Orchard Court Development Co. v. City of Boulder, 25877

• Decision Date: 20 August 1973
• Docket Number: No. 25877,25877
• Citation: 513 P.2d 199,182 Colo. 361
• Parties: -Appellant, v. CITY OF BOULDER, Colorado, a Colorado municipal corporation, Defendant-Appellee. Supreme Court of Colorado, En Banc
• Court: Colorado Supreme Court

Page 199

513 P.2d 199

182 Colo. 361

ORCHARD COURT DEVELOPMENT COMPANY, a Colorado corporation Plaintiff-Appellant, v. CITY OF BOULDER, Colorado, a Colorado municipal corporation Defendant-Appellee.

No. 25877.

Supreme Court of Colorado, En Banc.

Aug. 20, 1973.

Reynolds, Connell & Moran, John M. Banman, Boulder, for plaintiff-appellant.

Walter L. Wagenhals, City Atty., Boulder, for defendant-appellee.

LEE, Justice.

Appellant seeks to reverse an adverse judgment of the Boulder County district court, denying it relief from a special assessment levied against its property by Ordinance No. 3806 adopted by the City of Boulder on June 20, 1972. We affirm the judgment.

Pursuant to Chapter 17 of the Revised Code of the City of Boulder, by Ordinance No. 3678, the 30th Street, Arapahoe Avenue to Longmont Diagonal Improvement District was created. Improvements consisting of the installation of storm sewers, storm sewer drainage facilities, road-widening, including left-turn bays at various intersections, new road surfacing, curbs, gutters, setback sidewalks, driveways and traffic devices, were constructed at a total cost of $1,135,000. Ordinance No. 3806 was then adopted by which the City determined that $360,000 of the total cost of the improvements was properly assessable to the property owners within the improvement district, and the balance of $775,000 should be paid by the City. That portion of the whole cost assessed to the property owners was: the expense of paving and storm drainage, assessed on an area basis; the expense of curbs, gutters and sidewalks, assessed on a front-foot basis; together with a portion of the design, engineering and administrative costs. The appellant's property, consisting of a tract of 373,346 square feet (approximately eight and one-third acres) with a frontage of 1,293.77 feet on 30th Street, was assessed in the sum of $31,508. The various procedures required by Chapter 17 of the Revised Code, in adopting the special assessment ordinance, were admittedly complied with in all respects. Appellant filed written 'Remonstrances and Objections' and appeared at the public hearing by counsel, who presented a detailed statement of the objections in opposition to the proposed ordinance. He did not tender evidence as such, or offer testimony by witnesses, lay or expert. After hearing and consideration of the matters presented by objecting property owners, Ordinance No. 3806 was finally adopted, levying the assessment which appellant contends was unlawful.

Appellant then commenced an action in the district court, seeking injunctive relief from the assessment. It contended that the ordinance was void and constituted an unconstitutional taking of its property without due process of law. Additionally, appellant asserts that it was denied equal protection of the law in that the ordinance established an arbitrary and discriminating disproportion between property owners, based upon illegal, unjust and unconstitutional distinctions. The trial court held that the review of the city council action in adopting the ordinance was limited to review in the nature of certiorari under C.R.C.P. 106(a)(4) and that the injunctive relief prayed for was not appropriate under the circumstances. After reviewing the record of the council proceedings tendered pursuant to the above rule, the court found there was no abuse of discretion by the city council in levying the disputed assessment and the court thereupon dismissed the complaint. Appeal was commenced directly to this Court on the ground that the constitutionality of the assessment ordinance was under attack. 1969 Perm.Supp., C.R.S. 1963, 37--21--2(1)(c).

I.

Appellant asserts that the trial court erred in treating the action as a Rule 106 proceeding, thereby limiting its consideration to a review of the record of the council proceedings wherein the special assessment was determined and the ordinance was adopted.

Initially, we note that the right to appeal to the courts from a special assessment for public improvements does not exist except by statute. Fuller v. Incorporated Town of Rolfe, 249 Iowa 80, 86 N.W.2d 249; City of Gary v. Roper, 202 Ind. 445, 175 N.E. 242; Auburn v. Paul, 110 Me. 192, 85 A. 571; Village of Edina v. Joseph, 264 Minn. 84, 119 N.W.2d 809; Roberts v. City of Mitchell, 131 Neb. 672, 269 N.W. 515; Ruhle v. Caffrey, 113 N.J.Law 240, 174 A. 204; Eckard v. Zion, 12 Misc.2d 344, 172 N.Y.S.2d 363, aff'd, 6 App.Div.2d 885, 177 N.Y.S.2d 578; City of Portland v. Mima Corp., 132 Or. 660, 285 P. 815; 63 C.J.S. Municipal Corporations § 1502; 14 E. McQuillan, Municipal Corporations § 38.231.

While C.R.S. 1963, 89--2--38, which applies to cities generally, specifically affords a limited remedy to enjoin the collection of 'assessments levied under this article,' appellant does not contend this statute applies to the home rule city of Boulder and the assessment levied pursuant to Chapter 17 of its Revised Code. Chapter 17 of the Revised Code provides a complete procedure for the creation of special improvement districts and the levying of special assessments. Although it requires that court review must be brought within thirty days from the effective date of the ordinance, it does not specify the nature of the review that may be taken. Under these circumstances it is appropriate that review be had under C.R.C.P. 106(a)(4), which is specifically authorized where there is no available plain, speedy or adequate remedy.

Appellant additionally argues that passage of Ordinance No. 3806 was a legislative act and review by Rule 106 was therefore not appropriate, as it is limited to review of an inferior tribunal exercising judicial or quasi-judicial functions. In our view, it is clear that the city council, in apportioning the costs of the improvements constructed under the ordinance to properties in the improvement district specifically benefitted, was exercising a quasi-judicial function. The ordinance requires the giving of notice, a public hearing at which an opportunity be provided to be heard and present evidence, and a determination whether special benefits to particular properties have accrued; and, if so, the extent thereof. The foregoing requirements characterize the procedures as quasi-judicial as opposed to purely legislative or administrative functions. Englewood v. Daily, 158 Colo. 356, 407 P.2d 325; Kizer v. Beck, 30 Colo.App. 569, 496 P.2d 1062; City of Houston v. Blackbird, 394 S.W.2d 159 (Tex.Sup.Ct.1965).

Implicit in appellant's argument is the contention that it should have been afforded a de novo hearing at which it could present evidence in support of the purported invalidity of the assessment. It was long ago established, in City of Denver v. Kennedy, 33 Colo. 80, 80 P. 122 (before the adoption of C.R.C.P. 106(a)(4)) that the determination of special benefits and assessments is left to the discretion of municipal authorities, and their...