Holcomb v. City and County of Denver

• Decision Date: 25 February 1980
• Docket Number: No. 79SC94,79SC94
• Citation: 606 P.2d 858,199 Colo. 251
• Parties: Robert A. HOLCOMB, Petitioner, v. The CITY AND COUNTY OF DENVER, Respondent.
• Court: Colorado Supreme Court

Page 858

606 P.2d 858

199 Colo. 251

Robert A. HOLCOMB, Petitioner, v. The CITY AND COUNTY OF DENVER, Respondent.

No. 79SC94.

Supreme Court of Colorado, En Banc.

Feb. 25, 1980.

Pred & Miller, P.C., Stephen P. Rickles, David A. Bottger, Denver, for petitioner.

Max P. Zall, Robert M. Kelly, John L. Stoffel, Jr., Denver, for respondent.

ERICKSON, Justice.

The zoning issues in this case were created when Robert A. Holcomb failed to comply with a cease and desist order and was brought before the county court on a complaint charging a violation of section 612.2-3(3)(a) ¹ of the Revised Municipal Code of the City and County of Denver (Revised Municipal Code). Constitutional attacks on the ordinance were made in the county court and were denied. At the conclusion of a trial to the court, he was found guilty and fined $300. He appealed to the Superior Court for the City and County of Denver and the judgment of the county court was affirmed on the grounds that the petitioner failed to certify a transcript of the hearing on the defendant's motion to dismiss the charges. We granted certiorari to review the judgment of the superior court and we now reverse and remand to that court with directions to dismiss the charges against the petitioner.

On June 16, 1977, the petitioner received an order from the Department of Zoning Administration for the City and County of Denver to cease and desist from maintaining twelve dogs on his residential premises situated in R-1 residential zone district. The order stated that, under section 612.2-3(3)(a) of the Revised Municipal Code of the City and County of Denver, only three dogs were permitted as an accessory use to a single unit dwelling and that any number in excess of three constituted a violation of the ordinance. The order was predicated upon a rule or regulation ² promulgated by the Zoning Administrator pursuant to section 611.5-3(1)(f). ³ The petitioner was subsequently charged in county court with a violation of section 612.2-3(3)(a).

Shortly after the filing of the complaint, the petitioner moved for dismissal on the grounds that the application of the zoning ordinances violated the petitioner's constitutional right to due process and equal protection of the laws, and constituted an unlawful and unjustified exercise of the police power. At the hearing on that motion, the sole witness was the Zoning Administrator, A. H. Jansen, who testified as to his basis for determining that more than three dogs constituted an unlawful accessory use in an R-1 zoning district. The motion was denied and the petitioner was subsequently convicted in the county court.

The petitioner appealed his conviction to the Denver Superior Court, claiming, Inter alia, that the county court erred in denying his motion to dismiss. In designating the record for the appeal, however, the petitioner neglected to include the transcript of the hearing on the motion to dismiss as a part of the record. As a consequence, the superior court affirmed the petitioner's conviction, holding that the petitioner's contentions could not be reviewed in the absence of a complete record.

I.

This case presents the initial question of whether the petitioner's failure to have a transcript of the hearing on the motion to dismiss certified as part of the appellate record precludes a review of his conviction. The superior court held that in the absence of the record concerning the motion to dismiss, there could be no review of any of the grounds asserted by the petitioner. We disagree.

Crim.P. 37(b) provides:

"If the appellant intends to urge upon appeal that the judgment or a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion. The appellee shall have ten days after service upon him of the notice of appeal to file with the clerk of the county court and serve upon the appellant a designation of any additional parts of the transcript or record which he deems necessary."

Where the appellant challenges a ruling that was based, either in whole or in part, on evidence presented to the lower court, Crim. P. 37(b) imposes the requirement that a transcript of all evidence pertaining to the decision be included in the record. Rule 237(b) of the Municipal Court Rules of Procedure specifies that appeals from courts of record shall be in accordance with Crim.P. 37. Where the challenged ruling was not based upon a weighing or review of evidence, however, this requirement has no application. The appellant is not required by Crim.P. 37(b) to include in the record a transcript of evidence that is not relevant to the issues raised on appeal.

In this case, the only evidence presented during the hearing on the motion to dismiss concerned the basis for the zoning administrator's determination that more than three dogs constituted an unlawful accessory use in a residential area. While Crim.P. 37 barred the petitioner's challenge to that factual determination, including the constitutional question of whether the zoning administrator's order was arbitrary and capricious, the petitioner was not foreclosed from a facial challenge to the constitutionality of the zoning ordinance or from contesting the ordinance's applicability to the maintenance of dogs in a residential zone. The evidence presented at the hearing on the motion to dismiss consisted of the testimony of the zoning administrator and did not pertain to these issues. Consequently, the petitioner was not barred by Crim.P. 37(b) from raising them on appeal.

II.

Because the record before us is the same record which should have been reviewed by the superior court, we have elected to consider the petitioner's challenge to the constitutionality of the zoning ordinance, and his challenge to its applicability to dogs, instead of remanding the case to the superior court for further proceedings. Essentially, the petitioner claims that section 612.2-3(3)(a) of the Revised Municipal Code is unconstitutionally vague in that it fails to provide notice of what activities are proscribed and fails to provide guidelines for the ordinance's enforcement. It is the petitioner's contention that, by allowing the zoning administrator to make the determination that maintaining more than three dogs is not an accessory use to a single-unit dwelling, the municipality has improperly delegated its legislative powers. ⁴

Zoning ordinances enjoy a strong presumption of constitutionality. Board of County Commissioners v. Thompson, 177 Colo. 277, 493 P.2d 1358 (1972); Frankel v. City and County of Denver, 147 Colo. 373, 363 P.2d 1063 (1961). Accordingly, in all cases where a party chooses to attack the constitutionality of an ordinance, that individual bears a heavy burden and must demonstrate beyond a reasonable doubt that the challenged ordinance is unconstitutional. Board of City Commissioners v. Echternacht, 194 Colo. 311, 572 P.2d 143 (1977); Board of County Commissioners v. Thompson, supra; Frankel v. City and County of Denver, supra.

One of the fundamental tenets of due process is that a penal statute cannot constitutionally be applied to deprive an individual of life, liberty, or property unless the statute is drafted with sufficient clarity that it gives a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979); United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed.2d 989 (1954); Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed.2d 322 (1926). Here, since the zoning administrator gave the petitioner fair notice through the cease and desist order that his conduct was in violation of section 612.2-3(3)(a) of the Revised Municipal Code, the petitioner must show that the zoning administrator's interpretation constituted a legislative decision that could not have been constitutionally delegated by the municipal authorities.

Generally, a municipality may not delegate legislative power to an appointed administrator, although the administrator may be charged with the duty to apply and enforce legislative decisions. Big Sandy School District No. 100-J v. Carroll, 164 Colo. 173, 433 P.2d 325 (1967); H. A. Steen Industries, Inc. v. Cavanaugh, 430 Pa. 10, 241 A.2d 771 (1968). When a question of improper delegation arises, the test is whether the legislative entity has provided discernible standards so that the administrator's decision can be measured for its fidelity to the legislative will. City of Eastlake v. Forrest City Enterprises, Inc., 426 U.S. 668, 96 S.Ct. 2358, 49 L.Ed.2d 132 (1976). A municipality may delegate the duty to determine whether the facts exist to which an enactment applies, and the duty to effectuate the terms, purpose or policy of an enactment only where it has provided definite standards to delimit the administrator's powers. H. A. Steen Industries, Inc. v. Cavanaugh, supra.

Section 612.2-3(3), in its entirety, provides:

"Accessory Uses. Incidental only to a Use by Right, any use Which complies with all of the following conditions may be operated as an Accessory Use and need not be enclosed.

".2-3(3)(a). Is clearly incidental and customary to and commonly associated with the operation of the Use by Right;

".2-3(3)(b). Is operated and maintained under the same ownership and on the same Zone Lot as the Use by Right;

".2-3(3)(c). Does not include structures or structural features inconsistent with Use by Right;

".2-3(3)(d). Does not include residential occupancy except by domestic employees employed on the premises and the immediate families of such employees;

".2-3(3)(e). If operated partially or entirely in detached structures, the gross floor area of such detached structures shall not exceed ten per cent of the area of the Zone Lot; provided, however, that this limitation shall not apply to...