Dillon Companies, Inc. v. City of Boulder, s. 25322
| Decision Date | 29 October 1973 |
| Docket Number | 25622,Nos. 25322,s. 25322 |
| Parties | The DILLON COMPANIES, INC., d/b/a King Soopers, a Kansas corporation, Duly Authorized to do Business in the State of Colorado, et al., Plaintiffs-Appellees, v. The CITY OF BOULDER, Colorado, a Colorado municipal corporation, et al., Defendants-Appellees. Rebecca Gustafson et al., Intervenors-Appellants. Rebecca GUSTAFSON et al., Plaintiffs-Appellants, v. The CITY OF BOULDER, Colorado, a municipal corporation, organized and existingunder and by virtue of the laws of the State of Colorado, et al., Defendants-Appellees. |
| Court | Colorado Supreme Court |
Quiat and Quiat, P.C., Gerald M. Quiat, Creamer and Creamer, George Louis Creamer, James C. Bull, Denver, for intervenors-appellants in No. 25322 and plaintiffs-appellants in No. 25622.
Walter L. Wagenhals, Boulder, for defendant-appellee City of Boulder.
Hollenbeck, King, French & Mills, Neil C. King, Peter C. Dietze, Boulder, for plaintiffs-appellees in No. 25322 and defendants-appellees in No. 25622.
Appellees Dillon Company and Coels own in the City of Boulder contiguous pieces of property, which are zoned for multi-family residential use. Pursuant to a city ordinance, Dillon Company and Coels made application to have their land rezoned to a planned development district to enable them to build a supermarket and a clinic building.
The Boulder Planning Board reviewed their application, held two public hearings, and thereafter with all members of the board present, unanimously approved this planned development. The planning board, therefore, recommended that the application be granted. After a hearing before the city council, it denied the application, but made no findings of fact to support the denial.
Dillon Company and Coels brought an appeal under C.R.C.P. 106(a)(4) in the district court. That court reviewed the record of the hearing before the city council and found that there was no evidence to support the denial of the application. The district court thereupon ordered the city council to 'rezone' the land of the applicant to planned development as provided in City of Boulder Ordinance Section 307--209 which has since been repealed and replaced by a new planned development ordinance.
The city council complied with the court order and passed the 'rezoning ordinance,' after deciding not to appeal the district court judgment. Landowners adjacent to the subject property thereupon sought to intervene for purpose of appeal. The district court denied intervention for lack of standing. The landowners then appealed the denial of intervention to this court in Supreme Court No. 25322.
The adjacent landowners thereafter brought a second action in the district court against the City of Boulder, Dillon Company, and Coels to have the 'rezoning ordinance' declared invalid. Most of the plaintiffs in this action are the same persons who were denied intervention in the first action. In this second action, in addition to the proposed intervenors in the first action, there are seven residential landowners whose property is also located in the close vicinity of the subject property. The district court dimissed their complaint as being a collateral attack on the first district court decision. This judgment was also appealed in Supreme Court No. 25622.
These two appeals have been consolidated in this court because both cases involve the same main issue, the same subject property, and substantially the same parties.
We find that the district court erred in denying intervention in the first action. C.R.C.P. 24(a)(2) establishes three requirements for intervention of right. 7(a) C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1908 (1972). First, C.R.C.P. 24(a)(2) requires 'an interest relating to the property or transaction which is the subject of the action.' The owner of the land which is within an area sought to be zoned or rezoned clearly meets this requirement. Here, however, the land which was to be 'rezoned' was realtively small and vacant. There are no homeowners on it. The rule however, does not require 'an interest in the property' but an 'interest relating to the property.' The record reveals that the proposed intervenors live between one and one-half and three and one-half blocks from the subject property. Thus, they meet the first requirement of the rule under the facts of this case.
Second, C.R.C.P. 24(a)(2) requires that the 'disposition of the action may as a practical matter impair or impede his ability to protect that interest.' The intervenors allege that a supermarket will affect their interest in several ways. The increased traffic will make it more hazardous for their children. The asphalt parking lot will affect drainage in the area, etc. The intervenors-appellants therefore also met this second requirement.
Third, the applicant's interest will not be 'adequately represented by existing parties.' The City of Boulder and city council in the first action decided not to appeal the district court decision. The intervenors therefore had no one to protect their interests through an appeal. See Allison v. People, 132 Colo. 156, 286 P.2d 1102 (1955); Crawford v. McLaughlin, 172 Colo. 366, 473 P.2d 725 (1970); and 7(a) C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1916 (1972). The intervenors-appellants accordingly met all three of the requirements for intervention of right.
We now proceed to discuss the merits of the district court's judgment in the first action in which the city council was ordered to grant the planned development application. The parties have submitted their briefs and have orally argued on the merits. The intervenors-appellants contend that the denial of the application was the result of legislative action, and therefore, not subject to review by the trial court under C.R.C.P. 106(a)(4).
As was mentioned previously in this opinion, the planned development ordinance involved in these appeals has been repealed and in its place, the city of Boulder has enacted a substantially different planned development ordinance. Consequently, our analysis and rulings herein are restricted to the ordinance which was in effect when the issues herein arose. We will refer to the ordinance involved here as the 'repealed ordinance.'
At this point, we note that many planned development ordinances represent a modern concept in progressive municipal planing. Usually, such ordinances, in effect, provide for the rezoning of a relatively small area within a large zoned area. Such rezoning may be approved but only if a number of specified conditions exists, if certain procedures are followed, and if various standards are met. Even though rezoning is involved, the concept is novel to traditional zoning or rezoning. R. Anderson, American Law of Zoning, § 5.16 and § 8.38.
The traditional view of zoning or rezoning is that it is essentially a legislative function which would not be subject to review as contemplated by C.R.C.P. 106(a)(4) under which this action was brought. In other words, after hearings and as the result of studies, certain municipal areas as a matter of legislative policy are designated for residential use, some for commercial use, and some for other uses compatible with the objective sought to be achieved by the city. See Nopro Company v. Town of Cherry Hills Village, Colo., 504 P.2d 344 (1972).
We are of the view that the repealed ordinance involved here formulated the legislative policy of granting a planned development application if an applicant complied with all the standards, followed its required procedures, and met its various conditions. This repealed ordinance sets forth a comprehensive itemization of mandatory factors which must be incorporated in the planned development. Also, it listed a vareiety of permissive factors which may or may not be required in a particular planned development depending upon its character or nature.
The formulation of this legislative policy which was accomplished when this repealed ordinance was enacted involved the performance of a legislative function. However, when the city council took upon itself in this ordinance the function of determining whether the legislative requirements and procedures set forth in the repealed ordinance had been met in connection with a planned development application, it was acting as...
To continue reading
Request your trial
-
Hartley v. City of Colorado Springs, 87SA186
...substantial evidence in the record. See Sellon v. City of Manitou Springs, 745 P.2d 229, 235 (Colo.1987); Dillon Co. v. City of Boulder, 183 Colo. 117, 123, 515 P.2d 627, 630 (1973). While both sides presented evidence to support their position, there was evidence to support the conclusion ......
-
Board of County Com'rs of Adams County v. City of Thornton
...property adjacent to rezoned land has standing to challenge rezoning which adversely affects his property. Dillon Companies v. City of Boulder, 183 Colo. 117, 515 P.2d 627 (1973); accord, Bedford v. Board of County Commissioners, 41 Colo.App. 125, 584 P.2d 90 (1978); Snyder v. City Council,......
-
Snyder v. City of Lakewood
...certain criteria established by law. Colorado Springs v. District Court, 184 Colo. 177, 519 P.2d 325 (1974); Dillon Companies, Inc. v. Boulder, 183 Colo. 117, 515 P.2d 627 (1973); Orchard Court Development Co. v. Boulder, 182 Colo. 361, 513 P.2d 199 (1973); Englewood v. Daily,158 Colo. 356,......
-
Feigin v. Alexa Group, Ltd., No. 99SC728.
...represented by existing parties. C.R.C.P. 24(a); People v. Ham, 734 P.2d 623, 625 (Colo.1987); The Dillon Cos., Inc. v. City of Boulder, 183 Colo. 117, 120-21, 515 P.2d 627, 628-29 (1973); Higley v. Kidder, Peabody & Co., 920 P.2d 884, 890 The denial of a motion to intervene as a matter of ......
-
Rule 24 INTERVENTION.
...dispute permits intervention. Intervention as a matter of right is permitted in a rezoning dispute. Dillon Cos. v. City of Boulder, 183 Colo. 117, 515 P.2d 627 (1973). Insurer has a right to intervene in action between its insured and an uninsured motorist if insurer can show that its inter......
-
Rule 106 FORMS OF WRITS ABOLISHED.
...of fact of a city council if there is "any competent evidence" in the record to support the findings. Dillon Cos. v. City of Boulder, 183 Colo. 117, 515 P.2d 627 (1973). Ex parte exchanges may not arbitrarily be screened from appellate scrutiny. Ex parte exchanges between an advocate and an......
-
APPEALS FROM LOCAL GOVERNMENT DECISIONS
...P.2d 1141 (Colo. App. 1985). But see JJR 1, LLC v. Mt. Crested Butte, 160 P.3d 365 (Colo. App. 2007). [83] Dillon Cos. v. City of Boulder, 515 P.2d 627 (Colo. 1973).[84] Douglas County v. Sundheim, 926 P.2d 545 (Colo. 1996); Danielson v. Zoning Bd. of Adjustment, 807 P.2d 541 (Colo. 1990).[......
-
Judicial Review, Referral and Initiation of Zoning Decisions
...cases where local zoning determinations have been overturned judicially on the merits in Colorado: Dillon Companies, Inc. v. Boulder, 183 Colo. 117, 515 P.2d 627 (1973); Cherry Hills Village v. Trans-Robles Corp., 181 Colo. 356, 509 P.2d 797 (1973); Clark, supra, note 35; Denver v. Denver B......