Gramiger v. Crowley, 81SC318

• Decision Date: 28 March 1983
• Docket Number: No. 81SC318,81SC318
• Citation: 660 P.2d 1279
• Parties: Hans R. GRAMIGER, Plaintiff-Appellee, v. Alfred J. CROWLEY, Building Inspector for the County of Pitkin County, The Board of County Commissioners of the County of Pitkin County, Michael J. Kinsley, as Chairman thereof, Robert Child, a member thereof, Dwight K. Shellman, Jr., individually and Joseph E. Edwards, Jr., individually, Defendants-Appellants.
• Court: Colorado Supreme Court

Page 1279

660 P.2d 1279

Hans R. GRAMIGER, Plaintiff-Appellee, v. Alfred J. CROWLEY, Building Inspector for the County of Pitkin County, The Board of County Commissioners of the County of Pitkin County, Michael J. Kinsley, as Chairman thereof, Robert Child, a member thereof, Dwight K. Shellman Jr., individually and Joseph E. Edwards, Jr., individually Defendants-Appellants.

No. 81SC318.

Supreme Court of Colorado En Banc.

March 28, 1983.

Kerwin & Elliott, Thomas J. Kerwin, Jane Anne Murphy, Denver, for plaintiff-appellee.

Wesley Light, Aspen, for defendants-appellants.

NEIGHBORS, Justice.

The petitioner filed suit requesting a writ of mandamus from the District Court in Pitkin County. The relief was granted by the trial court. The court of appeals reversed, concluding that because the petitioner had failed to exhaust his administrative remedies before seeking relief under C.R.C.P. 106(a)(2), the district court lacked jurisdiction. Gramiger v. Crowley, 638 P.2d 797 (Colo.App.1981). We granted certiorari to review the court of appeals' decision. We reverse and remand the case with directions.

On February 23, 1973, the petitioner submitted an application for an excavation and grading permit ¹ to the Pitkin County Building Inspector (building inspector). The permit was required to enable the petitioner to perform exploratory work in preparation for the construction of a proposed supper club and restaurant atop Shadow Mountain near Aspen. The building inspector advised the petitioner that the state geologist would be required to review the permit application. The petitioner then obtained and filed reports and letters with the building inspector which were satisfactory to the inspector.

One week after the application had been submitted, the building inspector told the petitioner that the application was complete. However, the inspector neither granted nor denied the application. Instead, he referred the matter to the Board of County Commissioners for Pitkin County for consideration by them at their regularly scheduled meeting three days later. The building inspector told the petitioner that "if it was up to him, he would give me the permit, but it wasn't up to him, it was up to the commissioners."

The petitioner, acting pro se, immediately filed suit pursuant to C.R.C.P. 106(a)(2) seeking a writ of mandamus to compel the building inspector to issue the permit. The case was ultimately tried to a jury which rendered a verdict for the petitioner.

The court of appeals, sua sponte, raised the issue of exhaustion of administrative remedies during oral arguments. The parties were directed to file supplemental briefs addressed to that issue. The court of appeals held that the petitioner had failed to exhaust his administrative remedies and had prematurely filed suit for mandamus. The court of appeals directed the district court to dismiss the petitioner's amended complaint.

I.

There is a three part test which must be satisfied by a plaintiff before mandamus will be issued by the court. One, the plaintiff must have a clear right to the relief sought. Aspgren v. Burress, 160 Colo. 302, 417 P.2d 782 (1966). Two, the defendant must have a clear duty to perform the act requested. Ahern v. Baker, 148 Colo. 408, 366 P.2d 366 (1961). Three, there must be no other available remedy. Potter v. Anderson, 155 Colo. 25, 392 P.2d 650 (1964); Sheeley v. Board of County Commissioners, 137 Colo. 350, 325 P.2d 275 (1958); Heron v. Denver, 131 Colo. 501, 283 P.2d 647 (1955). Our focus in this case is narrowly limited to the third element. Clearly, mandamus will not issue until all forms of alternative relief have been exhausted. United States ex rel. Girard Trust Co. v. Helvering, 301 U.S. 540, 57 S.Ct. 855, 81 L.Ed. 1272 (1937); Holmes v. United States Board of Parole, 541 F.2d 1243 (7th Cir.1976).

Failure to exhaust administrative remedies is generally jurisdictional. If an applicant for judicial intervention has not exhausted his or her administrative remedies, the courts lack jurisdiction to grant relief. Moschetti v. Liquor Licensing Authority of City of Boulder, 176 Colo. 281, 490 P.2d 299 (1971); Hansen v. Keim, 650 P.2d 1313 (Colo.App.1982). However, there are two important exceptions to this general rule which are dispositive of this case. First, the exhaustion doctrine has no application where the administrative agency does not have the authority to pass on every question raised by the party who has resorted to judicial relief. 2 Am.Jur.2d Admin.Law § 597 (1962). Second, an exception to the exhaustion doctrine is recognized where there is grave doubt that the administrative agency has the authority to pass on the question raised by the party seeking judicial action. Allen v. Grand Central Aircraft Co., 347 U.S. 535, 74 S.Ct. 745, 98 L.Ed. 933 (1954); Jorgensen v. Pennsylvania Railroad Co., 25 N.J. 541, 138 A.2d 24 (1958).

A.

In its decision, the court of appeals states that "the building inspector was proceeding in accordance with the Pitkin County Zoning Code § 9.3 in referring the application for the building permit to the Board of County Commissioners." Gramiger v. Crowley, 638 P.2d at 799. This conclusion is erroneous for two reasons. First, the petitioner's application was not for a building permit, but rather for excavation and grading at the site of the proposed restaurant. Second, at the board's meeting on March 19, 1973, when it directed the building inspector to reject the application, Commissioner Edwards withdrew his earlier motion that the board consider the application for the permit pursuant to the provisions of section 9.3.

Section 9.3 of the Pitkin County Zoning Code has no application to the facts of this case. ² Section 9.3 authorizes the board of county commissioners to review only building and sign permits. The record is silent as to any provisions of law authorizing the commissioners to pass upon excavation and grading permits.

B.

The court of appeals next suggests that the petitioner could have obtained administrative relief from the Pitkin County Board of Adjustment. The General Assembly has authorized the creation of boards of adjustment. Section 30-28-118(1), C.R.S.1973, the statute then in effect, granted to the Pitkin County Board of Adjustment the following authority:

"Appeals to the board of adjustment may be taken by any person aggrieved by his inability to obtain a building permit or by the decision of any administrative officer or agency based upon or made in the course of the administration or enforcement of the provisions of the zoning resolution."

The enabling statute limits the authority of the board of adjustment to questions involving building permits and decisions made by officials in the course of administering or enforcing the zoning resolution. The statute is silent on the issue of excavation and grading permits.

Section 11.1 of the Pitkin County Zoning Code establishes the powers and duties of the board of adjustment. The code provides in pertinent part:

"11.1 POWERS & DUTIES

"The Board of Adjustment shall have the following powers and duties, all of which shall be exercised subject to the laws of the State of Colorado and subject to appropriate conditions and safeguards, in harmony with the purpose and intent of this resolution and in accordance with the public interest and the most appropriate development of the area.

"1. To hear and decide appeals from, and review any order, requirement, decision or determination made by an administrative official charged with enforcement of the regulations established by this resolution."

Section 11.1 likewise limits the authority of the board of adjustment to questions involving decisions made in the course of the administration or enforcement of the zoning resolution. The Pitkin County Zoning Code does not contain any provisions governing applications for excavation and grading permits. Rather, that authority is found only in Chapter 70 of the Uniform Building Code (1970).

C.

We conclude that the court of appeals erroneously decided that the trial court lacked jurisdiction because the petitioner failed to exhaust his administrative remedies. First, there were no administrative remedies available to the petitioner under the Pitkin County Zoning Code or the Colorado statutes. Second, there is grave doubt that either of the administrative agencies suggested by the court of appeals had the authority to grant relief to the petitioner for the building inspector's refusal to grant the requested permit. ³ This conclusion is supported by the respondents' abandonment of their motion for summary judgment on the exhaustion issue, their failure to preserve the alleged error in their motion for a new trial, and their failure to raise the exhaustion doctrine in the original briefs filed with the court of appeals.

In summary, the issues surrounding the petitioner's application for an excavation and grading permit did not involve a zoning dispute within the purview of the Pitkin County Zoning Code. Therefore, the petitioner was entitled to seek a writ of mandamus in the district court. See Ouellette v. Building Inspector of Quincy, 362 Mass. 272, 285 N.E.2d 423 (1972); Colonial Estates, Inc. v. Stanco, 39 Misc.2d 396, 240 N.Y.S.2d 626 (1963).

II.

The decision of the court of appeals is reversed. This case is remanded to the court of appeals with directions to resolve this appeal on its merits.

QUINN and DUBOFSKY, JJ., dissent.

LOHR, J., does...