Margolis v. District Court, In and For Arapahoe County
| Decision Date | 28 December 1981 |
| Docket Number | 80SC43 and 80SC59,Nos. 80SA110,s. 80SA110 |
| Citation | 638 P.2d 297 |
| Parties | Larry MARGOLIS, Wayne H. Roth and Robert Wiegand, II, Petitioners, v. DISTRICT COURT In and For the COUNTY OF ARAPAHOE and State of Colorado and the Honorable George B. Lee, Jr., one of the Judges thereof, Respondents. Robert R. WRIGHT, Edna S. Webster, and Norma D. Beard, Petitioners, v. The CITY OF LAKEWOOD, a Municipal Corporation; Charles E. Whitlock, Mayor of the City of Lakewood; and James Lee, John Morgan, Carolyn Bacher, Raymond Fink, James Eitzen, Paul Thompson, Sharron Carr, Lester Willson, Carl Neu, and Gaylor Smith, individually and as members of the Lakewood City Council of the City of Lakewood, Respondents. Jerry G. YANZ, Sandra K. Yanz, Walter E. Mader, Jr., Suzanne S. Mader, Raymond L. McLaren, Joanne E. McLaren, Paul H. Morris, Marie E. Wirsing, Herbert T. vonGoetz, Ruth C. vonGoetz, Peter de Steiguer, Bonnie S. de Steiguer, Gregory E. Lewis and Peggy J. Nelson, and all others similarly situated, Plaintiffs-Appellants, v. The CITY OF ARVADA, a Municipal Corporation, and Kenneth M. Gorrell, Vesta H. Miller, Robert Frie, and Jewell E. "Judy" Ford, individually and as members of the City Council of the City of Arvada, Harold N. "Hal" Heller, Rita Schnidt, and Rosemary J. Dooley, as members of the City Council of the City of Arvada, Defendants-Appellees. |
| Court | Colorado Supreme Court |
McMartin, Burke, Loser & Fitzgerald, P. C., Ronald S. Loser, Herbert C. Phillips, Englewood, for petitioners in No. 80SA110.
Banta, Hoyt, Malone & Banta, P. C., J. Mark Hannen, Englewood, for respondents in No. 80SA110.
Blake T. Jordan, Wheat Ridge, for amicus curiae Colorado Municipal League in all cases.
Skelton, Oviatt & O'Dell, Jeffrey J. Kahn, Wheat Ridge, for petitioners in No. 80SC43.
Gorsuch, Kirgis, Campbell, Walker & Grover, Robert E. Warren, Jr., Susan K. Griffiths, John S. Pfeiffer, Denver, for respondents in No. 80SC43.
Calkins, Kramer, Grimshaw & Harring, Richard L. Harring, Denver, for amicus curiae Home Builders Ass'n of Metropolitan Denver.
Myles J. Dolan, Charles T. Flett, Arvada, for plaintiffs-appellants in No. 80SC59.
Benjamin King, Arvada City Atty., Arvada, Greengard, Blackman & Senter, Richard D. Greengard, Thomas S. Rice, Denver, for defendants-appellees in No. 80SC59.
These three cases have been consolidated for the purpose of oral argument and opinion. They present the question whether zoning and rezoning by municipal governing bodies are legislative acts subject to challenge by popular referendum. We find that, in the context of these cases, zoning and rezoning are legislative in character and thus subject to the referendum and initiative powers reserved to the people under Colo.Const. art. V, sec. 1. 1
The factual background and procedural setting of each of the three cases is different and is set forth separately.
The case of Margolis, et al. v. District Court, No. 80SA110 (the Greenwood Village case), concerns the original zoning of land recently annexed to the City of Greenwood Village. 2 On March 26, 1979, the City of Greenwood Village annexed 31 parcels of undeveloped land constituting approximately 90 acres, and on July 16, 1979, a zoning ordinance was passed establishing the zoning for the annexed land.
On July 16, 1979, a petition for a referendum on the zoning ordinance and a petition for an initiative establishing a different zoning scheme were filed with the Greenwood Village City Council. 3 On August 6, 1979, the Greenwood Village City Council refused to act on the petitions because they related to zoning matters which the council believed were not legislative in character, and therefore were not within the referendum and initiative provisions of the Colorado Constitution, article V, section 1, and the Greenwood Village Charter. 4
Margolis and other qualified electors filed a C.R.C.P. 106(a)(2) action in the District Court of Arapahoe County, seeking an order either to compel the Greenwood Village City Council to repeal the zoning ordinance or to submit the petition for a referendum, and for an order forcing the Greenwood Village City Council either to adopt the alternative zoning measure or to submit the petition for an initiative vote of the electors of Greenwood Village.
Margolis joined as defendants the Greenwood Village City Council and two of the individual landowners whose property was affected by the zoning dispute. Two other landowners moved to intervene in the action.
The district court refused to grant intervention and dismissed all claims against the two landowners originally named as defendants. The court also granted the motion of Greenwood Village to dismiss the referendum and initiative petitions dealing with the zoning of the annexed property, on the grounds that the zoning decisions were quasi-judicial and thus not subject to the referendum and initiative provisions of the Colorado Constitution and the Greenwood Village Charter.
Margolis petitioned in this original proceeding under C.A.R. 21 to review the dismissal by the district court. We issued a rule to show cause why the relief requested should not be granted.
The case of Wright, et al. v. City of Lakewood, No. 80SC43, is before this court on certiorari to the court of appeals.
On June 12, 1978, the Lakewood City Council adopted an amendment to the Master Land-Use Plan of the City and passed an ordinance rezoning certain properties within the area covered by the amendment to the master plan. 5 The amendment to the master plan and rezonings by the Lakewood City Council would allow development of an activity center in the area around the Villa Italia Shopping Mall. The plan called for increased commercial, office building, and residential usages as well as significant street improvements, in an apparent attempt to create an integrated "downtown" area within the City of Lakewood.
On July 11, 1978, Wright and other citizens of Lakewood filed petitions seeking a referendum on the amendment to the master plan and on the rezonings. The Lakewood City Council refused to repeal the ordinance and did not set a date for the referendum election.
Wright filed an action for declaratory relief and mandamus to force the City of Lakewood to hold a referendum election. On June 13, 1979, the District Court of Jefferson County granted Wright's motion for summary judgment and ordered the city council to repeal the ordinances or set an election on the referendum petitions.
Lakewood appealed to the court of appeals. A divided court reversed, holding that the approval of an amendment to the master plan and the adoption of a rezoning ordinance were not "legislative" acts and therefore were not subject to the referendum power contained in the Colorado Constitution, art. V, sec. 1 Wright v. City of Lakewood, 43 Colo.App. 480, 608 P.2d 361 (1979).
We granted certiorari to review the decision of the court of appeals.
Yanz, et al. v. City of Arvada, No. 80SC59, is before this court on a writ of certiorari under C.A.R. 50 because of the important issues it presents.
On February 10, 1979, the Arvada City Council adopted an ordinance rezoning 3.34 acres of land at the corner of 72nd Avenue and Wadsworth Boulevard from single-family residential to commercial. The proposed use of the property was for a professional office building.
Within the time limit specified in the city charter, 6 Yanz, and other qualified electors (Yanz), submitted petitions calling for a referendum on the rezoning approved by the Arvada City Council. On April 6, 1979, the Arvada City Council rejected the petitions and refused to schedule an election.
Yanz brought an action in the Jefferson County district court seeking a declaration that the rezoning ordinance was subject to the referendum provisions of the Arvada City Charter and the Colorado Constitution, and seeking damages for violation of Yanz' constitutional rights.
The district court granted Arvada's motion for summary judgment. It held that rezoning decisions of the city council were not subject to the referendum provisions and that Yanz' sole remedy was limited to judicial review under C.R.C.P. 106(a)(4).
Yanz appealed to the court of appeals. Certiorari before judgment was granted under C.A.R. 50.
Before reaching the main issues to be decided in this case, there are threshold procedural issues raised in the Greenwood Village case which must be determined.
Greenwood Village first claims that the case is not properly before this court under C.A.R. 21 and that any error made by the district court may properly be corrected on appeal. We have previously held that original proceedings are authorized to
"... test whether the trial court is proceeding 'without or in excess of its jurisdiction' C.A.R. 21(a) ..." (and) to review a serious abuse of discretion where an appellate remedy would not be adequate. " (Citations omitted.) "It is not a substitute for appeal, ... (and) the exercise of original jurisdiction under C.A.R. 21 is discretionary. " (Citations omitted.) Coquina Oil v. District Court, Colo., 623 P.2d 40 (1981).
See also, Sanchez v. District Court, Colo., 624 P.2d 1314 (1981). Since the ruling of the district court has allegedly denied the citizens their fundamental right to challenge government decisions by referendum and initiative, we have elected to accept jurisdiction to determine if a fundamental right has been denied, and, if so, to prevent the perpetuation of that denial.
Greenwood Village also argues that Margolis failed to join indispensable parties under C.R.C.P. 19; that the failure to join these parties is a jurisdictional defect; and, that therefore, dismissal of Margolis' claims was mandatory. See Norby v. City of Boulder, 195 Colo. 231, 577 P.2d 277 (1978). We disagree.
In this case, Greenwood Village argues that the individual landowners of the zoned plots should have been joined since...
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