Cross v. Bilett

• Decision Date: 14 August 1950
• Docket Number: No. 16383,16383
• Parties: CROSS et al. v. BILETT et al.
• Court: Colorado Supreme Court

Page 923

221 P.2d 923

122 Colo. 278

CROSS et al. v. BILETT et al.

No. 16383.

Supreme Court of Colorado, en Banc.

Aug. 14, 1950.

Calvert & Thrasher, Denver, for plaintiffs in error.

Joseph N. Lilly, Denver, for John Rotola, defendant in error.

J. Glenn Donaldson, Abe L. Hoffman, Denver, for Board of Adjustment and City and County of Denver, defendants in error.

STONE, Justice.

John Rotola applied to the building inspector of Denver for permit to erect a one-story masonry filling station and home appliance store. The application was denied for the reason that it was for a non-conforming use in a residence 'B' zone. Appeal was taken to the board of adjustment where both consenting and objecting petitions were filed, and upon hearing, whereat three neighbors, appearing in person, consented and ten objected to the issuance of the permit, the board made finding that the property was more suited for business uses than for residential development and granted the application. Upon certiorari by plaintiffs in error as owners of neighboring property, judgment was entered in the district court dismissing the petition and ordering permit issued for the nonconforming use. Challenge is raised by plaintiffs in error to the sufficiency of the record certified by the board, and to the sufficiency of the evidence to support its findings, but in view of our determination of the principal issue involved, that question need not be considered.

Under the provisions of the Charter Zoning Amendment, section 219A, Charter, Municipal Code of 1927, 'The Council may provide for the appointment of a Board of Adjustment, and in the regulations and restrictions adopted pursuant to the authority of this amendment may provide that the said Board of Adjustment 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.' Thereunder was adopted chapter LXXXI, art. V, section 2190 B, of the Municipal Code of 1927, whereby it is provided that 'When in its judgment the public convenience and welfare will be substantially served or the appropriate use of neighboring property will not be substantially or permanently injured, the board of adjustment may, in a specific case, after public notice and hearing and subject to appropriate conditions and safeguards, determine and vary the application of the regulations herein established in harmony with their general purposes and intent as follows: * * * (10) Permit the location * * * in any residence district of any use or structure authorized in any other residence district or in any business district. Provided, there shall be on file with the said board the consents, duly signed and acknowledged, of the owners of 80 per cent of all the land within such area as the said board shall have determined to be specially affected by such proposed use or structure, [except certain uses not herein involved].'

Reversal is here sought chiefly on the ground that the board of adjustment failed to determine or designate the area specifically affected by such proposed use, and that there were not on file the consents of the owners of 80 per cent of all the land within such area, as required by the ordinance above quoted.

Admitting its complete disregard of the 80 per cent provision of the ordinance, it is first suggested by the attorneys for the petitioner and the board of adjustment that the power of the board, in hardship cases such as this one, is derived directly from the charter without regard to any provision of ordinance. This suggestion is merely stated without argument or citation of authority. It is based upon the provision of the charter, Municipal Code of 1927, Charter, section 219A, G(3), giving the board of adjustment power 'To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done.' This basis of support for the action of the board is not sound for the reasons, first, that applicant did not base his claim for nonconforming use on any contended hardship; second, that the zoning board made no finding of unnecessary hardship, which is essential, Scaduto v. Town of Bloomfield, 127 N.J.L. 1, 20 A.2d 649, and, third, that the purpose of that provision of the charter was not to provide for substantial changes in zoning districts for nonconforming uses which result in virtual rezoning of certain property therein; but, rather, to permit minor departure from the literal terms of the statute where justice so requires. As stated by the court in Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128, 132, 168 A.L.R. 1:

'The plain intent and purpose of the statute is to permit, through the Board of Adjustment, the amelioration of the rigors of necessarily general zoning regulations by eliminating the necessity for a slavish adherence to the precise letter of the regulations where, in a given case, little or no good on the one side and undue hardship on the other would result from a literal enforcement.

'The board cannot disregard the provisions of the statute or its regulations. It can merely 'vary' them to prevent injustice when the strict letter of the provisions would work 'unnecessary hardship."

But the principal reason asserted by the board of adjustment for ignoring the provision requiring consent of the owners of 80 per cent of all the land within such area as the board shall have determined to be specifically affected by the proposed use, is that the requirement is unconstitutional. It is boldly stated in the brief that in passing the provision so relied on, the council 'closed its eyes to the fact that such a provision had long before been held unconstitutional,' citing Curran Bill Posting & Distributing Co. v. Denver, 47 Colo. 221, 107 P. 261, 27 L.R.A.,N.S., 544, and Willison v. Cooke, 54 Colo. 320, 130 P. 828, 44 L.R.A.,N.S., 1030, as so holding. Both these cases were decided prior to the present zoning ordinance, but Menzel v. Niles Co., 86 Colo. 320, 281 P. 364, 65 A.L.R. 995, Hedgcock v. People ex rel., 98 Colo. 522, 57 P.2d 891, and Hedgcock v. People ex rel., 91 Colo. 155, 13 P.2d 264, decided subsequent to that ordinance, are said to affirm the rule thereunder.

The board of adjustment may not properly challenge the validity of that provision of the charter. It is elementary that the constitutionality of an act may be attacked only by one whose rights are infringed thereby, and that the duty of determining validity rests, not upon the executive officials, but upon the courts. The position of a public official sua sponte challenging the validity of an act regulating his authority is not sustainable and, insofar as the board of adjustment is concerned, further ground for reversal of the judgment here involved need not be sought. As to defendant in error Rotola, the question of the validity of the ordinance provision is properly raised. Turning to the cases relied on, Curran Bill Posting & Distributing Co. v. Denver, supra, involved appeal from conviction for violating an ordinance prohibiting the erection of billboards within a prescribed distance from a street or alley, or of more than prescribed dimensions, and further providing in a separate section that no application for a license to erect a billboard should be considered until the written consent of the adjoining lot owners and residents directly opposite such proposed billboard should be obtained. This ordinance, enacted in 1898, far antedated statutory or charter authority for a zoning ordinance. Conviction was based on violation of section 592 of the ordinance, which restricted the location and size of billboards. The provision as to consent of adjoining lot owners was in no way involved. The question of wrongful delegation of authority was not raised, either in briefs or assignments of error. As appears from the opinion, the ordinance was held void as an unwarranted invasion of private rights having no relation to public health or safety. Thereafter the statement appears in the opinion, 'Nor can the governing body of a municipality commit the exercise of its legislative discretion to property owners or other private persons.' [47 Colo. 221, 107 P. 267] This is clearly dictum. In fact, the rule so announced in the Curran case militates equally against the constitutionality of the authority of the board of adjustment to permit nonconforming uses without the consents of the required percentage of owners, for it continues: 'Neither can the city intrust such power to the caprice of any of its officers, nor can it reserve to itself in its administrative, rather than its legislative capacity, an absolute or despotic power to grant or refuse permits of the character in question in particular cases, and in the absence of, or without reference to, prescribed and duly enacted rules and regulations.' Thereunder the city could not entrust to a board of adjustment the absolute power to grant or refuse a permit 'in the absence of, or without reference to, prescribed and duly enacted rules and regulations.'

Willison v. Cooke, supra, also was an attack upon an ordinance, enacted long prior to the existence of any authority for a zoning ordinance, whereunder it was declared unlawful for the owner of property to erect a store building unless there were first secured the signatures of a majority of the owners within a specified area, and whereunder, also, a building permit should not issue without agreement in writing by the owner to build back from the front line of the lot the distance as required by the ordinance. We there held that a store building was in no...