Landmark Land Co., Inc. v. City and County of Denver

Decision Date02 December 1986
Docket Number84SA410,Nos. 84SA400,s. 84SA400
Citation728 P.2d 1281
Parties17 Envtl. L. Rep. 20,640 LANDMARK LAND COMPANY, INC., Plaintiff-Appellant, and Harsh Investment Corp. and Southmoor Park Shopping, Inc., Plaintiffs, v. The CITY AND COUNTY OF DENVER; the City Council of the City and County of Denver, Defendants-Appellees, and Southmoor Park East Homeowners Association, Inc., and Thomas P. McCallin, Intervenors/Defendants-Appellees. HARSH INVESTMENT CORP., Plaintiff-Appellant, and Landmark Land Company, Inc., and Southmoor Park Shopping, Inc., Plaintiffs, v. The CITY AND COUNTY OF DENVER; the City Council of the City and County of Denver, and its members, Cathy Reynolds, Robert Crider, William A. Scheitler, T.J. Hackworth, M.L. Sandos, Paul A. Hentzell, Paul L. Swalm, John J. Silchia, Edward F. Burke, Jr., King M. Trimble, Salvadore Carpio, Cathy Donohue, William R. Roberts; the Honorable William H. McNichols, Jr., Mayor of the City of Denver; the Building Department of the City and County of Denver, and Jack Tanigawa, Acting Director of the Building Department of the City and County of Denver, Defendants-Appellees, and Southmoor Park East Homeowners Association, Inc., and Thomas P. McCallin, Intervenors/Defendants-Appellees. SOUTHMOOR PARK SHOPPING, INC., Plaintiff-Appellant, and Harsh Investment Corp. and Landmark Land Company, Inc., Plaintiffs, v. The CITY AND COUNTY OF DENVER, State of Colorado, a Municipal Corporation, and the City and County of Denver, State of Colorado, Defendants-Appellees, and Southmoor Park East Homeowners Association, Inc. and Thomas P. McCallin, Intervenors/Defendants-Appellees. , and 84SA413.
CourtColorado Supreme Court

Calkins, Kramer, Grimshaw & Harring, Susan E. Burch, Charles E. Norton, Denver, for Landmark Land Company, Inc.

Holme Roberts & Owen, Daniel S. Hoffman, Donald K. Bain, Jeffrey A. Chase, Denver, for Harsh Investment Corp.

Sherman & Howard, Joseph J. Bronesky, Marla Music, Denver, for Southmoor Park Shopping, Inc.

Stephen H. Kaplan, City Atty., Robert M. Kelly, Asst. City Atty., Denver, for City and County of Denver and the City Council of the City and County of Denver.

Rothgerber, Appel & Powers, James M. Lyons, Denver, for Southmoor Park East Homeowners Association, Inc. and Thomas P. McCallin.

ROVIRA, Justice.

These three cases, which were consolidated before trial, all involve challenges to section 10-62.5 of the Revised Municipal Code of the City and County of Denver (Code), which extended mountain view protection to Southmoor Park in 1982. The three appellants, Harsh Investment Corp., Landmark Land Company, Inc., and Southmoor Park Shopping, Inc., own land in the area affected by section 10-62.5. They brought suit against the City and County of Denver alleging substantive procedural, and constitutional defects in the ordinance. The trial court, hearing the case without a jury, held the ordinance was valid and dismissed all of the appellants' claims. The appeal comes directly to this court because of the constitutional questions involved. § 13-4-102(1)(b), 6 C.R.S. (1973). We affirm the judgment of the trial court.

I.

The appellants have for years owned land in southeast Denver in an area bounded by Interstate 25 on the west, Hampden Avenue on the north, and Monaco Boulevard on the east. Much of this land is currently being utilized as commercial property, and the zoning classification covering it, B-3, 1 allows both residential and business (including office high-rise) use. Code §§ 59-306 et seq.

In 1980, Landmark announced plans to build a 21-story office building on its land, which the applicable zoning ordinance allows. No building permit was ever obtained by Landmark. The building proposal distressed many of the residents in the area, and, as a result, a neighborhood association, Southmoor Park East Homeowners Association, Inc., (SPEHA) opposed the proposed high-rise development. Among other things, SPEHA submitted both rezoning and downzoning proposals for the area. After the enactment of section 10-62.5, the zoning proposals were withdrawn.

Section 10-62.5 itself was offered to the city council, through a councilman, at SPEHA's suggestion. The Denver Planning Board recommended against it; nonetheless, the city council adopted section 10-62.5 on July 19, 1982. No record of the discussion or enactment, other than the voting tally sheet, exists from the public hearing that was held.

Section 10-62.5 is an amendment to Denver's Mountain View Ordinance. Code §§ 10-56 et seq. (1986). 2 The amendment, with an incorporated map, covers several hundred lots in addition to the appellants' land. It provides maximum height for buildings on the west side of Southmoor park, allowing more height the farther the buildings are located from a specified reference point within Southmoor Park. 3

However, there is an exception that allows a height of forty-two feet for any structure in an area zoned for business covered by the amendment. Code § 10-62.5(D)(1). SUBSECTION (D)(2)4 provides an exception for existing structures and also allows existing structures to be rebuilt to their present height if they are damaged or destroyed.

The appellants' complaints allege that the amendment was without basis in law and arbitrary, and therefore void. The complaints further state that the amendment substantially impairs the rights of the appellants, and, if valid, constitutes a taking requiring compensation. The appellants also request a permanent injunction restraining the city from enforcing the ordinance.

At trial, the court heard evidence on the procedure the city council had used in adopting the amendment. Although not required by law to do so, the council called a public hearing. Representatives of SPEHA and the appellants spoke. Representatives of the appellants had also voiced their concerns to the Denver Planning Board. The trial court also heard evidence on the amendment's effect on the mountain view, as well as its effect on the value of appellants' property.

The trial judge viewed each of the parks covered by the ordinance and made an express finding that there was a "panoramic mountain view" from the sighting point in Southmoor Park. He held that the amendment was a valid exercise of police power and, although it substantially diminished the value of appellants' property, it did not take all value. Accordingly, the trial court dismissed all appellants' claims.

II.

The threshold issue is whether, in enacting the ordinance, the council was acting in a legislative or in a quasi-judicial capacity. The city concedes that the procedures that must accompany quasi-judicial activity were not performed; therefore, if this amendment is quasi-judicial in nature, it must be overturned.

Denver's characterization of this amendment as legislation is not binding on this court. City and County of Denver v. Eggert, 647 P.2d 216 (Colo.1982). Eggert reaffirmed that,

[i]n order to support a finding that the action of a municipal legislative body is quasi-judicial, all of the following factors must exist: (1) a state or local law requiring that the body give adequate notice to the community before acting; (2) a state or local law requiring that the body conduct a public hearing, pursuant to notice, at which time concerned citizens must be given an opportunity to be heard and present evidence; and (3) a state or local law requiring the body to make a determination by applying the facts of a specific case to certain criteria established by law.

Snyder v. City of Lakewood, 189 Colo. 421, 425, 542 P.2d 371, 374 (1975).

In the case at bar, none of these tests are met. No state or local law requires a public hearing, notice thereof, or an on-the-record determination by the city council. The fact the city voluntarily held a hearing does not satisfy the test. Margolis v. District Court, 638 P.2d 297, 303 (Colo.1981) (dicta).

Further, this amendment fits squarely into our description of legislative action: it is prospective in nature, of general application, and requires the balancing of questions of judgment and discretion. See Eggert, 647 P.2d at 222. It does not pertain only to the immediate parties, as quasi-judicial acts typically do, Eggert at 222-23, but rather involves judgment based on possible future facts and is binding on all land that it affects, not just the land of appellants here.

A point could be reached where the "legislation" is so narrow, so directly pointed at certain individuals, and so intertwined with an area that is usually judicial in nature that it would be quasi-judicial in character, even though it could satisfy the Snyder-Eggert test. However, this amendment, which is prospective, affects hundreds of lots and landowners, and concerns an area usually governed by legislation, does not reach that point.

We conclude this amendment is legislative in nature; thus the lack of quasi-judicial procedure does not invalidate it.

III.

Once it is established that the amendment is legislation, a presumption of constitutionality attaches; this presumption can only be overcome by proof beyond a reasonable doubt. Mosgrove v. Town of Federal Heights, 190 Colo. 1, 4, 543 P.2d 715, 717 (1975). Appellants have raised several arguments regarding the constitutionality of the amendment, but none establish that it is unconstitutional beyond a reasonable doubt. Absent fraud or clear abuse of discretion, the judicial branch should not interfere with legislative actions. McCray v. City of Boulder, 165 Colo. 383, 390, 439 P.2d 350, 354 (1977).

A.

Appellants' first assault on the constitutionality of section 10-62.5 stems from their characterization of the amendment as special legislation. Special state legislation is invalid, Colo. Const. art. V, § 25, and this prohibition has long ago been applied to municipalities. See City and County of Denver v. Bach, 26 Colo. 530, 58 P. 1089 (1899). The amendment constitutes special legislation, in appe...

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