Willison v. Cooke

• Decision Date: 03 March 1913
• Citation: 130 P. 828,54 Colo. 320
• Parties: WILLISON, Bldg. Inspector, v. COOKE.
• Court: Colorado Supreme Court

130 P. 828

54 Colo. 320

WILLISON, Bldg. Inspector, v. COOKE.

Supreme Court of Colorado

March 3, 1913

In Banc. Error to District Court, City and County of Denver; H C. Riddle, Judge.

Action in mandamus by Demmie P. Cooke against Robert Willison, as Building Inspector of the City and County of Denver. Judgment for petitioner, and respondent brings error. Affirmed.

Defendant in error, as petitioner, brought an action in mandamus against the plaintiff in error, as respondent, in his official capacity as building inspector of the city and county of Denver, the purpose of which was to compel him to issue a permit for the construction of a building on the southeast corner of Colfax avenue and Williams street. In his petition, petitioner alleged that he was the owner of the lots in question; that respondent was the duly appointed qualified, and acting building inspector of the city and county of Denver; that he applied to respondent for a permit for the erection and construction of a one-story brick store building upon his lots, to cost the sum of $10,000, and then and there submitted and filed with him plans and specifications of the proposed building, showing and describing all parts of the construction thereof, and tendered him $10, the prescribed fee for the issuance of the permit requested; that the plans and specifications submitted to and filed with the inspector indicated and showed that the work to be done in the construction of the building was in all respects in accordance with the provisions of the ordinances of the city and county of Denver; that the inspector so found, but, without lawful excuse or reason therefor other than the provisions of certain ordinances referred to by number and title, refused to issue the permit applied for. Petitioner prayed that a peremptory writ of mandamus be issued, directed to the building inspector ordering and commanding him, upon payment or tender of the proper fee therefor, to at once issue a permit for the erection of the proposed building on the lots mentioned.

To this pleading the respondent answered, admitting that petitioner was the owner of the lots in question; alleged that they fronted on the east side of Williams street, at the corner of Colfax avenue; admitted that, in so far as the application and the plans and specifications of the proposed building were involved, they indicated that the construction of the building and the materials to be used therein were in all respects in accordance with the provisions of the ordinances of the city and county of Denver, and that he found the plans and specifications submitted to him by the petitioner to be in full compliance with such ordinances, in so far as the character of the building or the construction thereof, and the materials to be used therein, were concerned; but alleged that the building as indicated by the plans and specifications, as well as the application for the permit to erect the same, and in so far as the erection of the building relates to the location and construction thereof upon the premises described, did not comply with the provisions of the ordinances of the city and county of Denver. The answer then sets out the ordinances referred to, which are as follows:

'In the following described section or portion of the city and county of Denver [then follows a description by reference to streets which includes the lots in question], it shall be unlawful to build or erect or make addition to a terrace (for more than two (2) families), apartment house, or flat (for more than four (4) families), store building or factory of any kind, rooming house of more than thirty (30) rooms, hotels or any buildings similar to those before mentioned, unless the party desiring a building permit for any such building has first secured and filed with the building inspector the signatures of a majority of the owners of the property in the same block, on the same side of the street, and of the owners of the property in the block on the opposite side of the street or avenue, facing same, approving of the erection of such a building, such approval to be accompanied by a certificate from some reliable abstract company that the parties signing the same are the owners of the property for which they signed. Before issuing any permit for any building, as before mentioned, the owner must specifically agree in writing to build said building on a line of the average distance back from the front line of lots as the buildings on the same side of the street in the same block; whenever such buildings are proposed to be erected on corner lots, they shall be set back from the front face of the lots to conform to the other buildings on the same side of the street in the same block, but may be built up to the lot line toward the street or avenue on the long side of the lot, provided that for the purpose of this section, the frontage of all lots within the city and county of Denver shall be and remain as laid out and platted at the time of the passage of this ordinance.' Section 248, Municipal Code, as amended.

'If the matters mentioned in the application for a permit, or the plans and specifications filed with the same, indicate to the building inspector that the work to be done is not in all respects in accordance with the provisions of the city ordinances, he shall refuse to issue a permit therefor until the same has been made so to comply, when he shall issue the permit.' Section 226, Ibid.

'Whenever, in any block or on any street or avenue in the residence sections of the city and county of Denver, and fifty (50) per cent. of the lots in such block facing on said street or avenue have been improved, and the building line of the improvements made permanent, it shall be required that all buildings thereafter erected on adjoining lots within such block and facing on the same street or avenue must have the front building line established not nearer to the front lot line than the average distance back from the front line of the buildings already built. * * *' Section 250, Ibid.

The answer then alleged that the petitioner did not secure and file with the inspector the signatures of a majority of the owners of the property in the block on the same side of the street in which the lots upon which it was proposed to erect the building are located, and the owners of property on the opposite side of the street facing the same, approving of the erection of such buildings; nor did petitioner specifically agree, in writing, to erect the building on a line the average distance back from the front lot line of lots that buildings on the same side of the street in the block in which his lots are situate are constructed; nor did he agree that the building proposed to be erected should be set back from the front line of his lots to conform to the other buildings on the same side of the street in the same block, but in fact insisted that the ordinances imposing these conditions as a condition precedent to the issuance of a permit were invalid and of no effect. The answer further alleges that the permit was refused because of the failure of petitioner to comply with the provisions of the ordinances above quoted, in the particulars noted, for the reason that to issue the permit requested in such circumstances would be in violation of such ordinances and contrary to the duty and obligation of respondent, as building inspector of the city and county of Denver. The answer does not raise any issue upon the question that the proposed building will obstruct the street, or sidewalk, or upon the question of fire protection or insurance.

To this answer a demurrer was filed by petitioner, challenging its sufficiency to constitute a defense to the petition. This demurrer was sustained; and, the respondent electing to stand upon his answer, the court ordered that a peremptory writ of mandamus issue, as prayed for by petitioner. The respondent has brought the case here for review on error.

The charter of Denver (section 17) authorized the city council to enact and enforce ordinances necessary to protect life, health, and property; to declare, prevent and summarily abate nuisances; and preserve and enforce good government, the general welfare, order, and security of the municipality, and the inhabitants thereof. Held, not to confer power to prohibit the erection of a store building upon lots fronting upon an ordinary street, without first obtaining the consent of the owners of the property in the same block on each side of the street, and submitting to other burdensome restrictions.

Henry A. Lindsley and George Q. Richmond, both of Denver (John T. Bottom and A. Newton Patton, both of Denver, of counsel), for plaintiff in error.

James H. Brown, of Denver, for defendant in error.

GABBERT, J. (after stating the facts as above).

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