Regennitter v. Fowler, 17647
| Decision Date | 14 November 1955 |
| Docket Number | No. 17647,17647 |
| Citation | 132 Colo. 489,290 P.2d 223 |
| Parties | Erwin L. REGENNITTER, Plaintiff in Error, v. Freeman D. FOWLER, and Virginia R. Fowler; City of Idaho Springs; William Robson, Clarence Mackey, George Gress, Irvin Krueger and Earl Turner, pretending to act as a Board of Adjustment of the City of Idaho Springs; and H. Jay Fulton, Building Inspector of the City of Idaho Springs, Defendants in Error. |
| Court | Colorado Supreme Court |
John F. Mueller, Teller Ammons, Denver, for plaintiff in error.
Erwin L. Regennitter, Idaho Springs, pro se.
William W. McNeill, Lakewood, Justin A. Gargan, Idaho Springs, for defendants in error.
The parties appear in this Court in the same order as in the trial court, and we will hereinafter refer to them as they appeared below, or by name.
Defendants filed a motion to dismiss the complaint of plaintiff on the ground that it failed to state a claim upon which relief could be granted. The trial court sustained the motion and entered judgment in favor of defendants, and plaintiff, seeking reversal of the judgment brings the cause to this Court for review by writ of error.
In his complaint plaintiff alleged that he was the owner of property in the city of Idaho Springs, adjacent to property owned by defendants Freeman D. Fowler and Virginia R. Fowler; that his property, and that of the Fowlers, is located in a residence 'A' zone; that under pertinent ordinance of the city the use of said property is limited to one-family dwellings and the conversion of one-family dwellings into multiple family units is prohibited; that the city council of Idaho Springs, consisting of six aldermen, appointed a Board of Adjustment composed of five members of the council; that the Fowlers applied to defendant Fulton, who was the building inspector, for a building permit authorizing them to convert their one-family into a two-family dewling, notwithstanding the fact that it was located in a residence 'A' zone; that the building inspector denied the application and within five days after said denial the Fowlers appealed and applied to the defendant members of the Board of Adjustment to determine an area to be specially affected by said proposed alteration, and within which they might obtain from the owner of land, consents to such conversion as a condition to obtaining a variance from the terms of the ordinance; that the Board immeidately determined that the affected area consisted of blocks 12 and 13; that two days thereafter, on September 29, 1954, the Fowlers filed with said Board of Adjustment a petition purporting to contain the signatures of the owners of eighty per cent of the land within said blocks 12 and 13; that on said last mentioned date the Board granted the equested variance from the terms of the zoning ordinance, and immediately thereupon a building permit was issued and the Fowlers began remodelling the premises; that section 12 of the city ordinance empowered the Board of Adjustment to make exceptions to the terms of the ordinance under certain circumstances, but that the said Board could grant a variance only after public notice and hearing, and only in the event written consents signed by the owners of eighty per cent of the land in the affected area were filed with the Board; that the owners of eighty per cent of the land in said area had not consented to the proposed variance, and no public notice or hearing of any kind was had in connection with said application; that defendants 'acted in secret and concealed said action from the plaintiff and that no notice was ever given to plaintiff or to the public of said proceedings * * *'; that plaintiff has no plain, speedly or adequate remedy at law; and that he has suffered damage and injury by reason of the matters of which he complained.
The prayer of the complaint was for cancellation and revocation of the building permit; for permanent injunction restraining the Fowlers from using their property as a two-family dwelling; for a mandatory permanent injunction requiring them to restore the premises to its former condition as a one-family dwelling; and for such other and further relief as the court shall deem proper.
The judgment of the trial court contains, inter alia, the following statement:
'The Court finds that Plaintiff further complains that said Board of Adjustment has exceeded its jurisdiction and has acted arbitrarily, capiciously and in an abuse of its discretion in making an exception as provided by the ordinance of...
To continue reading
Request your trial
-
Snyder v. City of Lakewood
...P.2d 85 (1972); Morris v. Board of County Commissioners, 150 Colo. 33, 370 P.2d 438 (1962); Baum v. Denver, supra; Regennitter v. Fowler, 132 Colo. 489, 290 P.2d 223 (1955). In each of these cases, except Regennitter, we held that a declaratory judgment was the proper remedy where the Gener......
-
Corper v. City and County of Denver
...Co. v. Board of County Commissioners, Supra; Morris v. Board of County Commissioners, 150 Colo. 33, 370 P.2d 438; Regennitter v. Fowler, 132 Colo. 489, 290 P.2d 223. Applying the rule here, it becomes plain that the trial court erred in denying plaintiffs' request for review of the city's a......
-
Patel v. Thomas
...as true, and if upon any theory of law relief should be granted, then the motion to dismiss cannot be sustained. Regennitter v. Fowler, 132 Colo. 489, 290 P.2d 223 (1955). In reviewing a dismissal, we are in the same position as the trial court. McDonald v. Lakewood Country Club, 170 Colo. ......
-
Meyerstein v. Aspen
...57 may be appropriate. Norby v. City of Boulder, 195 Colo. 231, 236, 577 P.2d 277, 280 (1978); see also Regennitter v. Fowler, 132 Colo. 489, 494, 290 P.2d 223, 225 (1955) (where plaintiff had no notice of a hearing on a zoning variance and had not been heard by the board of adjustment, C.R......
-
Judicial Review, Referral and Initiation of Zoning Decisions
...248 P.2d 311 (1952). 80. Supra, note 2 at 305. 81. Supra, note 34 at 319. 82. See, e.g., Norby, supra, note 55; Regennitter v. Fowler, 132 Colo. 489, 290 P.2d 223 (1955). 83. See, Gold Run, supra, note 58. 84. See cases cited note 54, supra. 85. Supra, note 53. 86. Supra, note 55. 87. See, ......
-
Preparation of the Appeal from an Administrative Decision
...Really Trying," 4 The Colorado Lawyer 831 (May 1975). 75. C.R.S. 1973, § 40-6-115(5). 76. C.A.R. 52(b). 77. See Regennitter v. Fowler, 132 Colo. 489, 290 P.2d 223. 78. Cf. Denver v. District Court, supra note 71; Fort Collins-Loveland Water District v. Fort Collins, supra note 71. 79. Discu......
-
Discovery and Judicial Review in State Administrative Practice
...___Colo.___, 619 P.2d 60, 62 (1980). C.R.S. 1973, § 24-4-106(4). (1976 Colo. Sess. Laws, Ch. 108, p.585.) 82. See, Reginnetter v. Fowler, 132 Colo. 489, 494, 290 P.2d 223, 225 (1955); Holly Development, Inc. v. Board of County Commr's, 140 Colo. 95, 342 P.2d 1032, 1036 (1959); Norby v. City......
-
CHAPTER 11 ADMINISTRATIVE PRACTICE—LOCAL
...Georgetown, 580 P.2d 807 (Colo. 1978). [27] Nopro Co. v. Town of Cherry Hills Village, supra, at footnote 7. [28] Regennitter v. Fowler, 290 P.2d 223 (Colo. 1955): Norby v. City of Boulder, 577 P.2d 277 (Colo. 1978). [29] Hermanson v. Board of County Commissioners of the County of Fremont, ......