Deighton v. City Council of Colorado Springs
| Decision Date | 29 December 1994 |
| Docket Number | No. 93CA1155,93CA1155 |
| Citation | 902 P.2d 426 |
| Parties | Darryl DEIGHTON, d/b/a First Amendment Bookstore, Plaintiff-Appellant, v. CITY COUNCIL OF COLORADO SPRINGS, an incorporated municipality, Robert Isaac, Leon Young, Lisa Are, Cheryl Gillaspie, John Hazelhurst, Mary Lou Makepeace, Randy Purvis, Larry Small, David White, in their official capacities only as members of the Colorado Springs City Council, Defendants-Appellees. . III |
| Court | Colorado Court of Appeals |
Arthur M. Schwartz, P.C., Arthur M. Schwartz, Bradley J. Reich, Michael W. Gross, Denver, Philip J. Anderson, Colorado Springs, for plaintiff-appellant.
James G. Colvin, II, City Atty., Office of the City Atty., Colorado Springs, for defendant-appellee.
Opinion by Judge DAVIDSON.
Plaintiff, Darryl Deighton, d/b/a First Amendment Bookstore, appeals from the summary judgment entered in favor of defendants, the City Council of Colorado Springs and its included members in their official capacity (collectively City Council). On alternative theories of state law and federal constitutional law, plaintiff claimed that defendants' temporary moratoria on new adult uses within the city were invalid. Because we agree that the moratoria were improperly enacted, we reverse and remand for further proceedings.
The parties stipulated to the following facts. Plaintiff sought to open an adult bookstore within the City of Colorado Springs. The desired site was zoned C-5, which allows for what was then referred to as "adult use," so long as there exists more than 1000 feet between the "adult use" business and any residential zone, any one, two, or multiple family dwelling, church, park, educational institution, or another adult use. Ten other adult bookstores, including one belonging to plaintiff, were in operation in the city pursuant to this ordinance.
At the time that plaintiff selected the desired site for his bookstore, the 1000-foot separation requirement was calculated, pursuant to ordinance, by direct measurement from the nearest property line of the adjacent use to the nearest entrance of the proposed adult use, "using a route of direct pedestrian access measured as a person would walk safely and properly, without trespassing, with right angles at crossings and with the observance of traffic regulations and lights."
As the desired site was only 119 feet from a neighboring church via a pedestrian staircase along the boundary of the two properties, plaintiff planned to construct a fence which would preclude any pedestrian access to that staircase. Access to the bookstore by the proposed circuitous route would meet the 1000 foot distance requirement. Before purchasing the property, plaintiff confirmed with the Colorado Springs zoning administrator that, with this alteration, the desired site would comply with the zoning ordinance.
Plaintiff then purchased the property, constructed the fence, and requested an adult use application, an administrative procedure not expressly required by the applicable zoning ordinances. Approval of plaintiff's application was granted on June 22, 1992, contingent on the acquisition of a certificate of occupancy prior to commencement of operation of business.
On June 23, 1992, in response to complaints by two neighborhood residents about the method of measurement pursuant to which plaintiff's business had met the distance requirement, City Council, by motion, adopted a moratorium on any new adult uses until completion of a study of whether this prescribed method was allowing adult uses to be approved in violation of the spirit, if not the letter, of the law regarding the 1000-foot separation requirement.
A directive to that effect was issued to the city zoning administration. This moratorium necessarily included plaintiff's bookstore, which had not yet opened for business as of that date.
At the next regularly scheduled legislative session, City Council passed a resolution imposing an additional 90-day moratorium on the establishment of new adult uses within Colorado Springs.
Ultimately, in September 1992, City Council enacted an ordinance which changed the designation of adult bookstores from "adult use" to "sexually oriented business" and changed the 1000-foot separation requirement to a distance measured "in a straight line without regard to intervening structures or objects from the nearest property line of the proposed sexually oriented business establishment to the nearest property line" of the other use.
Because the desired site did not meet the 1000-foot separation requirement under the new ordinance, plaintiff was unable to open his bookstore at that location and eventually sold the property. He filed suit for declaratory judgment and damages.
Plaintiff argues that the trial court erred in concluding that the enactment of the moratoria was procedurally valid. He does not dispute that City Council held the power to enact such moratoria. He contends, however, that because the moratoria here effectively amended, suspended, or repealed the adult use ordinance in effect at the time of his application, such moratoria could not be validly enacted by motion or resolution. Rather, he asserts, they could only be legitimately established by another ordinance. We agree.
Although the question has not been addressed in Colorado, as a general proposition of municipal law, an ordinance cannot be amended, modified, or suspended by resolution. See City of Harrison v. Snyder, 217 Ark. 528, 231 S.W.2d 95 (1950); Phillips Petroleum Co. v. City of Park Ridge, 16 Ill.App.2d 555, 149 N.E.2d 344 (1958); Dolan v. Borough of Tenafly, 75 N.J. 163, 380 A.2d 1119 (1977).
This is because an ordinance is a legislative act. In contrast, a resolution is a ministerial act which relates to some administrative business of the municipality. See Inganamort v. Borough of Fort Lee, 72 N.J. 412, 371 A.2d 34 (1977). Although the latter is merely a declaration of the will of the municipality in a given matter, the former prescribes general rules of conduct and requires public notice and public participation. See City of Tuscola v. D & B Refuse Service, Inc., 131 Ill.App.3d 168, 86 Ill.Dec. 419, 475 N.E.2d 633 (1985) (); Sommerfeld v. City of Seward, 221 Neb. 76, 375 N.W.2d 129 (1985) ().
Accordingly, a municipality may not amend, repeal, or suspend an ordinance by any act of less dignity than the ordinance itself. See McCarthy v. Village of Marcellus, 32 Mich.App. 679, 189 N.W.2d 80 (1971); Cross v. Soderbeck, 94 Wis.2d 331, 288 N.W.2d 779 (1980). And, similarly, if a municipality elects to establish zoning regulations by ordinance, any change of such zoning regulations must be accomplished by ordinance as well. See Harrell v. City of Lewiston, 95...
To continue reading
Request your trial
-
Williams v. City of Central
...gap" or interim zoning moratoria, however, play an important role in land use planning and are commonly employed. See Deighton v. City Council, 902 P.2d 426 (Colo.App.1994); Dollaghan v. County of Boulder, 749 P.2d 444 (Colo.App.1987); Schafer v. City of New Orleans, supra; see also R. Frie......
-
Tuscola Wind Iii, LLC v. Ellington Twp.
...between suspending an ordinance and imposing a moratorium on that ordinance has no merit. See also Deighton v. City Council of Colorado Springs, 902 P.2d 426, 429 (Colo. App. 1994) ("[T]he moratoria changed the administrative operation of the zoning ordinance as effectively as if it had bee......
-
Deighton v. CITY COUNCIL OF COLO. SPRINGS, 99CA0319.
...declined to address Deighton's constitutional claims that had been dismissed by the district court. Deighton v. City Council of Colorado Springs, 902 P.2d 426 (Colo.App.1994). On remand, the district court determined that because the court of appeals had concluded that the moratoria were im......