Huneke v. Glaspy, 21051
| Decision Date | 09 November 1964 |
| Docket Number | No. 21051,21051 |
| Citation | 396 P.2d 453,155 Colo. 593 |
| Parties | Frank HUNEKE, Plaintiff in Error, v. Belle GLASPY, Bayard Cole, Maybelle Cole, Viva H. Oborne, Harry W. Oborne, Louis T. Vickers, Allison S. Vickers, J. C. Miller, Helen Miller, Olive Haun, Defendants in Error. |
| Court | Colorado Supreme Court |
Young & Young, Colorado Springs, for plaintiff in error.
No appearance for defendants in error.
On July 10, 1962, the City Council of Colorado Springs, after a public hearing, enacted an ordinance changing the zoning of approximately three-fourths of the 1200 block on the west side of Glen Street and the entire 1200 block on the east side of Glen Street from R-3 Residence Zone to C-4 Neighborhood Business Zone. The action was taken upon the application of plaintiff in error Huneke and one Doss, owners of the property involved.
Subsequent to the enactment of the ordinance, this suit was filed against the city and various officials thereof by several residents and owners of property within the vicinity wherein the change of zoning was effected. Plaintiffs sought injunctive relief and a declaratory judgment that the ordinance was invalid. Huneke and Doss intervened below and the city took no active part in the defense of the suit. At the conclusion of the proceedings, the trial court entered judgment declaring the ordinance invalid and permanently enjoining the city and its officers from granting any permit for the construction or alteration of any building pursuant thereto.
From the judgment thus entered, Huneke prosecutes this writ of error. The defendants in error have made no appearance here.
The trial court based its judgment on the following conclusions of law:
'1. That ordinance 2788 of the City of Colorado Springs, purporting to effect a change of zone from R-3 Residential to C-4 Neighborhood Business with respect to the properties owned by the intervenors in the 1200 block of Glen Avenue, was not adopted by the City Council in furtherance of a comprehensive zoning plan, but rather was contrary to and violated the previously adopted comprehensive plan of development for the area.
'2. That said ordinance was not adopted by the City Council to promote any of the public purposes set forth in Section 39-2 of the zoning ordinance of the City of Colorado Springs, 1954, as amended, but rather was adopted for the sole benefit of Intervenors.
'3. That there had been no change of conditions in the neighborhood, such as to justify a change to commercial zoning between April, 1961, when a similar zone change request was denied by the City Council, and May, 1962, when Intervenors' application culminating in the adoption of Ordinance 2788 was filed.
The underlying basic facts in the instant case are not in dispute, and we are faced only with the question of whether the trial court properly applied the law thereto.
The record discloses that the subject property and property in the immediate vicinity had for many years been zoned residential. At present, the property is bounded on the east by Monument Creek and beyond that by Monument Valley Park, both of which constitute a natural barrier between subject property and residential homes situated along the eastern boundary of the park; on the west by railroad tracks and then by the recently constructed Monument Valley Freeway; on the north by a few old homes and city offices and truck shops; including large new city usages for those purposes; on the south by Uintah Street, which is now a major access route to the Monument Valley Freeway, and across Uintah Street to the south by a combined business and museum known as the Van Briggle Pottery, which exists as a nonconforming use. The change of zone to C-4 would allow, principally, such uses as real estate and insurance agencies, gasoline stations, bakeries, barber and beauty shops, custom tailor shops, delicatessens and similar small businesses. In our view, the trial court erred in invalidating the change.
Of critical importance here is the limited role of the judiciary in zoning cases. The judicial branch is ill-equipped to sit as a zoning commission and to sift through the facts and weigh the nuances involved. Fundamentally, a zoning ordinance is presumed to be valid; and one assailing it bears the burden of overcoming that presumption, and the courts must indulge every intendment in favor of its validity. Baum v. City and County of Denver, 147 Colo. 104, 363 P.2d 688. A classification in a zoning ordinances as a means of attaining a permissible end is not to be declared invalid if the state of facts is such that the action of the zoning body can reasonably...
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