Nopro Co. v. Town of Cherry Hills Village

Decision Date18 December 1972
Docket NumberNo. 25467,25467
PartiesNOPRO CO., a Colorado corporation, Plaintiff-Appellee, v. The TOWN OF CHERRY HILLS VILLAGE, a municipal corporation existing under andby virtue of the laws of the State of Colorado, Defendant-Appellant.
CourtColorado Supreme Court

Dayton Denious, William P. Denious, Denver, for plaintiff-appellee.

Van Cise, Freeman, Tooley & McClearn, Edwin P. Van Cise, Denver, for defendant-appellant.

LEE, Justice.

Appellant seeks to reverse an adverse judgment of the district court of Arapahoe County which declared the Cherry Hills Village zoning ordinance unconstitutional as applied to appellee's property. We reverse the judgment.

The controversy arose out of the refusal by the Cherry Hills Planning Commission to approve a proposed development of a 77-acre tract, known as the 'Work property,' into single-family building sites smaller than are permitted by the applicable R--1, Residential One District, zoning restrictions. R--1 zoning permits single-family dwellings on sites of not less than 2 1/2 acres. Appellee sought a density development which would approximate twice that permitted by the ordinance, 1.3 acres per dwelling unit as compared with 2.5 acres. Failing in its application to the Planning Commission, appellee commenced this action in the Arapahoe County District Court, seeking a declaration of unconstitutionality of the R--1 zoning classification as applied to its property.


This basic factual matters are not in dispute. Cherry Hills Village was incorporated in 1945. By its ordinance No. 9, Series of 1945, it zoned the entire Village, including the Hubert Work property which was within the original municipal boundaries. This property is located on the east side of University Boulevard approximately midway between Hampden Avenue on the north and Quincy Avenue on the south. The Cherry Hills Country Club is located directly across University Boulevard on the west.

The Work property was described as being in the 'heart' of the Village. It and the immediately adjoining properties on the north, east and south, were all initially zoned R--1, requiring 2 1/2 acres per building site. Although the ordinance was amended in 1956, the Work property and those adjacent to it retained their R--1 zoning, except as hereinafter noted.

At the time of appellee's application for rezoning, the Work property remained undeveloped except for a residence and outbuildings buildings on the east end of the tract, occupying approximately 2.7 acres. This tract had been sold, and is not involved in this action. The lands directly east, extending to Colorado Boulevard, and directly south, extending to Stanford Avenue, are still zoned R--1. These have been substantially developed into single-family residences on tracts, many of which under subdivision protective covenants are as large as 5 acres in size.

The property adjacent to the Work property on the north is known as the Buell property and consists of 160 acres. It is as yet undeveloped. The Buell property remains zoned R--1 where it borders the north boundary of the Work property and the subdivision lying to the east known as Devonshire Heights. On the west, along University Boulevard, it is zoned R--1 for a distance of approximately sixteen hundred feet north of the Work property. The northwest portion of the Buell property, bordering on Hampden Avenue and extending southerly to within 430 feet of the Work property, was rezoned as RA--1, Resort Area District. This zoning classification permits a residential and resort hotel development, including retail shops and restaurants as a part of the hotel structure. The RA--1 regulation provides that no more than ten percent of the RA--1 land may be occupied by buildings or structures of any type.

The quarter section of land directly west of the Buell property across University Boulevard is also zoned R--1.

To the northeast of the Work property lies the Devonshire Heights subdivision. This subdivision was not originally in Cherry Hills Village but was annexed under an agreement with the owner which permitted a platting into sites averaging 1.3 acres in size, zoned as R--1B Residential One-B District. Those sites on the south nearest the Work property are approximately 2.4 acres in size. The smaller sites are on the north and border on Hampden Avenue.

Across University Boulevard to the west, and adjoining Cherry Hills Country Club on the north and south, lie subdivisions bordering portions of the golf course. These are zoned R--2, Residential Two District, requiring minimum sites of one acre. However, as platted, the tracts are considerably larger than one-care plots.

The Village zoning ordinance contains additional zoning classifications: R--1A, Residential One-A District, which allows sites of 1 1/4 acres; R--3, Residential Three District, which allows sites of 1/2 acre; and R--3A Residential Three-A District, which allows sites of 16,000 square feet. The smaller tract zones are generally located on the perimeter of the Village and are areas which were subsequently annexed to the Village after its original incorporation. They adjoin other developments outside the Village, with less restrictive zoning requirements, such as Englewood on the west and north, and Denver on the north and east.

Greenwood Village lies to the south of Cherry Hills Village and is also zoned as a low density area and has been so developed.

The record establishes that Cherry Hills Village was zoned pursuant to a master plan as a 'green belt' area of low density with large building sites. It has been so developed with the construction of larger homes in reliance on the stability of the master plan and the zoning ordinances. The Denver metropolitan area land use plan, formulated by the Denver Regional Council of Governments, formerly the Inter-County Regional Planning Commission, also shows Cherry Hills and Greenwood Village as a green belt area of the lowest density residential development.

The road system of Cherry Hills is generally a network of two-lane winding roads. Efforts have been made to prevent high capacity roadways from entering into or going through the Village. The only major high capacity roadway running through the Village is University Boulevard, a divided highway running north and south and serving as a major traffic artery from Denver south to the Douglas County line. Hampden Avenue, a similar roadway running east and west, borders the Village on the north.


In 1960, Nopro engaged the services of a land planning firm, which made extensive studies of the Nopro property and its potential as a residential development. With the expert advice and consultation of this firm and with full knowledge of the Cherry Hills zoning restrictions, Nopro purchased the subject property in March of 1961 for $300,000. The easterly 2.7 acres, including the residence and appurtenant outbuildings, were sold in 1962 for $53,500. Nopro determined that the best development of the remaining land would be a 'planned unit development' encompassing about two thirds of the tract, by which a total of sixty-two sites, varying in size from 1/2 to 3/4 acres each, could be developed in clusters of four to five sites. The remaining one-third of the land would be platted and developed as common ground for use of the resident-owners. The maintenance of the common ground would be handled through association of the resident-owners.

Application for the necessary zoning revision to permit this development was made to the Cherry Hills Planning Commission. The proposed plan would have resulted in increased zoning density of approximately one site per 1.3 acres, as contrasted with the existing R--1 zoning density of one site per 2.5 acres.

Nopro admitted that under existing zoning R--1 restrictions the property could be developed feasibly and sold for approximately 2 1/2-acre sites and sold for approximately $20,000 per site, or a total of $600,000. However, if allowed to plat the land into sixty-two 1.3-acre sites, the property could be sold more rapidly and at approximately the same price per site, for a total of $1,200,000, thus doubling the gross profit to Nopro. Expert testimony was presented concerning the desirability of such a planned unit development and, while the Planning Commission was not opposed to such a development design, it rejected 1.3-acre proposed density as incompatible with the already developed R--1 zoned subdivisions adjoining the subject property.


Although this action was commenced in August of 1963, negotiations continued between Nopro and Cherry Hills officials to resolve the zoning controversy. Eventually, almost six years later, trial was commenced in March of 1969. At the conclusion of Nopro's evidence, appellant's motion to dismiss was denied. The court then adjourned the trial and it was not again resumed until November of 1971, when appellant presented its defense.

The trial court entered extensive written findings and conclusions and decided the controversy in favor of Nopro, declaring the zoning ordinance to be unconstitutional as applied to Nopro's property. The court enjoined the Cherry Hills Council (Board of Trustees) from enforcing the zoning ordinance as applied to Nopro's property. It specifically retained jurisdiction over the parties, and remanded the matter to the Council with instructions to adopt zoning provisions within 180 days, permitting development of Nopro's property for single-family use upon a density consonant with that permitted in Devonshire Heights or, in the event of noncompliance with the Council, the court would '* * * further determine what may be requisite and necessary to comply with the declaration, order, judgment, and decree herein made.'



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