Pfaff v. City of Lakewood

• Court: Colorado Court of Appeals
• Writing for the Court: STERNBERG
• Citation: Pfaff v. City of Lakewood, 712 P.2d 1041 (Colo. App. 1985)
• Decision Date: 30 May 1985
• Docket Number: 84CA0600
• Parties: John B. PFAFF and Green Mountain Management, Inc., a Colorado corporation, Plaintiffs-Appellants and Cross-Appellees, v. The CITY OF LAKEWOOD, a Colorado municipal corporation; The City Council of the City of Lakewood; and Jean Rogers, Lakewood City Clerk, Defendants-Appellees, and Randy Royer, individually and as agent of Relax Development Corporation, Ltd., a Colorado corporation; Relax Development Corporation, Ltd., a Colorado corporation, and all successors and assigns; and Relax-Denver Investment Group, Ltd., a Colorado limited partnership, and all successors and assigns, Defendants-Appellees and Cross-Appellants. . I

Page 1041

712 P.2d 1041

John B. PFAFF and Green Mountain Management, Inc., a Colorado corporation, Plaintiffs-Appellants and Cross-Appellees, v. The CITY OF LAKEWOOD, a Colorado municipal corporation; The City Council of the City of Lakewood; and Jean Rogers, Lakewood City Clerk, Defendants-Appellees and Randy Royer, individually and as agent of Relax Development Corporation, Ltd., a Colorado corporation; Relax Development Corporation, Ltd., a Colorado corporation, and all successors and assigns; and Relax-Denver Investment Group, Ltd., a Colorado limited partnership, and all successors and assigns, Defendants-Appellees and Cross-Appellants.

No. 84CA0600.

Colorado Court of Appeals Div. I.

May 30, 1985.

Rehearing Denied July 18, 1985.

Certiorari Denied Jan. 13, 1986.

Bradley, Campbell & Carney, P.C., Michael C. Villano, Victor F. Boog, Golden, for plaintiffs-appellants and cross-appellees.

Gorsuch, Kirgis, Campbell, Walker & Grover, Leslie A. Fields, Merry Ann Vernon, Denver, for defendants-appellees.

Shaw, Spangler & Roth, Robert C. Roth, Jr., Christopher C. O'Dell, Denver, for defendants-appellees and cross-appellants.

STERNBERG, Judge.

The defendants, Randy Royer, Relax Development Corporation, Ltd., and Relax Denver Investment Group, Ltd., (Relax) own a 5.3 acre tract of ground in Lakewood that is zoned for office use. The plaintiffs, John B. Pfaff and Green Mountain Management, Inc., own property on which a hotel is situated. The plaintiffs' land is located immediately across the street from Relax's ground. Relax applied to the City of Lakewood to rezone its land to permit a hotel-motel development. The actual request before the city council was for it to rezone 3.12 acres of the plaintiffs' 5.3 acre parcel; thus, a 2.18 acre buffer zone, ranging from 30 to 100 feet in width, was created around a portion of Relax's property.

Seeking to invoke the "legal protest" section of the Lakewood City Charter, the plaintiffs presented petitions opposing the rezoning which they alleged were signed by the owners of 20 percent or more of property adjacent to the subject parcel. However, the city council measured from the interior 3.12 acre parcel and concluded that the petitions were not signed by 20 percent of adjacent land-owners. The council then passed the rezoning ordinance by a majority, but less than a two-thirds affirmative, vote.

The plaintiffs brought a C.R.C.P. 106(a)(4) action against Relax, the city, and city officials, seeking a declaration that the rezoning ordinance had in fact been defeated because it had been passed by less than a two-thirds affirmative vote. The trial court held against them, and they appeal. Relax cross-appeals. We affirm.

The charter provision in question provides:

"In case of a protest against changes in regulations or restrictions, or changes in the zoning district applicable to a particular land ... which is signed by the owners of twenty percent or more of the area subject to the proposed change or twenty percent or more of the area bounded by a line drawn at a distance of one hundred feet from every point of the outer boundary of the area subject to the change, disregarding intervening public streets and alleys ... such changes shall not become effective except by a favorable vote of two-thirds of all members of the city council." (emphasis added)

In light of this provision, the determinative issue is whether, as the plaintiffs contend, the legal protest area should be measured from the perimeter of the full 5.3 acre tract, or, as the city council did, from the boundary of the interior 3.12 acre parcel. This issue presents a question of the meaning of the language of the charter. It is the plaintiffs' view that we should liberally construe the language of the charter to accomplish the purposes for which it was adopted, rather than to construe narrowly by applying the exact words used in the charter provision.

When self-created buffer zones have been at issue, most jurisdictions have applied legal protest legislation as written. See, e.g., Heaton v. City of Charlotte, 227 N.C. 506, 178 S.E.2d 352 (1971) (where no property of protestors was within the 100 foot requirement of the statute, the buffer zone so created was within full compliance with the law); St. Bede's Episcopal Church v. City of Santa Fe, 85 N.M. 109, 509 P.2d 876 (1973) (where owner of one lot purposely designated only a part of that lot to be rezoned, an owner...