Roosevelt v. Beau Monde Co.

• Decision Date: 22 July 1963
• Docket Number: No. 20739,20739
• Citation: 152 Colo. 567,384 P.2d 96
• Parties: Peter K. ROOSEVELT et al., Plaintiffs in Error, v. BEAU MONDE CO., a Colorado corporation, Beryl A. Wallace, Building Inspector of the City of Englewood, Colorado, and City of Englewood, a municipal corporation and C. A. Sigafoos, Sam Hill, Ronald Wilson and Kenneth Bull, Defendants in Error.
• Court: Colorado Supreme Court

Page 96

384 P.2d 96

152 Colo. 567

Peter K. ROOSEVELT et al., Plaintiffs in Error, v. BEAU MONDE CO., a Colorado corporation, Beryl A. Wallace Building Inspector of the City of Englewood, Colorado, and City of Englewood, a municipal corporation and C. A Sigafoos, Sam Hill, Ronald Wilson and Kenneth Bull Defendants in Error.

No. 20739.

Supreme Court of Colorado, En Banc.

July 22, 1963.

Fred Winner, George Louis Creamer, Harold Feder, Denver, for plaintiffs in error.

Dawson, Nagel, Sherman & Howard, Raymond J. Turner, James E. Hautzinger, Denver, for Beau Monde Co.

Joseph W. Each, Myrick, Smith, Criswell & Branney, Englewood, for Wallace and City of Englewood.

J. F. Little, David C. Little, Denver, for Sigafoos, Hill, Wilson and Bull.

HALL, Justice.

On January 25, 1963, Beau Monde Co., a Colorado corporation, to whom we refer as Beau Monde, filed its complaint under Rule 106, R.C.P.Colo., in the District Court of Arapahoe County, Colorado. Named as defendants in the complaint are the City of Englewood and Beryl A. Wallace, its building inspector. We refer to the defendants as such or as Englewood and Wallace.

On February 15, 1963, Beau Monde filed its FIRST AMENDED COMPLAINT in which 'Article 10' appearing in the original complaint was changed to read 'Article 11,' and three additional alleged claims for relief are set forth.

In substance, Beau Monde alleges that it is the owner of some fifty-five acres of lands, herein referred to as the subject property, located in Arapahoe County, now within the City of Englewood, lands which it claims are not subject to any use restrictions; that W. R. Grimshaw Company, Inc., with whom Beau Monde had entered into a contract for the construction of a shopping center on the subject property, applied to the City of Englewood for a permit to build a regional shopping center on the land. Englewood, through Wallace, denied the application for the alleged reason that the property was zoned R-1-A and use thereof restricted to residential purposes. Promptly following denial of the application, Beau Monde commenced this action, seeking a court order directing issuance of the permit.

On February 21, 1963, the defendants filed their answer to Beau Monde's complaint and amended complaint.

In substance, as defenses to Beau Monde's claims, defendants allege that:

1. The subject property is zoned R-1-A Residential;

2. Beau Monde's complaint does not allege a claim against Englewood entitling it

'* * * to relief of any nature and, more particularly, to relief in the nature of the discretionary writ of mandamus.'

3. that:

'* * * this court lacks jurisdiction of the subject matter of each of plaintiff's claims by reason of plaintiff's failure to join an indispensable party, or parties';

4. that Beau Monde by reason of actions and conduct of its predecessor in title of the subject property has waived and abandoned its right to contest the validity of Article 1, Section 7, Ordinance No. 45, Series of 1955 (zoning ordinance), and is now precluded from attacking the same, due to the expiration of the time allotted for such purpose;

5. Beau Monde failed to seek review before the board of Adjustment and Appeals of the motion of Wallace in denying the building permit and, having failed to exhaust its administrative remedies, cannot obtain relief in the courts in the nature of mandamus, or at all;

6. Beau Monde is estopped to question the validity of Englewood Ordinance No. 45, zoning the subject property R-1-A;

7. Ordinance No. 45 zoning the subject property R-1-A is valid as to said property, and Beau Monde is without authority to question its validity with reference to other property.

On March 8, 1963 (within twenty days after filing of the First Amended Complaint of Beau Monde), Roosevelt and ten other named persons, to whom we will refer as intervenors, filed their motion seeking permission to intervene in the action. Of those seeking to intervene, six are alleged to be the owners and occupants of residence properties in Englewood, and five are alleged to be the owners and occupants of residence properties in the Town of Cherry Hills Village, Arapahoe County; all of said properties are alleged to be 'immediately abutting the subject property' and being within the legal protest zone against zoning of the subject property.

In their motion, intervenors allege that the subject property is now zoned residential-agricultural under applicable Arapahoe County and Englewood zoning; that Englewood and many members of its council, though voting against proposals to rezone the subject property for commercial purposes, actually desire the property to be rezoned as commercial, and some council members have actively attempted to cause such rezoning and are opposed to Englewood interposing even a nominal defense to Beau Monde's claims; that Beau Monde and its predecessor in title and one Gerri von Frellick, have for three years repeatedly sought rezoning of the subject property, resulting in the continual harassment of the intervenors and flouting of all zoning regularity and canons of proper land use, and in disregard of the public interest by reason of which,

'* * * it is imperative that this intervention be allowed in order that the interests of adjacent private landowners and of the broad public affected be protected.'

Tendered with the motion is intervenors' 'ANSWER, COUNTERCLAIMS, AND CROSS-CLAIMS,' wherein they allege: (1) that the complaint fails to state a claim; (2) that the subject property is not owned by Beau Monde, but is now owned by Time-Life Broadcasting, Inc.; (3) that the subject property is in the midst of an highly developed residential area; (4) that the subject property has, prior to construction of most of the area homes, been zoned restrictively for residential purposes and is now so zoned, and it has never been permitted either commercial or industrial use; (5) that past and present performances of Englewood and several members of its council indicate a desire to have the subject property utilized for shopping center purposes, and they have and are now co-operating with Beau Monde to accomplish this purpose.

Most of the alleged defenses contained in the tendered answer of intervenors are the same as those set up by the defendants. Additional matters set up by intervenors include allegations (1) that Beau Monde is not the real party in interest; (2) that Greenshaw (the contractor who applied for and was denied a permit) is a foreign corporation, not qualified to do business in Colorado and not licensed by Englewood as a contractor; (3) res judicata. By counterclaim and cross-claim they seek a declaratory judgment declaring the rights of the parties.

On March 15, 1963, Beau Monde filed its 'TRAVERSE AND ANSWER IN OPPOSITION TO MOTION TO INTERVENE FILED BY PETER K. ROOSEVELT, ET AL.,' wherein it demands intervenors be compelled to prove averments contained in their motion. Said traverse further states that the only issue involved in the action is the question as to whether the subject property is zoned or unzoned that that question has not previously been litigated or adjudicated; denies that the council or members thereof have assisted in getting property zoned as commercial; admits that intervenors will be bound by any judgment entered; alleges that the application to intervene is not timely and that the counterclaim injects new matter, and that the intervenors' rights are properly and adequately represented by counsel for Englewood, and states that if permissive intervention be granted it should be on condition that no counterclaim be considered, and that dates previously fixed for pretrial conference and trial be maintained.

On March 19, 1963, defendants filed their 'VERIFIED TRAVERSE TO MOTION TO INTERVENE.' Therein defendants deny nearly all of the allegations contained in intervenors' motion, and state that the interests of Englewood and intervenors are the same and that counsel for Englewood have been authorized to defend this action and are doing so, and are using and intend to use all honorable means to obtain a judgment adverse to Beau Monde, and that no member of the council has sought to persuade defendants' counsel to not fully defend, and that counsel can and will adequately protect the interests of intervenors, which interests are the same as those of Englewood and Wallace.

Intervenors rely upon Rule 24, R.C.P.Colo., pertinent portions of which provide:

'(a) * * * Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; * * *.

'(b) * * * Upon timely application anyone may be permitted to intervene in an action * * * (2) when an applicant's claim or defense and the main action have a question of law or fact in common. * * *' (Emphasis supplied).

After hearing extensive arguments, the trial court in these few words disposed of the motion of intervenors:

'THE COURT: The court finds that under the present state of the record the applicants to intervene are not entitled to do so. The motions to intervene are denied, with leave, however, to renew those motions in the event that the City of Englewood, through its counsel, should in some way abandon this suit; or, in the event of a ruling adverse to the City, it should fail or refuse to appeal from the decision of this Court.

'The Court finds that this litigation is in progress and is being defended by the City through its attorneys, and there is no evidence of fraud, collusion, or bad faith.'

Motion for new trial was dispensed with and intervenors are here by writ of error seeking reversal, contending that Rule 24(a), R.C.P.Colo., grants to them the absolute right to intervene, that denial of that right was reversible error, and that refusal of the trial court to permit intervention under 24(b),...