Van Sickle v. Boyes, 89SA242

Decision Date25 June 1990
Docket NumberNo. 89SA242,89SA242
PartiesJames H. VAN SICKLE, Plaintiff-Appellant, v. Charles E. BOYES, Fire Chief of the Fire Department of the City of Boulder; Steven R. Hall, Hearing Officer, Office of the City Manager, City of Boulder; James W. Piper, City Manager, City of Boulder, and the City of Boulder, Defendants-Appellees.
CourtColorado Supreme Court

Lembke, Stewart & Coates, P.C., Curtis W. Shortridge, Englewood, for plaintiff-appellant.

Office of the City Atty., Joseph N. de Raismes, Walter W. Fricke, Jr., Boulder, for defendants-appellees.

Justice ERICKSON delivered the Opinion of the Court.

James H. Van Sickle appeals 1 the district court's ruling and order that affirmed the order of the hearing officer and rejected Van Sickle's constitutional challenges to application of the City of Boulder's Life Safety Code (Safety Code). 2 The Boulder Fire Department inspected a building owned by Van Sickle and issued an order to correct ten violations of the Safety Code. Van Sickle obtained review of the Fire Department's order by Steven R. Hall, a hearing officer for the City of Boulder, who modified the order in part and affirmed. On appeal to the district court, Van Sickle sought review of the hearing officer's order pursuant to C.R.C.P. 106(a)(4). Van Sickle alleged that his building was built before the Safety Code was enacted, that enforcement of the Safety Code violated the Colorado Constitution's ban on retrospective legislation, and that enforcement of the Safety Code constituted a taking of his property without compensation. We affirm. 3


In 1970, Van Sickle purchased residential real property in Boulder. Van Sickle obtained a building permit in 1970 to enlarge and convert the building into commercial rental space and several apartments. When the remodeling was completed, the commercial portion of the building consisted of a large room on the first floor and an upper level balcony that had room for one desk. Access to the balcony was by an open stairway from the main level. An attic in the residence was converted to a storeroom and constituted the only other usable space on the upper level. The remodeling pursuant to the building permit was completed in 1970.

The Boulder Fire Department inspected the building in 1986 and 1987 to determine compliance with the Safety Code. On May 5, 1987, after two inspections, the Fire Department issued an order that listed ten violations of the Safety Code and required Van Sickle to correct the violations before July 1, 1987. 4 The order stated that failure to comply was unlawful and also notified Van Sickle of his right to an appeal to a hearing officer appointed by the city manager. The appeal to the hearing officer resulted in two hearings and modification of the order in part and affirmance in part. 5 Upon issuance of the hearing officer's order, Van Sickle agreed to correct four of the violations found by the Fire Department.

Van Sickle then sought review of the hearing officer's decision by the district court pursuant to C.R.C.P. 106(a)(4). 6 In addition, Van Sickle claimed that the Safety Code as applied to his building was an unconstitutional retrospective application of the Code that resulted in a taking without just compensation in violation of the United States and Colorado Constitutions. Van Sickle also alleged that the standard of review imposed by C.R.C.P. 106(a)(4), violated his constitutional rights to due process and equal protection of the law.

After the complaint was filed, Van Sickle converted the commercial portion of the building to residential use at a cost of approximately $8,000. The income from the residential use of the building was the same as for commercial use and the cost of compliance with the Safety Code for residential occupancy was less.

The district court concluded that the standard of review set forth in C.R.C.P. 106(a)(4) did not violate due process of law and that the hearing officer's order did not constitute an abuse of discretion. The trial court also held that the Safety Code as applied to Van Sickle's building was not unconstitutional as a retrospective law and that the City of Boulder did not take Van Sickle's property without compensation.

Prior to his appeal to this court, Van Sickle complied with all but three of the alleged violations. The only violations which are now in issue are: (1) the failure to provide a second exit from the upper level; (2) the failure to enclose the stairway to the upper level; and (3) the inadequate width of the stairway. 7


Section 1-4.1 of the Safety Code provides in part that "[t]he Code applies to both new construction and existing buildings." Van Sickle contends that the Safety Code as applied to his building is unconstitutionally retrospective in operation because the Code impaired his right to use his property in conformance with the building permit issued to him in 1970.

Article II, section 11 of the Colorado Constitution provides "[n]o ex post facto law, nor law impairing the obligation of contracts, or retrospective in operation ... shall be passed by the general assembly." A law is retrospective in operation when it " 'takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, with respect to transactions or considerations already past.' " P-W Investments, Inc. v. City of Westminster, 655 P.2d 1365, 1371 (Colo.1982) (quoting Denver, S.P. & Pac. Ry. v. Woodward, 4 Colo. 162, 167 (1878)). Van Sickle, relying on P-W Investments, maintains that the building permit issued by the City of Boulder in 1970 and his subsequent reliance on that permit created a vested right that is constitutionally protected from impairment by a subsequently enacted code which imposes more stringent safety requirements than those in existence when the building permit was issued.

A building permit can form the basis for a vested right if the permit holder takes steps in reliance on the permit. P-W Investments, 655 P.2d at 1371. However, reliance on a building permit does not insulate the permit holder from later changes in ordinances enacted under the police power for the protection of the public. The constitutional ban of retrospective operation does not prevent a city from enacting and enforcing ordinances to protect the health and safety of the community. Apple v. City & County of Denver, 154 Colo. 166, 172, 390 P.2d 91, 94 (1964).

The purpose of the constitutional ban of retrospective legislation, like the ban on ex post facto laws, is to prevent the unfairness that results from changing the legal consequences of an act after the act has occurred. Peoples Natural Gas Div. of Northern Natural Gas Co. v. Public Utils. Comm'n, 197 Colo. 152, 155, 590 P.2d 960, 962 (1979). In this case, Van Sickle was not penalized for violation of the Safety Code for remodeling that was completed prior to enactment of the Safety Code. Application of a safety code to buildings that were constructed in a different period under different code requirements does not constitute unconstitutional retrospective legislation. See Apple, 154 Colo. at 172, 390 P.2d at 94.


Van Sickle claims that the imposition of the Fire Department's order constitutes a taking of his property without just compensation in violation of the fifth and fourteenth amendments to the United States Constitution and article II, section 15 of the Colorado Constitution.

A land-use regulation when applied to a particular property constitutes a taking if it does not substantially advance legitimate state interests or if it prevents economically viable use of the property. Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980); see also Penn Central Transp. Co. v. New York City, 438 U.S. 104, 138, 98 S.Ct. 2646, 2666, 57 L.Ed.2d 631 (1978) (taking did not occur where regulation was substantially related to promotion of general welfare and permitted reasonable beneficial use of the property). A governmental regulation that prohibits all reasonable use of property constitutes a taking within the meaning of the fifth amendment and article II, section 15 of the Colorado Constitution. Cottonwood Farms v. Board of County Comm'rs, 763 P.2d 551, 554 (Colo.1988); Sellon v. City of Manitou Springs, 745 P.2d 229, 234 (Colo.1987). However, a landowner is not constitutionally entitled to use his property in a manner that results in the maximum attainable profit. Penn Central Transp. Co., 438 U.S. at 125, 98 S.Ct. at 2659-60; Sellon, 745 P.2d at 234. The Supreme Court has noted:

The economic impact of the regulations on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. So, too, is the character of the governmental action. A "taking" may more readily be found when the interference with property can be characterized as a physical invasion by government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.

Penn Central Transp. Co., 438 U.S. at 124, 98 S.Ct. at 2659 (citations omitted).

Van Sickle cannot contend that there was an actual physical taking of his property by the City of Boulder. The issue is whether the Safety Code as applied to Van Sickle's building foreclosed all reasonable use of the building. Prior to trial, Van Sickle stipulated that his return from the rental of the space in the building that was formerly used for commercial purposes is essentially the same whether that space is rented for commercial or residential occupancy. Van Sickle expended approximately $8,000 to convert the rental space to residential use and lost rental income during the period of conversion. In addition, Van Sickle claims that in order to maintain the commercial use of the building, compliance with the Fire Department...

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