Lieb v. Trimble
| Decision Date | 03 April 2008 |
| Docket Number | No. 07CA0417.,07CA0417. |
| Citation | 183 P.3d 702 |
| Parties | Benjamin B. LIEB, an individual, Plaintiff-Appellant, v. Dixie TRIMBLE, solely in her official capacity as member of the Board of Adjustment for Zoning Appeals for the City and County of Denver; Penny Elder, solely in her official capacity as member of the Board of Adjustment for Zoning Appeals for the City and County of Denver; the Department of Zoning Administration for the City and County of Denver; and Kent Strapko, solely in his official capacity as Zoning Administrator for the City and County of Denver, Defendants-Appellees. |
| Court | Colorado Court of Appeals |
Benjamin B. Lieb, Denver, Colorado, for Plaintiff-Appellant.
David R. Fine, City Attorney, Jennifer M. Weflen, Assistant City Attorney, Denver, Colorado, for Defendants-Appellees.
Opinion by Judge LOEB.
In this C.R.C.P. 106(a)(4) proceeding, plaintiff, Benjamin B. Lieb, appeals from a district court judgment upholding the decision of the Board of Adjustment for Zoning Appeals for the City and County of Denver, which upheld the Denver Department of Zoning Administration's refusal of Lieb's request to take action against a small residential care facility. We affirm.
As pertinent here, Lieb requested the Department to prohibit a caregiver staff member and her adult daughter from residing in a small residential care facility located adjacent to his residence. The parties do not dispute that the staff member and her daughter reside at the facility. The residential care facility is located in an R-1 zoning district as defined by the Denver Municipal Code.
The Department denied Lieb's request because, under its interpretation of the applicable provisions, Denver's zoning code is silent regarding the challenged use, and the use is not inconsistent with the use of a residential care facility. Lieb timely appealed the Department's decision to the Board.
The Board conducted an administrative review of the Department's decision. It received testimony from a Department representative regarding the Department's interpretation of the Code. After reviewing the evidence, the Board concluded the Department did not err, and that Lieb "failed to present any evidence that would overcome the presumption that [the Administrator's] decisions and those of his staff were correct in determining that the Code did not prohibit more than one on-site staff member" from residing in a small residential care facility.
Pursuant to C.R.C.P. 106(a)(4), Lieb appealed the Board's decision to the district court. The court upheld the Board's decision, finding that its "interpretation allowing a caretaker to reside in a special care home with the unrelated special care residents is a reasonable interpretation of the pertinent provisions in the Denver Municipal code." This appeal followed.
Review of a governmental body's decision pursuant to C.R.C.P. 106(a)(4) calls into question the decision of the body itself, not the district court's determination on review. City & County of Denver v. Bd. of Adjustment, 55 P.3d 252, 254 (Colo.App.2002)(citing City of Colorado Springs v. Securcare Self Storage, Inc., 10 P.3d 1244 (Colo.2000)). Our review is based solely on the record that was before the board, and the decision must be affirmed unless there is no competent evidence in the record to support it such that it was arbitrary and capricious. Id. Such review is limited to a determination of whether the board exceeded its jurisdiction or abused its discretion, "as well as whether an erroneous legal standard was applied by the agency." Quaker Court Ltd. Liab. Co. v. Bd. of County Comm'rs, 109 P.3d 1027, 1030 (Colo.App. 2004) (quoting Puckett v. City & County of Denver, 12 P.3d 313, 314 (Colo.App.2000)). In a C.R.C.P. 106(a)(4) review, an agency's legal conclusions are not reviewed de novo, and will be affirmed if supported by a reasonable basis. Id.
Administrative proceedings are accorded a presumption of validity and regularity, and all reasonable doubts as to the correctness of administrative rulings must be resolved in favor of the agency. City & County of Denver v. Bd. of Adjustment, 55 P.3d at 254; see Quaker, 109 P.3d at 1030. The burden is on the party challenging an administrative agency's action to overcome the presumption that the agency's acts were proper. City & County of Denver v. Bd. of Adjustment, 55 P.3d at 254.
Generally, a reviewing court should defer to the construction of a statute by the administrative officials charged with its enforcement. If there is a reasonable basis for an administrative board's interpretation of the law, we may not set aside the board's decision. Id.
Lieb contends the Board abused its discretion by ruling that the Denver Revised Municipal Code allows a caretaker and her adult daughter to reside in a small residential care facility in addition to eight special care residents. We disagree, because we conclude the Board's interpretation of the Code is supported by a reasonable basis.
A "small residential care use" is defined as "[a] residential structure which is the primary residence of eight (8) or fewer persons, but housing a number of unrelated persons in excess of the number of unrelated persons allowed per dwelling unit in the zone district or transitional housing of any size." Denver Rev. Mun.Code 59-2(234). The Code generally allows no more than two unrelated persons to reside in a typical single unit dwelling located in an R-1 district. Id. 59-2(96).
A small residential care use is a type of special care home.
A special care home is either a single unit dwelling or a multi-unit dwelling housing a number of unrelated persons in excess of the number of unrelated persons allowed per dwelling unit in the zone district in which the dwelling unit is located, where such persons are living as a single housekeeping unit and are receiving more than twelve (12) hours per day of on-premises treatments, supervision, custodial care or special care due to physical condition or illness, mental condition or illness, or behavioral or disciplinary problems.
Id. 59-2(269). Residential care uses are permitted in R-1 districts. Id. 59-117.
The Code also permits accessory uses, as defined by section 59-87, in R-1 districts. Id. An accessory use is a use "clearly incidental and customary to and commonly associated with the operation of the use by right." Id. 59-87(b)(1)(a).
[A]n accessory use is one which is deemed to be permitted by implication where the ordinance is silent on the particular use in issue. The concept of an accessory use relieves a municipality from attempting to enumerate in the statute every possible approved use, and allows courts to determine on a case by case basis whether permission for the proposed use has been impliedly granted.
City of Sheridan v. Keen, 34 Colo.App. 228, 232, 524 P.2d 1390, 1392 (1974). Accordingly, a use expressly prohibited by the Code cannot be an accessory use. Id.
Here, Lieb contends the Code expressly prohibits a staff member and her daughter from residing in a small residential care facility. He argues that the Code prohibits staff members from residing in residential care facilities because section 59-2(234) and (269) of the Code expressly permit special care residents to use residential care facilities as their primary residence, but do not expressly permit staff members to do the same. Lieb also contends that, because section 59-117 prohibits all uses that are not listed as permitted by that section, that section effectively prohibits staff members from residing at residential care facilities.
The Department rejected Lieb's interpretation of the Code. In support of its position that the staff member and her daughter did not violate the Code by residing in the special care facility, the Department argued before the Board that the Code does not expressly address whether caretakers are permitted to reside in residential care facilities. It further argued that the limit of eight persons allowed to reside in a residential care facility relates only to special care residents and not staff members. The Department concluded that the use of a residential care facility as a primary residence by a staff member and her daughter was not inconsistent with residential care use. After hearing evidence presented by Lieb and the Department, the Board concluded that the Department did not err in allowing a staff member and her daughter to reside in a small residential care facility as a use not inconsistent with the primary use of the facility.
The issue we must resolve is whether the Board exceeded its jurisdiction or abused its...
To continue reading
Request your trial
-
Colo. Health Consultants v. City & Cnty. of Denver
...to determine, on a case-by-case basis, whether permission for the proposed accessory use has been impliedly granted. Lieb v. Trimble , 183 P.3d 702, 704-05 (Colo. App. 2008) (citing City of Sheridan , 34 Colo. App. at 232, 524 P.2d at 1392 ). It follows, therefore, that a use expressly proh......
-
Whitelaw v. Denver City Council, Court of Appeals No. 16CA0920
...P.3d 313, 314 (Colo.App.2000), and they have not overcome the presumption that the City Council's decision was proper. Lieb v. Trimble, 183 P.3d 702, 704 (Colo.App.2008).IV. Unlawful Spot Zoning¶ 61 The neighbors' final contention is that the rezoning constitutes impermissible spot zoning b......
- Giuliani v. Jefferson Cnty. Bd. of Cnty. Comm'rs
-
Covered Bridge, Inc. v. Town of Vail
...that it exceeded its jurisdiction or abused its discretion, including by application of an erroneous legal standard. Lieb v. Trimble, 183 P.3d 702, 704 (Colo.App.2008); Quaker Court Ltd. Liab. Co. v. Bd. of County Comm'rs, 109 P.3d 1027, 1030 Generally, a reviewing court should defer to the......