Holly Development, Inc. v. Board of County Com'rs of Arapahoe County

• Citation: 140 Colo. 95,342 P.2d 1032
• Decision Date: 27 July 1959
• Docket Number: No. 18762,18762
• Parties: HOLLY DEVELOPMENT, INC., a Colorado corporation; Holly Development Company, a Colorado corporation; Robert L. Frink; Maxine T. Frink; Donavan H. Garehime; Charles G. Huskinson; Jefferson B. Armstrong; and Jean K. Tool, Plaintiffs in Error, v. BOARD OF COUNTY COMMISSIONERS OF COUNTY OF ARAPAHOE, State of Colorado, Defendant in Error.
• Court: Supreme Court of Colorado

Page 1032

342 P.2d 1032

140 Colo. 95

HOLLY DEVELOPMENT, INC., a Colorado corporation; Holly

Development Company, a Colorado corporation; Robert L.

Frink; Maxine T. Frink; Donavan H. Garehime; Charles G.

Huskinson; Jefferson B. Armstrong; and Jean K. Tool, Plaintiffs in Error, v. BOARD OF COUNTY COMMISSIONERS OF COUNTY OF ARAPAHOE, State

of Colorado, Defendant in Error.

No. 18762.

Supreme Court of Colorado, En Banc.

July 27, 1959.

As Modified on Denial of Rehearing Aug. 24, 1959.

J. F. Little, Robert H. Kiley, Denver, for plaintiffs in error.

J. Sherman Brown, Littleton, Richard N. Graham, Englewood, for defendant in error.

SUTTON, Justice.

This writ of error is directed to a judgment in a certiorari proceeding in the trial court. The parties will be referred to as they appeared there, wherein plaintiffs in error were plaintiffs and defendant in error was defendant.

Plaintiffs petitioned the trial court to review the action of defendant in re-zoning 25 acres of land known as Charlou Park, Third Filing, in Arapahoe County, Colorado. Pursuant to order, defendant delivered to that court the record of proceedings before it pertaining to the rezoning. Upon hearing, the trial court affirmed the action of defendant and denied the petition. This writ followed.

The record discloses that plaintiffs are Colorado corporations or residents, taxpayers of Arapahoe County, and owners of land in Charlou Park Addition and Charlou Park Second Addition located in the south half of section eight, township five south, range 67 west, Arapahoe County, Colorado.

It appears that in 1941 defendant adopted 'The Arapahoe County Zoning Resolution' under authority of what was then C.S.A. '35, chapter 45A (C.R.S. '53, 106-2-1 et seq.). This resolution was amended in 1950 and 1956. The unplatted areas of section eight are now zoned as an A-2 Farm Residence District, with a minimum of 20 acres per farm unit, and an A-1 Farm Residence District with a minimum area of two and a half acres per farm unit. Prior to November 12, 1957, plaintiffs' property was in the A-1 Farm Residence District. In 1955, defendant, upon request, refused to re-zone the area involved here from an A-1 Farm Residence District to an R Residence District, which requires a minimum of one acre per family. Defendant then stated that unless there was some decided change in the area the zoning would remain as then established.

Plaintiff Holly Development, Inc., states that in reliance on the last action of defendant it purchased 60 acres of land in Charlou Park Second Addition and expended approximately $275,000 in developing it, opening streets and providing water and natural gas. The record shows that individual plaintiffs, in reliance upon the zoning status as it existed prior to November 12, 1957, purchased building sites with the minimum required area of two and a half acres, and expended large sums of money in erecting buildings thereon as well as in landscaping.

On September 3, 1957, the Arapahoe County Planning Commission approved reducing minimum requirements for dwellings located in the 25 acres or more contained in Charlou Park, Third Filing, from two and a half acres to one and one-fourth acres, and recommended that defendant adopt the change. On November 12, 1957, defendant did adopt the recommendation and re-zoned the land in question.

As we read the record, it appears that the area, which is the subject matter of this dispute, is completely, or almost completely, surrounded by land which is zoned in tracts ranging from two and a half acres to 20 acres. There has been a substantial development in the neighborhood of expensive suburban dwellings, most of which, if not all, requiring their own sewage disposal fields and water wells. It is obvious that the re-zoning granted is not in harmony with the present area development.

We turn first to defendant's answer brief, which urges that certiorari is not the proper remedy in this case. In this it is in error. Whenever the question is whether a public Board or Commission has exceeded its jurisdiction or abused its discretion, certiorari is the proper remedy to secure a review of its action. Rule 106, R.C.P. (Colo.). Also see Board of Adjustment of City and County of Denver v. Handley, 1939, 105 Colo. 180, 95 P.2d 823; Kane v. Board of Appeals of City of Medford, 1930, 273 Mass. 97, 173 N.E. 1; Clapp v. Knox County, 1954, 197 Tenn. 422, 273 S.W.2d 694; Auditorium, Inc. v. Board of Adjustment of Mayor & Council of Wilmington, 1952, 8 Terry 373, 47 Del. 373, 91 A.2d 528.

14 C.J.S. Certiorari § 37a, p. 180, says:

'* * * whenever there is no direct remedy provided for review, the writ of certiorari lies, even though some other remedy can be conceived as possible in the future.'

Although several grounds of error are urged by plaintiffs, we deem it necessary to discuss only three of them, to wit:

1. The allegation that defendant exceeded its jurisdiction and abused its discretion by conducting a hearing and rezoning of the area of Charlou Park, Third Filing, upon what is alleged to be an insufficient, ambiguous and false public notice of the statutory hearing.

2. That the 'Defendant greatly abused its discretion and exceeded its jurisdiction by failing to provide and maintain on a current basis a zoning map to accompany the 1956 amended zoning resolution of Arapahoe County, by presuming to act as if such map actually existed and Charlou Park, Third Filing, was shown thereon. Because of the want of such map, such amended zoning resolution is null and void.'

3. That 'The lower Court erred in holding that the actions of defendant in re-zoning the area of Charlou Park, Third Filing, was not an arbitrary and capricious exercise of the powers vested in defendant but was reasonable under the facts and circumstances since there was no showing that such change of zoning was required by changed conditions of the area, and it was further shown that in reliance upon zoning existing prior to November 12, 1957, plaintiffs had expended large sums in developing adjacent areas and erecting homes thereon.'

C.R.S. '53, 106-2-15, provides:

'Regulations may be amended.--From time to time the board of county commissioners may amend the number, shape, boundaries or area of any district, or any regulation of or within such district, or any other provisions of the zoning resolution. Any such amendment shall not be made or become effective unless the same shall have been proposed by or be first submitted for the approval, disapproval or suggestions of the county planning commission. If disapproved by such commission within thirty days after such submission, such amendment, to become effective, shall receive the favorable vote of not less than a majority of the entire membership of the board of county commissioners. Before finally adopting any such amendment the board of county commissioners shall hold a public hearing thereon, and at least thirty days' notice of the time and place of which shall be given by at least one publication in a newspaper of general circulation in the county.'

In attempted compliance with the above statute, defendant, on September 19, 1957, caused the following notice to be published in 'The Englewood Herald and Enterprise':

'Notice

'Whereas: the Board of County Commissioners of Arapahoe County has received petitions or recommendations from the County Planning Commission as follows:

'1. Charlou Park, Third Filing. A-2 to R. Therefore Notice is hereby given that a public hearing concerning such change will be held at the Court House, Littleton, Colorado, on Monday, October 28, 1957, at 10:00 o'clock A.M.

'Marjorie Page, Ex-Officio

Clerk to the Board of

County Commissioners.'

On September 25, 1957, a differently worded notice of the request for zone change was posted on the premises. Various letters and petitions for and against the re-zoning were received by the defendant, and plaintiffs appeared at the hearing protesting the proposed re-zoning and objected to the published notice given as being improper and unconstitutional. We note that in the published notice the words 'zone' or 'zoning' do not appear, nor does any mention of the term 'Arapahoe County Zoning Resolution' appear. A change is mentioned from 'A-2' to 'R', and it is anybody's guess, unless he be a zoning expert, as to what that phrase means.

66 C.J.S. Notice § 16, p. 654, states:

'A notice must be clear, definite, and explicit, and not ambiguous. The notice is not clear unless its meaning can be apprehended without explanation or argument.'

In Brachfeld v. Sforza, Sup.1952, 114 N.Y.S.2d 722, 725; Sup., 118 N.Y.S.2d 631, the court said:

'* * * a notice of hearing as the basis of a local ordinance should unambiguously set forth reasonable information concerning the subject matter of the hearing to the end that adequate warning be given to all persons whose rights may be affected by action of the local board. Changes in zoning ordinances affect property rights, and the provisions as to a notice of hearing must be strictly complied with. A notice which does not warn of the nature of the proposed amendments is no notice. What was said in Palmer v. Mann, 206 App.Div. 484, 201 N.Y.S. 525, 528, affirmed 237 N.Y. 616, 143 N.E. 765, is pertinent, to wit: '* * * when a statute requires a notice to be given to the public, such a notice should fairly be given the meaning it would reflect upon the mind of the ordinary layman, and not as it would be construed by one familiar with the technicalities solely applicable to the laws and rules of the zoning commission. Otherwise such a notice, instead of informing, would actually mislead, the public, including the persons immediately interested. * * * It is, at least, not too much to ask that any ambiguity in a notice to the public of so important a change, which is the only notice that the public has, should be resolved against the notice.''

The record before us shows that even if a layman...