Western Income Properties, Inc. v. City and County of Denver

• Decision Date: 17 May 1971
• Docket Number: No. 23654,23654
• Citation: 174 Colo. 533,485 P.2d 120
• Parties: WESTERN INCOME PROPERTIES, INC., Horizon Restaurant and Lounge, Inc., and Alden F. Cronin, Plaintiffs in Error, v. CITY AND COUNTY OF DENVER, a Municipal corporation, and Anthony H. Jansen, Zoning Administrator of the City and County of Denver, Defendants in Error.
• Court: Colorado Supreme Court

Page 120

485 P.2d 120

174 Colo. 533

WESTERN INCOME PROPERTIES, INC., Horizon Restaurant and Lounge, Inc., and Alden F. Cronin, Plaintiffs in Error, v. CITY AND COUNTY OF DENVER, a Municipal corporation, and Anthony H. Jansen, Zoning Administrator of the City and County of Denver, Defendants in Error.

No. 23654.

Supreme Court of Colorado, En Banc.

May 17, 1971.

Hoffman, Goldstein & Armour, Alan A. Armour, Richard C. Lonnquist, Denver, for plaintiffs in error.

Max P. Zall, Earl T. Thrasher, Robert M. Kelly, Denver, for defendants in error.

DAY, Justice.

Plaintiffs in error, doing business as Horizon Restaurant and Lounge, were defendants below. They seek reversal of an order of the district court restraining them from providing live entertainment in excess of one musician and one instrument. The facts relevant to our disposition of this case are as follows:

The City and County of Denver brought this action to enjoin the defendants from violating certain provisions of the municipal zoning ordinances of Denver. These ordinances provide, in effect, that the operation of an eating establishment is a use by right in a B--2 zoned District, but that any live entertainment at such eating place must be limited to not more than one musician and not more than one musical instrument. The parties stipulated to the court below that defendants are in fact operating the Horizon Restaurant and Lounge at 3298 Hudson Street, which location is in a B--2 District, and that the eating place has live entertainment consisting of four musicians playing four musical instruments.

A 'Cease and Desist Order' was issued by the City in 1964. In 1965 an action to enforce the ordinance was commenced in County Court. In due course, the county court decision was reviewed by the superior court of Denver, and defendants prevailed, leading to the filing of this injunction proceeding by the city in 1967. We hold that the district court erred in granting the permanent injunction, inasmuch as we conclude that the ordinance in question is invalid.

The primary argument of the defendant, and the only one with which we will deal herein, is that the ordinance is invalid and unconstitutional as an attempted regulation of the use of property which bears no reasonable relationship to the public health, morals, safety, or general welfare of the community. This general area of the law has been oft discussed, with the proper test to be applied perhaps stated best in the case of Jones v. Board of Adjustment, 119 Colo. 420, 204 P.2d 560 (1949):

'We consider briefly some basic fundamentals. The right to the use and enjoyment of property for lawful purposes is the very essence of the incentive to property ownership. The right to thus use property is a property right fully protected by the due process clause of the federal and state Constitutions. The use to which an owner may put his property is subject to a proper exercise of the police power. The so-called police power is the authority under which zoning ordinances have been universally upheld. In every ordered society the state must act as umpire to the extent of preventing one man from so using his property as to prevent others from making a corresponding full and free use of their property. Thus, under the police power, zoning ordinances are upheld imposing limitations upon the use of land, provided, however, that the regulations are reasonable, And provided further that the restrictions in fact have a substantial relation to the public health, safety, or general welfare.

It is elementary that an owner of property has the right to put his property to any legitimate use, unless the contemplated use is prohibited by the legislative arm of government through a proper exercise of the police power. * * *' (Emphasis added.)

Thus, a zoning ordinance will be upheld by the courts only if it has some tendency reasonably to serve the public health, safety, morals, or general welfare. This proposition, or some paraphrase of it is approved by the courts everywhere. The following language of the Supreme Court of Illinois is illustrative:

'While a city may thus enact zoning ordinances imposing burdens and restrictions upon private property and its use, the governmental power so delegated to interfere with the general rights of property owners is not unlimited. An exercise of the power is valid only when it bears a reasonable relation to the public health, safety, morals or general welfare. * * *' La Salle Nat'l Bank of Chicago v. Chicago, 5 Ill.2d 344, 125 N.E.2d 609 (1955). See generally, R. Anderson, 1 American Law of Zoning § 7.01 et seq. (1968).

Whether such exercise of the police power is proper depends upon the application of the law (ordinance herein) to the facts of a particular case:

'We will determine the reasonableness of the regulations as applied to the factual situation meanwhile keeping before us the accepted rules that the court will not substitute its judgment for that of the city council; that the ordinance is presumed valid * * * and that the legislative intent will be sustained if 'fairly debatable. " Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364 (1941); See DiSalle v. Giggal, 128 Colo. 208, 261 P.2d 499 (1953).

In the case at bar, the ordinance restricting the entertainment reads as follows: 'Eating place, live entertainment limited to not more than one musician and not more than one musical instrument.' Denver Revised Municipal Code § 612.7--3(1)(q). In passing upon the validity of this ordinance provision we are aware of the well established rule that any legislative act is presumed valid and therefore if it is even 'fairly debatable' that the provision is valid, it should be upheld. See Huneke v. Glaspy, 155 Colo. 593, 396 P.2d 453 (1964); Baum v. Denver, 147 Colo. 104, 363 P.2d...