Humana, Inc. v. Board of Adjustment of City of Lakewood, 26552

• Decision Date: 23 June 1975
• Docket Number: No. 26552,26552
• Parties: HUMANA, INC. (formerly known as Extendicare, Inc.) and Humana of Colorado, Inc. (formerly known as Extendicare of Colorado, Inc.), Plaintiffs-Appellants, v. BOARD OF ADJUSTMENT OF the CITY OF LAKEWOOD, Colorado and the City of Lakewood, Colorado, a municipal corporation, Defendants-Appellees, Anthony A. Johnson et al., Intervenors-Appellees.
• Court: Colorado Supreme Court

Page 741

537 P.2d 741

189 Colo. 79

HUMANA, INC. (formerly known as Extendicare, Inc.) and

Humana of Colorado, Inc. (formerly known as

Extendicare of Colorado, Inc.), Plaintiffs-Appellants, v. BOARD OF ADJUSTMENT OF the CITY OF LAKEWOOD, Colorado and the City of Lakewood, Colorado, a municipal

corporation, Defendants-Appellees,

Anthony A. Johnson et al., Intervenors-Appellees.

No. 26552.

Supreme Court of Colorado, En Banc.

June 23, 1975.

Rehearing Denied July 1, 1975.

Holland & Hart, John S. Castellano, Denver, for plaintiffs-appellants.

Raymond C. Johnson, David A. Solomon, Lakewood, for defendants-appellees.

Saunders, Snyder & Ross, P.C., William J. Kirven, III, Denver, for intervenors-appellees.

KELLEY, Justice.

We are here concerned with the interpretation of the zoning ordinance of the city of Lakewood (Lakewood) as it applies to a general care hospital.

This is an appeal by Humana, Inc., and Humana of Colorado, Inc., plaintiffs-appellants (Humana) from a judgment of the District Court of Jefferson County affirming a ruling of the Lakewood Board of Adjustment (Board). The city of Lakewood was joined as a party defendant and is an appellee here. The intervenors-appellees are a group of citizens who reside in the vicinity of the property on which Humana seeks to build a general hospital and who are protesting the construction of a hospital. Appellees will be referred to by name or collectively as 'the City,' unless the context indicates otherwise.

Humana, in its search for a suitable site to construct a general hospital, located a 16-acre site (the site) in an agricultural one (A--1) district. Humana inquired of Jesse Miller, Lakewood Zoning Administrator (Administrator), and Gary Latham, Director of the Department of Community Development, as to whether a general hospital was a permissible use in the A--1 district. Upon receiving an affirmative reply, Humana purchased the site for $450,000.

A building permit application to the city of Lakewood for a 200-bed hospital was submitted by Humana. The zoning portion of the application was approved by the Administrator which, in effect, certified that a hospital could be built on the site. Pending approval by the engineering department and the building department, one of the intervenors applied to the Board for an interpretation of the use provision of the A--1 district.

On February 20, 1973, the board held a hearing, reversed the interpretation of the Administrator, holding that a general hospital is not a permitted use in an A--1 district.

On March 12, 1973, Humana filed in the district court (1) a petition for writ of certiorari to review the Board's ruling, (2) a complaint for declaratory judgment challenging the constitutionality of the ordinance as interpreted by the Board, and (3) a general complaint alleging the doctrine of equitable estoppel and praying for an injunction. It was at this point that a number of persons in the vicinity of the site, including the person who asked for the review by the Board, sought and were granted permission to intervene.

Although arguments on the several issues were ably presented in the respective briefs of the parties, our conclusion, that by definition a general hospital is a permissible use in the A--1 district, obviates the necessity to decide the other issues. The sole issue, as we perceive it, is whether, under the terms of the ordinance, a general hospital is a permissible use in the A--1 district.

I.

We purpose to determine what the 'legislative intent' of the City Council was in using the following language to regulate the use of land as it pertains to health care facilities within the agricultural one (A--1) district:

'6. Hospitals and sanitariums for mentally disturbed or defectives or for contagious or infectious diseases.'

Humana urges the application of the 'Doctrine of the Last Antecedent.' The issue, of course, revolves around the question of whether the phrase 'for mentally disturbed or defectives or for contagious or infectious diseases' modifies both 'sanitariums' and 'hospitals.' The Zoning Administrator ruled that it modified 'sanitariums,' but the Board of Adjustment held that it also modified 'hospitals.' The City contends that the natural construction of the language demands that the clause be read as modifying both.

Humana argues that such an interpretation is contrary to the doctrine of the last antecedent as expressed in our decisions:

"relative and qualifying words and phrases where no contrary intention appears, will be construed to refer Solely to the last antecedent with which they are closely connected.' Wheeler v. Rudolph, 162 Colo. 410, 415, 426 P.2d 762 (1967).' The City counters with the contention that:

'. . . Plaintiffs' attempt to invoke the 'doctrine of last antecedent' is unwarranted and violates the admonition of the Supreme Court in Harding v. Industrial Commission, 183 Colo. 52, 515 P.2d 95 (1973):

'Ordinarily, words and phrases found in statutes are to be construed according to their familiar and generally accepted meaning. Forced, subtle, strained or unusual interpretation should never be resorted to where the language is plain, its meaning is clear, and no absurdity is involved. Lidke v. Ind. Comm., 159 Colo. 580, 413 P.2d 200; Jones v. Board, 119 Colo. 420, 204 P.2d 560.'

We think both rules are valid Aids in attempting to resolve the meaning of ambiguous language, but we are not limited to a consideration of these two rules alone. Other aids may be employed to determine the intended meaning of the words employed. In construing a section of a legislative act, it is fundamental that the whole of the act must be read and considered in context. Public Util. Comm'r v. Stanton Transp Co., 153 Colo. 372, 386 P.2d 590 (1963); Clark v. Fellin, 126 Colo. 519, 251 P.2d 940 (1952).

In order to construe the ordinance 'according to (its) familiar and generally...