Van Huysen v. Board of Adjustment of Adams County, 75--512
| Decision Date | 20 May 1976 |
| Docket Number | No. 75--512,75--512 |
| Citation | 38 Colo.App. 9,550 P.2d 874 |
| Parties | Peter VAN HUYSEN et al., Plaintiff-Appellees, v. BOARD OF ADJUSTMENT OF ADAMS COUNTY, Defendant-Appellant. . I |
| Court | Colorado Court of Appeals |
Robert W. Hutchinson, Denver, for plaintiffs-appellees.
S. Morris Lubow, County Atty., Larry W. Berkowitz, Asst. County Atty., Brighton, for defendant-appellant.
The Board of Adjustment of Adams County appeals a judgment of the district court which ordered the Board to grant a variance to plaintiffs (landowners) for construction of residences on their properties free of the requirement of the county building code that 'buildings shall adjoin or have access to a public space, yard, or street on not less than one side.' We reverse.
Each of the 12 landowners purchased from the same seller contiguous 40-acre tracts of land zoned for agricultural use. None of these tracts adjoins or has access to a public street or road. The roads which run along the interior boundaries of the tracts do not meet county specifications, and the county has refused to accept a dedication of said roads. Each landowner's application to the county building department for a permit to build a home on his tract was denied because of non-compliance with the above quoted provision in the building code. Their subsequent applications to the Board for variances from the access road requirement were heard and also denied.
The landowners then initiated this action in the district court, and asserted in separate claims: (1) That the denial of the variance was an abuse of discretion, and (2) that the Board's action was unconstitutional as applied to their property in that it denied them equal protection and due process. The record of the proceedings before the Board was certified to the court.
The trial was held in two phases, the first being a C.R.C.P. 106(a)(4) review of the record of the Board proceedings. On this review, the court upheld the Board, finding that there was evidence supporting the ruling and that the Board had not acted arbitrarily or capriciously and had not abused its discretion in denying the application. That ruling has not been appealed.
The second phase consisted of an evidentiary hearing on the constitutional issues. After taking testimony not contained in the record of the Board proceedings, and based on that testimony, the court made detailed findings of fact, concluded that application of the building code provision to the landowners precluded them from any reasonable use of their property without due process of law,...
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