FIRE HOUSE CAR WASH v. Bd. of Adjustment, 99CA1652.
| Decision Date | 04 January 2001 |
| Docket Number | No. 99CA1652.,99CA1652. |
| Citation | 30 P.3d 762 |
| Parties | The FIRE HOUSE CAR WASH, INC., a Colorado corporation; William Kuntzler, its President; Rak Investments, Inc., a Colorado corporation; and Richard A. Kates, its President, Plaintiffs-Appellants and Cross-Appellees, v. BOARD OF ADJUSTMENT FOR ZONING APPEALS, CITY AND COUNTY OF DENVER; Virginia A. Martinez, Kevin Malloy, Susan Sanders, Sharron Frank Klein, and Ike Kelley, solely in their official capacities as members of the Board of Adjustment; The Department of Zoning Administration, City and County of Denver; Kent Strapko, solely in his official capacity as Zoning Administrator; and The City and County of Denver, a municipal corporation, Defendants-Appellees and Cross-Appellants, and The Alamo Placita Neighbors Association; James N. Kayser, Yvonne E. Kayser, Mark J. Naylor, Christine Mary Naylor, and Joseph Halpern, Intervenors-Defendants-Appellees. |
| Court | Colorado Court of Appeals |
Certiorari Denied September 10, 2001.1
Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Thomas J. Ragonetti, J. Thomas Macdonald, Munsey L. Ayers, Jr., Powers Phillips, P.C., Tamara K. Vincelette, Denver, CO, for Plaintiffs-Appellants and Cross-Appellees.
J. Wallace Wortham, Jr., City Attorney, Thomas Bigler, Assistant City Attorney, Denver, CO, for Defendants-Appellees and Cross-Appellants.
Daniel C. Himelspach, Denver, CO, for Intervenors-Defendants-Appellees Alamo Placita Neighbors Association, James N. Kayser, Yvonne E. Kayser, Mark J. Naylor, and Christine Mary Naylor.
Joseph W. Halpern, Pro Se.
Opinion by Judge ROY.
In this appeal, The Firehouse Car Wash, Inc., and William Kuntzler, its president (collectively business owner); and RAK Investments, Inc., and Richard A. Kates, its president (collectively property owner), appeal the judgment of the trial court affirming the administrative decision and action of the Board of Adjustment for Zoning Appeals of the City and County of Denver (the Board) revoking a non-conforming use. The board members, the Department of Zoning Administration and its administrator, and the City and County of Denver (collectively Denver) cross-appeal the order of the trial court effectively denying its costs incurred in the preparation of the record on appeal. We affirm and remand for an award of costs.
During the administrative proceeding, the Board permitted The Alamo Placita Neighbors Association and some of its individual members (collectively neighbors) to intervene. In this appeal, neighbors are aligned with Denver.
The facts are essentially undisputed. Business owner operates a multifaceted business that includes a car wash, gasoline station, retail area, and detail shop, located in a primarily residential area of central Denver. The car wash is a non-conforming use. The business was acquired by business owner in 1997 from property owner, who retained ownership of the real property. The car wash has been in existence since 1966, when property owner obtained a permit to operate a coin-operated car wash as a non-conforming use. In the intervening years, the business has expanded to include more land, equipment, and services. Property owner purchased adjacent properties and demolished residences to facilitate this growth.
The business operates on two lots zoned B-2, and it is asserted that it has expanded onto a lot zoned R-2. As pertinent here, B-2 zoning permits, as a use by right, the operation of a service, or gasoline filling, station with some limitations; and an auto polishing business with the restriction that any vehicle washing be limited to those vehicles which are polished. R-2 zoning permits residential uses only.
The business occupies the B-2 zoned parcels, which constitute the north end of a city block bounded on the north by Sixth Avenue, on the west by Ogden Street, and on the east by Corona Street, and which are divided by a north-south public alley. On the west half of the block there is a gasoline station and a residence which has been converted to an office building. The gasoline station is an island station, that is, the pumps and booth both occupy an island. There is no indication in this record how much gasoline sales contribute to the business.
The car wash is located in a large brick building on the northeast corner of the block. The car wash occupies the northerly 40%, the retail sales and customer waiting area occupy the middle 20%, and a detail shop occupies the southerly 40% of the building.
The space occupied by the gasoline station is frequently used to line up vehicles for the car wash. The vehicles are lined up, sometimes three abreast, and are fed into the single lane car wash. The drying and wiping operations sometimes encroach on the public sidewalk, and onto Corona Street to the east and, during busy periods, vehicles awaiting the car wash encroach on Ogden Street to the west.
The vehicles are operated by car wash employees for entry into the car wash and until they are returned to the customers after drying on the east side of the building. The car wash can process 1.5 vehicles a minute, and the business owner testified that it washes 175,000 vehicles a year.
Shortly after acquiring the business, business owner installed an automated automobile polishing machine in the portion of the building occupied by the automobile detail shop. The automated polishing service is offered to all the car wash customers. If a customer accepts this service, a car wash employee drives the vehicle from the drying area, around the block or up the public alley, into the detail shop, into and out of the polishing machine, and the vehicle is then returned to the owner following the polishing. The customer pays one bill. Virtually all of the vehicles which are polished are also washed in the car wash. However, the polishing machine serves less than 5% of the 175,000 cars washed each year. It is undisputed that business owner installed the polishing machine without consulting, or seeking a use permit from, Denver.
The R-2 parcel is located south of, and immediately adjacent to, the car wash building. It has been landscaped as a park with a concrete apron on the east end and an employee parking area on the west end. The parcel has been used to store empty containers that originally contained chemicals used in the car wash pending disposal. In addition, a small shed used to store car wash equipment and trash, a small area for drying sludge from the car wash, and a trailer used to haul the dried sludge to the landfill, are all located, used, or stored on the R-2 parcel. The concrete apron on the east side of the parcel is, on occasion, used for drying or storing vehicles from the car wash operation. Applications to rezone this parcel for car wash expansion and use have been denied by Denver.
Denver issued two cease and desist orders, the first on July 17, 1997, prompted by business owner's installation of the polishing machine, and the second issued on January 28, 1998, prompted by business owner's use of the R-2 parcel. Business owner appealed the orders to the Board, which upheld them after an extended hearing.
Owners then sought review of the Board's decision to the district court pursuant to C.R.C.P. 106(a)(4), claiming that the Board exceeded its jurisdiction and abused its discretion. Before the district court, they asserted, as they do in this appeal, that the applicable ordinances do not authorize termination of the non-conforming use as a remedy for the cited and proved violations. Instead, relying in part on Anderson v. Board of Adjustment for Zoning Appeals, 931 P.2d 517 (Colo.App.1996), they argued that Denver is first required to issue an order giving business owner an opportunity to bring its operations into compliance.
Owners also sought declaratory and injunctive relief pursuant to C.R.C.P. 57 and 65, on a number of grounds, including, as relevant here, an assertion that Denver Revised Municipal Code (D.R.M.C.) 59-631(b) is unconstitutional as applied as it constitutes an impermissible delegation of legislative power, is void for vagueness, and violates their procedural due process rights.
The parties filed cross-motions for summary judgment. The trial court made detailed findings of fact, conclusions of law, and issued an order granting Denver's motion for summary judgment on owners' C.R.C.P. 106, 57, and 65 claims. The trial court dismissed owners' remaining claims.
At the outset, we address our standard of review with respect to C.R.C.P. 106(a)(4) proceedings. The review of a quasi-judicial action by an administrative agency is an appellate review limited to the record made before the administrative agency. The agency's findings of fact are binding on the court if supported by competent evidence. See Fueston v. City of Colorado Springs, 713 P.2d 1323 (Colo.App.1985)
. The standard of review in both the trial court and this court is whether the Board abused its discretion or exceeded its jurisdiction. City of Colorado Springs v. Givan, 897 P.2d 753 (Colo.1995). In addition, the interpretation of a rule by the agency charged with its enforcement is entitled to great deference. Regents of University of Colorado v. City & County of Denver, 929 P.2d 58 (Colo.App.1996).
Here, the parties both filed motions for summary judgment as to both the C.R.C.P. 106 appellate review and the C.R.C.P. 57 claims for declaratory judgment. The trial court granted Denver's motion.
Summary judgment is a drastic remedy and should only be granted if there is a clear showing that no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. The non-moving party is entitled to all favorable inferences that may be drawn from the undisputed facts, and all doubts as to whether a triable issue of fact exists must be resolved against the moving party. See Compass Insurance Co. v. City of Littleton, 984 P.2d 606 (Colo.1999)
.
We conclude...
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