Roeder v. Miller, 21271
| Decision Date | 21 March 1966 |
| Docket Number | No. 21271,21271 |
| Citation | 412 P.2d 219,159 Colo. 456 |
| Parties | Carl A. ROEDER, Plaintiff in Error, v. Martin P. MILLER, District Attorney In and For the Eighteenth Judicial District, State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
George G. Christiansen, Denver, for plaintiff in error.
Martin P. Miller, pro se, Harry E. Carleno, Englewood, for defendant in error.
We shall refer to Carl A. Roeder, who was defendant in the trial court either by name or as the defendant, and to the defendant in error Miller as the District Attorney.
The issue presented for our determination is whether the Arapahoe County Zoning Resolution was so arbitrary and unreasonable, when applied to Roeder, as to render it unconstitutional in its application.
The basic facts are not in dispute. On August 11, 1956, Roeder, without checking to determine the zoning in effect, purchased from Ruth and Helen Kennedy, Tract One and Tract Eight of the East Half of the East Half of the Northeast Quarter of Section 30, Township 4 South, Range 66 West, Arapahoe County, Colorado. This area was also known as 'Kennedy Heights.' In the year preceding this transaction, the Board of County Commissioners of Arapahoe County had approved a change in the zoning designation of Kennedy Heights from an A-3 Farm Residence District, as was then provided for by the ordinance, to an A-2 Farm Residence District.
After his purchase of the land, Roeder began, almost immediately, to move junk automobiles onto the property. Commencing in 1959, he also used part of the land for residential purposes. Sometime during 1958, after having received a Notice of Unauthorized Use from the County, defendant filed an application with the Arapahoe County Planning Commission. Therein he requested that the zoning of his land be changed to allow the property to be used as an automobile wrecking yard. This request was denied on August 19, 1958. Roeder, however, continued his operation. He disassembled stored junk automobiles; sold certain parts to garages; and transported the scrap to a steel compressing company. As of the date of the trial, defendant had approximately 100 automobiles stored on his five acres of land.
On October 31, 1963, the District Attorney filed a complaint against Roeder pursuant to C.R.S. '53, 106--2--24. He moved for both a preliminary and permanent injunction against the continued use by the defendant of the land as an automobile junkyard on the basis that such usage constituted a violation of the county's zoning resolution. Issue was joined when the defendant filed his answer on January 10, 1964. Thereafter, following a hearing, the court granted the motion for a preliminary injunction, adding the provision that, in addition to a 10 day stay of execution, the defendant was given 6 months to clean up the property. The necessity of filing a motion for a new trial was dispensed with. On July 28, 1964, the defendant filed his application for supersedeas with this court.
Roeder urges that in four respects the zoning resolution in question is unconstitutional as it is applied to him. First, he asserts that the ordinance is unfair and discriminatory in that it contains categories and classifications which are vague, unclear and confiscatory; second, he urges that his property is not susceptible to any use listed for his zoned area; third, he claims that the ordinance bears no relation to a legitimate exercise of the police power; and, fourth, he asserts that others in the area are permitted uses more objectionable than his, and that it is discriminatory to let such condition exist and to apply the law to him and not to them.
The A-2 regulation in effect when defendant acquired his land provided in pertinent part of the following permitted uses:
'* * *
'1. Any use permitted in R Districts.
'2. All customary farming operations, live stock raising and fattening, dairy farms, greenhouses, nurseries.
'3. Cemeteries.
'4. Riding academies, racing stables, commercial stables and polo fields.
'Height, Rear Yard, Side Yard, Setback: Same as for A 1.'
We note that defendant's type of operation was only permitted, under the resolution then in effect, in the 'M Industrial District'; and, further, that the uses...
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