Gramiger v. Crowley, 78-882

• Decision Date: 25 June 1981
• Docket Number: No. 78-882,78-882
• Citation: 638 P.2d 797
• Parties: Hans R. GRAMIGER, Plaintiff-Appellee, v. Alfred J. CROWLEY, Building Inspector for the County of Pitkin, The Board of County Commissioners of the County of Pitkin County, Michael J. Kinsley, as Chairman thereof, Joseph E. Edwards, Jr., a member thereof, Robert Child, a member thereof, Dwight K. Shellman, Jr., individually and Joseph E. Edwards, Jr., individually, Defendants-Appellants. . I
• Court: Colorado Court of Appeals

Page 797

638 P.2d 797

Hans R. GRAMIGER, Plaintiff-Appellee, v. Alfred J. CROWLEY, Building Inspector for the County of

Pitkin, The Board of County Commissioners of the County of

Pitkin County, Michael J. Kinsley, as Chairman thereof,

Joseph E. Edwards, Jr., a member thereof, Robert Child, a

member thereof, Dwight K. Shellman, Jr., individually and

Joseph E. Edwards, Jr., individually, Defendants-Appellants.

No. 78-882.

Colorado Court of Appeals, Div. I.

June 25, 1981.

Rehearing Denied Aug. 27, 1981.

Certiorari Granted Dec. 21, 1981.

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

Oates, Austin, McGrath & Jordan, J. Nicholas McGrath, Jr., Robert W. Hughes, Sandra M. Stuller, Pitkin County Atty., Aspen, for defendants-appellants.

STERNBERG, Judge.

Hans R. Gramiger, the plaintiff, submitted to the Pitkin County Building Inspector an application for a permit for grading and excavation of a site in preparation for construction of a supper club and restaurant atop Shadow Mountain near Aspen. The site had some distinctive features: sole access to the mountain-top was to be by way of a specially constructed tramway which terminated in an established, primarily residential, neighborhood; rock had to be removed to determine how the structure would be anchored in bedrock; and it was adjacent to a steep, potentially unstable slope. The building inspector advised Gramiger that review by the state geologist would be necessary. Gramiger filed reports and letters which served to answer these questions.

Seven days after the original application had been submitted, the building inspector told Gramiger that the application was complete, but that official referred the application to the Board of County Commissioners for review at their regularly scheduled meeting some three days later.

However, on that same day, Gramiger filed a C.R.C.P. 106(a)(2) action, pro se, seeking a writ in the nature of mandamus to compel the building inspector to issue the permit. Thereafter, with Gramiger represented by counsel, a trial took place on the mandamus claim following which the trial court entered judgment granting the relief sought. From this judgment, the defendants appeal. We conclude that, because Gramiger failed to exhaust administrative remedies prior to seeking relief under C.R.C.P. 106, the district court lacked jurisdiction. Accordingly, we reverse.

We perceive Gramiger's theory to be that because his property was zoned to permit restaurant use, and because the excavation plans and specifications conformed with all lawful requirements, the building inspector's sole ministerial duty was to issue the permit, and, there being no other available form of relief, when the building inspector refused to issue or deny the permit pending review of the matter by the Pitkin County Board of Commissioners, recourse to the courts was proper. We do not agree.

An action in the nature of mandamus will lie to compel the issuance of a building permit withheld for any improper purpose; however, judicial relief of this nature may be sought only after available and effective administrative remedies have been exhausted. 4 R. Anderson, American Law of Zoning §§ 26.05 and 26.10 (2d ed. 1977); see Baum v....