Zavala v. City and County of Denver, 85SA300

• Decision Date: 20 June 1988
• Docket Number: No. 85SA300,85SA300
• Citation: 759 P.2d 664
• Parties: Ysidro M. ZAVALA and Norma L. Dotson, Plaintiffs-Appellants, v. CITY AND COUNTY OF DENVER, a single body politic and corporate; Board of Zoning Adjustment for the City and County of Denver; Marjorie Hornbein, Lawrence Henry, Ernest Capillupo, Frana Mace, and Charles Cousins, as members of the Board of Zoning Adjustment for the City and County of Denver; and Dorothy Nepa, as Zoning Administrator for the City and County of Denver, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 664

759 P.2d 664

Ysidro M. ZAVALA and Norma L. Dotson, Plaintiffs-Appellants, v. CITY AND COUNTY OF DENVER, a single body politic and corporate; Board of Zoning Adjustment for the City and County of Denver; Marjorie Hornbein, Lawrence Henry, Ernest Capillupo, Frana Mace, and Charles Cousins, as members of the Board of Zoning Adjustment for the City and County of Denver; and Dorothy Nepa, as Zoning Administrator for the City and County of Denver, Defendants-Appellees.

No. 85SA300.

Supreme Court of Colorado En Banc.

June 20, 1988.

Rehearing Denied July 11, 1988.

Beck and Cassinis, Howard J. Beck and Diana J. Payne, Aurora, for plaintiffs-appellants.

Stephen H. Kaplan, City Atty., Robert M. Kelly and Daniel B. Slattery, Denver, for defendants-appellees.

KIRSHBAUM, Justice.

Ysidro M. Zavala and Norma L. Dotson (appellants) appeal a district court's judgment rejecting their contentions that sections of the Revised Municipal Code of the City and County of Denver (the Code) violate their rights to substantive due process of law and equal protection of the law under the United States and Colorado Constitutions and that the enforcement of those provisions by municipal authorities was arbitrary, capricious, constituted an abuse of discretion and also violated appellants' constitutional rights. ¹ The district court based its conclusion solely on our decision in Rademan v. City & County of Denver, 186 Colo. 250, 526 P.2d 1325 (1974). We affirm the judgment insofar as it denied the appellants' claims alleging improper enforcement of the Code against them. However, because we conclude that Rademan is not dispositive of all of the appellants' claims, and because the district court's ruling lacks certain critical findings, we reverse the judgment insofar as it relates to the appellants' remaining claims and remand the case for further proceedings consistent with this opinion.

I

The appellants, a man and a woman who are neither married nor otherwise related, purchased as joint tenants a residential lot and dwelling on February 9, 1984, from the International Missionary Society of the Seventh Day Adventist Church. The property is located in Denver and is subject to the provisions of the Code regulating the use of land and structures.

The Code creates specific zoning districts throughout Denver and defines what uses may be pursued in each district. Uses of property defined by the Code include uses by right, uses by temporary permit, accessory uses and home occupations. Denver, Colo.Rev.Mun.Code § 59-2(97) (1982). Uses by right require no special authorization from administrative officials. See Denver, Colo.Rev.Mun.Code § 59-2(15) (1982). Persons wishing to use land or structures for uses other than uses by right must obtain authorization from the Department of Zoning Administration (the Department) for that use.

Eleven different residential districts are established by the Code. Occupancy of buildings as "single unit dwellings" is authorized as a use by right in ten of those districts. A "single unit dwelling" is defined as follows:

A single detached structure having but one dwelling unit with a single kitchen and housing any number of persons bearing to each other the relationship of: husband, wife, mother, father, grandmother, grandfather, son, daughter, sister, brother, stepson, stepdaughter, stepbrother, stepsister, stepmother, stepfather, grandson, granddaughter, mother-in-law, father-in-law, sister-in-law, brother-in-law, daughter-in-law, son-in-law, uncle, aunt, nephew or niece living together as a single, non-profit housekeeping unit, plus domestic servants employed for service on the premises; provided, however, that upon application to and issuance by the department of zoning administration of a permit therefor, one additional kitchen may be maintained.

Denver, Colo.Rev.Mun.Code § 59-2(131) (1982). Although in some of the residential districts persons may request permits from the Department to use land or structures for certain permitted home occupations in connection with the operation of a single unit dwelling, home occupation uses are not permitted in other residential districts. Permissible home occupation uses also vary. Compare Denver, Colo.Rev.Mun.Code § 59-102(4) (1982) with Denver, Colo.Rev.Mun.Code § 59-103(4) (1982). In some, but not all, of those districts in which home occupation uses are permitted, land and structures may be used for "rooming and/or boarding," which the Code defines as "[t]he furnishing of lodging with or without meals for compensation to permanent guests." Denver, Colo.Rev.Mun.Code § 59-2(121) (1982).

Department officials received a telephone call from an unidentified caller complaining about activities of the former owners and occupants of the house. While investigating that complaint, Department representatives learned that the appellants are not related by marriage or by blood. The appellants occupy the dwelling and operate it as a single housekeeping unit, share expenses, and describe themselves as companions. They have not sought a permit to use their property for any home occupation use. Each depends upon the economic contribution of the other to maintain the premises. The record contains no evidence to suggest their presence has in any manner adversely affected the neighborhood or its residents.

Section 59-102(1)(b) of the Code authorizes as a use by right in RS-4 zones the use of land and structures for single unit dwellings. On June 1, 1984, the Department issued an order to the appellants directing them to cease and desist violating sections 59-102(1)(b) and 59-2(131) of the Code on or before June 30, 1984.

The appellants appealed this order to the Board of Zoning Adjustment for the City & County of Denver (the Board). Following a hearing, the Board upheld the order, concluding that it lacked jurisdiction "to add or effect changes to the uses enumerated in a district." However, because the Board concluded that the appellants would experience hardship because they would have to either sell their house or alter their personal relationship, it granted the appellants a six-month stay of the ruling, pursuant to § 59-54(6) of the Code. ²

The appellants then filed a complaint in the Denver District Court against the Board, its members, the City and County of Denver (the City) and the City's Zoning Administrator for judicial review of this ruling pursuant to C.R.C.P. 106(a)(4) (review of ruling by an inferior tribunal) and section 24-4-106, 10 C.R.S. (1978) (review of agency action). The appellants also sought declaratory relief pursuant to C.R.C.P. 57(a). The C.R.C.P. 106(a)(4) claim alleged, inter alia, that sections 59-2(131) and 59-102(1)(b) of the Code violated the appellants' rights under the United States and Colorado Constitutions to freedom of association, due process of law and equal protection of the laws and that the decisions and orders of the appellees were arbitrary, capricious and constituted abuses of discretion. The declaratory judgment claim requested a declaration that these two ordinances violated the United States and Colorado Constitutions on the grounds alleged in the first claim and on the additional grounds that the ordinances violated the appellants' rights of privacy, use and enjoyment of their property, and association "without any reasonable relationship to a rational state purpose" in violation of article II of the Colorado Constitution. The claim purportedly based on section 24-4-106 alleged that the Board's decision was "arbitrary, capricious and violate[d] the [appellants'] constitutional rights." ³

Before oral argument, the parties submitted a joint stipulation of facts. The stipulation indicates that the appellants are related neither by blood nor marriage, that they operate the residence as a single housekeeping unit, that they are the sole occupants of the house and that neither would be able to live in the house without the financial contributions of the other. Following brief oral arguments, the district court entered a written order "declin[ing] to hold the ordinance unconstitutional" on the ground that it was "bound by the case of Rademan v. City & County of Denver, 186 Colo. 250 [, 526 P.2d 1325 (1974) ]." The court made no findings of fact and stated no other conclusions of law. This appeal followed.

II

The appellants assert that their rights to procedural due process of law under the fifth and fourteenth amendments to the United States Constitution and article II, section 25, of the Colorado Constitution were violated because the notice they received was defective. They also assert that their rights to equal protection of the law under both constitutions were violated because Denver's enforcement of the ordinances was arbitrary and capricious. Although the district court's order made no specific reference to these legal arguments, the record on appeal permits the conclusion that they are without merit.

The appellants acknowledged that they received notice of the August 14, 1984, Board of Adjustment hearing, but contend that the notice they received was defective because it indicated that the International Missionary Society of the Seventh Day Adventist Church was the owner of the property in question. The record contains only two documents which list the Seventh Day Adventist Church as the owner of the appellants' home. One is a "Neighborhood Organization Referral Form" which notified an entity described as the Rangeview Homeowners Association of the date, location and subject matter of the appellants' appeal. The other is a typewritten "zoning appeal application" listing the appellants as tenants of the property. With the exception of the designation of the owner, the application is substantially similar to a handwritten "zoning appeal application" form which was filed on behalf of the appellants by their attorney.

The appellants appeared at the August 14, 1984, hearing and failed to object to the adequacy...