Hartley v. City of Colorado Springs, 87SA186

Citation764 P.2d 1216
Decision Date28 November 1988
Docket NumberNo. 87SA186,87SA186
PartiesHazel HARTLEY and Hartley & Sons, Inc., a Colorado corporation, Plaintiffs-Appellants, v. CITY OF COLORADO SPRINGS; The City Council, Colorado Springs; Robert M. Isaac, Mayor; Leon Young, Vice Mayor; Wilton Cogswell, Frank Parisi, William Snyder, Bruce Shepherd and Mary Ellen McNally, each in their official capacity; Walt Kreidel, Zoning Inspector, in his official capacity; Marty Miller and Hope Fonseca, Defendants-Appellees.
CourtColorado Supreme Court

John Randolph Torbet, Colorado Springs, for plaintiffs-appellants.

James G. Colvin, II, City Atty., M. Allen Ziegler, Jr., Chief Corporate Atty., Colorado Springs, for defendants-appellees.

VOLLACK, Justice.

Hazel and Joseph Hartley appeal the decision of the El Paso County District Court denying their claims for relief under C.R.C.P. 106(a)(4). The Hartleys claim that the Colorado Springs City Council (city council) abused its discretion in reconsidering a decision following a tie vote at a prior meeting and applied the incorrect standard in deciding that the Hartleys had "discontinued" their nonconforming use in violation of section 14-13-101(E) of the Colorado Springs Zoning Code. They also argue that the phrase "normal use" in section 14-13-101(E) is unconstitutionally vague. We affirm the judgment of the district court.

I.

In 1967, the Hartleys purchased a corner lot in a residential neighborhood in Colorado Springs. 1 The lot contained a one-family house and storage facilities that had been used to operate a commercial wood and coal yard. The Hartleys lived in the house and maintained the wood and coal business as a legal nonconforming use until November 15, 1982, when they leased the property to Kenneth and Tara West. The two year lease obligated the Wests to maintain the wood and coal business. The Hartleys then moved to their other residence in Florence, Colorado, where they maintained a separate wood and coal business. The Wests obtained a sales and use tax license in November 1982 and began to operate the wood and coal yard in Colorado Springs.

By all accounts, the volume of business at the Colorado Springs wood and coal yard dropped significantly when the Wests took over the business. The Wests failed to renew their sales and use tax license when it expired in July 1983 and paid no sales tax after October 1983. They disconnected their phone and were difficult to contact. The 1984 Colorado Springs business directory listed the property as vacant. Yet, at all times, there was wood and coal on the property. In October 1984, prior to termination of the lease, the Hartleys returned to the property, obtained a new sales and use tax license, and resumed their operation of the business.

In November 1984, a neighbor complained to the City of Colorado Springs (city) that the Hartleys had discontinued their nonconforming use of the property for more than one year in violation of section 14-13-101(E) of the Colorado Springs Zoning Code. 2 She provided affidavits of neighbors who observed no sales of wood or coal on the property. She stated that the Wests had allowed the business sign to fall down without replacing it and had allowed weeds to grow hip high in the front yard. She said many former customers of the Hartleys told her that they could never get in touch with the Wests to buy wood or coal. Based on her complaint, the City issued a stop order on April 22, 1985, prohibiting the Hartleys from using the property to sell wood or coal.

The Hartleys appealed the stop order to a Colorado Springs hearing officer. A hearing was held on July 3, 1985. The Hartleys provided affidavits of neighbors who had observed that the business was still in operation, cancelled checks and other receipts, testimony of buyers of wood or coal during that time, and the 1982 lease agreement. 3 Mrs. Hartley also testified to the difficulty of demonstrating continued use of the property when sales of wood and coal are seasonal and not likely to occur in the summer months. On July 11, the hearing officer concluded that the Hartleys had not discontinued their nonconforming use, and dismissed the stop order. Relying on Corper v. City & County of Denver, 36 Colo.App. 118, 536 P.2d 874 (1975), aff'd, 191 Colo. 252, 552 P.2d 13 (1976), the hearing officer stated that proof of intent to abandon a nonconforming use is an element of discontinuance, and had not been shown in this case.

The neighbor appealed the hearing officer's decision to the city council. Notice to the public and the parties was provided, and a hearing was held on August 13, 1985. One of the nine members of the city council, however, was unable to attend the meeting. After hearing the evidence, the city council voted 4 to 4 to uphold the decision of the hearing officer. At that time, the city attorney informed the city council that he believed the effect of its tie vote was to uphold the hearing officer's decision because of the presumption of continuance of legal nonconforming uses. The city council asked the city attorney to submit a memorandum to the council at the next meeting concerning the legal effect of its tie vote.

At the next city council meeting on August 27, all nine members of the council were present. Neither of the parties was present, however, because the city council had not given public notice that it might reconsider its August 13 vote. 4 The city attorney presented his memorandum to the city council. He told the council that the effect of its August 13 vote was "no decision." As a result, he said, the nonconforming use would continue unless the city council found by a majority vote that the nonconforming use had been discontinued. He concluded that the city council was free to reconsider the matter despite the August 13 vote. Upon motion of the ninth city council member, the council voted to reconsider the August 13 decision at a later hearing. The parties were informed of the decision to reconsider, and another hearing was scheduled.

On November 26, 1985, the city council met to reconsider the August 13 decision. Both parties were present, although no notice of the hearing had been given to other members of the public. The Hartleys objected to the hearing, claiming that the city council was without jurisdiction to reconsider its vote of August 13 because the council had not given notice to the parties or the public that it might vote to reconsider its decision at the August 27 meeting. The city council overruled the Hartleys' objection. Both parties were then permitted to present additional evidence, and the city council conducted a de novo review of the hearing officer's decision. At the conclusion of the evidence, the city council voted 5 to 2 to reverse the decision of the hearing officer. Its position was that proof of nonuse of the property for the time stated in section 14-13-101(E) terminated the nonconforming use regardless of whether there was evidence of intent to abandon the nonconforming use. 5 The city council held that the Hartleys had discontinued their nonconforming use in violation of section 14-13-101(E).

The Hartleys appealed the November 26 decision of the city council to the El Paso County District Court pursuant to C.R.C.P. 106(a)(4). They argued that the city council acted arbitrarily by reconsidering its August 13 decision; misconstrued section 14-13-101(E); abused its discretion by failing to consider whether there was an intent to abandon the nonconforming use; and relied on an unconstitutionally vague zoning ordinance. On September 5, 1986, the district court affirmed the decision of the city council.

II.

The Hartleys raise three arguments in support of their claim that the city council's decision of November 26, 1985, was procedurally defective. We reject all three arguments.

The Hartleys argue first that the city council was without jurisdiction to reconsider its August 13 decision because the zoning code does not expressly provide for reconsideration of a city council decision. We do not agree. The city council had express authority to reconsider a decision pursuant to Rule 18(k) of the "Legislative Procedures and Rules of Council" of the City of Colorado Springs. Rule 18(k) states that a motion to reconsider can be made "at the same meeting or at a meeting other than the meeting at which the action was taken."

The Hartleys argue second that the city council was without jurisdiction to decide whether to reconsider its August 13 decision on August 27 because it did not give notice to the parties or to the general public that it might do so. We do not agree. As we noted in rejecting the Hartleys' first procedural argument, the city council had authority pursuant to Rule 18(k) to reconsider its August 13 vote. It is significant that the August 27 meeting did not entail consideration of new evidence or ex parte communications to one of the parties. The council simply voted to reconsider the August 13 decision without pursuing the merits of the case.

The Hartleys argue third that the city council was without jurisdiction to hold the November 26 hearing because it failed to provide notice of the hearing to members of the public other than the parties. We do not agree. The Hartleys did not raise a timely objection to the meeting on that ground. They raised this argument for the first time in their brief to the district court, which properly characterized the claim as having been waived. Moreover, the facts of this case show no prejudice resulting from lack of notice to other members of the public. The parties had actual notice of the November 26 hearing for almost three months. They had ample time to gather witnesses and evidence. The hearing had been scheduled to accommodate the parties. Neither party argued that witnesses could not be obtained as a result of lack of notice. In this case, we conclude that failure to provide notice to other members of the public did not deprive the city council...

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