Francis v. City and County of Denver, 22080

• Decision Date: 06 September 1966
• Docket Number: No. 22080,22080
• Citation: 160 Colo. 440,418 P.2d 45
• Parties: George J. FRANCIS, Fran D. Francis and Vernon D. Vohoska, Plaintiffs in Error, v. The CITY AND COUNTY OF DENVER, a Municipal Corporation, Thomas Currigan as the Mayor of the City and County of Denver, the Board of Adjustment Zoning for the City and County of Denver, Thomas W. Bean, Harry W. Bundy, Leland S. Huttner, Michael Pomponio, and John Zimmerman, as members of the Board of Adjustment or purporting to act as members of the Board of Adjustment, Defendants in Error.
• Court: Colorado Supreme Court

Page 45

418 P.2d 45

160 Colo. 440

George J. FRANCIS, Fran D. Francis and Vernon D. Vohoska Plaintiffs in Error, v. The CITY AND COUNTY OF DENVER, a Municipal Corporation Thomas Currigan as the Mayor of the City and County of Denver, the Board of Adjustment Zoning for the City and County of Denver, Thomas W. Bean, Harry W. Bundy, Leland S Huttner, Michael Pomponio, and John Zimmerman, as members of the Board of Adjustment or purporting to act as members of the Board of Adjustment, Defendants in Error.

No. 22080.

Supreme Court of Colorado, En Banc.

Sept. 6, 1966.

Rehearing Denied Oct. 3, 1966.

George J. Francis, Denver, pro se and for plaintiffs in error.

Max P. Zall, City Atty., Earl T. Thrasher, Robert M. Kelly, Asst. City Attys., Denver, for defendants in error.

MOORE, Justice.

We will refer to the plaintiffs in error as the plaintiffs; to the City and County of Denver as the city; to Thomas Currigan as the Mayor; and to all other defendants as the Board of Adjustment.

In the trial court the plaintiffs sought a judgment invalidating certain orders of the Board of Adjustment concerning property which plaintiffs now own, and which allegedly unlawfully prevent them from the full use of their property in accordance with those uses which are authorized by the zoning ordinance of the city applicable to the area in which the real property is located.

Plaintiffs are the owners of a tract of unimproved land located on the southwest corner of 8th avenue and Washington street in Denver, commonly known as the Boettcher property. They acquired title to this tract of land after it had been included as part of a 'Zone Lot' by the Board of Adjustment-Zoning for the purpose of assembling a square-foot area sufficient to authorize the construction of a multiple story apartment house, on the southeast corner of the intersection upon which the Lido Apartments now stand. Immediately prior to April 1959 both of the properties were jointly owned by Green Acres Investment Co., Great Western Building Co., Parkview Building, Inc., and Green Meadows Land Co. The two properties are separated by Washington street.

The owners of the total land area made application to the Zone Administrator for the purpose of obtaining permission to include both parcels of land as a 'Zone Lot,' and also sought a permit to erect a multiple story apartment house on the southeast corner of 8th avenue and Washington street, across the street from the Boettcher property. The building which applicants sought to erect on the southeast corner of 8th and Washington contained a greater area of floor space than was permitted by zoning regulations applicable to that location. However, by including the Boettcher land across the street as part of the 'Zone Lot' upon which the Lido was to be built there would be sufficient ground area to authorize the proposed building. The application was made pursuant to Section 616 of the municipal code relating to 'Special Zone Lot Plan for Planned Building Groups.' By adding the Boettcher property the applicants gained an additional 40,000 square feet of gross floor area in connection with the proposed apartment house building to be erected on the southeast corner.

The Zoning Administrator denied the application of the owners to include the southwest corner as part of the 'Zone Lot.' Upon appeal to the Board of Adjustment, that body reversed the decision of the Zone Administrator and held that both parcels of land could be considered one 'Zone Lot.' By that order the Board of Adjustment thus authorized the issuance of a permit to erect the Lido Apartments.

The 'Planned Building Group' authorized by act of the Board of Adjustment contemplated that the Boettcher mansion would remain standing, its landscaping would be restored, no parking would be permitted, guests of the tenants of the new apartment house would make use of the mansion as sleeping quarters, and that no other use would be made of the Boettcher property. The Board of Adjustment found that all of the property was one 'Zone Lot,' and notwithstanding that it was divided by Washington street, it was a single parcel of contiguous land. Before the Lido was built the title to the Boettcher property was conveyed to new owners. It is clear that no use was ever made of the Boettcher property by the owners of the Lido Apartments or by any tenants of the Lido. In February 1960 the Board of Adjustment, upon application of the new owners, entered an order permitting the temporary use of the mansion as a single dwelling unit upon a showing that vandals were destroying the property, and that occupancy by someone would be desirable; however, it never was occupied. The windows were boarded up, and ultimately the entire structure was razed on order of the city. The corner has at all times since remained as vacant, unused ground. In the early part of 1964 a deed of trust on the Boettcher corner was foreclosed and title thereto passed to three Savings and Loan Associations by deed from the Public Trustee.

In November 1964 the plaintiffs acquired title to the Boettcher corner, and on December 8, 1964, they applied for a change in the 'Zone Lot' order of 1959. On February 2, 1965, this application was denied and the Board of Adjustment reaffirmed the restrictions upon the uses to which the Boettcher corner could be put as part of the 'Zone Lot Planned Building Group,' allocated to the Lido Apartments.

On March 1, 1965, the complaint in the instant action was filed by the Plaintiffs. Essentially, it is alleged in the complaint that the restrictions placed on the Boettcher corner were void for various reasons including the claim that the restrictions imposed were beyond the jurisdictional powers of the Board; that plaintiffs are deprived of all use of the land and are unable to subject it to any use authorized under the R-3 status of the area in which it is located; and that the Board which imposed the restrictions was illegally appointed. It was urged in the trial court that, even if the restrictions had been lawfully imposed in 1959, the refusal to grant plaintiffs' application for relief therefrom in 1965 because of changed circumstances was error and operated to deny any beneficial use of the property, and was therefore confiscatory and amounted to a denial of due process and equal protection of the law.

We direct attention to paragraph 13 of the first claim contained in plaintiffs' complaint. It reads as follows:

'Subsequent to the decision in Case #65--59, the zone ordinances of the Defendant City were amended with respect to bulk plane provisions and allowable gross floor area so that the Lido at the time of the plaintiffs application and appeal,...