
This lawsuit arises out of a controversy between defendants in error, B. F. Swan, owner of real property which abuts Cheeseman Park on its west boundary, and Gerald H. Phipps, a general contractor who was retained by Swan to build an apartment house on the property, on the one hand, and the City and County of Denver and the Director of the Building Department on the other. Phipps, on behalf of Swan, on or about July 19, 1968, applied to the Building Department for a permit to construct a fourteen story, twenty-eight unit luxury apartment building on the property. A permit was granted July 19, 1968, but because it was after three o'clock p.m., Friday (that being the cutoff time for record purposes), the permit was dated Monday, July 22, 1968. Swan and Phipps will be referred to as 'Swan' unless the context indicates otherwise.
On August 9, 1968, the Director of the Building Department by letter to Phipps informed him that the City Attorney, at the request of the Director of Planning, had rendered an opinion to the effect that a recently passed (August 6, 1968) city ordinance (No. 260, Series of 1968) limiting the height of structures on the west side of Cheeseman Park, in order to preserve the mountain view from the park, was applicable to the Swan property. The Director advised Phipps that all subsequent permits required for the construction of the apartment building would be issued subject to the height limitation of the mountain view ordinance. The effect of this limitation would be to reduce the proposed structure from fourteen to seven stories.
Swan and Phipps appealed the Director's order to the Board of Appeals of the Building Code. The Board of Appeals, after a hearing, held that the permit issued by the Building Department to Phipps was for construction of a fourteen story, twenty-eight unit apartment building and was not limited to the construction of 'the foundation only.'
The City and the Director, by certiorari (R.C.P.Colo. 106(a)(4)), obtained a District Court review of the order of the Board of Appeals. The District Court affirmed the decision of the Board of Appeals. The City and the Director timely filed a motion for new trial which the court denied. The City and the Director then elected to abide by the order of the District Court.
It was at this juncture in the proceedings that the plaintiffs in error, Dana Crawford, Robert L. Stearns, Jean K. Bain, William B. Chenoweth and Mildred Taylor (collectively hereinafter referred to as 'Crawford'), over objection of Swan, were granted leave by the trial court to intervene (R.C.P.Colo. 24(a) (2)).
The Crawford group are residents and taxpayers of Denver, living in the vicinity of Cheeseman Park, and are interested in preserving the mountain view from the park for themselves and all other residents of Denver.
The order granting the petition to intervene gives rise to the first issue presented for our consideration.
Swan consistently, by appropriate motions, challenged the correctness of the trial court's ruling which permitted Crawford to intervene for the sole purpose of appealing the trial court's judgment affirming the Board of Appeals. The appeal was perfected within the time limitation of the writ of error procedure then in effect; consequently, the intervention did not result in any delay in the determination of those issues properly raised in the motions for new trial filed by the City.
Under other circumstances we would be compelled to meet the intervention issue head-on, but because of the fact that we affirm the trial court on the merits of the controversy we have elected not to decide the issue in this instance. We therefore proceed to consideration of the substantive issue.
Crawford picked up the challenge where the City dropped it. By virtue of the intervention the intervenors stand in the stead of the City. Consequently, our review will be just as broad and just as limited as though the City and pursued the appeal rather than Crawford. In short, Crawford benefits or suffers in the same manner and to the same degree as she would have had the City carried this litigation to its ultimate conclusion. As stated in Moreno v. Commercial Security Bank, 125 Colo. 11, 240 P.2d 118, 'It is the duty of courts to respect the integrity of the issues raised by the pleadings between the original parties and to prevent the injection of new issues by intervention.'
As indicated above, the genesis of this lawsuit was the Director's letter of August 9, 1968, advising Phipps that the previously issued permit had been interpreted by the City Attorney as one to construct 'the foundation only,' and that the apartment building contemplated by the permit would be subject to the height limitations of the subsequently adopted mountain view ordinance. In effect, the Director said that because of the Limited permit issued to Phipps the mountain view ordinance would now be applicable to all supplementary permits required by Swan. It was the Nature of the permit which controlled the opinion--the effect of the mountain view ordinance on future permits was merely an incident which flowed from the permit.
Phipps and Swan invoked the provisions of Section 201 of the Building Code which provides for an appeal to the Board of Appeals of the Building Code by anyone aggrieved by a decision of the Director. (Sec. 201(h)(2)). The Board reversed the Director's determination.
The City and the Director then applied to the District Court for a review of the Board's decision. (R.C.P.Colo. 106).
The scope of judicial review is governed by Rule 106. It provides that,
'(a) * * * relief may be obtained * * *:
In determining the scope of review in this court an analysis of the issues formulated by the record made before the Board of Appeals is essential. It is the same record considered by the trial court.
The Board of Appeals held a hearing to review the Swan and Phipps appeal. The Board ruled that the permit was not for construction of 'the foundation only,' but a general permit for the construction of a fourteen story, twenty-eight unit apartment building. The Board's order stated,
'That * * * all necessary building permits be issued provided that plans and specifications submitted by the appellant to the Denver Building Department meet the requirements of the Building Code * * * as it was constituted on July 22, 1968.'
In their complaint for review under Rule 106 the City and the Director alleged that the Board of Appeals exceeded its jurisdiction in that
'(b) Pursuant to said Chapter 640. of the Revised Municipal Code, as amended, a whole, complete and exclusive administrative procedure is established including the creation and empowering of a certain administrative board, i.e., The Board of Plan Enforcement, Review and Variation;
'(c) The functions, duties and powers of Defendant Board of Appeals of the Building Code, including without limitation the various individuals collectively constituting such board, are limited to appeals under the Building Code of the City and County of Denver and to matters governed by and within the provisions of such Building Code and do not extend to or include any functions, duties or powers under Chapter 640. of the Revised Municipal Code, as amended, as herein set forth.'
It was, in brief, the position of the City and the Director in the District Court that the enforcement of the mountain view ordinance (No. 260 Series of 1968) was the central issue before the Board of Appeals and that it lacked Jurisdiction to entertain the question raised by the Director's letter of August 9, 1968.
Basically, this raised the question as to whether the order appealed from should have been reviewed by the Board of Plan Enforcement, Review and Variation, rather than the Board of Appeals of the Building Code. This was just another way of saying that the Board of Appeals had No jurisdiction.
The trial court affirmed the Board of Appeals, holding that the Board had not exceeded its Jurisdiction, nor had it Abused its discretion.
An examination of the record before the Board of Appeals discloses that there is sufficient competent evidence to support the ruling of the Board of Appeals that the permit issued by the Building Department was for the construction of a fourteen story, twenty-eight unit structure and not one for 'the foundation only.'
The Board of Plan Enforcement Review and Variation, created by Chapter 640. (Building Restrictions to Preserve and Protect Health, Safety and General...
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