Hallmark Builders and Realty v. City of Gunnison

• Decision Date: 07 September 1982
• Docket Number: No. 81SA319,81SA319
• Citation: 650 P.2d 556
• Parties: HALLMARK BUILDERS AND REALTY, a Colorado corporation, Plaintiff-Appellee, v. CITY OF GUNNISON, a Municipal corporation, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 556

650 P.2d 556

HALLMARK BUILDERS AND REALTY, a Colorado corporation Plaintiff-Appellee, v. CITY OF GUNNISON, a Municipal corporation, Defendant-Appellant.

No. 81SA319.

Supreme Court of Colorado En Banc.

Sept. 7, 1982.

Ranous & Stern, P.C., Karl Ranous, J. Steven Patrick, Gunnison, for plaintiff-appellee.

C. Patrick Carrico, Gunnison, for defendant-appellant.

LOHR, Justice.

The City of Gunnison (Gunnison) appeals from an order of the Gunnison County District Court declaring a Gunnison municipal zoning ordinance invalid because the notice of public hearing published in connection with the adoption of that ordinance was inadequate. We affirm.

I.

The present action arises from a request for rezoning of certain property located in Gunnison from R-2 Residential (R-2) to R-3 Residential (R-3). This application was filed by the predecessors-in-interest of the appellee, Hallmark Builders and Realty, Inc. (Hallmark). The Gunnison Planning and Zoning Commission (Commission) and the Gunnison City Council (Council) considered the application, and the Council thereafter denied it.

Hallmark, as successor-in-interest to the original applicants, then filed a complaint containing two claims for relief. The first claim sought C.R.C.P. 106 review of the Council's action in denying the rezoning application; alleged that the Council's action was arbitrary and capricious; and requested the trial court to enter an order directing the Council to grant the requested rezoning. The second claim requested a declaratory judgment striking down Gunnison Ordinance No. 7, Series 1978 (1978 ordinance) The facts underlying adoption of the 1978 ordinance were stipulated by the parties and can be briefly summarized. A comprehensive zoning ordinance containing two residential zones, R and R-G, was adopted by Gunnison in 1964. In the R zone, only one dwelling unit per lot was permitted, while both single- and multiple-family residential dwellings were allowed in the R-G zone without limitation on the number of dwelling units per lot. In 1972, Gunnison enacted an ordinance which substituted an R-1 designation for those areas previously zoned as R; replaced the R-G classification with a zone denominated R-2; and created a new R-3 zone. Multiple-family residential dwellings, without specific limitation as to number, were permitted in both R-2 and R-3 zones. Under this ordinance, the property subsequently acquired by Hallmark was located in an R-2 district.

a zoning ordinance limiting construction of residences within R-2 districts to no more than two dwelling units per structure or lot. Hallmark alleged that this ordinance was invalid because the public hearing held by the Commission in connection with adoption of the ordinance was not preceded by adequate notice informing the public of the proposed use change in R-2 districts.

On June 28, 1978, an ordinance was introduced before the Council providing that single-family and multiple-family residential dwellings in an R-2 zone were not to exceed two dwelling units in a single structure or on a single lot. On the same day, the ordinance was passed on the first of two required readings, ordered published, and referred to the Commission for a hearing and recommendation.

On July 3, 1978, two notices were published adjacent to each other in the Gunnison Country Times, a newspaper of general circulation in Gunnison County. The first was a notice by the Commission stating that it would hold a public hearing on August 3, 1978, concerning "an ordinance amending the zoning title of the City of Gunnison with respect to permitted uses in the R-2 Residential Zone." ¹ The second notice was by the Council and stated that an ordinance concerning permitted uses in the R-2 zone of the Gunnison zoning title had been "introduced, read, passed and ordered published this 28th day of June 1978." The Council notice set out the provisions of the amending ordinance in full. ² On August 3, 1978, the Commission held the scheduled hearing on the proposed ordinance. Comments from the public were invited at the hearing, but none were received. The Commission then voted to recommend approval of the ordinance, and, on August 9, 1978, the Council acknowledged the recommendation of the Commission and adopted the ordinance, without amendment, on the second and final reading.

Based upon the parties' stipulated facts and their briefs on the applicable law, the trial court entered its order on August 28, 1980. The court first rejected Hallmark's C.R.C.P. 106 attack on the action of the Council in denying the requested rezoning of Hallmark's property. The court next turned to the declaratory judgment action challenging the 1978 ordinance restricting permitted uses in an R-2 zone. It held that the notice published by the Commission was inadequate "because it fail[ed] to describe the contemplated amendment with sufficient particularity to advise a landowner of the specific change under consideration by the Commission." It further held that the notice by the Council published on the same day may have caused confusion in the minds of interested persons who read both notices. The court reasoned that a landowner with property in an R-2 zone who was concerned with his right to construct multiple-family residential dwellings may have read the Council's notice and concluded that the ordinance restricting such a use had already been passed. The landowner might then have assumed that the notice published by the Commission concerned some other change in permitted uses within an R-2 district, and concluded that it would not be useful to attend this Commission hearing relating to other matters not of concern to him. Based on the inadequacy of the Commission notice and the confusion created by the contemporaneous Council notice, the trial court declared the 1978 ordinance invalid.

Gunnison appealed from the part of the judgment that held the 1978 ordinance void. ³ We affirm because the simultaneous publication of the Commission and Council notices, under the facts of this case, created a serious potential for confusion of interested persons. ⁴

I.

Strict compliance with provisions for notice of a public hearing in connection with a zoning ordinance amendment is required. Holly Development, Inc. v. Board of County Commissioners, 140 Colo. 95, 342 P.2d 1032 (1959). If there are ambiguities in the notice of such a proposed change, these ambiguities should be resolved against the sufficiency of the notice. Id.; see City and County of Denver v. Eggert, 647 P.2d 216 (Colo. 1982). Generally, a notice should set forth the information reasonably necessary to provide adequate warning to all persons whose rights may be affected by the proposed action. Sundance Hills Homeowners Association v. Board of County Commissioners, 188 Colo. 321, 534 P.2d 1212 (1975); Holly Development, Inc. v. Board of County Commissioners, supra. In order to accomplish this purpose, the notice, at a minimum, must give the date, time, and place of the hearing and apprise the public of the subject matter of the hearing and the nature of the proposed zoning change. Sundance Hills Homeowners Association v. Board of County Commissioners, supra; see Grant v. Board of County Commissioners, 164 Colo. 69, 432 P.2d 762 (1967); In the present case, the notices published by the Commission and the Council, when read together, were not sufficient to provide the unambiguous notice required under our precedents. In considering the adequacy of a published notice we must be mindful that it is to be interpreted in light of the knowledge of the ordinary layman to whom it is directed. Holly Development, Inc. v. Board of County Commissioners, supra. An interested person reading both notices could have been confused as to the purpose of the Commission hearing. The notice published by the Council did not indicate that the Council's action in adopting the ordinance concerned only the first of two required readings. Rather, it stated simply that the amending ordinance had been "introduced, read, passed and ordered published." As a result, an individual reading this notice justifiably could have concluded that the 1978 ordinance was effective. The notice by the Commission did not specifically outline the zoning amendment under consideration, but simply stated that it concerned permitted uses in an R-2 district. Given the uncertainty created by this lack of specificity, and in light of the accompanying notice by the Council indicating final adoption of the 1978 ordinance, a reader reasonably could have concluded that the Commission hearing must have concerned some other proposed zoning change in R-2 districts. Consequently, a person concerned with his right to construct multiple-family residential dwellings in an R-2 district could have determined that the issue of concern to him had already been resolved, and that it would not be fruitful to attend the Commission hearing concerning some other matter.

Center Land Co. v. Board of County Commissioners, 44 Colo.App. 523, 619 P.2d 782 (1980).

Our conclusion that the notices, read together, were impermissibly confusing is fortified by the fact that the Commission's hearing notice was published adjacent to the misleading notice of adoption of the 1978 Ordinance. Moreover, the alleged defect in the present case does not arise merely from the failure to include all possible information of interest to an affected person, but from the affirmatively misleading impression created by the notices.

Gunnison asserts that the adequacy of the Commission's notice should be determined independently of the adjacent Council notice, and that the trial court erred in considering the interrelation of the two...