Marker v. City of Colorado Springs, 18643

• Decision Date: 02 February 1959
• Docket Number: No. 18643,18643
• Citation: 138 Colo. 485,336 P.2d 305
• Parties: William MARKER, Agnes Hutchinson, Henry I. Szymanski, and North End Home Owners Association, Inc., a Colorado Corporation, Plaintiffs in Error, v. CITY OF COLORADO SPRINGS, a municipal corporation, and Fred Simpson, Jr., Harry Blunt, Harold Hawks, Carl Decker, Harold Heyse, Robert W. Johnson, Melvin Olson, Eugene Martin, William C. Henderson, as President and Members Respectively of the City Council of City of Colorado Springs, W. C. Service, Richard Vanderhoof, Harold Dyer, James R. Kennedy, Louis J. Kennedy, Herbert Thomson, A. L. Ingerick and Peter J. Labowskie, Defendants in Error.
• Court: Colorado Supreme Court

Page 305

336 P.2d 305

138 Colo. 485

William MARKER, Agnes Hutchinson, Henry I. Szymanski, and North End Home Owners Association, Inc., a Colorado Corporation, Plaintiffs in Error, v. CITY OF COLORADO SPRINGS, a municipal corporation, and Fred

Simpson, Jr., Harry Blunt, Harold Hawks, Carl Decker, Harold

Heyse, Robert W. Johnson, Melvin Olson, Eugene Martin,

William C. Henderson, as President and Members Respectively

of the City Council of City of Colorado Springs, W. C.

Service, Richard Vanderhoof, Harold Dyer, James R. Kennedy,

Louis J. Kennedy, Herbert Thomson, A. L. Ingerick and Peter

J. Labowskie, Defendants in Error.

No. 18643.

Supreme Court of Colorado, En Banc.

Feb. 2, 1959.

Rehearing Denied March 23, 1959.

Donald E. La Mora, Colorado Springs, for plaintiffs in error.

John A. Love, Frederick T. Henry, Haney & Howbert, Colorado Springs, for defendants in error.

KNAUSS, Chief Justice.

We shall refer to the parties to this writ of error as they appeared in the trial court, where plaintiffs in error were plaintiffs and defendants in error were defendants.

Pursuant to Rule 106 R.C.P.Colo. plaintiffs sought review of the action of the defendant City of Colorado Springs, Colorado in granting a use variance permit to defendants in error Service and Vanderhoof to erect a medical office building on certain unimproved lots owned by them with office space for eight doctors. The property involved was zoned R-3, under which the lots were limited by the zoning ordinance to one and two family dwellings and other non-commercial and non-business uses.

Pursuant to the ordinances of the City of Colorado Springs the defendants Service and Vanderhoof applied to the Planning Commission of said city for a variance in the use of said property, and after notice and hearing, at which testimony was taken and recorded, the Planning Commission granted said variance and a permit to erect the contemplated structure.

The plaintiffs then appealed the action of the Planning Commission, pursuant to the zoning ordinance, to the City Council of Colorado Springs. The Council set the matter for hearing where the record and transcript of the proceedings before the Planning Commission were submitted including the testimony of the witnesses both for and against the application for the variance. After a full hearing the Council sustained the action of the Planning Commission and adopted an appropriate resolution which among other things recited:

'(a) That there are special or extraordinary circumstances or conditions applicable to the property involved, or to the intended use of the property that do not apply generally to the property or class of use in the same zone, that a denial of the petition would result in undue property loss; and '(b) That such variance is necessary for the preservation and enjoyment of the property right of the petitioners; and

'(c) That such variance will not be detrimental to the public welfare or convenience, nor injurious to the property or improvements of other owners of property.

'Dated at Colorado Springs, Colorado this 10th day of December, 1957.'

Plaintiffs then commenced the instant action in the District Court asking that the Use Variance Permit be set aside and that the City of Colorado Springs be enjoined from issuing a building permit thereon to applicants. Defendants in error submitted a complete transcript of the proceedings before the Planning Commission and the City Council, together with the findings and conclusions of the Planning Commission and the City Council.

Among the findings of the trial is the following:

'(6) That it affirmatively appears from the record so certified that there were facts and evidence produced before the Planning Commission, and the City Council, which would justify such bodies in finding that, under the Ordinance, a Use Variance Permit should be granted.' As conclusions of law the trial court determined:

'The Court holds, as a matter of Law, that the City of Colorado Springs, acting through its Planning Commission and City Council, in granting to defendants W. C. Service and Richard Vanderhoof, a Use Variance Permit, did not exceed its...