Einarsen v. City of Wheat Ridge
| Decision Date | 13 September 1979 |
| Docket Number | No. 79CA0257,79CA0257 |
| Citation | 604 P.2d 691,43 Colo.App. 232 |
| Parties | Robert L. EINARSEN, Harold D. Einarsen, and Charles A. Einarsen, Plaintiffs-Appellees, v. CITY OF WHEAT RIDGE, a municipal corporation; City Council of the City of Wheat Ridge; and State of Colorado, Defendants-Appellants. . I |
| Court | Colorado Court of Appeals |
George Alan Holley & Associates, Scott D. Albertson, Golden, for plaintiffs-appellees.
Edmund G. Lambert, City Atty., Thomas J. Hindman, Asst. City Atty., Lakewood, for defendants-appellants.
The defendants appeal a judgment reversing a decision of the Wheat Ridge City Council denying plaintiffs', the Einarsens, application for rezoning. We reverse.
The Einarsens own a tract of land in Wheat Ridge, consisting of approximately 8 acres zoned R-1 and C-1. An application was filed in 1976 requesting a change of zoning to Planned Commercial Development. The planning commission recommended that the rezoning be approved. The planning department of the city recommended denial, and a group of citizens living in the surrounding residential area, through counsel, also opposed the rezoning. The city council denied the application, finding that the proposed change was inconsistent with the city's comprehensive plan which specified low density residential use similar to land use in the surrounding neighborhood. The council also found that development pursuant to the comprehensive plan permitted economic use of the land.
In the ensuing C.R.C.P. 106(a)(4) review, the district court found that statutory noise abatement measures required for residential development were so extensive when applied to this property as to be confiscatory in nature, and that the city council violated Colorado's Public Meetings Law, § 29-9-101, C.R.S.1973, when it held a non-public fact-finding session. The district court therefore reversed the city's decision and ordered approval of the rezoning. Other claims for relief pled in the district court action sounding in inverse condemnation were held in abeyance pending determination of this appeal. See C.R.C.P. 54(b). The city contends in this appeal that its actions were neither an abuse of discretion nor violative of Colorado's Public Meetings Law. We agree.
Initially, we note that the focus of this dispute below centered on Colorado's Noise Abatement Statute, § 25-12-101 et seq., C.R.S.1973. It was assumed by the parties, and the trial court, that this statute precludes residential development when noise emanating Onto property exceeds limits set forth in § 25-12-103, C.R.S.1973.
We do not agree with this interpretation of the statute. By its plain language the act applies to "noise Radiating from a property line." (emphasis added) Violation of the statutorily proscribed limitations is prima facie evidence of a public nuisance for which an action to abate may be filed. Section 25-12-104, C.R.S.1973. But, nowhere does the statute proscribe residential development of property impacted by excessive noise; thus, the court's finding designating the statute to be confiscatory of these plaintiffs' property is not sustainable. It is not a judicial function to change the plain meaning of words in a statute. Tompkins v. DeLeon, Colo., 595 P.2d 242 (1979).
The record of proceedings before the city council reveals that sufficient competent evidence was adduced to support the council's decision. While a witness testified that the property could not be developed for residential use without installation of extensive noise abatement barriers and uneconomic changes in construction, his opinion was...
To continue reading
Request your trial
-
Sheep Mountain Alliance v. Bd. of Cnty. Comm'rs, Montrose Cnty.
...Fuels or interested citizens. Nor was the purpose of the work session to gather evidence. See also Einarsen v. City of Wheat Ridge, 43 Colo.App. 232, 234, 604 P.2d 691, 693 (1979) (council deliberation on evidence already presented at public hearing in its “fact-finding session” did not vio......
-
Hudspeth v. Board of County Com'rs of Routt County
...to permit review and deliberation upon evidence in a closed session so long as no final action is taken. Einarsen v. City of Wheat Ridge, 43 Colo.App. 232, 604 P.2d 691 (1979). Unlike the attorney for the school board in Weissman v. Board of Education, 190 Colo. 414, 547 P.2d 1267 (1976), a......
-
Glenwood Post, a div. of Stauffer Communications, Inc. v. City of Glenwood Springs, 85CA0117
...meeting, which must include the reasons for each vote, if any. Cf. Hudspeth v. Board of Education, supra; Einarsen v. City of Wheat Ridge, 43 Colo.App. 232, 604 P.2d 691 (1979); Robertson v. Board of Education, 39 Colo.App. 462, 570 P.2d 19 (1977). Thus, we conclude that there are sufficien......
-
Hubbard Broadcasting, Inc. v. City of Afton
...and open discussion, deliberations and informed public decision-making. Like the zoning review situation in Einarsen v. City of Wheat Ridge, 43 Colo.App. 232, 604 P.2d 691 (1979), all evidence was presented and all actions were taken at public meetings. No open meeting law violation was fou......
-
Rule 54 JUDGMENTS; COSTS.
...App. 166, 602 P.2d 895 (1979); Haines v. United Sec. Ins. Co., 43 Colo. App. 276, 602 P.2d 901 (1979); Einarsen v. City of Wheat Ridge, 43 Colo. App. 232, 604 P.2d 691 (1979); Naiman v. Warren A. Flickinger & Assocs., 43 Colo. App. 279, 605 P.2d 63 (1979); Ellerman v. Kite, 626 P.2d 696 (Co......
-
Rule 106 FORMS OF WRITS ABOLISHED.
...43 Colo. App. 137, 602 P.2d 890 (1979); Romero v. Rossmiller, 43 Colo. App. 215, 603 P.2d 964 (1979); Einarsen v. City of Wheat Ridge, 43 Colo. App. 232, 604 P.2d 691 (1979); Rainwater v. County Court, 43 Colo. App. 477, 604 P.2d 1195 (1979); People ex rel. Losavio v. Gentry, 199 Colo. 153,......
-
Chapter 2 - § 2.6 • LIMITATIONS ON ZONING POWERS
...County Apartment Ass'n v. City of Boulder, 97 P.3d 332 (Colo. App. 2004).[118] C.R.S. § 25-12-103.[119] Einarsen v. City of Wheat Ridge, 604 P.2d 691 (Colo. App. 1979).[120] See Evans v. Boulder County Comm'rs, 752 F. Supp. 973 (D. Colo. 1990).[121] 42 U.S.C. §§ 5401 to 5426; Colo. Manufact......
-
Chapter 1 - § 1.4 • LOCAL REGULATION
...noise is periodic, impulsive, or shrill).[164] C.R.S. § 25-12-103(11).[165] C.R.S. § 25-12-104.[166] Einarsen v. City of Wheat Ridge, 604 P.2d 691, 692 (1979).[167] C.R.S. § 25-12-103.[168] See, e.g., Denver Rev. Mun. Code § 36-6; Colo. Springs Mun. Code § 9.8.104.[169] Colo. Springs Mun. C......