HomeMy WebLinkAboutagenda.council.regular.20010108 CITY COUNCIL AGENDA
January 8, 2001
5:00 P.M.
I. Annual Meeting - Aspen Public Facility Authority
II. Call to Order
III. Roll Call
IV. Scheduled Public Appearances
a) ProclamatiOn - Kyoto. Japan
V. Citizens Comments & Petitions ('Time for any citizen to address Council on issues
NOT on the agenda. Please limit your comments to 3 minutes)
VI. Special Orders of the Day
a) Mayor and Councilmembers' Comments
b) City Manager's Comments
VII. Consent Calendar (These matters may be adopted together by a single motion) ~
a) Resolution #1 2001 - Posting Notices of Public Meetings
b) Resolution #2 2001 - ACRA Lease Rio Grande
c) Request for Funds - HP Inventory Consultant
d) Resolution #3. 2001 - Contract Schmuser. Gordon. Meyer - Old Stage Road
reconstruction
Resolution ~ 2001 - Amendment to GeCo Legacy Grant for Roaring Fork Railroad
Legacy Project
/ f) Minutes - October23. November 13. December 11. 12. 18. 2000
~. Public Hearings
a) Ordinance #57, 2000 - 2001 Fees
~o',?_,!;b) Ordinance #58. 2000 - Code Amendment - Security Signs ~
c) Resolution #160.2000 -Appeal of Code Interpretation Please bring packet materials
from December 18th G-I
IX. Action Items
(~;~a) East End of Durant Improvements~
[o~tG b) Increase Council Compensation OF(.I E~Lik0~ ~A~LZ2-'~
X. Information Items
a) Infill Prog ram Update and January 29~n Work Session
XI. Adjournment
Next Regular Meeting January 22, 2001
COUNCIL MEETS AT NOON FOR AN INFORMAL PUBLIC DISCUSSION, BASEMENT
MEETING ROOM
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MEMORANDUM
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TO:
Mayor and City Council
THRU:
Steve Barwick, City Manager
John Worcester, City Attorney
Mk Ann Wood.. C"mmnnity D"']"Pm~t 01,,,,,,, T
REQUEST FOR ApPEAL OF A OFFICIAL ZONE DISTRICT MAP
INTERPRETATION - PUBLIC HEARING
FROM:
RE:
DATE:
December 18, 2000
ApPLICANT
Ms. Cherie Oates represented by David Kelly, Oates, Knezevich, & Gardenswartz P.C.
INTRODUCTION
Cherie G. Oates, owner of Lot 11, Block 24 of the Riverside Addition, formally requested an
interpretation of the Official Zone District Map to determine the correct zoning of an adjacent
property, owned by Dale Hower, located at 1201 Riverside Drive. While the current Zone
District Map indicates the property is zoned as R-6 (Medium-Density Residential), Ms. Oates
questions the validity of this R-6 zoning designation as depicted on the map. An older zone
district map shows the subject property as R-15 (Moderate-Density Residential). Ms. Oates
claims the subject property as indicated on the Official Zone District Map is the result of a
mapping error on the zoning map and should be zoned R-15, as indicated on earlier Zone
District Maps.
The Community Development Director's interpretation found, pursuant to Section
26.71O.030(A) of the Aspen Land Use Code, the Official Zone District Map shall be the final
authority as to the current zoning ofland in the City of Aspen. Subsequently, Ms. Oates
submitted a letter to the Community Development Department requesting an Appeal of the
Interpretation to City Council.
STAFF COMMENTS
At the time Staff rendered the Official Zone District Map interpretation to Ms. Oates, neither
Staff nor Ms. Oates had been able to produce any ordinance (which would be the method for
establishing a zone district for a specific section ofland in the City of Aspen) that would
have 1) originally established the zoning of the subject property as R-15 or 2) subsequently
rezoned the property from R-15 to R-6 as currently shown on the map. However, on
December 11,2000, Mr. Oates provided Staff with a map ofthe South Annexation
referred to in Ordinance No.9, Series 1967, which initially established the zoning for
the subject property as R-1S.
[It should be noted that Staff identified Ordinance No.9, Series 1967 prior to the
interpretation for Ms. Oates. The Ordinance referred to the initial zoningfor the South
Annexation as provided in an attached map. There was no attached map to the Ordinance
I
from which Staff could determine the zoning for the subject property. It is this map that Mr.
Oates located in the archives of the Aspen Times dated May 4, 1967 and provided to Staff on
December JJ, 2000.
The zoning designation for a parcel or lot in the City of Aspen can only be achieved through
a two-step public hearing process to the Planning and Zoning Commission and City Council
requirinf< the adoption of an ordinance which then formally applies or chanf<es a zoninf<
desif<nation for a property. The Official Zone District Map is the graphic representation of
these actions correlating City Council action to a colored parcel of land on the paper map.
Therefore, every property in any given zone district is required to have an underlying
ordinance justifYing its zoning designation.]
As a practical matter, after reviewing the 1967 South Annexation Map, which has been
approved by City Council via Ordinance No.9, Series of 1967, Staff agrees that, without any
other ordinance proving a subsequent rezoning to another zone district, the current Official
Zone District Map erroneously depicts the subject property as R-6.
In the case of a proven map error, the Community Development Director has the authority to
correct it administratively. Therefore, Staff finds reason to believe that the Official Zoning
Map is, in fact, in error regarding the zoning designation of the subject property. Regarding
the documents and maps Staff has found and analyzed, Staff has no evidence that the
property was ever rezoned from R-15 to R-6 as currently shown on the map.
In order to remedy this, Staff recommends that the City Council direct the
Community Development Director to amend the Official Zoning Map pursuant to Ordinance
No.9, Series of 1967 to correctly reflect the known underlying zoning ordinance.
In addition, Staff also feels that the authority provided in the Land Use Code, determining
the Official Zone District Map to be the final authority on zoning of land in the City of Aspen
should be secondary to the actual underlying ordinances approved by City Council which set
the zoning or rezoning of property. These documents should be referred to if zoning is in
question. Staff recommends City Council request the Community Development Director to
initiate a code amendment to this effect.
BACKGROUND INFORMATION
There are many important events which Staff believes to be important in reviewing this
appeal that Council know and understand the chain of events that have occurred regarding
this appeal and interpretation. The chain of events in this case occurred as follows:
~ Dale Hower, owner of the adjacent subject property located at 1201 Riverside Drive,
submitted an application for an administrative review of an Accessory Dwelling Unit
(ADU) at 1201 Riverside Drive on September 29,2000;
~ Shortly thereafter, Mr. Oates, a neighbor of 1201 Riverside Drive, contested the
zoning of the property located at 1201 Riverside Drive. Mr. Oates provided Staff
with 1) a 1963 City of Aspen Zoning Map, 2) a 1967 City of Aspen Zoning Map, and
2
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3) a 1975 City of Aspen Zoning Map that showed the subject parcel being zoned R-
15. The current City of Aspen Official Zone District Map indicates that the zoning of
subject parcel is R-6. Mr. Oates requested staffresearch the zoning of the parcel of
land located at 1201 Riverside Drive;
~ Staff researched prior City of Aspen zoning ordinances and found no ordinance
initially rezoning the property to R-15 or rezoning the property to R-6. Staff did find
an approved Ordinance No.9, Series of 1967 approving the South Annexation and the
appropriate zoning designation; however the ordinance referred to an attached map
indicating the actual zoning which was not attached;
~ Dale Hower was notified that the zoning had been contested and subsequently
requested an interpretation of the Official Zone District Map by the Community
Development Director;
~ The Community Development Director issued an interpretation on October 26, 2000
that upheld the R-6 zoning pursuant to Section 26.710.030 of the City of Aspen Land
Use Code which states that the Official Zone District Map shall be the final
authority as to the current zoning of land in the City of Aspen;
~ A copy of the land use code interpretation for Ms. Hower was provided to Ms. Oates
as an affected property owner. Ms. Oates then requested an interpretation of the
Official Zone District Map from the Community Development Director so that Ms.
Oates' right to appeal the Hower Interpretation to City Council was preserved;
~ The Community Development Director issued an interpretation to Ms. Oates that also
upheld the R-6 zoning based on Land Use Code Section 26.710.030. This
interpretation was issued on November 22, 2000;
~ The Community Development Director approved the ADU application for Ms.
Hower's property because it met the review criteria for an administrative approval for
anADU;
~ Subsequently, Ms. Hower submitted a building permit application for a duplex on the
subject property (a 14,179 square foot lot). This request would be allowed in the R-6
zone district that was upheld by the Code Interpretations issued by the Community
Development Director;
~ Following this, Ms. Oates submitted a letter to the Community Development
Department requesting an appeal to City Council of the Director's interpretation on
November 27, 2000;
~ On December 11, 2000, Mr. Oates provided Staff with the approved South
Annexation Zoning Map, referred to in Ordinance No.9, Series of 1967, which
designated the subject property as R-15.
3
CITY COUNCIL ACTION
After considering this appeal, City Council may reverse, affirm, or modify the Director's
Interpretation. A decision to modify or reverse the finding of the Director requires a finding
by the City Council that the Director 1) denied due process, 2) exceeded her jurisdiction, or
3) abused her authority based on the record of proceedings. The Director's initial
interpretation of the subject property's zoning is attached along with the interpretation
request and the appeal request.
Staff believes that Ordinance No.9, Series of 1967 with the attached map legally establishes
the initial zoning for the parcel of 1201 Riverside Drive as R-15. Based on this new
information, Staff believes that, unless Ms. Hower can produce an approved ordinance of the
Aspen City Council rezoning the subject property (legally described as Lots 6-9, Block 24,
City of Aspen) to R-6, this Ordinance No.9, Series 1967 depicts the correct zoning of the
subject property as R-15.
STAFF RECOMMENDATION
Staff recommends the City Council take the following actions:
~ Staffrecommends City Council affirm this Resolution upholding Ms. Oates' request
for appeal of an interpretation of the Official Zone District Map, finding that
Ordinance No.9, Series 1967 clearly establishes the correct zoning designation for a
property known and described as Lots 6-9, Block 24, City of Aspen to be R-15 with
the following conditions;
1. Staff recommends City Council direct the Community Development Director to issue
a reinterpretation to Ms. Hower, owner ofthe subject property, finding that the zone
district as indicated on the Official Zone District Map is incorrectly shown as R-6 and
shall be changed to R-15 pursuant to Ordinance No.9, Series 1967;
2. Staff recommends the City Council direct the Community Development Director to
make the necessary changes to the Official Zone District Map to correctly reflect the
zoning ofthe subject property as R-15 pursuant to Ordinance No.9, Series 1967; and
3. Staff recommends City Council request the Community Development Director to
initiate a code amendment that requires an underlying zoning ordinance to be the final
authority on zoning of land in the City of Aspen and have the Official Zoning Map
remain secondary to the actual underlying ordinances approved by City Council as a
graphic representation of those ordinances.
STAFF RECOMMENDED MOTION:
"I move to approve Resolution No.160, Series 2000."
4
ATTACHMENTS:
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
Exhibit J
Exhibit K
Exhibit L
Applicant's Appeal Request
Director's Interpretation dated
Request for Interpretation
Matrix of Staff Zoning Research Results
1963 City of Aspen Zone District Map (Shows Subject Parcel as
County R-l5)
1967-1968 City of Aspen Zone District Map
1975-1980 City of Aspen Zone District Map
Ordinance 9, Series of 1967 (From Pitkin County Library)
1982 Building Permit for Garage
1984 Building Permit for Breakfast Nook
Riverside Drive Section of Current Official Zone District Map
Resolution No. 160, Series 2000
5
RESOLUTION NO. 160
(Series of2000)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
REVERSING AN INTERPRETATION OF THE OFFICIAL ZONE DISTRICT MAP BY
THE COMMUNITY DEVELOPMENT DIRECTOR CORRECTING A ZONING
DESIGNATION FROM R-6 (MEDIUM-DENSITY RESIDENTIAL), TO R-l5
(MODERATE-DENSITY RESIDENTIAL) FOR A PROPERTY LOCATED AT 1201
RIVERSIDE DRIVE LEGALLY DESCRIBED AS LOTS 6, 7, 8, AND 9, BLOCK 24,
RIVERSIDE ADDITION.
WHEREAS, Ms. Oates, owner of Lot 11, Block 24 of the Riverside Addition, requested
an interpretation of the Official Zone District Map from the Community Development Director
as to the zoning designation of a property owned by Ms. Dale Hower and described as Lots 6-9,
Block 24, Riverside Addition to the City and Townsite of Aspen; and
WHEREAS, the Community Development Director issued an interpretation of the
Official Zone District Map to Ms. Oates on October 26, 2000, that found the subject parcel was
zoned R-6 as indicated on the Official Zone District Map pursuant to Land Use Code Section
26.710.030(A) that states the Official Zone District Map shall be the final authority as to the
current zoning ofland in the City of Aspen. Therefore, the zoning of Lots 6-9, Block 24,
Riverside Addition to the City and Townsite of Aspen are zoned R-6 (Medium Density
Residential) as shown on the existing zone district map; and
WHEREAS, pursuant to Section 26.316(B)(1) of the Aspen Land Use Code, the
Applicant, Ms. Oates, submitted an application requesting an appeal of an interpretation of the
Official Zone District Map to City Council alleging the subject property to be zoned R-15; and
WHEREAS, Mr. Oates provided Community Development Staff with a map ofthe
South Annexation depicting the subject property as R-15 and approved by City Council pursuant
to Ordinance No.9, Series of 1967, Staff determined that an apparent mapping error had
occurred, and that the parcel legally described as Lots 6-9, Block 24, Riverside Addition to the
City of Aspen should be zoned R-15 (Moderate Density Residential) as initially zoned through
the South Annexation; and
WHEREAS, no approved City Council Ordinance rezoning the property from R-15
(Moderate Density Residential) to R-6 (Medium Density Residential) has been found; and,
WHEREAS, Community Development Staffhas reviewed the appeal request and
recommends that City Council reverse the Director's interpretation finding that there was an
apparent map error and that the zone district map should be amended to represent the parcel of land
as R-15 (Moderate Density Residential); and
WHEREAS, City Council reviewed and considered the recommendation of the
Community Development Director, comments made by the appellant, and testimony offered by
members ofthe public during a duly noticed public hearing; and
WHEREAS, City Council finds that the proposed appeal meets or exceeds the criteria of
the land use code; and,
WHEREAS, City Council finds that reversing the Director's interpretation dated
November 22, 2000, will not diminish the public interest, health, and welfare.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ASPEN,
COLORADO, THAT:
Section 1:
In accordance with Section 26.316 of the Aspen Municipal Code, the City Council of the City of
Aspen, Colorado, does hereby affirm this Resolution upholding Ms. Oates' request for appeal of
an interpretation of the Official Zone District Map finding that Ordinance No.9, Series 1967
clearly establishes the correct zoning designation for a property known and described as Lots 6-9,
Block 24, City of Aspen to be R-15 with the following conditions;
1. Staff recommends City Council direct the Community Development Director to issue a
reinterpretation to Ms. Hower, owner of the subject property, finding that the zone district
as indicated on the Official Zone District Map is incorrectly shown as R-6 and shall be
changed to R-15 pursuant to Ordinance No.9, Series 1967;
2. Staff recommends the City Council direct the Community Development Director to make
the necessary changes to the Official Zone District Map to correctly reflect the zoning of
the subject property as R-15 pursuant to Ordinance No.9, Series 1967; and
3. Staff recommends City Council request the Community Development Director to initiate
a code amendment that requires an underlying zoning ordinance to be the final authority
on zoning ofland in the City of Aspen and have the Official Zoning Map remain
secondary to the actual underlying ordinances approved by City Council as a graphic
representation of those ordinances.
Section 2:
This Resolution shall not effect any existing litigation and shall not operate as an abatement of any
action or proceeding now pending under or by virtue of the ordinances repealed or amended as
herein provided, and the same shall be conducted and concluded under such prior ordinances.
Section 3:
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason
held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and shall not affect the validity of the remaining
portions thereof.
Section 5:
A dilly noticed public hearing on this Resolution was held on the 18th day of December, 2000, at
5:00 in the City Council Chambers, Aspen City Hall, Aspen, Colorado.
FINALLY, adopted, passed, and approved this 18th day of December, 2000.
Approved as to form:
Approved as to content:
City Attorney
Rachel E. Richards, Mayor
Attest:
Kathryn S. Koch, City Clerk
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,
ASPENlPITKIN COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
ZONE DISTRICT MAP INTERPRETATION
JURISDICTION:
City of Aspen
APPLICABLE CODE SECTION:
Section 26.710.030(A): Official
Zone District Map
EFFECTIVE DATE:
November 21, 2000
WRITTEN BY:
Fred Jarman, City. Planner
APPROVED BY:
Julie Ann Woods,
Community Development Director
COPIES TO:
Cherie G. Oates,
John Worcester
SUMMARY:
This interpretation of the Official Zone District Map pursuant to Section 26.306
determines that property owned by Dale Hower, located at 1201 Riverside Drive and
legally described as Lots 6-9, Block 24, Riverside Addition is zoned as R-6
(Medium-Density Residential) as indicated on the Official Zone District Map.
Further, pursuant to Section 26.710.030(A) Official Zone District Map, the official
zone district map shall be the final authority as to the current zoning of land in the
City of Aspen.
BACKGROUND:
Cherie G. Oates, owner of Lot 11 Riverside Addition, formally requested an
interpretation of the Official Zone District Map to determine the correct zoning of an
adjacent property, owned by Dale Hower, located at 1201 Riverside Drive. While the
current Zone District Map indicates the property is zoned as R-6 (Medium-Density
Residential), Cherie Oates questions the validity of this R-6 zoning designation as
depicted on the map. An older zone district map shows the subject property as R-15
(Moderate-Density Residential). Cherie Oates claims the subject property as
indicated on the Official Zone District Map is the result of a map error on the zoning
map and should be zoned R-15, as indicated on earlier Zone District Maps.
DISCUSSION OF EVENTS:
Dale Hower, owner ofthe subject property, met with Community Development Staff
to determine the development potential for the 14,179 sq. ft. lot and inquired about
its zoning designation. Staff indicated to the applicant that her property is located in
the R -6 zone district after referring to the Official Zone District Map revised on
4115/98, 12/15/99, and 5/9/00. Staff further directed the applicant that any proposed
plans for development on this lot shall be required to conform to the provisions of
this zone district. Subsequently, the applicant pursued development plans (which
included two single-family dwellings and an ADU which are permitted uses in the
R-6 zone district) for the subject lot according to direction received from Com Dev
Staff as indicated above.
Cherie Oates, the adjacent property owner, concerned with the potential of increased
development on the neighboring property under the R-6 zone district, provided Staff
with an earlier 1979 Official Zoning Map indicating that the subject property was
zoned R -15 rather than R -6 as currently shown on the current Official Zone District
Map. In doing this, Cherie Oates claims that the current Official Zone District Map is
incorrect; the subject property should be zoned R-15 (Moderate-Density Residential)
and developed according to R-15 provisions in the Land Use Code. As a result, this
alleged / potential discrepancy on the Official Zone District Map is significant for
Hower in her ability to develop her property.
At present, neither Staff nor the requestor of this interpretation has been able to
produce any ordinance (which would be the method for establishing a zone district
for a specific section ofland in the City of Aspen) that would have 1) originally
established the property as R -15 or 2) subsequently rezoned the property from R -15
to R-6 as currently shown on the map;
Staff has produced a series of zoning maps that are shown in the matrix below. The
zoning designation for a parcel or lot in the City of Aspen can only be achieved
through a two-step public hearing process to the Planning and Zoning Commission
and City Council requiring the adoption of an ordinance which then formally applies
or changes a zoning designation for a property. The Official Zone District Map is
the graphic representation of these actions correlating City Council action to a
colored parcel of land on the paper map. Therefore, every property in any given zone
district should have an underlying Ordinance justifying its zoning designation.
City Zoning Map
City Zoning Map
City Zoning Map
Certificate of Occupancy
Certificate of Occupancy
City Zoning Map
GIS Zoning Layers
1963
1967
1979
9/10/82
8/21/84
1983-1988
1996 -1999
Riverside Addition as R-15
Riverside Addition as R-15
Riverside Addition as R-15
R-15
R-15
R-15
R-6
Current Official Zone District Map
4/1 5/98
12/15/99
5/9/00
R-6
Community Development Staff met with City Staff from Geographic Information
Systems (GIS) and Information Systems in order to determine if any change on the
existing maps could be tracked or identified. As a result of that discussion, there was
LAW OFFICES OF
OATES, KNEZEVICH & GARDENSWARTZ, P.C.
PROFESSIONAL CORPORATION
THIRD FLOOR, ASPEN PlAZA BUILDING
533 eAST HOPKINS AVENUE
ASPEN, COLORADO 81611
TELEPHONE (970) 920-1700
FACSIMILE (970) 920-'121
LEONARD M, OATES
RIC'"1ARD A. KNEZEVICH
TEe D. GARDEN SWARTZ
DAVID B. KELLY
mail@okgJaw.com
OF COUNSEL:
MICHAEL FEIGENBAUM
JOHNT, KELLY
November 8, 2000
Ms. Julie Ann Woods
Community Development Director
Community Development Department
City of Aspen
130 South Galena
Aspen, CO 81611
Re: Request by Cherie G. Oates for Interpretation Pursuant to Section 26.306 of the
Official Code of the City of Aspen
Dear Ms. Wcods:
We represent Cherie G. Oates, who is the owner of Lot 11 Riverside Subdivision and a parcel
adjacent interests described by metes and bounds (the "Oates Property").
Request for Inter.pretation
This letter shall constitute her Request for Interpretation made pursuant to Code Section 26.306 in
connection with the zoning designation of the real property described in Exhibit "A" attached hereto (the
"Hower Property"). The Hower Property is adjacent to the Oates Property. This request follows a Request
for Interpretation made by Dale Hower, the owner of the Hower Property, which was responded to by the
Planning Director's Interpretation dated October 26, 2000 determining the Hower Property to be zoned R6 .
on purely technical grounds. It is our understanding that this Request for an Interpretation on the identical
question as that posed by Ms. Hower is necessary in order to perfect a right of appeal to the City Council
under the City of Aspen CcJe ("Code").
The October 26, 2000 Interpretation cited 26.710.030 (A) for the proposition that the Official Zone
District map is the final authority on zoning matters without a supporting resolution. Mrs. Oates submits
that a zone map designation which is not supported by underlying zoning is a nullity. A zoning
classification, and an amendment to zoning, require the compliance vith statutory and Code zoning
procedures, including notice, public hearing and an enacting resolution of the City Council. Zoning maps
are evidence of underlying zoning only, they do not establish zoning.
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OATES, KNEZEVICH & GARDENSWARTZ, P.C.
Ms. Julie Ann Woods
Community Development Director
November 8, 2000
Page 3
requires the adoption of an ordinance which then formally applies or changes the zoning designation for a
property (See 26.310.020) of the Code. Section 26.310 of the Land Use Code mandates that the application
be considered under comprehensive standards of review (See 26.310.040). One of those considerations is
"Whether the proposed amendment is compatible with surroundinl! (emphasis added) zone districts and land
uses considering existing land use and neighborhood characteristics." This consideration was not made by
the person who erroneously prepared the map constituting "final authority" as to current zoning. Clearly,
required procedures were not followed with respect to the Hower Property and, as a consequence, her
property could not have been re-zoned from its historic R-15 designation to R-6 without full and complete
analysis of the effect thereof, including a public hearing. This is especially true given the constraints on the
Hower Property, the neighboring properties and the features which clearly distinguish the Hower Property
from the remainder of the Riverside Addition which mayor may not have been properly re-zoned to R6.
The mere fact that a computer generated mapping may have indicated a zoning designation on a map
is of no significance to the underlying zoning of the property. Such a map cannot take precedence over
substantive requirements regarding the application and change of zoning classifications. We pose the
following questions: (1) What steps were taken and analyses made in connection with adoption of any and
all maps subsequent to 1988 called "Official Zoning Maps" of the City of Aspen? (2) Were the zoning
designations on the maps checked and verified? (3) If so, by whom and how was the review conducted?
(4) If not, why did this not occur? (5) Was an ordinance or resolution adopted designating any map as
official? (6) What are GIS Zoning layers referred to in the Planning Division is October 26 Interpretation
and what in the City's view is the legal significance of GIS Zoning layers?
A Zoning Chan~e Cannot Be Made Without Followin~ The Colorado Statutory Process
Colorado statutory law provides comprehensive minimum standards for the adoption and amendment
of zoning regulations, including the application of the standards to particular parcels of property. These
standards must be met, at a minimum, before a tract can be zoned or re-zoned. This is true regardless of
whether the property be located in a statutory or home rule municipality. C.R.S. ~ 31-23-301 et seq. (See
copy attached.) C.R.S. ~ 31-23-304 states:
The governing body of such municipality shall provide for the manner in which such
regulations and restrictions and the boundaries of such districts are determined, established,
enforced and from time to time, amended, supplemented or changed. However. no such
rel!Ulation. restriction. or boundary shall become effective until after a public hearing thereon
at which parties in interest and citizens shall have an opportunity to be heard. At least fifteen
says notice of the time and place of such hearinl! shall be published in an official paper or
a paper of l!eneral circulation in such municipality. (Emphasis added.)
That requirement was not met with respect to the Hower Property. The provisions of C.R.S. ~ 31-23-
304 apply to re-zoning pursuant to C.R.S. ~ 31-23-305. A home rule city's zoning authority is governed
-..
OATES, KNEZEVICH & GARDENSWARTZ, P.C.
Ms. Julie Ann Woods
Community Development Director
November 8, 2000
Page 5
classifications needs to occur so that the mapping may be corrected to reflect valid and historic zoning
classifications. This needs to be based on an ordinance adopted after notice, hearing and consideration by
the City Council of the appropriate zoning to be applied to the Hower Property.
Sincerely,
OATES, KNEZEVICH & GARDENSWARTZ, P.C.
eys for Cherie G. Oates
DBKlwdf
cc: John Worcester, Esq., Aspen City Attorney
C:\DllIa\KeIly\Ltr Planning Conrrission 11.01.00.wpd
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MEMORANDUM
"" ~,
TO:
Mayor and City Council
THRU:
Steve Barwick, City Manager
John Worcester, City Attorney
Julie Ann Woods, Community Development Director T
REQUEST FOR ApPEAL OF A OFFICIAL ZONE DISTRICT MAP
INTERPRETATION - PUBLIC HEARING
FROM:
RE:
DATE:
December 18, 2000
ApPLICANT
Ms. Cherie Oates represented by David Kelly, Oates, Knezevich, & Gardenswartz P.C.
INTRODUCTION
Cherie G. Oates, owner of Lot II, Block 24 of the Riverside Addition, formally requested an
interpretation of the Official Zone District Map to determine the correct zoning of an adjacent
property, owned by Dale Hower, located at 1201 Riverside Drive. While the current Zone
District Map indicates the property is zoned as R-6 (Medium-Density Residential), Ms. Oates
questions the validity of this R-6 zoning designation as depicted on the map. An older zone
district map shows the subject property as R-15 (Moderate-Density Residential). Ms. Oates
claims the subject property as indicated on the Official Zone District Map is the result of a
mapping error on the zoning map and should be zoned R-15, as indicated on earlier Zone
District Maps.
The Community Development Director's interpretation found, pursuant to Section
26.71O.030(A) of the Aspen Land Use Code, the Official Zone District Map shall be the final
authority as to the current zoning ofland in the City of Aspen. Subsequently, Ms. Oates
submitted a letter to the Community Development Department requesting an Appeal of the
Interpretation to City Council.
STAFF COMMENTS
At the time Staff rendered the Official Zone District Map interpretation to Ms. Oates, neither
Staff nor Ms. Oates had been able to produce any ordinance (which would be the method for
establishing a zone district for a specific section of land in the City of Aspen) that would
have I) originally established the zoning of the subject property as R-15 or 2) subsequently
rezoned the property from R-15 to R-6 as currently shown on the map. However, on
December 11, 2000, Mr. Oates provided Staff with a map of the South Annexation
referred to in Ordinance No.9, Series 1967, which initially established the zoning for
the subject property as R-15.
[It should be noted that Staff identified Ordinance No.9, Series 1967 prior to the
interpretation for Ms. Oates. The Ordinance reftrred to the initial zoning for the South
Annexation as provided in an attached map. There was no attached map to the Ordinance
I
"""..,,_........._'--'.-~-.-."_.
from which Staff could determine the zoning for the subject property. It is this map that Mr.
Oates located in the archives of the Aspen Times dated May 4, 1967 and provided to Staff on
December 11, 2000.
The zoning designation for a parcel or lot in the City of Aspen can only be achieved through
a two-step public hearing process to the Planning and Zoning Commission and City Council
requirin~ the adoption of an ordinance which then formally applies or chan~es a zonin~
desi~nation for a properly. The Official Zone District Map is the graphic representation of
these actions correlating City Council action to a colored parcel of land on the paper map.
Therefore, every property in any given zone district is required to have an underlying
ordinance justifYing its zoning designation.]
As a practical matter, after reviewing the 1967 South Annexation Map, which has been
approved by City Council via Ordinance No.9, Series of 1967, Staff agrees that, without any
other ordinance proving a subsequent rezoning to another zone district, the current Official
Zone District Map erroneously depicts the subject property as R-6.
In the case of a proven map error, the Community Development Director has the authority to
correct it administratively. Therefore, Staff finds reason to believe that the Official Zoning
Map is, in fact, in error regarding the zoning designation of the subject property. Regarding
the documents and maps Staff has found and analyzed, Staff has no evidence that the
property was ever rezoned from R-15 to R-6 as currently shown on the map.
In order to remedy this, Staff recommends that the City Council direct the
Community Development Director to amend the Official Zoning Map pursuant to Ordinance
No.9, Series of 1967 to correctly reflect the known underlying zoning ordinance.
In addition, Staff also feels that the authority provided in the Land Use Code, determining
the Official Zone District Map to be the final authority on zoning of land in the City of Aspen
should be secondary to the actual underlying ordinances approved by City Council which set
the zoning or rezoning of property. These documents should be referred to if zoning is in
question. Staff recommends City Council request the Community Development Director to
initiate a code amendment to this effect.
BACKGROUND INFORMATION
There are many important events which Staff believes to be important in reviewing this
appeal that Council know and understand the chain of events that have occurred regarding
this appeal and interpretation. The chain of events in this case occurred as follows:
~ Dale Hower, owner of the adjacent subject property located at 1201 Riverside Drive,
submitted an application for an administrative review of an Accessory Dwelling Unit
(ADU) at 1201 Riverside Drive on September 29,2000;
~ Shortly thereafter, Mr. Oates, a neighbor of 1201 Riverside Drive, contested the
zoning of the property located at 1201 Riverside Drive. Mr. Oates provided Staff
with 1) a 1963 City of Aspen Zoning Map, 2) a 1967 City of Aspen Zoning Map, and
2
-'~---"""_'__~'_"__'_"'''__''.'U_'~_<_'_M__",'.__~___,_,,_
3) a 1975 City of Aspen Zoning Map that showed the subject parcel being zoned R-
15. The current City of Aspen Official Zone District Map indicates that the zoning of
subject parcel is R-6. Mr. Oates requested staff research the zoning of the parcel of
land located at 120 I Riverside Drive;
~ Staff researched prior City of Aspen zoning ordinances and found no ordinance
initially rezoning the property to R -15 or rezoning the property to R -6. Staff did find
an approved Ordinance No.9, Series of 1967 approving the South Annexation and the
appropriate zoning designation; however the ordinance referred to an attached map
indicating the actual zoning which was not attached;
~ Dale Hower was notified that the zoning had been contested and subsequently
requested an interpretation of the Official Zone District Map by the Community
Development Director;
~ The Community Development Director issued an interpretation on October 26, 2000
that upheld the R-6 zoning pursuant to Section 26.710.030 of the City of Aspen Land
Use Code which states that the Official Zone District Map shall be the final
authority as to the current zoning of land in the City of Aspen;
~ A copy of the land use code interpretation for Ms. Hower was provided to Ms. Oates
as an affected property owner. Ms. Oates then requested an interpretation of the
Official Zone District Map from the Community Development Director so that Ms.
Oates' right to appeal the Hower Interpretation to City Council was preserved;
~ The Community Development Director issued an interpretation to Ms. Oates that also
upheld the R-6 zoning based on Land Use Code Section 26.710.030. This
interpretation was issued on November 22, 2000;
~ The Community Development Director approved the ADU application for Ms.
Hower's property because it met the review criteria for an administrative approval for
anADU;
~ Subsequently, Ms. Hower submitted a building permit application for a duplex on the
subject property (a 14,179 square foot lot). This request would be allowed in the R-6
zone district that was upheld by the Code Interpretations issued by the Community
Development Director;
~ Following this, Ms. Oates submitted a letter to the Community Development
Department requesting an appeal to City Council of the Director's interpretation on
November 27, 2000;
~ On December 11, 2000, Mr. Oates provided Staff with the approved South
Annexation Zoning Map, referred to in Ordinance No.9, Series of 1967, which
designated the subject property as R-15.
3
_"_"",",..>.,_..,.h~","_"__,~",,__,,,~", _ .... ..... "_"'~''''_'''~~''~''-_._.m~
CITY COUNCIL ACTION
After considering this appeal, City Council may reverse, affirm, or modify the Director's
Interpretation. A decision to modify or reverse the finding of the Director requires a finding
by the City Council that the Director I) denied due process, 2) exceeded her jurisdiction, or
3) abused her authority based on the record of proceedings. The Director's initial
interpretation of the subject property's zoning is attached along with the interpretation
request and the appeal request.
Staff believes that Ordinance No.9, Series of 1967 with the attached map legally establishes
the initial zoning for the parcel of 1201 Riverside Drive as R -15. Based on this new
information, Staff believes that, unless Ms. Hower can produce an approved ordinance ofthe
Aspen City Council rezoning the subject property (legally described as Lots 6-9, Block 24,
City of Aspen) to R-6, this Ordinance No.9, Series 1967 depicts the correct zoning of the
subject property as R-15.
STAFF RECOMMENDATION
Staff recommends the City Council take the following actions:
~ Staff recommends City Council affirm this Resolution upholding Ms. Oates' request
for appeal of an interpretation of the Official Zone District Map, finding that
Ordinance No.9, Series 1967 clearly establishes the correct zoning designation for a
property known and described as Lots 6-9, Block 24, City of Aspen to be R-15 with
the following conditions;
1. Staff recommends City Council direct the Community Development Director to issue
a reinterpretation to Ms. Hower, owner of the subject property, finding that the zone
district as indicated on the Official Zone District Map is incorrectly shown as R-6 and
shall be changed to R-15 pursuant to Ordinance No.9, Series 1967;
2. Staff recommends the City Council direct the Community Development Director to
make the necessary changes to the Official Zone District Map to correctly reflect the
zoning of the subject property as R-15 pursuant to Ordinance No.9, Series 1967; and
3. Staff recommends City Council request the Community Development Director to
initiate a code amendment that requires an underlying zoning ordinance to be the final
authority on zoning of land in the City of Aspen and have the Official Zoning Map
remain secondary to the actual underlying ordinances approved by City Council as a
graphic representation of those ordinances.
STAFF RECOMMENDED MOTION:
"I move to approve Resolution No.160, Series 2000."
4
ATTACHMENTS:
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
Exhibit J
Exhibit K
Exhibit L
..."'",_....v_.~._..~__..~__,.'______~_.~_,. ."'~..__.",", ..,__".._
Applicant's Appeal Request
Director's Interpretation dated
Request for Interpretation
Matrix of Staff Zoning Research Results
1963 City of Aspen Zone District Map (Shows Subject Parcel as
County R-15)
1967-1968 City of Aspen Zone District Map
1975-1980 City of Aspen Zone District Map
Ordinance 9, Series of 1967 (From Pitkin County Library)
1982 Building Permit for Garage
1984 Building Permit for Breakfast Nook
Riverside Drive Section of Current Official Zone District Map
Resolution No. 160, Series 2000
5
-,. "'~'''--'=---'-''~''''''''''--'._-----'--''''~-'~-'""'''''~-''''-
RESOLUTION NO. 160
(Series of 2000)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
REVERSING AN INTERPRETATION OF THE OFFICIAL ZONE DISTRICT MAP BY
THE COMMUNITY DEVELOPMENT DIRECTOR CORRECTING A ZONING
DESIGNATION FROM R-6 (MEDIUM-DENSITY RESIDENTIAL), TO R-15
(MODERATE-DENSITY RESIDENTIAL) FOR A PROPERTY LOCATED AT 1201
RIVERSIDE DRIVE LEGALLY DESCRIBED AS LOTS 6, 7, 8, AND 9, BLOCK 24,
RIVERSIDE ADDITION.
WHEREAS, Ms. Oates, owner of Lot 11, Block 24 of the Riverside Addition, requested
an interpretation of the Official Zone District Map from the Community Development Director
as to the zoning designation of a property owned by Ms. Dale Hower and described as Lots 6-9,
Block 24, Riverside Addition to the City and Townsite of Aspen; and
WHEREAS, the Community Development Director issued an interpretation of the
Official Zone District Map to Ms. Oates on October 26, 2000, that found the subject parcel was
zoned R-6 as indicated on the Official Zone District Map pursuant to Land Use Code Section
26.71O.030(A) that states the Official Zone District Map shall be the final authority as to the
current zoning ofland in the City of Aspen. Therefore, the zoning of Lots 6-9, Block 24,
Riverside Addition to the City and Townsite of Aspen are zoned R-6 (Medium Density
Residential) as shown on the existing zone district map; and
WHEREAS, pursuant to Section 26.316(B)(l) of the Aspen Land Use Code, the
Applicant, Ms. Oates, submitted an application requesting an appeal of an interpretation of the
Official Zone District Map to City Council alleging the subject property to be zoned R -15; and
WHEREAS, Mr. Oates provided Community Development Staff with a map of the
South Annexation depicting the subject property as R-15 and approved by City Council pursuant
to Ordinance No.9, Series of 1967, Staff determined that an apparent mapping error had
occurred, and that the parcel legally described as Lots 6-9, Block 24, Riverside Addition to the
City of Aspen should be zoned R-15 (Moderate Density Residential) as initially zoned through
the South Annexation; and
WHEREAS, no approved City Council Ordinance rezoning the property from R-15
(Moderate Density Residential) to R-6 (Medium Density Residential) has been found; and,
,-"-,~,,"->-,,,",-....,.._.~-,~..._,,.._..---~.,"~._--~.~.._.--. .'''-~--"''''~~>'.'-
WHEREAS, Community Development Staff has reviewed the appeal request and
recommends that City Council reverse the Director's interpretation finding that there was an
apparent map error and that the zone district map should be amended to represent the parcel of land
as R-15 (Moderate Density Residential); and
WHEREAS, City Council reviewed and considered the recommendation of the
Community Development Director, comments made by the appellant, and testimony offered by
members of the public during a duly noticed public hearing; and
WHEREAS, City Council finds that the proposed appeal meets or exceeds the criteria of
the land use code; and,
WHEREAS, City Council finds that reversing the Director's interpretation dated
November 22, 2000, will not diminish the public interest, health, and welfare.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ASPEN,
COLORADO, THAT:
Section 1:
In accordance with Section 26.316 of the Aspen Municipal Code, the City Council of the City of
Aspen, Colorado, does hereby affirm this Resolution upholding Ms. Oates' request for appeal of
an interpretation of the Official Zone District Map finding that Ordinance No.9, Series 1967
clearly establishes the correct zoning designation for a property known and described as Lots 6-9,
Block 24, City of Aspen to be R-15 with the following conditions;
1. Staff recommends City Council direct the Community Development Director to issue a
reinterpretation to Ms. Hower, owner of the subject property, finding that the zone district
as indicated on the Official Zone District Map is incorrectly shown as R-6 and shall be
changed to R-15 pursuant to Ordinance No.9, Series 1967;
2. Staff recommends the City Council direct the Community Development Director to make
the necessary changes to the Official Zone District Map to correctly reflect the zoning of
the subject property as R-15 pursuant to Ordinance No.9, Series 1967; and
3. Staff recommends City Council request the Community Development Director to initiate
a code amendment that requires an underlying zoning ordinance to be the final authority
on zoning ofland in the City of Aspen and have the Official Zoning Map remain
secondary to the actual underlying ordinances approved by City Council as a graphic
representation of those ordinances.
Section 2:
This Resolution shall not effect any existing litigation and shall not operate as an abatement of any
action or proceeding now pending under or by virtue of the ordinances repealed or amended as
herein provided, and the same shall be conducted and concluded under such prior ordinances.
Section 3:
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason
held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and shall not affect the validity of the remaining
portions thereof.
Section 5:
A duly noticed public hearing on this Resolution was held on the 18th day of December, 2000, at
5:00 in the City Council Chambers, Aspen City Hall, Aspen, Colorado.
FINALLY, adopted, passed, and approved this 18th day of December, 2000.
Approved as to form:
Approved as to content:
City Attorney
Rachel E. FUchards, Mayor
Attest:
Kathryn S. Koch, City Clerk
Exhibit A
ASPEN/PITKlN COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
ZONE DISTRICT MAP INTERPRETATION
JURISDICTION:
City of Aspen
APPLICABLE CODE SECTION:
Section 26.7l0.030(A): Official
Zone District Map
EFFECTIVE DATE:
November 22,2000
WRITTEN BY: ~
:u.PROVED BY: 1- ;;~
Fred Jarman, City Planner
Julie Ann Woods,
Community Development Director
COPIES TO:
Cherie G. Oates,
John Worcester
SUMMARY:
This interpretation of the Official Zone District Map pursuant to Section 26.306
determines that property owned by Dale Hower. located at 1201 Riverside Drive and
legally described as Lots 6-9, Block 24, Riverside Addition is zoned as R-6
(Medium-Density Residential) as indicated on the Official Zone District Map.
Further, pursuant to Section 26.710.030(A) Official Zone District Map, the official
zone district map shall be the final authority as .to the current zoning of land in the
City of Aspen.
"
BACKGROUND:
Cherie G. Oates, owner of Lot II Riverside Addition, formally requested an
interpretation of the Official Zone District Map to determine the correct zoning of an
adjaceni property, owned by Dale Hower, located at 1201 Riverside Drive. While the
current Zone District Map indicale$ the properly is zoned as R-G (Medium-Density
Residential), Cherie Oates questions the validity of this R-6 zoning designation as
depicted on th; map. An older zone district map shows the subject property as R-15
(Moderate-Density Residential). Cherie Oates claims the subject property as
indicated on the Official Zone District Map is the result of a map error on the zoning
map and should be zoned R-15, as indicated on earlier Zone District Maps.
DISCUSSION OF EVENTS:
Dale Hower, owner of the subject property, met with Community Development Staff
to determine the development potential for the 14,179 sq. ft. lot and inquired about
its zoning designation. Staff indicated to the applicant that her property is located in
the R-6 zone district after referring to the Official Zone District Map revised on
4115/98, 12/15/99, and 5/9/00. Staff further directed the applicant that any proposed
plans for development on this lot shall be required to conform to the provisions of
this zone district. Subsequently, the applicant pursued development plans (whic'
.
no conclusive evidence of precisely when a map error, if any, had occurred.
However, Staff from these departments decided to enter into a joint project to have
all City zoning "source maps" imaged so that they may be used to precisely compare
or overlay onto other maps to show how parcel lines and zone boundaries have
changed over the years. Further, this project will include researching the rezoning
ordinances that are associated with mapped parcels from a specific point forward to
present day.
As a result, Cherie Oates, the neighbor to the subject property, is challenging the
validity of the current Official Zone District Map, and subsequently requested this
interpretation of Official Zone District Map. As a result of the lack of any ordinance
establishing and justifying the property as either R-15 or R-6, the COn1munity
Development Director must rely on the only immediate recourse provided by the
provisions of the Aspen Land Use Code pursuant to Section 26.710.030(A), which
directs any question as to the current zoning for a property:
The official zone district map shall be the final authority as to the current
zoning of land in the City of Aspen.
The current Land Use Map indicates that the property is zoned R-6. Therefore,
it is the Community Development Director's Interpretation that the subject
property, Lots 6-9, Riverside Addition, is zoned R-6.
Prior to this interpretation, Staff conducted an interpretation for Dale Hower, owner
of the subject property, and found that the property was zoned R-6 according to the
Official Zoning Map. The recipient of this interpretation was informed that an
interpretation was pending and suggested that the neighbor also request an
interpretation in order to allow either party to appeal this decision to City Council.
Appeal of Decision
As with any interpretation of the land use code by the Community Development
Director, an applicant has the ability to appeal this decision .to the Aspen City
Council. This can be done in conjunction with a: iand use request before City
Councilor as a separate agenda item..In this case, there is no land use case proposed
by the applicant, therefore an appeal would require separate action by City Council.
26.316.030(A) Appeal Procedures
Any person with a right to appeal an adverse decision or determination shall initiate
an appeal by filing a notice of appeal on a form prescribed by the Community
Development Director. The notice of appeal shall be filed with the Community
Development Director and with the City office or department rendering the decision
or determination within fourteen (14) days of the date of the decision or
determination being appealed. Failure to file such notice of appeal within the
prescribed time shall constitute a waiver of any rights under this Title to appeal any
decision or determination. .
included two single-family dwellings and an ADU which are permitted uses in the
R-6 zone district) for the subject lot according to direction received from Com Dev
Staffas indicated above.
Cherie Oates, the adjacent property owner, concerned \\o1th the potential of increased
development on the neighboring property under the R-6 zone district, provided Staff
/ with an earlier 1979 Official Zoning Map indicating that the subject property was
zoned R-15 rather than R-6 as currently shown on the current Official Zone District
Map. In doing this, Cherie Oates claims that the current Official Zone District Map is
incorrect; the subject property should be zoned R-15 (Moderate-Density Residential)
. and developed according to R -15 provisions in the Land Use Code. As a result, this '
alleged / potential discrep:mcy on the Official Zone District Map is significant for
Hower in her ability to develop her property.
At present, neither Staff nor the requestor of this interpretation has been able to
produce any ordinance (which would be the method for establishing a zone district
for a specific section of land in the City of Aspen) that would have 1) originally
established the property as R-15 or 2) subsequently rezoned the property from R-15
to R-6 as currently shown on the map;
Staff has produced a series of zoning maps that are sho\\TI in the matrix below. The
zoning designation for a parcel or lot in the City of Aspen can only be achieved
through a two-step public hearing process to the Plan.lling and Zoning Commission
and City Council requiring the adoption of an ordinance which then formally applies
or changes a zoning designation for a property. The Official Zone District Map is
the graphic representation of these actions correlating City Council action to a
colored parcel of land on the paper map. Therefore, every property in any given zone
district should have an underlying Ordinance justifying its zoning designation.
~<lJafe~~:>:~:~~ '%ir!# ~
1963
1967
1979
911 0/82
8/21184
1983-1988
1996 -1999
City Zoning Map
City Zoning Map
City Zoning Map
Certificate of Occupancy
Certificate of Occupancy
City Zoning Map
GIS Zoning Layers
Current Official Zone District Map
4/15/98
12/15/99
5/9/00
PropertvZoiri"~0l~lN~'if),}~' ''''~~;
; Riverside Addition as R-15
Riverside Addition as R-15
Riverside Addition as R-15
, R-15
! R-15
! R-15
, R-6
R-6
Community Development Staff met with City Staff from Geographic Information
Systems (GIS) and Information Systems in order to determine if any change on the
existing maps could be tracked or identified. As a result of that discussion, there was
.
LAW OFFICES OF
OATES, KNEZEVICH & GARDENSWARTZ, P.C.
PROFESSIONAL CORPORATION
THIRD FLOOR, ASPEN PLAZA BUILDING
53J EAST HOPKINS AVENUE
ASPEN, COLORADO 81511
Exhibit B
lEONARD M, OATES
RICHARD A, KNEZEVICH
TED D. GARDENSWARTZ
DAVID S. KELLY
TELEPHONE (970) 920-1700
FACSIMILE(970)920.1121
mail@okglaw.com
OF COUNSEL:
MICHAEL FEIGENBAUM
JOHNT_KELLY
November 27,2000
Aspen City Council
Aspen City Hall
130 S. Galena Street
Aspen, CO 81611
Re: Request for Interpretation filed November 1, 2000; Appeal Pursuant to Section
26.316.030(A)
Dear Council Members:
Please consider this letter the appeal of Cherie G. Oates of an adverse determination made by the
Community Development Department dated November 22, 2000, attached as Exhibit "A". Ms. Oates
requested an interpretation to determine the correct zoning of property owned by an adjacent owner, Dale
Hower, which is located at 1201 Riverside Drive. Ms. Oates requested that the property be determined to
be zoned as R-15, as reflected in the city zoning maps for at least 33 years. A full explanation of Ms. Oates'
position is contained in the Request of Interpretation filed with the Community Development Department
on November 8, 2000, attached as Exhibit "B". The main thrust of Ms. Oates' argument is that zoning
cannot be changed from its historical designation of R-15 to a new designation of R-6 without notice,
hearing and adoption of a proper zoning ordinance. No underlying ordinance was located by the planning
staff and it appears that the change on the city zoning map from R -15 to R -6 was the result of an error in the
mapping. Ms. Oates accordingly requests an interpretation that the property known as 1201 Riverside Drive
is zoned as R-15, not R-6, as reflected in the interpretations of the Community Development Department.
Sincerely,
OATES, KNEZEVICH & GARDENSWARTZ, P.c.
David B. Kelly
Attorneys for Ch
DBK/wdf
".
.
no conclusive evidence of precisely when a map error, if any, had occurred.
However, Staff from these departments decided to enter into a joint project to have
all City zoning "source maps" imaged so that they may be used to precisely compare
or overlay onto other maps to show how parcel lines and zone boundaries have
changed over the years. Further, this project will include researching the rezoning
ordinances that are associated with mapped parcels from a specific point forward to
present day.
As a result, Cherie Oates, the neighbor to the subject property, is challenging the
validity of the current Official Zone District Map, and subsequently requested this
interpretation of Official Zone District Map. As a result of the lack of any ordinance
establishing and justifying the property as either R-15 or R-6, the Community
Development Director must rely on the only immediate recourse provided by the
provisions of the Aspen Land Use Code pursuant to Section 26.71O.030(A), which
directs any question as to the current zoning for a property:
The official zone district map shall be the final authority as to the current
zoning of land in the City of Aspen.
The current Land Use Map indicates that the property is zoned R-6. Therefore,
it is the Community Development Director's Interpretation that the subject
property, Lots 6-9, Riverside Addition, is zoned R-6.
Prior to this interpretation, Staff conducted an interpretation for Dale Hower, owner
of the subject property, and found that the property was zoned R-6 according to the
Official Zoning Map. The recipient of this interpretation was informed that an
interpretation was pending and suggested that the neighbor also request an
interpretation in order to allow either party to appeal this decision to City Council.
Appeal of Decision
As with any interpretation ofthe land use code by the Community Development
Director, an applicant has the ability to appeal this decision to the Aspen City
Council. This can be done in conjunction with a land use request before City
Council or as a separate agenda item. In this case, there is no land use case proposed
by the applicant, therefore an appeal would require separate action by City Council.
26.316.030(A) Appeal Procedures
Any person with a right to appeal an adverse decision or determination shall initiate
an appeal by filing a notice of appeal on a form prescribed by the Community
Development Director. The notice of appeal shall be filed with the Community
Development Director and with the City office or department rendering the decision
or determination within fourteen (14) days of the date of the decision or
determination being appealed. Failure to file such notice of appeal within the
prescribed time shall constitute a waiver of any rights under this Title to appeal any
decision or determination.
J
..............
ASPEN/PITKIN COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
ZONE DISTRICT MAP INTERPRETATION
JURISDICTION:
City of Aspen
APPLICABLE CODE SECTION:
Section 26.71 0.030(A): Official
Zone District Map
EFFECTIVE DATE:
November 22, 2000
WRITTEN BY: ~
~PPROVED BY: 1. ,(,~
Fred Jarman, City Planner
Julie Ann Woods,
Community Development Director
COPIES TO:
Cherie G. Oates,
John Worcester
SUMMARY:
This interpretation of the Official Zone District Map pursuant to Section 26.306
determines that property owned by Dale Hower, located at 1201 Riverside Drive and
legally described as Lots 6-9, Block 24, Riverside Addition is zoned as R-6
(Medium-Density Residential) as indicated on the Official Zone District Map.
Further, pursuant to Section 26.71O.030(A) Official Zone District Map, the official
zone district map shall be the final authority as 'to the current zoning of land in the
City of Aspen.
"
BACKGROUND:
Cherie G. Oates, owner of Lot II Riverside Addition, formally requested an
interpretation of the Official Zone District Map to determine the correct zoning of an
adjacent property, owned by Dale Hower, located at 1201 Riverside Drive. While the
current Zone District Map indicates the properly is zoned as R-6 (Medium-Density
Residential), Cherie Oates questions the validity ofthis R-6 zoning designation as
depicted on th~ map. An older zone district map shows the subject property as R-15
(Moderate-Density Residential). Cherie Oates claims the subject property as
indicated on the Official Zone District Map is the result of a map error on 'the zoning
map and should be zoned R-15, as indicated on earlier Zone District Maps.
DISCUSSION OF EVENTS:
Dale Hower, owner of the subject property, met with Community Development Staff
to determine the development potential for the 14,179 sq. ft. lot and inquired about
its zoning designation. Staff indicated to the applicant that her property is located in
the R -6 zone district after referring to the Official Zone District Map revised on
4115/98, 12115/99, and 5/9/00. Staff further directed the applicant that any proposed
plans for development on this lot shall be required to conform to the provisions of
this zone district. Subsequently, the applicant pursued development plans (whi
""
included two single-family dwellings and an ADU which are permitted uses in the
R-6 zone district) for the subject lot according to direction received from Com Dev
Staff as indicated above.
Cherie Oates, the adjacent property owner, concerned with the potential of increased
development on the neighboring property under the R-6 zone district, provided Staff
/ with an earlier 1979 Official Zoning Map indicating that the subject property was
zoned R-15 rather than R-6 as currently shown on the current Official Zone District
Map. In doing this, Cherie Oates claims that the current Official Zone District Map is
incorrect; the subject property should be zoned R-15 (Moderate-Density Residential)
o and developed according to R -15 provisions in the Land Use Code. As a result, this '
allegOed / potential discrepmcy on the Official Zone District Map is significant for
Hower in her ability to develop her property.
At present, neither Staff nor the requestor of this interpretation has been able to
produce any ordinance (which would be the method for establishing a zone district
for a specific section of land in the City of Aspen) that would have 1) originally
established the property as R-15 or 2) subsequently rezoned the property from R-15
to R-6 as currently shown on the map;
Staff has produced a series of zoning maps that are shown in the matrix below. The
zoning designation for a parcel or lot in the City of Aspen can only be achieved
through a two-step public hearing process to the Planning and Zoning Commission
and City Council requiring the adoption of an ordinance which then formally applies
or changes a zoning designation for a property. The Official Zone District Map is
the graphic representation of these actions correlating City Council action to a
colored parcel of land on the paper map. Therefore, every property in any given zone
district should have an underlying Ordinance justifying its zoning designation.
City Zoning Map
City Zoning Map
City Zoning Map
Certificate of Occupancy
Certificate of Occupancy
City Zoning Map
GIS Zoning Layers
1963
1967
1979
9/10/82
8/21/84
1983-1988
1996 -1999
Riverside Addition as R-15
Riverside Addition as R -15
o Riverside Addition as R-15
R-15
R-15
R-15
R-6
Current Official Zone District Map
411 5/98
1211 5/99
5/9/00
R-6
Community Development Staff met with City Staff from Geographic Information
Systems (GIS) and Information Systems in order to determine if any change on the
existing maps could be tracked or identified. As a result of that discussion, there was
, .
.
..
no conclusive evidence of precisely when a map error, if any, had occurred.
However, Staff from these departments decided to enter into a joint project to have
all City zoning "source maps" imaged so that they may be used to precisely compare
or overlay onto other maps to show how parcel lines and zone boundaries have
changed over the years. Further, this project will include researching the rezoning
ordinances that are associated with mapped parcels from a specific point forward to
present day.
As a result, Cherie Oates, the neighbor to the subj ect property, is challenging the
validity of the current Official Zone District Map, and subsequently requested this
interpretation of Official Zone District Map. As a result of the lack of any ordinance
establishing and justifying the property as either R-15 or R-6, the COnimunity
Development Director must rely on the only immediate recourse provided by the
provisions ofthe Aspen Land Use Code pursuant to Section 26.710.030(A), which
directs any question as to the current zoning for a property:
The official zone district map shall be the final authority as to the current
zoning of land in the City of Aspen.
The current Land Use Map indicates that the property is zoned R-6. Therefore,
it is the Community Development Director's Interpretation that the subject
property, Lots 6-9, Riverside Addition, is zoned R-6.
Prior to this interpretation, Staffconducted an interpretation for Dale Hower, owner
of the subject property, and found that the property was zoned R-6 according to the
Official Zoning Map. The recipient of this interpretation was informed that an
interpretation was pending and suggested that the neighbor also request an
interpretation in order to allow either party to appeal this decision to City Council.
Appeal of Decision
As with any interpretation of the land use code by the Community Development
Director, an applicant has the ability to appeal this decision to the Aspen City
Council. This can be done in conjunction with a land use request before City
Councilor as a separate agenda item. oIn this case, there is no land use case proposed
by the applicant, therefore an appeal would require separate action by City Council.
26.316.030(A) Appeal Procedures
Any person with a right to appeal an adverse decision or determination shall initiate
an appeal by filing a notice of appeal on a form prescribed by the Community
Development Director. The notice of appeal shall be filed with the Community
Development Director and with the City office or department rendering the decision
or determination within fourteen (14) days of the date of the decision or
determination being appealed. Failure to file such notice of appeal within the
prescribed time shall constitute a waiver of any rights under this Title to appeal any
decision or determination. '
,.....
{
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LAW OFFICES OF
OATES, KNEZEVICH & GARDENSWARTZ, P.C.
PROFESSIONAL CORPORATION
THIRD FLOOR. ASPEN PlAZA BUILDING
533 EAST HOPKINS AVENUE
ASPEN, COLORADO 61611
TELEPHONE (970) 920-1700
FACSIMtlE (97Q) 920-1121
LEONARD M. OATES
RICHARD A. KNEZEVICH
TED D. GAAOENSWAATZ
DAVID 8, KELLY
mail@okglaw_com
OF COUNSEL:
MICHAEL FEIGENBAUM
JOHN T . KELLY
November 8, 2000
RECEIVED
NO'! 0 8 2000
Ms. Julie Ann Woods
Community Development Director
Community Development Department
City of Aspen
130 South Galena
Aspen, CO 81611
ASPEN I PITKIN
COMMUNITY DEVELOPMENT
Re: Request by Cherie G. Oates for Interpretation Pursuant to Section 26.306 of the
Official Code of the City of Aspen
Dear Ms. Woods:
We represent Cherie G. Oates, who is the owner of Lot 11 Riverside Subdivision and a parcel
adjacent interests described by metes and bounds (the "Oates Property").
Request for Inter:pretation
This letter shall constitute her Request for Interpretation made pursuant to Code Section 26.306 in
connection with the zoning designation of the real property described in Exhibit "A" attached hereto (the
"Hower Property"). The Hower Property is adjacent to the Oates Property. This request follows a Request
for Interpretation made by Dale Hower, the owner of the Hower Property, which was responded to by the
Planning Director's Interpretation dated October 26,2000 determining the Hower Property to be zoned R6 .
on purely technical grounds. It is our understanding that this Request for an Interpretation on the identical
question as that posed by Ms. Hower is necessary in order to perfect a right of appeal to the City Council
under the City of Aspen Code ("Code").
The October 26, 2000 Interpretation cited 26.710.030 CA) for the proposition that the Official Zone
District map is the final authority on zoning matters without a supporting resolution. Mrs. Oates submits
that a zone map designation which is not supported by underlying zoning is a nullity. A zoning
classification, and an amendment to zoning, require the compliance with statutory and Code zoning
procedures, including notice, public hearing and an enacting resolution of the City Council. Zoning maps
are evidence of underlying zoning only, they do not establish zoning.
r
OATES, KNEZEVICH & GARDENSWARTZ, P.C.
Ms. Julie Ann Woods
Community Development Director
November 8, 2000
Page 2
Administrative Errors Cannot Change Zoning Classifications
Section 26.710.030 ofthe Code requires that properly adopted amendments be made before changes
are made to the City's Official Zone District Maps. By contrast, the Planning Director's October 26, 2000
Interpretation would permit zoning changes to be made by ministerial errors in zoning maps, without the
required adopting legislation. It would permit property to be zoned and re-zoned without notice and an
opportunity to be heard by affected parties, including the owners of the property being re-zoned and the
owners of adjoining properties. This is a violation of the procedural due process standards required by law.
The Planning Director's Interpretation correctly notes that "The zoning designation for a parcel or
lot in the City of Aspen can only be achieved through a two-step public hearing process to Planning and
Zoning Commission and City Council requiring the adoption of an ordinance which then formally applies
or changes a zoning designation of the property." The Interpretation, however, does not follow this basic
rule. Instead, the Planning Director says that no ordinance was found for either the initial R-15 zoning or
for the alleged change to R-6 and thus we simply look to the maps to determine the zoning. This is not the
state of zoning law in Colorado.
In Colorado, a zoning map is only evidentiary, not dispositive. See Wainwright v. City of Wheat
Ridge, 38 Colo.App 485, 558 P.2d 1005 (1976) (case attached hereto). In Wainwright, the Colorado Court
of Appeals found that an inadvertent or erroneous change in the zoning map was without effect where there
was no resolution of the board of county commissioners amending the zoning. "A zoning map merely
reflects the effect of the exercises of the zoning power and changes made thereon do not of themselves
constitute an exercise of that power." The Planning Director's Interpretation of Section 27.710.030 (A)
directly conflicts with Wainwrig:htby finding that the zoning map itself is determinative.
Also attached hereto is the case of the Board of Supervisors of Montgomerv County Township v.
WelIing:ton Development Corp., 145 Pa.Cmwlth. 15, 602 A.2d 425 (1992), which similarly held that an
administrative error in a zoning map cannot change a zoning classification. Section 27.710.030 (A) cannot
be read, as the Planning Director did, to provide that a change in the zoning map effects a final zoning
change, without a supporting resolution for the zoning change.
Colorado requires that minimum due process be followed for zoning changes, including notice and
public hearing. City of Fort Collins v. Dooney, 178 Colo. 25,496 P.2d 316 (1972). which states and
reaffirms that notice and hearing must be followed in order to meet minimum due process requirements.
Fort Collins is a home rule city, as is Aspen. As stated in the Planning Director's October 26, 2000
Interpretation Memo, zoning designation or re-zoning of a parcel in the City of Aspen can only be achieved
through a two step public hearing process to the Planning and Zoning Commission and City Council. It
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OATES, KNEZEVICH & GARDENSWARTZ, P.C.
Ms. Julie Ann Woods
Community Development Director
November 8, 2000
Page 3
requires the adoption of an ordinance which then formally applies or changes the zoning designation for a
property (See 26.310.020) of the Code. Section 26.310 of the Land Use Code mandates that the application
be considered under comprehensive standards of review (See 26.310.040). One of those considerations is
"Whether the proposed amendment is compatible with surrounding (emphasis added) zone districts and land
uses considering existing land use and neighborhood characteristics." This consideration was not made by
the person who erroneously prepared the map constituting "final authority" as to current zoning. Clearly,
required procedures were not followed with respect to the Hower Property and, as a consequence, her
property could not have been re-zoned from its historic R-15 designation to R-6 without full and complete
analysis of the effect thereof, including a public hearing. This is especially true given the constraints on the
Hower Property, the neighboring properties and the features which clearly distinguish the Hower Property
from the remainder of the Riverside Addition which mayor may not have been properly re-zoned to R6.
The mere fact that a computer generated mapping may have indicated a zoning designation on a map
is of no significance to the underlying zoning of the property. Such a map cannot take precedence over
substantive requirements regarding the application and change of zoning classifications. We pose the
following questions: (1) What steps were taken and analyses made in connection with adoption of any and
all maps subsequent to 1988 called "Official Zoning Maps" of the City of Aspen? (2) Were the zoning
designations on the maps checked and verified? (3) If so, by whom and how was the review conducted?
(4) If not, why did this not occur? (S) Was an ordinance or resolution adopted designating any map as
official? (6) What are GIS Zoning layers referred to in the Planning Division is October 26 Interpretation
and what in the City's view is the legal significance of GIS Zoning layers?
A Zoning ChanlZe Cannot Be Made Without Followin~ The Colorado Statutory Process
Colorado statutory law provides comprehensive minimum standards for the adoption and amendment
of zoning regulations, including the application of the standards to particular parcels of property. These
standards must be met, at a minimum, before a tract can be zoned or re-zoned. This is true regardless of
whether the property be located in a statutory or home rule municipality. C.R.S. S 31-23-301 et seq. (See
copy attached.) C.R.S. S 31-23-304 states:
The governing body of such municipality shall provide for the manner in which such
regulations and restrictions and the boundaries of such districts are determined, established,
enforced and from time to time, amended, supplemented or changed. However. no such
re~lation. restriction. or boundary shall become effective until after a public hearing thereon
at which parties in interest and citizens shall have an opportunitv to be heard. At least fifteen
says notice of the time and place of such hearinlZ shall be published in an official paper or
a paper of lZeneral circulation in such municipality. (Emphasis added.)
That requirement was not met with respect to the Hower Property. The provisions of C.R.S. S 31-23-
304 apply to re-zoning pursuant to C.R.S. S 31-23-30S. A home rule city's zoning authority is governed
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OATES, KNEZEVICH & GARDENSWARTZ, P.C.
Ms. Julie Ann Woods
Community Development Director
November 8, 2000
Page 4
by its own charter and ordinances in accordance with Article 20, Section 6 of the Constitution of the State
of Colorado. See Zavala v. City and County of Denver, 759 P.2d 664 (Colo. 1988). However, such
authority does not excuse the fundamental requirement that. basic due process be met. The City's Home
Rule Charter does not address zoning issues and therefore only its ordinances apply. It is inconceivable that
a technical provision of the Code could be construed to take precedence over substantive Code provisions
basic to the rights of interested parties.
The Zoning of the Hower Property Was R-15 for at Least Thirty-Three Years
The Planning Director's Interpretation notes a lack of any ordinance for the zoning designations in
question. It then notes that the City Zoning Map showed the Hower Property as R-15 for thirty-three years,
from 1963 to 1996. In 1996, the GIS Zoning Layers apparently redrew the line between R-15 and R-6 and
placed the Hower Property in the R-6 zone. There was no adopting ordinance for this change. Moreover,
a change adopted in a "GIS Zoning Layer" is of dubious legal effect. A zoning map cannot supersede the
exercise of legislative re-zoning authority vested ultimately and only in the City Council of the City of
Aspen.
Nei!;':hboring Property Owners Were Not Given The Required Notice of Re-Zoning
Mrs. Oates did not get notice of the re-zoning of the Hower Property, nor did any of the other
adjoining property owners. In Colorado, the owner of property adjacent to land being considered for re-
zoning has standing to challenge the re-zoning and a legally protected interest in insulating his property from
adverse effects caused by legally deficient re-zoning of adjacent property, Board of Countv Commissioners
of Adams County v. City ofThornton, 629 P.2d 605 (Colo. 1981), and Coates v. City of Cripple Creek, 865
P.2d 924 (Colo. 1993).
Your determination has a significant impact on the Oates Property. To permit the increased
development allowed by R-6 zoning, including the duplex plus accessory dwelling unit proposed for the
Hower Property, would increase the burden on the Oates Property, including the use of a private access
crossing the Oates Property. This access was never intended for anything other than access to one single
family dwelling on the Hower Property. Re-zoning Hower on the basis ofamap error would cause a severe
economic loss to the Oates Property.
Finally, you have stated that you are unable to find where the Hower Property was previously zoned
R-15. The annexation of the Riverside Addition should be researched since it may have been part of a larger
annexation. Large areas were annexed in the late 1950s and the 1960s. However, if the property was not
zoned R-15 or R-6, then it must have been un-zoned. This reinforces the conclusion in the Montgomery
Countv case cited above. If there is confusion as to the zoning of the Hower Property, then there must be
other properties as to which confusion exists. Perhaps a full and complete audit and inventory of zoning
(
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OATES, KNEZEVICH & GARDENSWARTZ, P.C.
Ms. Julie Ann Woods
Community Development Director
November 8, 2000
Page 5
classifications needs to occur so that the mapping may be corrected to reflect valid and historic zoning
classifications. This needs to be based on an ordinance adopted after notice, hearing and consideration by
the City Council of the appropriate zoning to be applied to the Hower Property.
Sincerely,
OATES, KNEZEVICH & GARDENSWARTZ, P.c.
eys for Cherie G. Oates
DBK/wdf
cc: John Worcester, Esq., Aspen City Attorney
C:\DataIKeIlYILb'PlanningCorrlTlission11.01.00.W1ld
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,
EXHIBIT A
LOTS 6, 7, 8 AND 9,
BLOCK 24.,
RIVERSIDE ADDITION
TOGETHER WITH
A port~on of the alley of Block 24, described as follows:
Beginning at the Southwest Corner of Lot No.9 of said Block 24;
thence S 89044' W 20.00 feet to the Southeast corner of Lot 22, Block
thence N 00016' W 7J feet along the East lines of Lots 22, 2l, and 20
Block 24;
thence N 60004'
thence S 000].6'
to the point. of
24;
of
E 23 feet to the West line of Lot 6, SlGc~ 24;
E 8"1.38 feet. along the West. line of Lot. 6, 7, 8,
beginning.
and 9,
AND a parcel of land described as follows:
Beginning at the Northeasterly corner of Lot ll, Block l, Riverside
Subdivision;
t.hence N 0001.6' W lOO feet more or less, to the Nort.heasterly Corner of
Lot 6, Block 24, Riverside'Addition to the City of Aspen;
thence N 89044' W 25.00 feet;
thence S aQol6' E loa.ao feec;
chence S 89044' W 25.00 feet to the point of beginning.
11111111111111111111111111111111111111111\ 1111111111111
4223~8 OS/24/1998 12:0~P QeD ORVIS SILVI
2 of 2 R 11.00 0 86.82 N 0.00 PITKIN COUNTY co
\\ .\[~\~\;"iU(;~{~
CITY Of W1-U:::AT rUDGE
C': r" ~,J,) ,3,),'; _CJ:2d ! ~1)3
l()ni;;~-:-~= iC-;:':
.-\_;":__,--:'10:::
\\_,.l:. ',\-;-~> f t l :.ind
.:-:li1::;::.,)r.
tation Equipment and Body Co., Inc.,
Plain tiffs-Appellan ts,
v.
CITY OF WHEAT RIDGE. Colorado,
Defendan t-Appellee.
~o. 75-,337.
Co\orJ.do CJi_,rr..:j[ .-\pp.::::.;s,
Di" 2
De:c, :30,
'0"7"
~../ 10.
Selected for ():::__i.:::: Pl_lb!i::"~:()n
0",''1>::[ .:::~d ]e::;:se~ of :-ezJt'; 51J.::d
for decl8.;:lwry judgme;-:l, :lfter cil,",' ;l:h,3;::d
, : - .
:eSS2~ ::;:l~ :~:; use 0:
'.'io\2.:p-d e:,:ist;;-:z
~,",e D:s~r:ct Cour:. .I;;:;:fe::-::o'.
COe::::::. Roscc,e Pile, J_, held t:;;:;.t the 1..::32
''-:0:2.:2(1 iJr1:nJ.:"ce and ;J~2.iC!:lff::; 2.::'-
The C,ol_;r: 0:' .--I..ppeJ.;s,S:ni:h. .~.,
h2!ci ::idt COllTE:': ZOrl11g m2.p er:-oneolJsl:;
oepic:i:;g zor:if!g at realty as "restricr:.l<;e
corr;r;;ercial," after i: had been zoned "COr.1-
",2:-cia1,," had no conc!lJsi've effect IJpiJn
:3:Ee ,): 2.nd ;,\0 C!l:l1,ge of z:oy-:~;:s
clas:3i:":c1:ion w::..s effected by passage 0:-
Qrciir.c:'ce by ne\\llY incorporJ.ted city cie-
c!c.;',;:,; co:..:n:y ~~~s. to be aciopted as t~:':"
.,.\.~:"':: ~:", ~I'f,::ct, '_:iU::' leS38e':3 use p'2r'ill::,::i~
i;"l CO~[;1.erci;..d zone, bu: prohibIted in re-
strictivE: commercial zone, did not violate
the zarung
Reversed and remanded.
t,
,
"
!
1. Zoning c= 2.33
T'J int2fpre;: J.nd cons':.Y'ue zoning or:::-
n2.;Jce 9foperiy, courT.: must ascerta;:1 lery-:s-
1::'::-,;; ~;,:2~: by il)ok;r.'[ at. f::"Ln ~~"
g~ncr2.!i'.
mE::J.:"i:lg of ''<:C:-:1.3 2.:1d
') ZOfitn:;
"-- '-,'\~
--.r--'~,j I
\\::'1;:;1; coune!] of new:\' inco;Jora:-
d1 Jecl:.lfr.:J ~hJ.t. COunt'. ;onino" rYl.,,,~
J '~,,,cl....._
wer~ ildopt2d "ClS they ',vere in effect," t.~e
S:_J',C;~ .. 1.:0U:lty ::'{Jning ;1L time: c:icy incor-
r':"'d\J~
I:'.:U
!-oniT1g ordin2.:1c;~ Q:"()"_
30-2:3-116, 31-23-201.
e;:ll:d.
CRS.
',...~
'v.
I.~,),,--,.,
:::c.:: ..~
--::c,
ing zoning 8f re:::.ity as "restrict-i've commer.
ciai," af':,er it was zoned "commerciai," had
no conclusive effect upon state of zoning
and no change of zoning classification was
effected by passage or ordin2.nce by :1e.,v'!/
:ncorporat2G decLlring eel", ,,::,- :;,2.;5 :1)
'Je adopted 2.5 they ',V2,2 i:; .::f:'ec~ ~(\1.;S
,,,:332e':3 '.1:32
II"'. c::'r:,,",:",~;c
, .~.';,
but prohbited
:11 rest:-ic:i:;; COIT',r:'.2,cia!
ZO!':2) el:'; not \'10;2.:2 :ne
:;;0-28-116, :31-2:3-201
r ~, ~
.f. Zoning C:= l.):~
SL;Ds:2.r:ti:::.i compliJ.:1ce
'.'...ith st::":'l:ory
p:ov~sions 1:3
- " .
:''), '2.'.,-:'-1~ 2r.2.'::~2r,t
If LOr: '15" c!".ar:ge ana :'allL:!'e -0 CO''''J. ','il!:.:-t
235201:::1: :r:a:1da:es of :3t2.::'::e5 i~.'''l,:;:2.:e
S. Zoning c:;::> 199
.\5 s(jon 2.5
;.!..:'ter
adopt.ion by boud, of COU:1~Y comr:J.i:3s;o~e;s
of c:,anges in zon~ng, they sh(u~d be placed
upon authorized copy of arig1::al :712.93 or
maps \v-i::1 d::H2 of action sho',';n Cl:Or-.g '.';ieh
:',/;)e oE cr,8.ng~.
c.R.:3,
~:~'--::2:3-:: S "
'-n
:.).
23-201.
6. Zoning (=:> 197
;;1 :-~bse~c::: ,]:: r2,SGlU:jGr,
board of com:-nissioners 3..-:',e~d ng
inad'.:ertent or erroneous cna:1ge in zOning
map wa.s witrlOut effect. C.R.S. '73, :30-23-
~16, 31-23-201.
7. Zoning (=:> 132
Zoning map \\/3.5 only 50me e,-.:de~ce 0:
3.cu2.1 S::'2.t2 OI- zoning of pa:-:;ct..::2.:- :)2.:-281.
C.R.S. '73, :30-~-l16, :31-2:3-20:,
s. ZOilin;; (=~21
LO:-',::1S" :::'.'. S~"I"
:-,~ :::,-;''''
~~ ~(i
..l'r.L(.'l
Rober: W. CJdcies, Denver, fur ;Jlz:.i:-::l:fs-
)h~,r:-:12 F ?0\, ? C. .\l:.:.:..;r:('l: ?
\VheJ.::' RidS-e, [or dt:!.o;;nd:Jnt-IJ.;)pel:e~,
ru\
'l
:;;...
Vl
Vl
"--,
1006 Colo.
558 PACIFIC REPORTER, 2d SERIES
S:llITH, Judge.
Archie Wainwright, owner of certain real
property in \V:'1eat Ridge, and Transporta~
tion Equipment and Body Company, lessee
of that property, filed suit for declaratory
judgment against Wheat Ridge, after
Transportation Equipment was advised by
the city that its use of the property violated
existing zoning. From a decision by the
trial court that the use of the subject prop-
erty was in violation of the city zoning
ordinance, plaintiffs appeal. We reverse.
The subject parcel, a part of Ha[e Subdi-
vision, was, prior to its inclusion in Wheat
Ridge, in the unincorporated portion of Jef-
ferson County. In 1949 the subdivision was
first platted and this parcel was zoned by
the county as Commercial One (C-l).
Sometime later, a county zoning map, re-
ferred to as "No.4", came into existence
which erroneously depicted the zoning as
Restrictive Commercial (R-C). Hale Subdi-
vision was made part of Wheat Ridge when
it became an incorporated municipality in
August 1969. Wheat Ridge adopted a zon-
ing plan through Ordinance No. 11, Series
of 1969. In relevant part, it reads:
"The Jefferson County zoning maps
which are a part of this ordinance, num-
bered 3, 4. 13 and 14 are designated as
the City of Wheat Ridge zoning maps and
are hereby declared to be a part thereof
as they were in effect on November 16,
1969
The fact that Zoning Map No.4 of Jeffer-
son County erroneously designated the sub-
ject land as being zoned R-C is not in
dispute. Mr. Wainwright purchased the
property in 1970 and leased it as a motor
vehicle sales lot, a use permitted under C-l
but not R-C zoning, until the city served
notice of the alleged zoning violation.
The city contends that, despite the error
in the map, its incorporation into the city's
initial zoning ordinance was an exercise of
its statutory authority to regulate the use
of land within its boundaries and to estab-
lish zoning districts, See C.RS.1973, 31-
23-201. They argue that by passage of
Ordinance No. 11, incorporating Map "No.
4", the property became zoned R-C.
We ag:::e that OrrJinance No. 11 repre-
sen~s a legislative judgment as to where
lines of c:iemarcation between differen.t.
ZOnes sh()'lld be drawn. See City of Gree!e'l
v. Ells. l36 Colo. 352, .527 P.2d .538. Tn"e
problem, hO",lJever, is essentially one of In-
terpretation and construction of the ordi-
nance which adopted the county maps.
[1-3] In order to interpret and construe
the ordinance properly we must ascertain
legislative intent by looking at the familiar
and generally accepted meaning or words
and phrases. Humana, Inc. v. Board of
Adj. of City of Lake wood. Co[o., .537 P.2d
741. The intention of the city council in
declaring that the ma~s were adopted <'as
they were in effect on November 16, 1969"
(emphasis added) is the crux of the malter.
Inasmuch as zoning maps derive their effec~
tiveness from the ordinance or resolution
that ado9ts them, it is the status of the
county zoning, at. the time the city incorpo-
rated the map into its zoning ordinance that
governs. A zoning map merely reflects the
effect of exercises of the zoning power and
changes made thereon do not of themselves
constitute an exercise of that power.
[4,.5] Section 30-28-116. C.R.S.1973. ex-
plains the procedure by which the county
can amend its zoning regulations; it pro-
vides that only the Board of County Com-
missioners may amend the zoning regula-
tions. See Colorado Leisure Products, Inc.
v. Johnson, Colo., 532 P.2d 742. Substantial
compliance with statutory provisions is re-
quired for lawful enactment of a zoning
change, Gordon v. Board of County Com-
missioners, 1.52 Colo. 376, 382 P.2d 545, and
failure to comply with essential mandates
of the statutes invalidates the proceeding.
Colorado Leisure Products, Inc. v. Johnson,
supra. Also, as soon as reasonably possible
after adoption by the Board of County
Commissioners of changes in zoning, they
should be placed upon an authorized copy of
an original map or maps with the elate of
t.he accion shown alunLr '.vich tr,(: l."'i)t: d~'
change. Holly DevefopOment, Inc. ~'.. Board
of County Commissioners, 140 Colo. 9.5. 342
P.2d 1032.
I
. '.
~~ t-r
(~il "
;~<L)I;T2;_""'L (__'().\l,\liS_~;' 1\
~ ," ? ~J ;i<i-;-
..,-,-,_....'
~ ~1t':
,;,:.:.::, ~;-, r'-Cc;, ,"j'
-,';
.j','
1
,
f
CaU:1:Y COr:lrr-:issioners :J.mE:!:cir:.g t~e Z:)r.~
iog, the inadvertent or erroneous change in
the zoning map Wo.s without effect. We
therefore conclude that Map -::10. 4 was only
some e':idence of the 2.ctual state or zonIng
2.nc chat on Novembe!' 15, 1969, contrary _u
c:-:e irlcicacior, un chat :,.J.~, tn:; .::(:
::roo-:rl::," '\\";:'~:) zoned C-L,
;<
,
.,
';.
I,
;;;.
.~
,
,~
[SJ Bec2:JSe lOn~ng L_cws srwuid bo:;
.
.~
:::..-:'~ :e::;,s():':J.:i:~ CO:-;s:r'.lC::o[', i:-', :!s~-
o~- tile Sec~:ilg in \\:r.ic~ employed, Be('i':r~:..:.::
(_--;r:2,--;d T:::':,':;:;'--id, l~~ \d), ~--i,0) l-S;- ~<
-60. t~e ~-2.c:()rS si....:.r:-:JL.:nd,r,g adopLo;] (jf :.::e
orriinar,ce should be corsidered. Cir:::L:.;:;_
,
~:
, .
S:ii:lCeS 3.;::ter.c,,,,n," tii paS,3Cl;e or
~;\J. 11 ::-:c;:c:;.te tnJ.: :~~ c::y die. not ::-::;::-:rj
, ,
t,) C;;Jn~2 cne
'il :he
;J["ope,::,. l:-1e ev:,jence :s 'j:;contr1d:r~:;:;d
~:13.t Cr:E: county rn2.f)s, :..lS adopted, ';:::,e
:'~~il:yce'~, :0 Qe COt7::;,,~t.
no r)ne -->j:[_
>:;'~.d~ ::--:2.: c~le ?assc:.ge 0.f CI:-dinance ~;r:,. :1
~
.i'-
i:i'.'C)hed ::':1 21.Cerr,pt to c!l2.:ige any e:'::s:i:;g
zo:;;ng Quite tll the contra':"y, it 'NJ.S
adopted to satisfy a stJtutory requirement.
~1;at the ne',,"\v :r.conor:l~ed cit'! orr)\-!de 2n
., - .
;r.~l.iJ.l zo,<r:g scheme ',<,:;t;ll:1 ninety Gays
:,::':2, Inorpora:ion. .1.ccordingly, sincE: the
!T:J.p \;;2.5 if, 2!"ror and had no concJlisi';e
:::::-;'e'..:t UVH, the state of zoning, \l':e hoiri. 25
a matter of 18.";;' then no change in zorllng
cl3.ss1fica;:ion as to t~e 3L:bject parcels \.Vas
effected by t.he passage of Ordinance ~-o
11.
.
.
r
Appellees argue ;:hat one claiming the
invalid exe:-cise by a city of the statutory
power to classify l2.nd must establish such
:Y1validity )<::yond 3. r<::asonabie doubt. S:C:9
Bird ~' C%fJ.do Springs, 1"18 Caia, ,S2, J}9
?2d 2~~ 'T!':.:s coni..t;:1:ion, nOVie\''2;-, misses
::":1:: issu~ ~J>:for>:: t::is court, ').:~,icn is no::.. ::..ne
. ~,.-
~:) ii')X.:, .
0;
':-
::0n~, but ~2:n",; IS :J. IJ.Ll'..:;Stlon of the e~.ff::ct.
01 Lne ordin:lnce enac~ed. The validity of
'-~e ly-di!1:J.;12€ IS :lut I:'. {iur~:;:lOr..
~
,
Since Wf:: na'/e held that the city cour.cil
-2:-'-,,,ctt~d n,} -:::1ar.;.;e ir. ~:11~ LI)n:ng, ',v>:;' do :'.n:
~e~L(h th:~ ::i con~c;n:..i()n that Wai:1
:.:.::J Tr:J.0.spor::,~Lion Equipment and Body
i
'~-','l -
. ~-)~. r.s '_:-:.... __
The j udg:7lenc is reversed and :~e cause ,_
remanded for entry of a decree not incon-
sis::ent herewith.
E~'OCH ar:d '\' .-\:\ ClSE,.JJ cor.cu:
,. 'J,
" ,-"
r::T' o. .cy
V~
~ald S 'lAc-.ISH. Petitioner.
['iDlST~AL CO\[;USSIO'i of Colondo
(Ex-officiD l~nemplo:-ment Cr)["npenS-J.:i'j;[
Commissjo~ of Colorado). and Pc...;. C}[.
poration ~\f K:l:l.5as, Photo Cor;J. 'i:
America, Re\PDndents.
\,. .C .OQ
\' O. r 0---,) ~'.
COlo:::..do \C)u:-;: u,'
\~i\. :
Dee \30 ~9~ 6
Selected for O~iCl:l1 Public3.tion.
\
Cj2jm2.~~ sOC;Q'.'1t -"~";2"'- h I:-:d:..;.:::::2..
CcmmiSSlOn orde, den:.'l,rig
cOfT1.?ens:.l~:on ber:ef~ts \The Cou:~ O~ A:;-
?eal3, Co}:te. .J.. he:d :,a:\:J.i~"T'.i.!.~.:, ~ ':'_~'_
lng ;:0 raise ISSU.2 i.n ;-eg3.~ ~o e"''pi?' ';'. ~
failure to submIt Its prote:~\-;: to claIm :n
timely fashion until claimant\/iled ~t;;::c;,
fa, review before Commissl'on. did no:
'.l/aive his fight co object to 51]C\ failure i:;';:
oar' of employer. \
, \ ,.
Order set aside 3.2d cause re::12.ilGeC
\l,.'itn di;-ect:or.s.
1. Social S~urity and Public \\'~lfare
-:-:= ,),~:;
L~ ni'::T, PIU y~~:"; i:. I'C..'"":"' :'<::" ...sJ. Un n C:2.: :-:--,;:".1""1:,
in failing to rJ:se issue i:1 regud La 2::::J\0.;:-
e:-'5 f2.!!u:-p' l:.0 Sil~:FI.;t ::.:: :'f1:est ;:'J c!.'l::-:-, \'.
ti:nelv fJ.sn.i0r. :..:r,ci: c!:lic:1:1rtt filed pe:it:or\,
for r-e';it.:v; oc:'or-e I1(i:';::;:~J.l Com:T!~s~>J:-:. \
(h: :10: \\-~U"'..: :-::::
:,j ')bJt:c: :0:0:;":''''::
CD":::' "~,
; :2.ilu;-e ",n J~:.r: ,):'
70-10:3(l-;-~1, S-7~-l05, S-7~-L06(li
':j
\
\
c-.
lJ"'J
lJ"'J
'......
" .
Copr. "West 2000 No Claim to Orig. U.S. Govt. Works
602 A.2d 425
(Cite as: 145 Pa.Cmwlth. 15, 602 A.2d 425)
< KcyCi[c History>
Commonwealth Court of Pennsylvania.
The BOARD OF SUPERVISORS OF
MONTGOMERY TOWNSIllP, Appellant,
v.
WELLINGTON FEDERAL DEVELOPMENT
CORPORA nON and Julian Andre, Michael
Andre,
Ernest Andre, and William Andre, Appellees.
Argued Sept. 13, 1991.
Decided Jan. 13, 1992.
Petition for Allowance of Appeal Denied May 26.
1992.
Board of Supervisors denied applicants' application
for curative amendment, in which applicants alleged
that property did not have valid zoning by reason of
its misdesignation on zoning map. The Court of
Common Pleas, Montgomery County, No.
89-14235, Richard S. Lowe, J., granted request for
curative amendment and allowed applicant's plan for
commercial development of property. Board
appealed. The Commonwealth Court, No. 1416
C.D.1990, Doyle. 1., held that: (I) zoning map
included in brief would be permitted for limited
purpose of identifying subject property, even though
it was not part of record; (2) inclusion of subject
property in wrong district on zoning map sold to
public, as result of administrative error on part of
township employees, did not operate to amend
zoning map or to render so-designated property
unzoned; (3) applicant could not be permitted to treat
property as unzoned or rezoned by reason of
municipality's error where it had knowledge of error
on zoning map and error was corrected on map prior
to filing of curative amendment; and (4) denial of
curative amendment was not error.
Motion for correction record denied; reversed.
West Headnotes
[1] Zoning and Planning k744 *
414k744
Appellant would be permitted to keep photocopy of
zoning map in its appellate brief for limited purpose
r
of helping court understand location of property in
question, even though zoning map was not admitted
into record below; since zoning map was not part of
record, it would be permitted to remain in brief only
for very limited purpose of identifying subject
property. Rules App.Proc., Rules 2134, 2134(c), 42
Pa.C.S.A.
[2] Zoning and Planning k191
414kl91
-)l:. Inasmuch as township employees had no authority to
amend zoning map, their mere administrative error
in changing designation on map could not operate to
amend zoning map or to render so-designated
property unzoned. 53 P.S. ~ 10402.
[3] Zoning and Planning k132
4l4k132
Municipality has duty to create zoning map which
clearly delineates zoning district boundaries.
[4] Zoning and Planning k32
414k32
Municipality that fails to clearly indicate zoning
district boundaries on zoning map cannot place onllS
of that failure upon landowners.
[5] Zoning and Planning k191
414kl91
~ Administrative error in mi~desiQ"natinQ: zoning
district of specific: propP-Tryon zonim! map did not
result in property being unzoned or rezoned where
applicant tor curative amendment had knowledge of
error on zoning map and error was corrected prior to
filing of curative amendment.
[6] Zoning and Planning k191
414kl91
Mere administrative error in misdesignating zoning
d~stnct or spe~l~c property cannot chaofe ZiThigg
classltlcatlOn 0 at property so that lt IS cnmplp""ly
uI)Zo~d.
[7) Zoning and Planning k191
414kl91
Applicants were not entitled to curative amendment,
on theory that property did not have valid zoning, hy
reason of administrative error in misdesignating
property's zoning classification on zoning map;
lawful and valid zoning did apply to area of subject
property and error on map was known to applicant
and was corrected before applicant filed for curative
amendment.
**426 *17 Emory W. Buck, for appellant.
David H. Moskowitz, for appellees.
Before DOYLE and BYER, JJ., and LORD, Senior
Judge.
DOYLE, Judge.
The Board of Supervisors of Montgomery Township
(Board) appeals an order of the Court of Common
Pleas of Montgomery County which granted the
request for a curative amendment filed by
Wellington Federal Development Corporation
(Wellington) and Julian Andre, Michael Andre,
Ernest Andre and William Andre (the Andres) and
approved their plan for the development of a tract of
ground in Montgomery Township (Township).
The subject property consists of approximately five
and three-tenths (5.3) acres and is located at the
intersection of Route 202 and County Line Road. It
was part of a larger tract of approximately 46.79
acres which was owned by the Andres prior to
February 27, 1979. On that date the Township
approved a two-lot subdivision of the 46.79 acre
tract which resulted in the creation of this 5.3 acre
parcel and a 41.49 acre parcel. The larger parcel
was subsequently *18 transferred by the Andres to a
developer known as Kasorex. On September **427
4, 1979, the Township enacted Ordinance 17-AAA
which rezoned by metes and bounds the subject
property (as well as a substantial area of adjoining
property) from R-I Residential to R-5 Residential.
No change in the zoning of the subject property has
taken place since the enactment of Ordinance
17-AAA on September 4. 1979.
Abutting the subject property to the southeast and
southwest is a three hundred sixty-two (362) acre
tract of land. which includes the 41.49 acre parcel
mentioned above, which had been the subject of
litigation. In settlement of that litigation, the
r
Township and the developer, Kasorex. entered into a
stipulation (Kasorex Stipulation) which was
approved by the common pleas court on July 10.
1984. [FNl] Thereafter, the Township Engineer.
acting at the request of the Township Manager,
changed the zoning map to designate those areas
included in the stipulation as being "CA", or "Court
Approved" category. As this change on the map was
made, the R-5 designation of the 5.3 acre parcel was
inadvertently removed, which then caused the map
to show the 5.3 acre tract as included within the
"CA" category. The 5.3 acre parcel, the subject
property of this appeal, however, was never
included in the "CA" category nor was it ever meant
to be. [FN2]
FNI. This stipulation imposed different
zoning classifications and restrictions on
various sections of the tract to permit a
mixed residential development within the
tract.
FN2. A copy of the portion of the zoning
map which illustrates the location of the
subject property and which shows the
property without the zoning designation is
included as an appendix to this opinion.
On or about June 8, 1988, two corporate officers of
Wellington purchased a zoning ordinance and a
zoning map from the Township. On the zoning
map, the subject property is shown to be included
within the area designated "CA". The officers of
Wellington then reviewed the Kasorex Stipulation
and determined that the property in question was not
included within that stipulation. On July 7. 1988,
Wellington entered into an agreement of sale with
the Andres for *19 the 5.3 acre parcel. Apparently
under the agreement, which was not in evidence,
Wellington could refuse to make settlement if
commercial development was not permitted.
On October 17, 1988 Wellington appeared before
the Board with an infonna1 request that the Board
rezone the subject property to permit a commercial
development. The Board at that time informed
Wellington that it would not approve such a rezoning
request.
On November 10, 1988, the large zoning map on
display to the public in the Township Zoning Office
was corrected to indicate that the property in
question was zoned R-5. However, the zoning map
being sold to the public on that date still indicated
that the subject property was within the CA district.
On March 3, 1989, Wellington and the Andres filed
with the Board, pursuant to the Pennsylvania
Municipalities Planning Code (MPC), Act of July
31, 1968, P.L. 805, as amended. 53 P.S. ~~
10101-11202, [FN3] a request for a hearing
concerning a challenge to the validity of the zoning
ordinance and zoning map of the Township together
with a proposed curative amendment to change the
zoning of the subject property to S-Shopping Center
District. [FN4]
FN3. This Act was reenacted by the Act of
December 21, 1988, P.L. 1329.
FN4. Wellington and the Andres filed their
request pursuant to Section 609.1 of the
MPC, 53 P.S. 10609.1, pertaining to
procedure for landowner curative
amendments, and Section 1004 of the MPC,
53 P.S. 11004, pertaining to validity of
ordinances. Article X of the MPC, of
which Section 1004 was a part, was
repealed by the Act of December 21, 1988,
P.L. 1329. Section 916.1 of the MPC, 53
P.S. ~ 10916.1, which now pertains to
validity challenges, was added to the MPC
by the Section 99 of the Act of December
21, 1988, P.L. 1329.
By decision and order dated August 4. 1989. the
Board denied the proposed curative amendment.
Wellington and the Andres appealed to the common
pleas court and by order dated June 28, 1990, the
common pleas court granted their request for a
curative amendment and allowed their plan for
development of the property.
**428 On July 5, 1990, the Board filed an appeal to
this Court. On November 21, 1990, Wellington
and the Andres filed a *20 petition to remand to the
Court of Common Pleas for correction of the record.
In this petition, they allege that the exhibit in the
record marked A-2, which shows the subject
property as being zoned R-5, is not the exhibit which
was introduced into evidence at a hearing before the
Board held on April 18, 1989. By order dated
December 5, 1990, the petition to remand was
granted.
On February 25, 1991, the parties entered into a
stipulation whereby they agreed that the zoning map
of the Township presently in the record as Exhibit
r
A-2 was not the zoning map the applicants entered
into evidence at the April 18, 1989 hearing. The
parties further agreed to correct the record to reflect
that Exhibit A-2, which was entered into evidence at
the hearing, is identical to the zoning map later
entered by the the Property Owners as Exhibit A - 20.
[FN5] By order dated February 28, 1991, the
Stipulation was approved by the common pleas
court.
FN5. Exhibit A-20 shows the subject
property as being included within the CA
district.
[I] Thereafter, the Board filed a brief which
included, on page 24, a photocopy of a portion of a
zoning map. This map indicates that the subject
property is zoned R-5. On May 10, 1991,
Wellington and the Andres filed a petition requesting
that this Court dismiss the appeal or. in the
alternative, direct that this page of the Board's brief
be removed. [FN6] They argue that no zoning map
designating the property as being zoned R-5 was
ever introduced into the record. Wellington and the
Andres further argue that a copy of a docwnent
whicb is not part of the record may not be included
as an exhibit to a brief, especially when the
docwnent is inconsistent with the exhibits which are
part of the record. They suggest that the Court has
authority under Pa.R.A.P.I926 to direct that this
page of the Board's *21 brief be removed in order to
ensure a correct record. [FN7]
FN6. By order dated May 31, 1991, the
motion to dismiss the appeal was denied.
The order further directed the Chief Clerk
to schedule the argwnent on the merits of
the motion for correction of the record
along with the merits of the appeal.
FN7. Pa.R.A.P.I926. entitled Correction
or Modification of the Record provides: If
any difference arises as to whether the
record truly discloses what occurred in the
lower court, the difference shall be
submitted to and settled by that court after
notice to the parties and opportunity for
objection, and the record made to conform
to the truth. If anything material to either
party is omitted from the record by error or
accident or is misstated therein, the parties
by stipulation, or the lower court either
before or after the record is transmitted to
the appellate court, or the appellate court.
on proper suggestion or of its own
initiative, may direct that the omission or
misstatement be corrected, and if necessary
that a supplemental record be certified and
transmitted. All other questions as to the
form and content of the record shall be
presented to the appellate court.
The Board, on the other hand, argues that
Pa.R.A.P. 2134(c) permits the inclusion of an
exhibit which is not part of the record if the exhibit
would be of assistance to the Court. Rule 2134
provides in pertinent part:
(a) General Rule. All maps, plans and drawings
used on appeal must conform to the provisions of
this rule.
(c) Prepared Specially for Argument. If a draft
or plan is not contained in the record, but would
be of assistance to the appellate court as
prescribed in Subdivision (a) of this rule, a simple
draft, plan or sketch, made by or for the appellant,
folded to the same size as the brief, shall be
attached to or filed with the brief of the appellant,
marked so as to show it was not part of the record.
Under like circumstances, the appellee may
prepare and attach to or file with the brief for the
appellee a draft, plan or sketch made by or for the
appellee. Either party may point out, in his brief
or reply brief, wherein he considers the one
presented by his adversary not to be correct.
(Emphasis added.)
Because the photocopy of the zoning map would be
helpful to the Court in understanding the location of
the property in question, we will deny Wellington
and the **429 Andres' motion and permit the
photocopy of the zoning map to remain in the
Board's brief for this limited purpose . We *22
wish to make clear, however, that this zoning map is
not part of the record, was not the map given to the
corporate officers of Wellington and is not authority
for the fact that the subject property was zoned R-5.
We allow the map incorrectly designated as "A-2" to
remain in the brief at page 24, only for the very
limited purpose of identifying the subject property.
We now consider the issues raised by the parties in
this appeal. keeping in mind our scope of review.
Where the trial court takes no additional evidence,
our scope of review is limited to determining
whether the Board committed a manifest abuse of
discretion or an error of law in denying Wellington
r
and the Andres' request for a curative amendment.
Atlantic Refining & Marketing Co. v. Zoning
Hearing Board of Upper Merion Township. 133
Pa.Commonwealth Ct. 261, 575 A.2d 961 (1990).
We may conclude that the Board abused its
discretion only if the findings are not supported by
substantial evidence. 1d.
[2] As a threshold matter, we consider the effect of
the erroneous inclusion of the subject property in the
CA district on the zoning maps sold to the public.
The Board concluded in denying the application for a
curative amendment, that the error on the zoning
map did not change the subject property's zoning or
render it unzoned. Wellington and the Andres, on
the other hand, contend that because of this error,
the property is totally unzoned.
Section 402 of the MPC, 53 P.S. !l 10402, [FN8]
grants exclusive authority to the governing body to
amend a zoning map. In the instant case, the Board
enacted Ordinance No. 17- AAA on September 4,
1979, changing the zoning of the subject property
from R-1 Residential to R-5 Residential. As part of
this ordinance, the zoning map was amended and
revised to reflect this change. No subsequent action
was *23 taken by the Board to change the zoning
classification of the property. [FN9] We therefore
conclude, because Township employees have no
authority to amend the zoning map, that their mere
administrative error in changing the designation on
the map could not operate to amend the zoning map
or to render the so-designated property unzoned.
Accordingly, we hold that the Board did not err in
concluding that the zoning of the subject property
remained R - 5.
FN8. Section 402 provides in pertinent part:
(a) Prior to the adoption of the official map
or part thereof, or any amendments to the
official map, the governing body shall refer
the proposed official map, or part thereof or
amendment thereto, with an accompanying
ordinance describing the proposed map. to
the planning agency for review. (Emphasis
added. )
FN9. Section 609 of the MPC. 53 P.S. !l
10609, grants exclusive authority to the
governing body to amend the zoning
ordinance.
[3][4] Wellington and the Andres cite Tohickon
Valley Transfer, Inc. v. Tinicum Township Zoning
Hearing Board, 97 Pa.Commonwealth Ct. 244, 509
A.2d 896 (1986), for the proposition that "zoning
district boundaries ... must appear upon the zoning
map with defmiteness in order that landowners can
rely upon predictable content within the zoning
ordinance and map for the purpose of deciding
where they can develop structures and where they
cannot do so." In Jacquelin v. Zoning Hearing
Board of Hatboro Borough, 126 Pa. Commonwealth
Ct. 20, 558 A.2d 189 (1989), petition for allowance
of appeal denied, 525 Pa. 606, 575 A.2d 571 (1990),
this Court construed the above language in Tohickon
Valley Transfer as imposing a duty on a municipality
to create a zoning map which clearly delineates
zoning district boundaries. A municipality that fails
to do so, cannot place the onus of that failure upon
an applicant. Jacquelin.
[5] We recognize these general principles of law but
find them inapplicable in this case where (a) the
applicant had knowledge of the error on the zoning
map and (b) the error was corrected on the map
prior to the filing of the curative amendment. In the
instant case the large zoning map on display in the
Township Zoning Office was corrected on
November 10, 1988 to indicate **430 that the
subject property was zoned R-5. Wellington and
the Andres' request for a curative amendment was
filed on March 3, 1989. almost four months after
this correction was made. According to the
testimony of the deputy zoning officer taken at the
*24 Board meeting on June 20, 1989, when the
president of Wellington came into the Office of Code
Enforcement on that day with an application for a
curative amendment, he was shown the large mylar
map on the wall which then designated the zoning of
the subject property as R-5.
We also fmd relevant as demonstrating Wellington
and the Andres' knowledge of the error on the
zoning map, a copy of a page of the minutes of the
October 17, 1988 meeting of the Board. According
to these minutes, representatives from Wellington
approached the Board with a preliminary plan for
rezoning the tract to include a shopping center on the
property. Had they truly believed their property
was within the CA district, obviously no such
request would have been made.
[6] While the general principles we enunciated in
Tohickon and Jacquelin remain true, it is equally
true, and we now hold, that a mere administrative
error in misdesignating the zoning district of a
specific property cannot change the zoning
r
classification of that property so that it is completely
unzoned. Even if a contrary argument had any
merit at all, it is inexplicable why the zoning
classification would be "unzoned" rather than take
on the new zoning classification of the error.
However, the consequence in either case would be to
allow an innocent administrative mistake alone to
bind municipal governments. a result we refuse to
tolerate.
[7] We next consider whether the Board erred in
denying Wellington and the Andres' request for a
curative amendment. They based their challenge to
the validity of the zoning ordinance and zoning map
solely on the alleged failure of the Board to provide
for lawful and valid zoning in the area of the subject
property. In denying the curative amendment, the
Board found that lawful and valid zoning did apply
to the subject property. We have held that the
Board did not err in concluding that the zoning of the
property remained R-5. It therefore follows that the
Board *25 did not err in denying a curative
amendment on the basis that the property did not
have valid zoning. [FNIO]
FNIO. Because we hold that the Board did
not err in denying the curative amendment,
we do not reach Wellington and the Andres'
third argument, that the plan for
development is reasonable under the
circumstances and should be approved by
the court.
Because we hold that the Board did not abuse its
discretion or commit an error of law. we reverse the
order of the Court of Common Pleas of Montgomery
County.
ORDER
NOW, January 13, 1992, the order of the Court of
Common Pleas of Montgomery County in the
above-captioned matter is reversed. Appellees'
motion for correction of the record is denied.
This decision was reached before the conclusion of
Judge B YER' s service.
**431 APPENDIX
Image I (5.75 X 4.5 ) Available for Offline Print
to FAX
END OF DOCUMENT
316 Colo. 496 PACIFIC REP~. 2d SERIES. .
were contraband. 'Ne pomt Qut that at the selr.ures as If armed with all the l.lnbndled
time of the seizure the Illinois driver's li- and illegal power of a general warrant."
cense was allegedly forged, a fact yet to be Not having demonstrated that the items
stablished. True, as counsel points out, here seized were fruits, instrumentalities,
ur statute forbids possession of a "ficti- contraband, or evi'd~0ce connected with the
tl us" operator's license. c.R.S, 1963, 13- criminal activity being investigated under
4- 8. However, here, the license was the search warrant, and no probable cause
me ely suspected of bei~g f~ctitious. and being shown for their seizu'te. the order of
a f ged document at the tIme It was seIzed. suppression was proper. .~
RatH r than contraband, a mo:e accu.rate The ruling is affirmed. ~
chara terization would be that 1t constltut- . ~
ed eVI ence of criminal activity yet to be PRINGLE, C. }., not participating. "-
proved, as is demonstrated by the filing of
the crim'nal charge of forgery three months
later.
Not hay.,ing been designated in the search
warrant abd being evidence only, in order
, \
that it mig~t be lawfully seized, a nexus
must have been shown connecting it with
the criminal ~ctivity being investigated un-
der the searcr}\ warrant. Warden v. Hay-
den. 387 U.S. 294, 87 S.O. 1642, 18 L.Ed.
2d 782. In Peo~le v. Piwtorak, Colo., 484
P.2d 1227, where 'the search and seizure al~
legedly went beyohd the items specified in
the warrant, it was \tated:
l . h
"* * * [T]l\e burden IS upon t e
People at a suppres~ion hearing to show a
connection between\. the evidence seized
and the criminal ac~'~vity for which the
search was initiated \in order that the
evidence not be suppr~:;sed. * * *"
,
See also, People v. Wilso~, Colo., 482 P.2d
355; People v. Henry, sup~.
To countenance seizure ~f evidence not
specified in the warrant and unrelated to
the criminal matters under\ investigation
would open wide the door~ to general
searches and seizures based upon mere sus-
picion but not upon probable c~se as con-
stitutionally required. Mr, Justic.,e Stewart,
in his concurring opinion in ~tanley v,
Georgia, 394 U.S. 557, 89 S.O. 12~3, 22 L.
Ed.2d 542, states the caveat as foll~ws:
II * * * To condone what happened
here is to invite a government off'lcial to
use a seemingly precise and legal w\rrant
only as a ticket to get into a man's ~ome,
and, once inside, to launc~ ~ort~ '~pon
unconfinE'd searches and mdlscnml~ate
w
o :nl'~UMlnS'ulDl
,
The CITY OF FORT COLLINS, Colorado, a
municipal corporation, and Joe J.
Straughn, Plaintiffs in Error,
v.
James T. OOONEY et a!., Defend-
ants in Error.
No. 24247.
:\\Ipremc Court of Colorado,
I n Department,
:\[arch 27, 1972.
Hehearin~ Denied :'lIay 8, 1072.
Action for declaratory judgment to de-
termine applicability of charter referendum
provisions to amendatory zoning ordi-
nances. The District Court, Larimer
County, Conrad L. Ball, J., rendered judg-
ment and city brought error. The Su-
preme Court, Kelley, J., held that under
charter providing that referendum should
apply to all ordinances except those mak-
ing tax levy, making annual appropriation,
or ordering improvements initiated by peti-
tion, zoning map amendment was subject
to referendum procedures.
Affirmed.
l. Municipal Corporations <2:==>108.6
under city charter providing that ref~
erendum should apply to all ordinances ex-
I'
_u,o.
:117
C::i' :1<, C'
CITY OF FORT COLLINS v. DOOKEY
,::](1 tln~ '1'
'-~'le:-t':1':1:I11 ;rrj':lS:' '"1 ()f
ceot t>os',:
~"aki ,~ :,'In',.l~:
.,\:'
:C'."
~l;)prOpn2.tlon, c,r ijrde:"lng
initiated by pe:i'.:l(Jtl, Z(~'nlng m;ijJ il~~:C:id-
ment \-vas subject to rcfercndtlm proce-
dures. Consi:. art. 20, S 1 et seq.; c.R.S.
.63, 139-60-5.
2. Constitutional Law e::>278(1)
Due process requirements or notice
and hearing must lJe met in amending zon-
ing map by council action.
3. Statutes G=341
Referendum is fundamental right or
people. Canst. art. 5, S 1.
4. Zoning G=164
Ordinance amendi:lg zonlrlg map 11'1
the way that would deprive owner of all
economic use may not be upheld even
though effected through referendum.
Const. art. 2, S 15; U.S.C.A.Const. Amend.
5.
March, ~-1arch & Sullivan, Arthur P.
Roy, Fort Collins, for plaintiff in error,
City of Fort Collins.
Harden, Olson & Napheys, B. F. l\a-
pheys, III, Fort Collins, for plaintiff in er-
ror Joe J. Straughn.
John E. Kochenburger, Fort Collins, for
defendants in error.
KELLEY, Justice.
On May 23, 1968, the City of Fort Col-
lins, following prescribed procedures, en-
acted Ordinance No. 19, rezoning certain
property owned by Straughn over the pro.
test of area residents, including the de-
fendants in error, Dooney, Duncan and
Kotich. On June 13, 1968, the defendants
in error, and others presented to the City
Council a referendum petition protesting
Ordinance No. 19. The Board of Elec-
tions of the City certified to the City
Council that the petition contained the req-
uisite number of signatures; also, the peti-
tion was timely filed,
At its regular meeting on July 3, 1968,
the City Council reconsidered the ordi-
nance and rejected the petition on the
! 0<: l' .~<~ 31 f;
::',e y (:~~:r:c:'- \\";':5 r~()t ;_LPP;lu.il;t :0 "
u~d~ ,d;1C~ ClmC~;( :~':g the ;T:;~'J.
The Cily, on June 2--1-, 1~j6S, ir.,tiatcd :he
present proceedi:lgs ior a declaratory judg-
ment to determine the applicability of the
charter reiere:1dum provisions to amenda-
tory zoning ordinances. Straughn was
granted leave to intervene as a plaint:if.
The trial court held that the ordinance
in question \vas subject to referendum.
The City and Straughn brought the ql!CS-
tion here for revievy' on writ or error chal-
lenging that judgment. As will appear, in-
fra, our review of the charter, the state
constitution and the findings or fact and
conclusions of law of the trial court con-
vince us that the trial court correctly de-
cided the matter. \Ve therefore affirm the
judgment.
[1] The only issue to be resolved is
\\'hether a zoning map amendment passed
by the City Council ma)-' be subjected to
the referendum procedures outlined in the
Fort Collins City Charter. As indicated,
we answer the question in the affirmative.
A second question which was an issue in
the trial court has been resolved by our de-
cision in Roosevelt Y. City of Er:.glewood,
Colo., 492 P.2d 65. The issue was whether
the provisions of C.R.S.1963, 139-60-5
which requires a three-fourths majority
vote of the Council to pass a zoning re-
quest over a legal protest applied to home
rule cities. We there held that the statute
did not apply.
As indicated, Fort Collins is a home rule
city by virtue of Article XX of the state
constitution. Its basic law is its charter,
adopted October 5, 1954. Article XVfI of
the charter provides for both the initiative
and referendum, in compliance \-vith Arti-
cle XX.
Section 3, Article XVII of the charter in
part provides:
"The referendum shall apply to all or~
dinances passed by the Council, except
ordinances making the tax lev)', making
the annual appropriation, or ordering im-
provements initiated b}' petition and to
-
318:
;010.
496 PACIFIC REPORTER.f' SERIES
be paid for by special assessments. If at
any time within thirty days after the fi.
nal passage of an ordinance to which the
referendum IS applicable, a petition
" be presented to the Council,
protesting against the going into effect
of any ordinance, the same shall thereup-
on be suspended, and the Council shall
reconsider such ordinance. If the same
be not entirely repealed, the Council
shall submit the same to a vote of the
qualified electors of the City in manner
as provided in respect to the Initiative,
at the next general City election or at a
special election called therefor.
." (Emphasis added.)
In Burks v. Lafayette. 142 Colo. 61, 349
P.2d 692. we said:
"The interpretative approach to the
power of referendum which gives broad
effect to the reservation in the people
and which refrains from implying or in-
corporating restrictions not specified in
the Constitution or the charter is sup-
ported by the terms of Article V, Being
a reservation to the people, it should not
be narrowly construed, .
The language in the Fort Collins Charter
is clear, unequivocal and unambiguous. It
provides that all ordinances, with but three
exceptions, are subject to the referendum
provISion. It is obvious that Ordinance
No. 19 does not fall within any of the enu-
merated exceptions. See Brooks v. Zabka,
168 Colo. 265, 450 P.2d 653.
Upon reconsideration of the ordinance,
following the filing of the referendum pe-
tition, the Council adopted a formal resolu-
tion in which it made extensive findings of
fact and, what amount to conclusions of
law, determining that zoning ordinances
are not subject to the referendum power
reserved to the people.
The Council found and determined (1)
that Ordinance No, 19 changed the zoning
classification of the Straughn property
"from the RL-Low Density Residential
District to the RM-Medium Density Resi-
dential District and the RP-Planned Resi-
dential District"; (2) that the property
was annexed in April, 1957 and was then
zoned RL-Low Density Residential; (3)
that, although the land on all sides of the
subject property has been developed, such
developments including the South College
Heights and Indian Hills subdivisions and
the limits of the City have extended more
than a mile heyond the suhject property, it
has remained undeveloped; (4) that "such
fact indicates to the City Council that orig-
inal zoning was not correct and
was one of the reasons for the passage of
the rezoning ordinance"; (5) that on the
basis of the evidence "that failure to grant
the rezoning would have constituted arbi-
trary and capricious action on the part of
the Council" which would have resulted in
court mandated rezoning as requested; (6)
that an ordinance changing the zoning
classification for property within the City
cannot be lawfully enacted without a public
hearing before the City Council after pub-
lic notice is published and without a study
and recommendation concerning such
amendment by the Planning and Zoning
Board; that in addition, the hearing before
the Board requires notice to interested per-
sons "all as set forth in Section 19-46 of
the Code of Ordinances of the City of
Fort Collins, Colorado, 1958, as amended.
Since neither an initiated ordinance nor a
referendum would comply with such notice
and hearing requirements the referendum
is not applicable to a rezoning ordinance."
Whether the conclusions reached by the
Council would have been proper arguments
for excluding zoning from the operation of
the initiative and referendum provisions at
the time of the adoption of the City Char-
ter is not before us. As noted above, we
are here confronted with a charter provi-
sion which is so explicit that it leaves no
leeway for interpretation.
[2] When the charter provides that the
referendum shall apply to all ordinances,
except three types, none of which encom-
passes zoning, we cannot read into the pro-
vision an exception which is not there.
The due process provisions of notice and
hearing alluded to in the Council's resolu-
C(.lo.
:119
t'"
IN RE !::STATE OF DEWSON
{, l ,he p '-'1,<1" \'\'.'
~. C ,',....:: ~:. 1, ': \....:-, .'
:1,)[1 ;1:"'_' p~(jr!\:~ an(~ :Tl\:st IIi:' fOllO\\'t~('
amt~1(J:;ls the: JJ!1ing m;L;-j IJ)" em::' II ::.c-
tlOll. .\lc:-\r:!1w v. Zabl-;;i, Cola" 4S-1- I'.~'::'
89, annol1nccu February 28, 1972. The
fact that due process requirements may be
met in one manner when the change is by
council action does not preclude other pro-
cedures from meeting due process require-
ments under the referendum.
"The election campaign, the debate
and airmg- of opposing opinions, supplant
a public hearing prior to the adoption of
an ordinance 11Y the municipal g-overning
body," \[eridian Development Co. \.,
Edison Township, 91 l\.J.Super. 310, 220
A.2d 121
!
i'
[3J The referendum is a fundamental
right of the people of Colorado. In Sec-
tIon 1, Article V of the Constitution of
Colorado, the people gave legislative power
of the state to the general assembly, but
the people reserved the "power at their
own option to approve or reject at the
polls any act, item, section or part of any
act of the general assembly."
ThIS same section continues:
"The initiative and referendum powers
reserved to the people hy this section are
hereby further reserved to the legal 'vot-
ers of every city, tov.m and municipalitS
as to all local, special and municipal leg-
islation of every character in or for
their respective municipalities. The
manner of exercising said powers shall
be prescribed by general laws, except
that cities, towns and municipalities may
provide for the manner of exercising the
initiative and referendum powers as to
their municipal legislation. Not more
than ten per cent of the legal voters may
be required to order the referendum, nor
more than fifteen per cent to propose
any measure by the initiative in any city,
town or municipality." (Emphasis add-
ed.)
[4) By adopting the view we have, we
do not mean to imply that the property
owner is ipso facto stripped of his consti-
tutional rights. The constitutional rights
t,
", I ; I' _ '~d, ~ :1
t:- L(';;::':: ! ~ ,-'; e~':' '.:u ,;r
t>"
t\On or the e1ected reprcser:L,';.tl\'es or tilE:
people (City (ouncil) or by the people act-
ing directly by initiative or referendum.
\Ve can conceive of situations where the
court might hold that the action of the
electorate was arbitrary and capricious.
'Cnder no circurr.stances could an ordinance
amending the zoning map in a way that
would deprive toe OW:ler of all economIc
use be upheld. (o]o,(onsL art. II, $ :5;
C,S.Const., Amend. V.
Judgment affirmed.
DAY. HODGES and LEE, n, concur.
w
o ~ Hr ~UI'IB[R SlIH:M
r
ESTATE of K.atharine C. DEWSON,
Deceased.
Malcolm C. SM ITH and Ilda R. Smith,
Appellants,
v.
Donald H. JACOBS, As E'xecutor of the Es~
tate of Katharine C. Dewson, De-
ceased, et aI., Appellees,
No. 70-574.
Colorado Court of Appeals,
Di\'. II.
Feb. 23, 197~.
Hehearing Denied :\Iarch 14, 1972.
Certiorari Granted May ]5, ]972.
Selected for Official Puhlication.
Executor of estate brought action for
construction of article of \vili. The Pro-
bate Court of the City and County of Den-
ver, David Brofman, J., entered order after
determining that will \vas unambiguous
and refusing to permit parties to offer evi-
dence, and residuary legatees appealed.
.-: ' . ".~.. "...~ ""I_I_"d~'_' "'1'" ,-~ , -""- ~ -"'''':; ""'-':. d.) IJ1\J,'IUed'
tlOn 31 ~23-222 or, In the case at an appeal. as awarded on such appeal as provided'
31;4-~2J..sha]] at a~y time be paid by the muni.Ci~.;y ~r public to or recoveredJ~
nf ;lpahty or pu.bh~ by any p'erso~ for .the takInf _,'?f Injury to any building Or St
bUill or erected wlthm the penod tixed 10 the resOlutIon of the C1Qvernino body
. . d 0 0 uPorr
such reserved locatIon. No c?mp~nsatlO.n or arn..,ages for any such reservation shall b ",.
or recovered except as provldeJ In sectIons 31-2.)-221 to 3l~23~223. e~
''Ii<
~
31-23-226. Applicability. is part 2 applies to municipalities. including home rule
cities and towns, insofar as const tionally permissible and except as limits are placed upoQ-:~
its application within the bounda s of home rule cities and towns by the charter Or ord~':
nance adopted pursuant thereto of id cities or towns.
f the state geologist upon receipt of a notice, see S 3441-103(4).
..';i-
..~
\t.23~.
,'~.s.. tl
',-';11[llUO
~ ~OVC
:;Jl1ber
~ clCCLl1
",i~ht :'1
"r~ctUl
:lriCtl
';-,.,<.'t,ll
,~\' ,!r
:,l\' ~h:
..lJ i~l
~rOV\S
~ure
;"'s 0
...ater
.vnse
cr1yr
,ll.llh\
lowl
p\JS~
.....ell;
l?
uu!
tn,\!
pro
IIH:\
arc
Iht'
I
Source: L. 75: Entire title R&RE. p. 1154. s I. effective July 1.
'.
'i-
.-'t"
. , -225. Ma.~or a~tivity notice. When a subdivision or commercial or industrial ~
Ity IS posed which w111 cover five or more acres of land, the governing body of the ~
ipality i hich the activity is proposed shall send notice to the Colorado land use c 1l1~
sion, the s e geologist. and the board of county commissioners of the county in wh~~rn&.
improvemen . located of the proposal prior to approval of any zoning change, sUbdi1C. .tbt
or building pe it application associated with such a proposed activity. Such notice s~l~j
in a standard fo , shall be promulgated as a rule and regulation prescribed by tho'
orado land use co ission, and shall contain such information as said land use com . ~
prescribes.
Source: L. 75: Entire .tle R&RE, p. 1154, S 1, effective July 1.
Source: L. 75: Entire title R&RE. p.
31-23-227. Allocation of powers or dull . (1) The governIng body of a mumClpality
may, by ordinance, assume and exercise an ower granted to or duty placed upon the
municipal planning commission by this part 2 a may, by ordlOance, delegate to the mUniC-
ipal planning commission or other appropriate uniclpa[ body any power granted to or
duty placed upon the municipal governing body . this part 2, providing that the right to
appeal to the municipal governing body is retained any such delegation; except that the' :~,
power to impose fines and penalties may not be deleg ed. -,-'
(2) The governing body of a municipality may. by 0 'nance, enter into an intergovern.
menta! agreement with the county or counties in which it ocated for the purposes of joint
participation in land use planning, subdivision procedure od zoning for a specific area
designated in the intergovernmental agreement. However, a action taken pursuant to the
intergovernmental agreement that pertains to any land within e municipality is subject to ~
final approval by the governing body of the municipality, ..
..;\
ail
ul
01
c<
Source: L. 83: Entire section added. p.
amended, p. 575, S 1, effective April 25.
L. 96: Entire section i~;
PART 3
ZONING
~
f.
Cross references: For county planning and building codes, see article 28 of title 30.
Law reviews: For comment, "The King Can Do Wrong: Local Government Immunity From zon.,'
iog", see 57 U. Colo. L Rev. 639 (1986); for article, "Pronouncements of the U.S. Supreme Court Relat- .
ing to the Criminal Law Field: 1985~1986", which discusses a recent case relating to municipal zoning,
1'1:111 I:,; ~:l,_: /
_'C'': j \' I i ;,i\ill i 1:1: ,lrtc'..:il:, .. i "I~:": L-,y.:
-\~11c"'1". S,_':' ,,'-: C\lj" L:,>,_ 2c1-; (l'!r"'1): for <lrtL.::k. "SUhS,::Jt1I'\C Due
I'-"~;~e 25 CoJo, La '''-, 7~ ('\brc:h 2Y06)
-;.
f": 3j-23~301. Grant of power. (1) Except as otherwise provided in section 34-1-:305.
,.CRS, for the purpose of promoting health, safety. morals. or the general vvelfarc of the
. .oo~w""'" ""'''"'", ""'" ""," ",,,," ,,," ,c, ''''mm""" ,,''''','' "","" """'""'"
1"< the governmg boay of each municipality 15 empowered to regulate und resttlet the helght.
.~'humber of statics. and SlZe of buildings and other structures. the percentage of lot that may
~ <be occupied. the size of }-'ards, courts, and other open spaces, thc dcnsity of popu1;:ltion. the
,;0'height and location of trees and other vegdalion. und the loealian and use of huildings.
J.-. structures. and land for trade, industry., residence, or other purposes. Regu13tlOns and
tresttlctions of the Ileight. number of stories,and the height and iOcolion of trees and other
It'VegetatlOn shall not applv to eXisting buildlOgs. strllctures. trees, or vcgetationexcept for
Ji!+new growth on such vegetatIon Such regulatIOns shall prOVide that a board of ad(ustC1-"lt
~rmay determine and van thm application In harmony wilh rheir general purpose and mtenr
I':_~:',.~n, din JCCOr,dance \Vlth. ~iJenerJJ or specijjc rules comainC', d in SUCh, rC.:;oo-UJ3ti,0 ns. SUbject, to, th,e
"'prOViSions of subsection (2) of thiS section and to the end that adequate safety ma:- he
'secured, sllid governing body zllso has po\-',.:er :0 estabhsh, regulare. restnct. and limn such
,~J:~es on or ~j(Jng ,:my storm or floodwater runoff cllanneJ or basll1, as such storm or ilooJ-
t:',water runotf channel or bJsm has been deSignated ane! appro\td by the Colorado \\'at~r
f' conservation board. In order to lessen or avoid the hazards to persons and damage to prop-
,i: erty resulting from the accumulation of storm or t100d\\2ters. Any ordinance enacted under
'Ii ,utholltv of t1m part 3 shail exempt from lhe operation thereof any huildmg Or structure as
fif.,~?- which satisfactory proof is presented to lhe board of adjustment that the present or pro-
'S'posed SituatIOn 01 such buddll1g or struCture IS reasonably necessary for the convemence or
$~e]fare of the public ... .
",.,(2) TIle power conferred by sUbSectlOn OJ of thiS scctlon for Aood preventlon and eon-
1~9l shall not be exerCISed to depme the Owner of any eXlStlOg property of Its future use or
....PJ.amtenance tor the purpose to v,'hleh It was lawfully devoted on February 25, 1966. but
'~[Qvisions may be made for the gradual elimination of uses. buildlOgs. and structures.
:;"UlCludlOg provislOns for the elimination of such uses when the existing uses to which they
~are devoted are discontinued. and for the elimination of such buildings and structures when
~~~ey afe destroyed or damaged rn major part.
~T. (3) TIle govermng body of any municipality Or the board of adjustment lhereof, in the
I. e~cise of powers pursuant to this section, may condition any zoning regulation, any.
.~'ndment to such regulation, or any variance of the application thereof or the exemption
.', "My building or structure therefrom upon the preservation, improvement, or construction
~y storm or floodwater runoff channel designated and approved by the Colorado water
ervation board.
4) No statutory or home rule city or town or city and county shall enact an ordinance
ihibiting the use of a state-licensed group home for either the developmentally disabled
em en tally i1J which serves not more than eight developmentally disabled persons or
'., enta1Jy ill persons and appropriate staff as a residential use of property for zoning
oses. As used in this subsection (4), the phrase "residential use of property for zoning
~l!iPoses'. includes all forms of resldential zoning and specifically. although not exclusively.
_e-family residential zoning.
~" ',.(5)(a) As used in this subsection (5). unless the context otherwise requires:
f~Tr(j "Manufactured home"' means a single famJJy dv.'elling which:
.. :":; A) Is partiallv or entirelv manufactured in a factorv:
".i(llj fs not less than twentv-four feet 10 width and th.,rtv-six feet in length:
' ;)k Is installed on an eng~neered permanent foundation: ....
J Has brick. wood. or cosmetically equivalent exterior siding and a pitched roof: and
) Is certified pursuant to the .'National Manufactured Housing Construction and
' Standards Act of 1974..,42 USe. 5401 et seq.. as amended.
"Equivalent performance engineering basis" means that by using engineering cal-
>';\1005 or test in? following commonly accepted engine~ring, practices. .aJ1 compon~nts
' ",,-SUbsystems will perform to meet health. safety. and functional reqUirements to the
!.eXtent as required for other single family housing units.
LL'~hiJliVt, ,.lr OU:J~I
dllli Zoning
:; 1-2~-?()1
Guvcrnnlcnt - \!unicip<ll
(h) IIi 00 1ll111liC1]l:ditv <;h;1I1 have or '~n;)ct zoninQ n;Qulatiolls, <.;uhdivision reoul .
~)r ,lilY uther re':[ulatil1n <llfccting ucvclopmc~t \\-,hich ~cxcTude llr helve the effect ;r c~I~~ll\
In,!;. manul,lcturcu homes trom the l1lu1llClpallt) It such hOl1les meet or exceed. on an ' ~d.
alent performance cngineering hasis. standards established by the municipal buildinot.:qUI\'.
. 1111 "-.;()tl1in!:! in this subsection (5) sh;1I1 prcvent a munic!pality_from enacting a~'C~
mg. developmental. use, aesthetic or hlstu.flcal stand8.rd. lncluumg. bU,t n.ot hmit'ed tn-. i.
n:qUlrements rclatlllg to permanent founuatJons, mlnlmum floor spiKe, unIt sIze Or sect' ~ Ji
. d . I..d d d h k d d 1Ot).~;
;11 requlremcnts, an' Improvement ocatlon, S1 e yar ,an set ac stan ar s to the ". .
that _".Lich "t~ll.llbrds (:1' rcquirc.n~ent~ ;-Ire ,ljlpliclhk to cxistin:; or nl;\V housing Withi~t~~~~ J
SpCClllC use dlSlflCt ot the munICIpality. ' I
(Ill) Nothing in this subsection (5).5hall pre,clude llny municipality from en.:lclin _i.
municipal budding code provisions for .unlque publ1c safety re4lllfements such as Snow lo~ ";':
roof. wmd shear. and energv conservatIon factors. -.:c::.;;.~ i
(IV) Nothing in this subsection (5) shall be deemed to supersede any valid coven ~,"
running with the land,
Source: L. 75: Entire title R&RE. p. 1155. \ 1. effective July 1: (4) added. p. 934. \.it
effectiveJuly 1 L. 79: (1) amende~. p. 1163. \ 13. effective January 1.1980. L. 84: (5) adde~
p. 824, S 2. effecllve January 1.198). L. 87: (4) amended, p.1217. \ 2, effective July 1.
Am, Jur.2cl. See S3 Am. Jur.2d. Zoning Jnd
Planning. ~ 4,
c.J.S~S-:c 10lA CJ.S.. Zoning & Land Plan-
nin\!, ~ ~ :U~.l), 11.
L:Jw review_~. Fur ~lrlic:k. "Cl1Ior.Jdu ;-Jc:cds Cl
ConstilUtionJI and Eflective RO<ldsick Sign
La\'.... see 3h DietJ 475 (1959). For note, "Sp~ot
Zonjn~(', sc:c 3~ Ruch' ;Vlt. L Re\.. 231 (100:).
For nOlc, "Zunill!'. V~lfianccs~ The ColorJdo
Position"", see:).;1 I~ockv Mt. L Rev, 3,s2 (10fi2),
For Jrtide .. L974 Land Use LC2.isl::ltion in Col-
orado". se~ 51 Den. L.J. 467 (197.+). For com-
ment. "Rc!!io))(l!i~m or Porochinlism: The LlI1d
Lsc Pbnncr's Dilemma", sce.+S LT Colo_ L Rc:\'.
575 (077). For article, "CumulnllVt': ImpLlct
Assessment o( \\'estcrn Ener~v Development:
\\iill it H:IDoen')'" see 51 U. C'olo, L. Rev, 551
(i 9SI,I) , For' ;'Htick. "\Vinning the Rezoning'", sec
11 Colo. L' ,'-:,.+ (]0S2), For :lftick. '"The
Emer!!inz Rc:i:I::()llShip Bctween En\'ironmental
RegUrall~'Il" ;ll,j Colorado W:.\ter La'.'.''". see 53
U Colo_ L, R..:v. 5')7 (19.s2). For note. "Referen-
dum and R":/','!1!n(". see 53 U. Colo. L Rev_ 7--i5
(1982), For T1U"'::,- "The Permissible Scope of
Compulsory ~<:,~!t!irements for LJnd Develop-
ment in C(>!c'r;:du"'. see 5'+ U. Colo, L. Rev. -4.i-"7
(1\)83), For ~,,'.!'_~Ie. "Judicial Review. ReferrJI
and lnitiatiun '_': Xl,ning Decisions", see 13 Colo.
Law. 387 (1 ':JK-1-). For art~icle. "The Antitrust Chal-
len"e to LnCli Ci()vernmenl Prolcction of the
Ce;trai Business District", see 55 U Colo. L
Rev, 21 (1983), For comment. "'State and Local
Re!!ulation 01 Timesharin'2. in Colorado", see 5fi
U. Colo. L. Rev. 28~ (l~85j
Annot<.ltor's note. Sincc 0 31-23-301 is simibr
to former S 31-23-201 prior to the 1.975 repeal
and reenactment of this title, and laws
antecedent thereto, relevant cuses construing
those provisions have been included in the
<:Innotations to this section.
General assembly has power to legislate zon-
ing reglll:lli()~s 'lppiic:'lhle to statutory cities. :1"
dISI::l~uishLd lr{~m hume ruk C:I:C~. C;kn:',,_)1l
Heights. Inc. v. CentrJJ BJnk & Trust, 65:-\ P"d
R72 (Colo. 19(3), .~
Subsection (4) constitutl:s a legitimate IlmitA.
tion on the legislative powers delegated tl) SI:lIlJ'
tiH)' cities. Gknnllll Heights, Inc. v. Centrai l3,ltll.
& Trust. fi58 P2d ,'-i72 (Colo. jlJKJ),
St:Jte has authority to enact legislation for lht
welfare of developmcntully disabled rilians
unuer its police PU\\'CTS. Glennon Heights.lne. v,
Celltral Bnnk & Trust. 65::) P,2d 872 (Colo. 1 t)Kl).
Exemption of municipal uctivities from 'Wo.
ing ordinam:cs. Exemption from zoning orJi.
OJnce must be rursuant to stntutory procedure,
;l1lJ the govcrnmelll(JI;'propl-iclary distinctiun i\
rcjecteJ :lS ;l I11CilllS lor determinin'2. wl1l.:1\ J
municip,tlity must obey its zoning or~din<lnce1
CIJrk v. Town 01 Estes Park. fieS6 P2d 777 ((nlll.
19K-').
Zoning is u matter or local ami municipul ron.
cern. Sl:rvice Oil Cu_ v_ Rhodus. i 79 Cola, :U5.
51J(J P.2d X07 (1072): Nupro Co. v, Tmvn of Cher.
f\' Hills ViIln\!e. ll:i(J Colo_ 217. 50-1- P.2d )4~
(1072): City ciGrceky v, Ells, ] 86 Colo. 352. 527
P.2d 531:1 (i Y74).
ZDnin\2, 1,l\VS is ;!11 are;! which is best left to
locdl guv~rnmen1. <.1Il0 decisions which relale 10
the dccided course of communit\' development
should be uphcld. t:ven though ~l ;eviewing cnurt
mny disagree With the Wlseness of the muniCipal.
:tv's choice_ Radem:ln \'_ Cil\' & County of Den.
\er, lKh Cola, 251), 526 P.2d 132:" (1974).
Cit\' council did not abuse its discretion or
l:'xccc~l its jurisdiction in denying application t?
rezone property from residential to limited reSl'
G<:nlidl-commercial whcn there was competent
evidence of a factual basis in support at the zon- .
ing decision. Christiansen v, Golden City Coun-
cil. 757 P.2u l1n (Colo. App. 1988). ,
Section does not make counties immune or'
exempt from municipal zoning requirements. t.J ;~i~.
Plata Countv Comm'rs v. Board of Adjustment. ~"':,
7h," P.2d 125rl (Colo App,19kSt
Board of county clHTlltlisslOlll.Crs did no!
exceed i(~ jurisdit:tion or abuSl' its di,cretion
wh,.:n [' c>)I1,.::kdcd th~it ~l pr-c-pMuk or()-
pused u.~c cuni'\lrI:lt:L: to :hc PLiD /':1\1<-: .
silK": \\;~S rcpt'cSt:~1l,ll]V'c ,_'I the class
,1'J:-SITL~ h;;l~~'\ ;'lild :l1~I,~:J llf
IdL Ii,:;' ~:~:; I L': Il! k,\\ c~! I'" I Ii
,:-rl'l :\I:]:1l'11 B\);,rL~ (>j C', Il:'. C,I:rI~l'r'
WelL! C(1un:) '-.':j~ P2J l~h,~ (Cllie, ;-\P:l ~.i;,;
Zunil1!! is a proper e:\l'n:isc of to..lie '!;lte',
pulice 1-'~1\1'(~1~_ R:lc:c;rn:lj, \. (\: C "j
Den',!:':r ;:)(1 CCllo 2:')'.:_ 52h P.2d 32:;,' (if";,
T!l~' pC)I\'CI ;\Tld (1)j"'_2(: ur r:'("\cl
;11:<.: ",:~ in lh:.; T'..:glll ii: If) l'l,
l,rJII"nc:.::s, J~l(llhe rule is . the UULlil;
C\;'. "1'"'1 ~I",..:', ile\[ r:-!!n~ \. TrL:Jd\\L:' ,21i
(Lllo_ l~' 2'r V2ci l',i~'il: \VitklIl H, i-:ic.:S,
Inc. \_ Ci:y 8: C:uun::-. ol D..::ner, 31 Culu ,-\pp
..1(J.5Cu P.2d 112; (Fr::-}
Cert<lin rights yield to wning regubti!llls.
F"~'!'I ,he ri:2l1l (Jt' r:c:.::dc)ll1 (\1 ;:';qiC:"I\._'!,
:n,,' (:Jh;rlsh,~'d I',~ilh. 1:',','\ r~1~'<
Ic>r,II;; rL',-,-uI:II!()!;~ R,I<.iU~1 ,;-,
Crl" i\: oj DCfl\'o. 1,'-)(-' (',,!\\ 2,"(' .;;::::.~,
1'.2d 1::~
If' necessary to protect compelling and suh-
jtanli:ll government interest. 1f J /OlllilC u,di.
'~;!'Ill' :illriI'Q~s un CLlilC;I!lh:nl:tI r!c'.llt~_ ;h~- (,,-,::_
11.111~~ \11,\\' be susld!n\;d ul1ly ur<m ,1 Shl\''<,ll1~
lhallhe burden Imposed IS nc::ccssary lo proIect
a compelling and sunQ;lrlllal !..'.oVt::-nfl1crll in,er-
C\l. Rddeman v, City & Cnun~lv or Denver, 1;'i6
Colo. 250. 526 P.2d ]~':.'i ;97.:1-1,.
Such as to provide for the -health. sakI". :.Jlld
'IIdfart: of its titizens and the geneT;J1 puillie ;1
Cll~- has lhi: pow..:r tll cldssifv land withir, J1S
\'>"!Ii~d:lrles for speciflecl usee,. 13ml \', Cil\- ul Cul-
',I,IJU Spnngs. ] 7n Cu!u_ 32. 4SlJ F2u 324 (I lJ71)
>, - A zoning ordinance i,~ presumed to h~ yulid
,'::t_lnd one assailing it bears the burdi:n of over"
._,::nming that pres~Umpii()n ~lS the courts indul!:'.e
-~~lcvery, intendment in favor of the validity 'Of
:'-th O~dlnance. City & Counly of Denver \'
191u:k RUW3rt Chevrolet. Inc.. 32 Colo, App:
,)(JS P.2d 789 (11j7))
.0 .
~ce lhe power to classify land to specifIed
" IS,exerclsed bv a citv, it is entitled to a pee-
l ..
~b IOn of validitv and one assailins>: it bears
~r?en of overcoming lhat presumptIon, Jnd
... ,Indulge ever\' intendment in fJvor of liS
ry.;~I~\ Bird \'_ Clt.y oj Colorado Springs. 176
z<,j:",4S9 P.2d:l24 (1Y71). -
t":\~,:nlng ordintlllccs li~c \lther le,-,i~lilli\e
-dl1l;!HS - ., . _I I' F' .
,_ Un. Co ' 'd.I\;.pr~_~~:11eu \'~ ]u, ,oru LI.:(::111g
'U..S''- \, Board 01 Cuunl\' Comm rs, 1x(, Culo,
, . ,t:i:t, ....\ ?,2d 237 (197..+), -
';~,/.. horne 1 . .
_",' a.:.. . -ru e CII\' z()n]l1l! COUt IS a legislative
~rnCnl 1- " ~ ,~
~I ' w 11Ch l~ pn;sumeJ to be \'CiIIJ, Cil~ \l1
/~'~4}~! v, Ells, 1 Sf) Cul(), ~S2. 527 P.2d 531-\
.\'d !Ill' 'I . . .
'1".''-: b I.; C lallell1-:m1-: a ZOlllH" ordlllatlce hU!i
,.~J_~. Urdcl1 I" '"
".",if,: 1 ". prOVln" heyond.a rea.~ona. hie
"";~-!a;dt la! it is ill\"ulid, !:U!-u" Le<l~lni! Dl;\, ((1_ \
. of Co. . . ~
237 ( unl;.- CUI1Hn'r~. l.-.;fl Coin 4),"'. :\2S
c. 1n4r
')\,-:-,:,1"~:' ;:1( ::I~~,l'T11'lk)[1 IlL:i : U[\' :u-,;
duuht.
ur ;"k' Spl1:1gS, J;(-, Cuk,
[11 C!1"lkr:'~1ll~ :h'
; 1 ,t! 1 .: ---' _ :1 ] \ ,11 ~ '
I" c~I:1 ',', 1<' 1:1<,( ~lS
"~:ln;I:1C'': ]~,>'!:! i'-.::i'
i ['" L:,~:::d
I:;h\ \\!tl~(!,;: du::: '-':_'')'> ,:11 l:i,\
(',:\' S: C'_",l:ll\ ,Ii D,-,~\c:;r \ i-:'uw:,-'
(--h~\TUkl. k:.: - _':::' Colu .'\Ill' <i] ""..., P.2J ','.,(1
I 1:(7::;
rhc ilie~Ll!~1~'11'_':1 \:i, di' II 11 f')l~"''2
,1rdin,1!lCc :ll'SSC~~n ir:l:)(\'-cS l~ i]ll~J.r,1
,:1: ,1>":1'" "". .>c: \,:-~Iir]:~ ,ct'.~ l:l~' :~w,J,-,:
,,;"U\'lni! 111dl the \1]Ji]"'LlC-~' IS UI1'':U:-I<IIU(i',):L:]
"ckill dnu (:;\'i~:er.c.: Ci\\ of
352, S:::- P.2.J 5_"S
\" Ells.
;:(r":'l
Sullst:wtial compliance with ~t:ltlltory pfll\i-
SiOllS i:; required for la\\ lul Cllacimenl /Jf;l ff)[l'
ing Cb;ll\:,:l' :1:h.1 l~l:I'Jrc: l,' ,>\]rf~ c~~'-.::n._i~,;
,n:ll1J:lles ('\1 \:h' \l:llu\c.;s i:1\':11 the: p,i)-
Lee-din':'., \\,l'll\\rJ'Chl \-. Ci[\' <"I \\'11..:::, Rid,:c, 3"
Cl>lU_ _J\rm ";',":'i. S_~S V2d jl-iu_.;;: (I iiin)
fadl;r~ to be considered in tonstruing ordj.
nUl1ce. [-L~c~u-"e lU;lil'" 1~1\\'~ "Iwuld he:: ~!\'c:n:l
LliI' :Inu r'':;J~uil;dlk c()]~-,,(rucll\ll1 ill 11gill dl U'c
sdtll1g in which cmplnyed. the facto!-s surround-
ing. adoptiun (lr an urdinance slwu;d be consid-
ered_ WJln\\Ti>:hl \', C]l\' nC \\'heJt RiJ>:e. 30
Cnlll. A~'p_ 485.-55,"'; P2d I()I)S (]l)r(.,1 ~
Zonillo, since it restricts an ()wner's right to
use his p;ol~erty, constitutes u partial fakin~g, bUI
it is constitutionally permIssible, ho\\-('vtr. so
[,.Ing ;IS][ is t'l':lS\l]lClbk_ SCf\'icc Oi: ('() \, Rh'j-
dllS: i 7l) COIU. 335. SOU P.2d SlJ7 (ill;::'. I.
Anel u hlndowner need nol he permitted 10
!nuke the most profitable use of hi!i hilld, The
due:; pruce:;s~ Zlnu Just compi:IlS<1lion clauses do
not require that zoning ordinances permit a
landowner to fl1Ciki: the most profitable use of
his property, Bird \_ City or Colorado Springs.
176 Cola 32, 4S9 P.2u 32-1 (1971): Baum \'. City &:.
Counrv of Denver, 147 Colo. 104.363 P.2d 6tlS
(1961): ;\'opro Co, \'. Town of Cherry Hills Vil-
lage. 180 Colo. 217.504 P.2d 344 (1972),
~1l1ere is simply nO constilutiunally prokctcd
righl under the federal or state constitutions to
Q,~in the maximum pront from tilL' use of proper-
lV, J\'oprc\ Co, v. Town of Cherry Hills Vilbge. ISO
Culu_ 2] 7. :'\1)"+ P2d :'44 (] l)i2J,
Ri~ht lu gain l1ld,\imll]~l 1'1'UIII rrum us;.; \;1
pwp~n\" fl()t~ conSli[utiun,dj~' pl"Olected, There i,
simply no constilulion~lily protecled right unda
the leder;ll or stale con:-;tiluliuns In g,lln the
rl1dximum prolilll('1l1 the us": (li I'i'()r..::'\~- City <.\:
Count\' 01" Denver \', Chuck Ru\\'arl Chc\'['(Jkt.
Inc..:12 Colo. App, 1'-) i. :'\iJ0 !',2d 7,'-;\J 11 ')7.,)
Thl' \',t1idil\" ut z\l!1in<;.: (lrdindllcc" hd~ nc\el
heen dCk~mi.ned hv [11:' his.::I1,-'Sl ;In,-~ hec,t USL:
(U!1eepl pr In t,-'!J1l~ ('Ii [,!ulit,I'hilit:_ Cll: ~\: C'-\Ull-
t\' 01 Denvl.:r \_ Clwd.; R.ll\\~ln Ch,-'\TUkl. lnc., ~..,
C-olu.-\rp, jlJl.:"{),\ P.2d ~:\\J 11')"7:::')
_ ":_)~:i; ,
(Ju\..;r:',rT.<.::nt - \. ..IICJ;);~I
r1c.: ",C:ic.: 1':ICl that the rCgul:lliun dcnr:v:\ [':le
rrr)pert:< ()'Nn,~r of t:1C :110"1- rr()lll:~bk' 'use 1:'( hi"
;Jr"rc.:i"t:; :S nul nc.:cessJrliy ~n()ugh td ('Sl:lhll"h
lhe C)\.vncr\ r:'.':h[ II) compensation, Art :---';c.:nn Cn,
'.-. Cil\' c::: Cml-nl'i ,)I- D,~n'icr. -I-K:--: F,2d ! ::<; 11':~n1
(ir. 1"')731. ccrt.-dcnic.:d. -1-17 L'.S, 032, l)-l- S_ Ct
2f)J.4,J: L Ed.2d 231l (llJ7+)
It' the lund ill 4uestion is susceptible to ~lnY
re~lsorwble or lawflllllse under the dussificatioll
Irnpm:':.j by:\ City, lhe IJI'(.linaJlcc.: \vill be :~lk".\cd
to \[Jnd. Bm.! v, City uf Color:1JC) Spring'). 17f,
Colo. 32, -I-B9 P_2d 324 (1')71): Trans-Robles Corp
v. City of Cherry Hills Village, 30 Colo. App, 51 L.
497 P.2d 335 (1972). affd.181 Colo. 356. 509 P.2d
797 (1973).
Zoning ordinance is unconstitutional if it
deprives property owner of any reasonable use
to which his land may be put_ City of Cherry
Hills Village v. Trans-Robles Corp.. 181 Cola,
350, 5U9 P.2d 797 (l973),
A zoning ordinance is unconstitutional if it
can be shown th:lt [he lOning ordinance prt.::-
clud!.:s Ihe uSe ot property t'or any re:lsonab:e
purpose_ Ford Leasmg Dev, Co. v, Board of
Countv Comm'rs. LSf] Colo. -I-1S. 528 P.2d '-L'7
( 1\)74)'
In order tor [he courts to hold a zuning ordi-
nance to be viulative ()i' the JU(; process ri:shts ,)(
a prop..:rty owner or to intakre with th'2 discre-
tion of the zoning authorities in draw'ing zoning
boundancs. the person challenging the zoning
ordtnance must <::stablish bevond ;lnV reusonabk
doubt that the property cannot b~ devoted to
anv rCJsollahk l,twtul use under the chalko'o!:ed
or~iinance, CltV & County or Denver v_ Chuck
Ruwart Chevr~lt:L Inc., 3-2 Colo. App, 191, 508
P.2d 789 (1973).
Or if not subst:.l.lltially related to public health.
s<lfely. or welfure. A zoning ordinance is uncon-
stitutional if it can be shown that it is not sub-
stantially related to the public health. safety. or
welfare. Ford Leasing Dev. Co. v, Board of Coun-
ty Comm'rs.1S6 Colo. 418. 528 P.2d 237 (197-1-).
In a challenge to a general zoning ordinance.
the outcome turns on the exercise of the police
power as bearing a reasonable relatJOn to the
public health, sufety, morals, or \velfare. Snyder v,
City of Lakewood, 189 Colo. cj.21, 542 P.2d 371
(1975).
Whether zoning provisions are reason:.l.ble
::md for promotion of public health, safety, and
welfare, is to be determined by the court trom
facts. circumstances, and locality in the particular
case. Bird v. City of Colorado Springs, 176 Colo,
32.489 P2d 324 (1971).
Group homes permitted in residential neigh-
borhoods as matter of statewide concern, Group
homes for developmentally disabled persons are
permitted in residential neighborhoods as a mat-
ter of statewide concern. Roundup Foundation,
Inc. v_ Board of Adjustment, 626 P.2d 1L5-1- (Colo.
App.1980).
The general assembly intended that group
homes for the developmentally disubled be con-
sidered a residential use of property and that
th~y be pe:-mitt.;d in :i11 I'..:sid...'r:ti~d lun.;". \['ecir-
ncllJulr..:; lhl),,<.- li)lll':U lor "1:l~lc la "':::
f' IS nC{1n\lq~nt \lth thl) Inkn Indy
lJar
~(!unc 1 to hClSl.. I[S knldl or a soeclal I
-r:1lt In llc.; Ichcrsc.; _tkcts ot Ihe ~roup hoU:st
- l:, :l_l~ 'lITHI' _I dr \Cklht cs Ol the me
~( .holJd or un tne p<.:cIC':: Clnu qUIet ot the ~~~~
- )rn()w1 In ,GUltlon '() the \ttltude:)t () ~~-
, " . ",eneTll
,~l:lll:. In Inc.: ner~hbllrh(lud [()\sar:Js thiS _
~"s':':,ul:ICllity :\d(lms C()unt:,! A"s'n for R,}~
( I C. 1'\I.i - lr",
=._ _,;:/'~n", m.:, \ Il~; (I e.:"t;nlr.skr, ll)f) CuI-
',:,,~I] P,2J 12-Hlll')7S), "'"
Although municipalities muy regulate Ce
aspects or construction and location. The ge -
al assembly has expressly reserved to munici
ities the nght to regulate several aspects of
constructIOn and location of group homes,
order to avoid adverse Impacts on the neigh'
hood. as long as. ~uch ~egulation is not tantJ.:
mount to pr?hl?ltlOn at such h?mes within an }:
~~sldent1al dlstnct. Glennon HeIghts. Inc, v. ee!~lt
I,ell Ba~k & Tru~t, 658 P.2d sn (Cola, in3). ~
Zonmg: not dl.'iturhed unless legislative hody
exceeds powers. ZOning determination c~nnOl
be: disturbed by the courts unless it appe~lfS IhJ.I'
::le legIslative body has exceeded its pow~rs ur
;-,)~ :tctt.:u arbitrarily or unrt.:Clsanably, Citv uf
Greeley v_ Ells. lX6 Colo. 352. 527 P.2d '5J.1l
',-/:'j).
Proof that it is not possible to use land for an,
of the uses permitted in the intervening It)n~
between the zone sought nnd the existing zone Is
a prerequi.'iile to showing that [he properly has
been unconstitutionallv con!lscnted under exist-
~,,2 zoning_ Ford LCJs'in!! Dev Co, v, Bo:mi Il(
C\~unty (omm'rs, 1.% (010, -I-lB, 528 P.2:J 23i
1197").
When a city annexes land from a county, Ihe
power to zon~ that land shifts to the city. Bird Y,
Cit;.' ot Colorado Springs. 176 Colo. 32. --1-89 P,2J
3:-1- ([071).
For issuance of writ of mandamus 10 compel
issllunce of building permit where zoning urdi.
nance is unconstitutional. see Hedgcock v. Peo-
ple ex reI. Arden Realty & 1nv, Co.)S Colo. 522.
57 P2d 89\ (\936).
Property owners have the right to rely on
existing zoning regulations where thero: has hecn
no material change in the char<:1cter of (he neigh-
borhood which may require rezoning in the puh.
llc interest. Roosevelt v. Beau Monde Co.. Ij2
Colo. 567.384 P..2d 96 (\963).
Applicability of estoppeL To invoke the doc.
trine of equitable estoppel in relation to <1 zon-
ing ordinance, the plaintiff must show substan.
tial reliance upon the zoning ordinance ;:.nJ
mere procurement of a building permit is insuf.,
ticient. Witkin Homes, Inc. v, Citv & CounlY 01
Denver, 31 Colo. App. -1-10. 504 P.~d U21 (l912!.
Party seeking application of doctrine of equl- S:,......
table estoppel to government actIon must shoW W'
reasonable reliance. Bentley v, \inlco. Ine" 7-H
P..2d 1246 (Colo. App. \987).
In order to invoke the dlKtrine of equit:lhl~
estoppel agClinst a city in rclatinn to ~l L()IlII1~
ordinance, the plaintiff must show :IS d fJctU~~
~:-~dll:Jte tlnl there.: \\;l\ ;1 ''':\':l1"l'.l:1:'':j:> I~
L'I!T'
,
JCliO:l h:-' the: c:ity by \vluch ile WdS unrni,;:ckJb!\' enable: it to p;()n~o,:.: lb sJ!et:, ~,:lc.: c>',,:slr.ctic
mi~ied. LJFolkltc v. Board 01 Adj, of Luk;,:"\ood. intercsts by reglllJting the number and :ype at
741 P.2d 1262 (Colo. App.19S7) signs permitted [n JifferentlOmng dist.:-icts, City
A nan' c.:mnot state J claim for relief under <1 of Lakc:wood v. Co:fax Un]irnilec: Ass'fl. 63--1- P.2cJ
til~();Y o( estoppel JgJIIlst il Slate or ioca! go\-'- 52 (Colo.!9,Sl).
emmcnt enticy on ;he hasis of an unillltr.ry,-jzed Federal highway hl';JlItific:Jtiofl act :_md Col-
action or promise, Lehman \', Cil\. clf l...uuls\':li::, orado high\I':I} sign act h:_H'e not preempted
9h7 F:d L.+74 (:Oth eir, 1092) . cities in regulatioll of signs nor de :ilc:y bald :h~
loning changes should he placed (Ill map as cities by example or standar.d, A~t :<con Co, \
soon as possihle. A~ ~')C1il:JS n:C1,;ondhl_',- ~i)s'ibl<.: eil\' & C:Htnt\' ()[ Den\'cr. ":,'~ F2d 11,'\ I i:,'l
;dtn aue,;Y_inn hv tiw bn;irJ 1l1- CO'J:l[' ~';)i~::-'li\- en- lY771j. c:c".l. dCIlIC:d_ .;.;7 L'S lJ~'::, l)-~ S_ Cl
Winers oi" changes in ZOillng. thev shC:L:!j hle 2644,';'1 L. Eu_:d :'.7161:,-)7":)
placeu u~on an autlHlrizeu copy of In Reqllirements for 'dlstaining deni:J1 of "'pecial
mar' 0:' ITJdpS \\'Jl.11 [he: date u!' the ,Iciuil exception 10 floodplaill ordinance. \\'hcr-: ~l cit\.
,tlO~lS!. \\':th the [\'1'12 or cJuIH;c..::, \Vainwri,L'ht \ council is dClnC: in an Zldiudiccl!ivc CJpilC!ty wit!l
()f\\~heJt Ridge::;;:':; Colt)_ ;\;'l' .:;.,'-;,'_ _0::.5,\ P::: ' r2Sr'cCl to an d;~plic:tiur. ic,r;i ~neci~,l ,...:\,,-,--pt:, ':1
(ilJ7(ij 10 J f'IoodpliJ.!n \)rdin;mc(:. the tulluw:n~ \\,(wiL:
A zoning map merely rellects the effect of he required to sustain iJ denial of the applied-
exercises of the zoning power. \VdlnwTi~ht \ Cit\ lioTi: If lhere is a lack ot eviJcr.ce to Sl1uv,,' t:13t
of Wheal Rldge, 3S Colo. Apr. 4SS. 5SS~P2d 11J(JS ccrti\in of the required factors eXlSklL or i: 'no:::
(1()7h) ;;,\'idenc:: IS In disaulC ;:s 10 onc or mnr~ n!' rL:sc
And ch:mges made thereon do Hoi ()f them- I<iCh_1rs, and tht' C1t\" council C('tc:';r.i:lcs
~dH~S collstitute an exercise ofth:lIIHmer. \\"::1' dpplicltlon :-;:lUulJ be~ U<:l1JCd.lih:n it \\eu:d ~,-,\'i';
....rlt!:~t \, Gtv of\\'hciJl R:JC'..e. _"S Colo ,\r1; ':,'-,_':;. to [T',Jkc srecif:c fi['dlTlgs of [<:1Ct a,s to what f3c-
)5~~'P2d ]:)(,15 (1076), ~ " tors v,'cl-e or were n<.,[ established Bduer v. Cot:,
SlOce there WaS no resolullon by the board of o[ Wheat Ridge, 182 Colo_ 324, 513 P2d :Zf):-
county comm;ssioners i-lmenJing a wlllng milp. (1973)
the !nJdVeTlenl or erroneous chanu.c in the i'Oll- And on"- factors which apply to all applicants
ir.~ map was withoul cfrecL \\'ain\\';ic:hl \, Ct., cll nun be c()~sidered. \Vhere cit\' CIlJcled a J100J-
Wheat Ridge. 31) Colo App. 4S5. 55K P.2d 1ii()S plRln ordinance. and lhe ord(nar.ce eSlab]ishes
(1976) the: criteria upon whIch a "spcCJ<l1 lCxcepl:on--
Status of county zoning at time map incorpo- wd] be granted, if tIle cit\' council belIeves that
rakd governs. IIl3SIllllch as zoning mJjJs de~il.'e: other r~3sons should b; used in denying an
IhClr cffecti\'encs~ fTOm th.: ordinance (1r reso]u" appliC:Jllon [or the exception. then the appropri-
!inn that adopts them. It is the stJtus of the coun- ale procedure is to amend the: floodplain mdi-
I: loning. (It the lime the cit\' incorporated the nance, for once an applicant applies under the
m~r into its zoninu. orclina;lCl:, th<1t Qu\err.s ordinailce, oni\' those fauors which clppl) gener-
Wainwright v. Cit v .0J' \VhCiJt Rid!2.e. 3~ Colo. alh' to all applicants mal.' be considered. Bauer v,
App. 485. 558 P.2d 10US (I (76).. City of Wheat Ridge, 182 Colo. 324. 513 P.ld 203
A zoning resolution may leoalIy restrict the (1973).
riJ::ht of a landowner to ext~nd ~r e~large a non- Construction of ambiguous ordinance. The
,~ton.rorming use. Bird v. City of Colorado testimony of the zoning administrator, who dealt
~,MJnngs, 176 Colo. 32.489 P.2d 324 (1971). with a zo"ning ordinanc.e on a dav-to-dav basis. is
A cit), council, in the exerci_~l: of its pfJlicc siL:,niJic<lnt in- construing amhigu.ous language in
\\'er, must afford procedural due process as it th-e ordinance. Humana, Inc, v. Board of Adjust-
"' been delineated in its zoning code. ment.189 Colo. 79, 537 P.2d 741 (1975).
thur v. Zabka, 177 Colo. 337, 494 P2d 89 Meaning of "structure". A parking lot is a
). . "<teuetur,. within the meani"" of this seet;on
d oning proceedings are Informal in nature C-Iark v. Town of Estes Park. 606 Pld 777 (Colo.
. do not require appllcatJon of the rules of 1984).
iba~~nce ~sed in judicial proceedings. The PrJ- Time limit for judicial revie"'. Since the
II\:: ' requIrement IS that the principles of fun dc:.- municipal zoning statutes do not specify J time
~ Dtal fairness be ohscrved]1l such procceJirc:, limit for iudiciJ] revll'\\. ~hl.' ::;{J-d;I:. llmt,; fr~:mc 111
l~;()n,ti Ht,;Jildg,c LlC I. Pllt/il 72b {)20 _c,_ Rule !()o(b), CKCP.. is applicable, !\orby' I...
i!.... R: 0 App 1986) Citl..of BoulJer. 145 Cola, 231. 577 P.2d 277
'~'&ri egulalion 01 signs pernlltlcd. The pov,ers (1~i7S).
~ltttllted}o a statutor) city hv thIS section and , Applied in Wood Bros, Hnmes \'. City of Cola
';p. IOn.:,1 15-10-; iJrc c(jmmuJI()u~ l:nuugn to Spnngs.42 CoJu.App 15.5Y2 P.2d 1336 (lY7B).
~-,,31')330) O.t. F f d. . ']O"IJl h
~~in .. - -. IS ~1~t.S. -or any? . the pu.rposes enymer~te In sect]on.) "_.)-_) . t e gO\'~
~~. g bOdy may Ul\'](Jc the munlc]p,JI1t\ ]nto ul"lncts oj such number. sh~lpe. and area i.l~
/.~ be dctmcd best Slllll:U to Glrry (Jut lh':.: purpust:s oj Ihis pUrl 3.d]1(J withmsuch distTlCls
. ay regulate and restrict the erectIon. cunstruction. reconstruction. alkratJolL repair. or
..of bUildings. structures. or land. All such regulations shall be unifurm for each class or
.~,...
~; 1:,111: ~ -;~. /_>i1111 '-:
~;].-=.:<;
rO\ll,-:C. L Il Ie .T'UI \,]]'1111\ ,\, th 11 :1::-; p:!'-~1~.rdpl: I:bi ~h~~:1 be ,(IH1:5trucd tel
~xempt slIch ~,()llP hll TIcS trorn C'llllplloncc '.\th anv 5OClte. countl. or Illunlclpa[ health.
etI', and fire codes, On Apnl 29. 1976, every pe~son sixty years of age or older ';\/ho resides
:a skilled or lnterm~diate health care faclllty and who may be tr3nsterr,~d or discharged
"e'refrofil to (} group home for the aged shed) not be so dischJfged or trJnsferrcd unless he
received ninety days' advance written nOlic:: thereof or ha:-; agt-eeJ 1TI \\Titing to tbe pro-
ed transfer or disch~lrge.
~(bj) The general assemb,ly declares that the establishment of st(]tc-licell~ed g::oup
roes for the exc]usl'Je use of mentaJ]y ill persons 35 that term is defined In section 2/-10-
-02, C.RS, is (l matter of stJte\vJde Concern ;u-;d !hal <I st;]tC'~licensed group !J(_lme for eighi.
I~.. 'rs ons \\.]~h. ~~er~t ".1 :1]n.es:; ].s a. r eSIJc"nlJ~ I c.~\..e o[.propeny iO. r I.Ol? j.rlg..:1Ulrl.".\~:~'_ ;1.S. d.~fjn.e. d
," section _;l-..:..)-.~(jt A group home for rctsons with menta] dlness cq:lbJI"hed under
. is paragraph (h,5) s!lallnot be locarcd within ,even hundred fifty teet ui uilUrha such
. oup home. unless othcl\\'isc provided for hy rJ'Je municipality. ,\.)"0 per:>(ll] shall be p]acecJ
'a group home without belrlg screened hy .:ith;:r Zi professiol1(j1 per\ull. as defined ]n s,-'c-
~jjon 27..1(I-IU.2 (]!). C.R.S.. nr any ()tlh:r such nlt:'Jtal hc,lJth proks:-;](',l(l] J~Sjgl1i:itcd by tilt
,'. .. ',.r' ecror of a. r"~cilit.Y \\'hich .f<JCiJ.] ty !s approved b.}' 1.lle e.\ .ecutiv.e directo...r 01- the Jepcj rtn'J::nt
,human serVIces pursuant 10 sectlOn 27-J-1U3. CR.S, Persons delermlned to be not guIlty
.. reason of Insan]ty to a v]olent offense shall not he placed in such group home~, nor sh3]1
~y person who h"s been convreted of a re[un, invO[Vlng a Violent ofkll'~ ["'Ch~lblc for
~placement III such group homes nlt' prOV1S]OnS or this pdragraph (b,)) Sh:li' 10,- iillplefl1Cnt-
~,where <Ipproprintc. by tIle rules 01 the derdrtment of pubiic hea!th, dil~: ,~rl\']ronment
fi:!to..nCCfning reSident]a.lcarc faci.lllie' lor the mentally t[1. NOlhln~ tn tillS :'ar"~raph (b.5)
, ..ll be construed to exempt such group homes tram camphance with any sUit!:. county', or
'nicipal health. safety. :md fire coues,
~(c) Nothing in thIS subsectIon (2) shall be construed to supersede !h..- ;~u(hority. of
~unicipa[itJes and counties to regularc slIch homes approptlately through ;.,ea[ zonIng
I....d..rn. ances or re.s o]utJcms. c.x..cept l~lsota.r as such regubtior.IWOUJd. be tant~.'In:(H!nt to prohr-
",on of such homes from any reSIdential district. This section is speclficzlily nOl to be Con-
.~d to permit violation of the provIsions of any zoning ordmance or resolution with
. ct to height. setbacks. area. lot coverage or e:...:ternal slgnage or to permit <IrchitecturaJ
";.. gns sUbstantJaJly inconSIstent with the ch::lracter of the surrounding neIghborhood. 111is
~on is also not to be construed to permit conducting of the ministerial activities of an~
Iflvate or public organization or agency or to pe,mit t\'PCS of treatment activities or the
dering of services in a manner SUbstantial!\' inconsistent with the activities other\-\'ise
-. 'tted in the particular zoning district. If r~asonably relaTed to the requirements of a
~lar home, a local zoning or other development regulations may. without violating the
'...; IOns of this section, also attach specific location requirements to the approval of the
'e:.home. including the aV:JiJ'ability of such services and facilities as convenience stores,
- ercial services, transportation, and public recreation facilities.
~~"The general assembly declares that the availability and affordability of housing for
n~ts of this state is a matter of statewide COncern. It is the purpose of section 31-23-301
..remote the public health. safety, and welfare by allowing residents of this state an
t;ial opportunity to be able to live in decent, safe, and affordable housing on a per-
'",,\basis by prohibiting the exclusion of manufactured homes on single site lots from
paJities where the manufactured homes meet Or exceed on an equivJlent perfor-
.. engineering basis the standards established by the municipal building code.
~ r~e: L, 75:, Entire title Rl\: RE.p. 1_156. 0 ]. erL;cti~'e July ].. en~irc sccti.on amended. p.
" '8, efteellle July 1. L. 76i (2)(a.)) added. p. 69). ~ 2, elfeellve Aprrl 29. L. 79: (I)
.'. ed, p, 1 ]64. ~ 14, effective January 1. ] 980. L. 84: (3) added. p. 825. ~ 3. effective Jan-
.1985. L. 87i (2)(b.5) added, p. 1217, ~ 3. effeelive July 1. L. 90i (2)(b) amended. p.
2,eftee!ive Jull. I. L. 9Ji (2)(b)(lf) amended. p. Ib58..~ 21. effective April I!. L. 92i
..J amended. p. 2179. ~ 44. effective June 2. L. 94i (2)(b.5) amended. p. 2715, ~ 298,
e JUly 1.
, .
t's no1t:: Subsec1ion (2) (h) was oril.:inLiI]\' nurnherd as (2) (a.S) in House Gill ~h-l()5,') hut Ius
~Ufl1bered on r<:\'isiol1 fur eaSt; of Il;CL!lio~.
--., I '_, _~I)-+
C;1)\~mmd1l - \\'Jnicip;d
-
Crl)ss referellces: Fllf r.h:.:: C;\l~ ;~nd Irea\!Tl<.:nl of .~,'; Je:vt.;iopmc.::1t;dlv. Jisahkd, ')ce "
- <l.rticlt.: 10.5 yt"t
tilk 2'7 at <<,...
\m. .Iur.2d. :)c'c.: S~ ,-\rn. Jur.2d. Z()nill~ and
Plc1nnilJ",:;; r~. "'I)-.'~I-).
c.,J.S~See \(!l,-\ c.JS" Zunin~ & Land Pbn-
n I n l:. ~ S :3.,~. L), I ~
C1W reviews. F\lr !lute, ""Tile: Ut'cct O[ L:Jnu
l,'se: 1),1 tile C\Tl1'1'.un L:nv '.If Nui-
')(lnc: 1:1 . rh~ln Ar'':~ls''. se:',; 3il D id,l -+ \ -1- ( l '-JSL)).
F(H ~Inlck. 'Rc:v~nt De\'~luClments in Zunin!;
Law' In ColmaJo", see 39 Dicta '2Ll (1082), Fur
<:1rtick "111C Antitrust Cha~knge to Local Gov-
ernme'nt Protection of the Central Business Dis-
trict", see 55 U Cola, L. Rev. 21 (1983).
Annotator's note. Since S 31-2J~303 is similar
to former ~ 31-23~203 prior to the 1975 repeal
::tnd recn::tctment of this title, and laws
Jntccl:dent thereto. relevant cases construing
those provisions have bee:n induded in the
annotations to this section.
Implicit in this authorization of zoning power
is a hroau legislative disnctiull of how to ;lchieve
the declared ohjectives, and as long as the zon-
illg prmisiulls Zlre within [ne authorized purp()s-
e:s ~lnJ C()nLUrm to st:llutor\ \!;uiddlll<'::S, mere Jis-
;I'!r(;cment with zoning. ~L.tssifications and
dT"trict 1'c:c:ulatiul1s will not suUice ~IS a rcason to
set them -aside, l'iopro Cu_ v. Town of Cherry'
Hills Village, [00 Colo, 217,504 F2d 3-1-4 (l972),
P~rkinn rcnul<1tions are permissible under this
section. 1~)I.'''~ of Grand L\ke v. Lanzi, 937 P.?d
7S5 (Colu. App, l(No)
Requirements of this sn~tioll arc met where
city council weighed elements enumerated in
this section in light of facts presented at public
meeting. Coates v, City or Ccpple Creek. S05
r2d 914 (Colo. App. 1':1113).
Group hOIll!;,:s permitted in residential neigh-
borhoods as 1ll00tter of st<1tc\"idt: cuncern. Group
homes for developmentally disClbled persons are
permitted in residential neighborhooJs as a mat-
ter of statewide concern, Roundup Foundation.
Inc, v. Bonrd of Adjustment. 626 P.2d 1154 (Colo.
App 19SIJ).
The <'ener::1l assernb\v. bv ~nctctm~ this section
and ~ 31-23~JOl tOtended 'th,-\t grOLlp humes tor
the developmentiJ.lly dis~lb\ed be considered a
i'.:"iucrdiJI us<..: rd property and that they
~_:nc:d :n :1\1 r'.:\ldentlallone<;, specincall' ?e ~,.:-
h 1- _' , . - v Inc!,u
r.~ t osr.: wne,:"" lorslnglc t:.lmllv dwell" -
i:COnslstl.:1nt 'N1,th thiS inte~t for'a city c~~~l~$:-
-;'_DC: It'> Gerll<.11 nt a ~pt:cl::d use perm. ~.
, _,' It un ol._
:':..<:er~e: dkc:s fl.! [he i!roup ho.me on th . ""'
'-".';nily ch~lr;\d<':ilStic.'s (~[ .tht,; n~ll)hhnrh,) ~,'Intit
,,- ()u "r '
:.1::: PC:.lCt.; (lnLl l.juld at the neinhborh ""
I"" . . ::0 (loll
:;l.~ltlon lu tht: attitude 01 g~nerat hostility In' [I
:1elghborhood towards thiS proposes [ . ~
Adams County Ass'n for Retarded Citize~q
v. City of Westminster, 196 Colo. 79, 580s..
1246 (1978).
Adoption of section permitting develo ~
tally disab.led .per.sons to live in group ho .-
r.efle~ts leglslahve .lIlten~ to :lssist such persoOl.'. y.
lIve m normal resldentJ:l1 surroundings. Duu~ " '
o \lanor v_ Evergreen :'vteadows, 773 P.2d Hl4A.~.',~,
IColo, 1989). ~~'
Rcasonahl.e me:.lns must be used to lermina.te
nonconformmg uses:_ Comprehensive zoniu,o..,~
::ontemp]Q.[cs ~he eXl"tenCe o~.no~conformlnt
1S";S nncl. to Ulul1latcly and dkctlvCl\. ,ICelll\)-
p\ish the Gnd sought to he accomplis'ht.:J, it 1\
Inherent that reasonahle means must be alTu(lj.
<:d to lcrminatt,; nuncollturmlng uses. St.:rvICI.; \)\\
Co, v, Rhoclus, l79 Colo. 335. SOD P.2d 807 (ttm.~
Reduction of nonconforming uses to confor.
mity is favored. LaFollette v. Bd. O[ Adj. of LJKC-
wood.741. P.1d 1262lCoio. App. 1987).
Spcl.:ilic Julhoritv necessarY for citv agency to
expJnd nOllconfor-ming use.':\ non~()n'lorr1~in~
use cannot be ~xp,ll1Jell by the lssuancl: 01 ..
license or permlt or by an order from any city
agency unks'> the: agency is gIven specific
;lu\hority to counkrm,md or override the krm\
01 th..: l.onioC': llf(.lln~lnc,,; bv the ch;,nter or wllhln
the provisions of the wn-ing ordinance, CilY III
G['(:elcy v_ Ells. \00 Colo. 352. 527 P.2tl 53M
11974).
Applied in Wood Bros. Homes v. City ot Col-
ondo Springs, 42 Colo, App. 15. 5n P.2d 1336
1_ t97S): Glennon Heights, Tne. v. Ceotral Bank &
Trust. A58 P.:?J S72 (Culo. 1%3)
31-23-304. Method of procedure. The governing body of such municipality shall pro-
vide for the manner in which such regulations and restrictions and the boundaries of such
districts are determined. established.~ enforced. and, from time to time, amended, supple.
mented, or changed. However. no such regulation, restriction, or boundary shall become
effective until after a public hearing thereon at which parties in interest and citizens shall
have an opportunity to be heard. At least fifteen days notice of the time and place of such
hearing shall be published in an offiCial paper or a paper of general circulation in such
municipality.
Source: L. 75: Entire title R&RE. p. 1156. ~ 1, effective July 1.
Am. Jur.2d. See: 83 Am. Jllf.2d. Zooio:? J.nd
Planning. ~ 0 Stifi-59S
c.J.S~ Sc:c: lUlA c.J.S.. Zuning s.: LInd PLln-
nillS!., 0 ~' \2-1-1-
QU:lSi-j\llli\:ial ;'<lllc!ion :-;nhjed !o l:I:r1iorari
review, Enact!l1l:nt ot " rauning ordinance b:-
.~
the: lcglsla[ive body of J. city. :?ove:rned by both
state zonincr stJ.tutes J.S well as [he muniCIpal
cude. pLlr<;u~nt to .statutory criteria. ~lttcr n:l.lic~
~lllJ a Dublic hcarin~, constitut~s ~t quasi.Ju";;~:,\I
hlncti~lll ,u\,jt:ct t()~cerliorari rc~"leW. SnyJcr"
[JI,,' -~2 :jih; Z':>'1.:1:-,-
Cit; Lk<:\\,~\\>J, j;"";,j Culll ~::'l, 5r l'::'u
-c', (1975;-
ft.? This section expressly applies onl\' to amend-
f' roenls made by municipalities of the"ir own ordi-
Dances. and not to enactments of the gener:J:
as~ern:-,iy, Glennon Heights.lne. \ Centr:]] D ::~K
J.: T,U~'< 65:-: P2c! S72 IC(l:(:_ ll)'\~~'1
StalUlOf\' ci!\ 111a\ Ililt pro\idv for ;Hltomatic
rezunillg \\'!lcn 'pl:1t ~lOl appro\-erl, \Vhk ::L st,EU-
Lory city may pr,J\Kc tint propcr;~ bei:1!?-
rCluned m,1\' no: '",e L;_'2d u:ltil :he plat of ::le
rezoned prc.;peny IS ili-'pro\'ed, 11 may not rTO-
v'](k fpr ilU(('r.latic ral:lin~ :0 till' prtur cl:lssifi-
Gltlon If [he pl:ll i~ not :lP6r,'\eJ, Si'IKe:- y_ ell)
lJt' Lif-;e\\'ood. ; 9S Cel]O S2S_ hl"_, P_2~: l.?,(" , ! (1-\11
"1(.
31-23.305. Changes. Such rC0.ulariun-,. restrictIons. ;}nd hound;I;ies Ill:]\' I-rom time tn
time be amended, SL;!'f1]t:menteJ~, chJnu".::c, mo,lf1Cd_ 0;- 1-':""l'c;II,__';l_ In ;:'-(:'-<:.- ]](l\.\'('\'c; c):
prot::st ag;jinst ch;ln~es in regu];ilIO!lS u; r::strtCllUll:i, or ch;u~gcs In the ZOlle district '-:['1)11(-
aole to rartlculzlr land. whIch protest 1S hied With the mUlllcljlaj cle,-h;_ ;It ka.q t\vcnty-I(\(Jr
hours prior to the gCl\'erning body's vut~ on the change and 1\ sigw~d hy the owners ut [\\ L'll-
ty pcrc~nt or [nor:: oC the (llTd of land \\:-,i'ch is suhject to the rrul'(lscLl ChJ.llge ur t',\en:\
?~rcc:nt or lllort: nf ;hc MeZI fA IZII1(1 , .':1 r:Juius (1( one hundred fC:CT II-Oi1l Iii:...'
whICh is su11Jtctlo lhe p;'oposc:::.l ckm:;,::, uls~cgarJltlg inten-entng pL:L~IIC streets ane ;i]k::s,
such changes sh,tlJ not become cfiectivc e;.:c::rt by the f.J\-orZ1ble VOle of t\\o-thirds of all the
members or the governing boJy of the muntcirz:lit\,. The provisions of seetin:l ::; 1-2:.-:.~;n4 rel-
.1til'e to puhlic he<lring~ and nnici;-tI notice <1;1]1 ;qJI~ly cqu~lIly l(1 all clunge....; ()T di-:l~ndm'::ll:;
Am. Jur.2d, See ':;3 Am. Jur,2d, Zonin'C: i:lnd
l"bnni:u.'. > .;:- (JOI), h1J. hlh-I:,2:'- ~
c.J.S:S~c jl:Il,~\ C..rS, ZOllinL'.. & LJ.IlJ P:;:lI'-
rlll1~. * ( 65-97 ~
Annotator's note, Since ~, :;1-23.3(j5 i" similar
lOformer S 31..23..205 prior to th(: 1075 rer'..::t!
. ud reenactment of this title. and ];:lI\'S
'Rteccuenl lhereto. rc:k\'<lnt c;Jses construlnc:
thOse rl-(wisions h,tv(; heen lIlc:iuJcd ill lh;
~n()I,ltiolls to this section.
flue process pro\'ision\ of notit'e and hearinn
ifr proper and must he followed when amend~
;,,_:!..the loning map by council action. City of
~'= Collins v, Doaney. 17S Cola, 25_ 4~6 P.2d 3J fi
0......1).
.~uc P'OC"" may be sat;s"cd by .cre.cndum..
.,~t due process requlfcments may be met in
-if Tn;Jnner when thl: chanl!e is 'hy council
."""n do ~
~~ es not preclude other procedures from
ng d,ue process requirements under a refer-
City of Fort Collins v, Dooney, 178 Colo.
,. P.ld 316 (1972).
e. Considerations in denying application,
~alntenance of stabilitv in zoninl! and
. '--- g conservation of prop-erty values -hased
....' t:X:1SlJnoz. I.
:~ - t> onll1g r(;lCU ,HJOns arc prime cCJn-
1....... iltlOns In d ~ ~ I. .
. ~tc.s- \' ,cnYlng Jrp IcaLlons for ;wnir.~
~L\(lCorro..., Co. v, TIJ\\'11 uf Cherry Hills \'il-
,"/", Q.."j.' ul? ,.:.17: ){J.-I P.2J 344 ( ; IJ72)
, JudiCial function suhjecl to certiorari
. ".,;,;~t...:, EI nactment of i:l rezon~nE ordinance b\
" ";1~"'l?, s aliVe bod\' or Ct ci;\-. Q(J~f..:rllcd !->\' hi J' ~
-..rot Onlno _. -, _ ~ '. _ ...
't,:.;' t> stutUte~ uS welt as tht.: mUllIC1fJiJI
\v~;3t.23.30 . . . . . ..
;~3, the~' i Zo~m!.: commISSIOn. [n orUer to avail Itself of the rowcr~ c()llferre~1 by tIll'';
~rnen t>O\e~rnlil~ boJ~ sh;l]1 <Ipplllnt (~uJmmiSslo~. k.l1O\\'11 as the ZOJlI,Il~ CUl11l111SSilJli. 1\)
""tnfor d the boundilrJes (JI tho,: V<.lnnu- ufl~ln<.lI UlstflCts <.11lL! appruprl<.llc re~lll;Jtl()ns tu
. ~~d therein. Such commissi.ull ~ha]1 ~lak~ a prelimina.ry repurt and hold puhllc
he ~reon belure SUbmJltll11,! Its fined report. TIle gO\ efl1mg hud~- sh<.1I1 not flUid Its
armgs or take ilctlUIl until tl hilS r-=c~i\'eJ tht: fln;i1 rC),()rt oj Q11'h CUillml,,~J\_lr.
I
Source: L. 75: EntIre title: R&RE. j'
.1Il\'':l1lied. p. Jj::.. 0 --L -~ [recti'.'!.:: June -+
_"6. ~ I, l:rCccti\ <.:.'
1 L XI: EJl:i,~ <~::..-til'Jl
code, pursu:mt 10 Slil1U[(lry cr:kJ'iJ_ atL:r :lnl.t-:~
anu ,I ;~ubtlc 11 t':lLII1g. (l\n"t~tul'.:'S:t l:l;:n-!~tdi(;d
!unC!JOn subiect :0 ceni()r,m :-C\'IC\\, Sr-:_,_k-r \
(It v of L:J.Kev'>'o()cL 1S9 Colo_ :.+21, 542 P.2c :'--1
(1975)
The real issues innd\ed in a rczoning case
focus on the reasOIll.lblencss of a cif, council\
application of thl' statutory criteria '((1 the c\'i-
lienee prc:;cmcd, Snyder \. City of L1Kt:\'.'CJUJ,
1,')9 (0]0, 421. )-'+2 F2li ::;71 I! \)75)
Rl'\icw for ahuse of discretion and e.\ceeding
jurisdictiollal bounds, The liclel'il1JniJLion uf
whether a council reasonably applied stalulllr:
criteriJ in exercising Its statutory power to
rezone involves a consideration of whether th,;
council abused it discretion or exceeded the
bounds of its jurisdiction and is properly
resolved in a certiorari proceeding under rule
106(u)(4), C.RCP. Snyder \. City of Lakewood.
189 Colo. 421. 542 P.2d 371 (1975).
Statutor)' requirements do not apply to home~
rule cities, The provisions of this stalute which
require a three-fourths majority vote of [he
council to pass a zoning request over a Iega]
rrotesl does not arp]y to hnme-rul~ cities_ CilY
of Fon Collins v. Dooney. ]7,S Co]o, 2:\ 4IJG P.2d
:;1(, (lY72).
This section expressly applies only to amend.
menls made by municipalities of their own ordi.
lI<Jnce~ Jnd nol to enactments of the !:!.ene;-:>I
3ssemh'lv Gknnon Hcil!hts. Inc. \'. CcntrJ] B;mk
6: Trust.'I").),<"; P.2d .s72 (ru]n ]9,-';;'),
Exhibit C
LAW OFFICES OF
OATES, KNEZEVICH & GARDENSWARTZ, P.C.
PROFESSIONAL CORPORATION
THIRD FLOOR, ASPEN PLAZA BUILDING
533 EAST HOPKINS AVENUE
ASPEN, COLORADO 81611
TELEPHONE (970) 920-1700
FACSIMILE (970) 920-1'21
LEONARD M_ OATES
RICHARD A KNEZEVICH
TED D, GAROENSWAATZ
DAVID 8. KELLY
mail@okglaw,com
OF COUNSEL'
MICHAEL FEIGENBAUM
JOHN T. KELLY
November 8, 2000
Ms. Julie Ann Woods
Community Development Director
Community Development Department
City of Aspen
130 South Galena
Aspen, CO 81611
Re: Request by Cherie G. Oates for Interpretation Pursuant to Section 26.306 of the
Official Code of the City of Aspen
Dear Ms. Woods:
We represent Cherie G. Oates, who is the owner of Lot 11 Riverside Subdivision and a parcel
adjacent interests described by metes and bounds (the "Oates Property").
Request for Inteq>retation
This letter shall constitute her Request for Interpretation made pursuant to Code Section 26.306 in
connection with the zoning designation of the real property described in Exhibit "A" attached hereto (the
"Hower Property"). The Hower Property is adjacent to the Oates Property. This request follows a Request
for Interpretation made by Dale Hower, the owner of the Hower Property, which was responded to by the
Planning Director's Interpretation dated October 26, 2000 determining the Hower Property to be zoned R6 .
on purely technical grounds. It is our understanding that this Request for an Interpretation on the identical
question as that posed by Ms. Hower is necessary in order to perfect a right of appeal to the City Council
under the City of Aspen Code ("Code").
The October 26, 2000 Interpretation cited 26.710.030 (A) for the proposition that the Official Zone
District map is the final authority on zoning matters without a supporting resolution. Mrs. Oates submits
that a zone map designation which is not supported by underlying zoning is a nullity. A zoning
classification, and an amendment to zoning, require the compliance with statutory and Code zoning
procedures, including notice, public hearing and an enacting resolution of the City Council. Zoning maps
are evidence of underlying zoning only, they do not establish zoning.
OATES, KNEZEVICH & GARDENSWARTZ, P.C.
Ms. Julie Ann Woods
Community Development Director
November 8, 2000
Page 2
Administrative Errors Cannot Chanl:e Zoning Classifications
Section 26.710.030 of the Code requires that properly adopted amendments be made before changes
are made to the City's Official Zone District Maps. By contrast, the Planning Director's October 26, 2000
Interpretation would permit zoning changes to be made by ministerial errors in zoning maps, without the
required adopting legislation. It would permit property to be zoned and re-zoned without notice and an
opportunity to be heard by affected parties, including the owners of the property being re-zoned and the
owners of adjoining properties. This is a violation of the procedural due process standards required by law.
The Planning Director's Interpretation correctly notes that "The zoning designation for a parcel or
lot in the City of Aspen can only be achieved through a two-step public hearing process to Planning and
Zoning Commission and City Council requiring the adoption of an ordinance which then formally applies
or changes a zoning designation of the property." The Interpretation, however, does not follow this basic
rule. Instead, the Planning Director says that no ordinance was found for either the initial R-15 zoning or
for the alleged change to R-6 and thus we simply look to the maps to determine the zoning. This is not the
state of zoning law in Colorado.
In Colorado, a zoning map is only evidentiary, not dispositive. See Wainwril:ht v. City of Wheat
Ridge, 38 Colo.App 485, 558 P.2d 1005 (1976) (case attached hereto). In Wainwril:ht, the Colorado Court
of Appeals found that an inadvertent or erroneous change in the zoning map was without effect where there
was no resolution of the board of county commissioners amending the zoning. "A zoning map merely
reflects the effect of the exercises of the zoning power and changes made thereon do not of themselves
constitute an exercise of that power." The Planning Director's Interpretation of Section 27.710.030 (A)
directly conflicts with Wainwril!ht.by finding that the zoning map itself is determinative.
Also attached hereto is the case of the Board of Supervisors of Montl!omery County Township v.
Wellington Development COIl'., 145 Pa.CmwIth. 15, 602 A.2d 425 (1992), which similarly held that an
administrative error in a zoning map cannot change a wning classification. Section 27.710.030 (A) cannot
be read, as the Planning Director did, to provide that a change in the zoning map effects a final zoning
change, without a supporting resolution for the zoning change.
Colorado requires that minimum due process be followed for zoning changes, including notice and
public hearing. City of Fort Collins v. Doonev, 178 Colo. 25,496 P.2d 316 (1972). which states and
reaffirms that notice and hearing must be followed in order to meet minimum due process requirements.
Fort Collins is a home rule city, as is Aspen. As stated in the Planning Director's October 26, 2000
Interpretation Memo, zoning designation or re-zoning of a parcel in the City of Aspen can only be achieved
through a two step public hearing process to the Planning and Zoning Commission and City Council. It
OATES, KNEZEVICH & GARDENSWARTZ, P.C.
Ms. Julie Ann Woods
Community Development Director
November 8, 2000
Page 3
requires the adoption of an ordinance which then formally applies or changes the zoning designation for a
property (See 26.310.020) of the Code. Section 26.310 ofthe Land Use Code mandates that the application
be considered under comprehensive standards of review (See 26.310.040). One of those considerations is
"Whether the proposed amendment is compatible with surroundinl!: (emphasis added) zone districts and land
uses considering existing land use and neighborhood characteristics." This consideration was not made by
the person who erroneously prepared the map constituting "final authority" as to current zoning. Clearly,
required procedures were not followed with respect to the Hower Property and, as a consequence, her
property could not have been re-zoned from its historic R-15 designation to R-6 without full and complete
analysis of the effect thereof, including a public hearing. This is especially true given the constraints on the
Hower Property, the neighboring properties and the features which clearly distinguish the Hower Property
from the remainder of the Riverside Addition which mayor may not have been properly re-zoned to R6.
The mere fact that a computer generated mapping may have indicated a zoning designation on a map
is of no significance to the underlying zoning of the property. Such a map cannot take precedence over
substantive requirements regarding the application and change of zoning classifications. We pose the
following questions: (1) What steps were taken and analyses made in connection with adoption of any and
all maps subsequent to 1988 called "Official Zoning Maps" of the City of Aspen? (2) Were the zoning
designations on the maps checked and verified? (3) If so, by whom and how was the review conducted?
(4) If not, why did this not occur? (5) Was an ordinance or resolution adopted designating any map as
official? (6) What are GIS Zoning layers referred to in the Planning Division is October 26 Interpretation
and what in the City's view is the legal significance of GIS Zoning layers?
A Zoninl!: Change Cannot Be Made Without Following The Colorado Statutory Process
Colorado statutory law provides comprehensive minimum standards for the adoption and amendment
of zoning regulations, including the application of the standards to particular parcels of property. These
standards must be met, at a minimum, before a tract can be zoned or re-zoned. This is true regardless of
whether the property be located in a statutory or home rule municipality. C.RS. ~ 31-23-301 et seq. (See
copy attached.) C.R.S. ~ 31-23-304 states:
The governing body of such municipality shall provide for the manner in which such
regulations and restrictions and the boundaries of such districts are determined, established,
enforced and from time to time, amended, supplemented or changed. However. no such
regulation. restriction. or boundary shall become effective until after a public hearinl!: thereon
at which parties in interest and citizens shall have an opportunity to be heard. At least fifteen
says notice of the time and place of such hearinl!: shall be published in an official paper or
a paper of l!:eneral circulation in such municipality. (Emphasis added.)
That requirement was not met with respect to the Hower Property. The provisions of C.RS. ~ 31-23-
304 apply to re-zoning pursuant to C.RS. ~ 31-23-305. A home rule city's zoning authority is governed
OATES, KNEZEVICH & GARDENSWARTZ, p.e.
Ms. Julie Ann Woods
Community Development Director
November 8, 2000
Page 4
by its own charter and ordinances in accordance with Article 20, Section 6 of the Constitution of the State
of Colorado. See Zavala v. City and County of Denver, 759 P.2d 664 (Colo. 1988). However, such
authority does not excuse the fundamental requirement that basic due process be met. The City's Home
Rule Charter does not address zoning issues and therefore only its ordinances apply. It is inconceivable that
a technical provision of the Code could be construed to take precedence over substantive Code provisions
basic to the rights of interested parties.
The Zoninl! ofthe Hower Property Was R-15 for at Least Thirty-Three Years
The Planning Director's Interpretation notes a lack of any ordinance for the zoning designations in
question. It then notes that the City Zoning Map showed the Hower Property as R-15 for thirty-three years,
from 1963 to 1996. In 1996, the GIS Zoning Layers apparently redrew the line between R-15 and R-6 and
placed the Hower Property in the R-6 zone. There was no adopting ordinance for this change. Moreover,
a change adopted in a "GIS Zoning Layer" is of dubious legal effect. A zoning map cannot supersede the
exercise of legislative re-zoning authority vested ultimately and only in the City Council of the City of
Aspen.
Nei~hborin~ Property Owners Were Not Given The Required Notice of Re-Zoninl!
Mrs. Oates did not get notice of the re-zoning of the Hower Property, nor did any of the other
adjoining property owners. In Colorado, the owner of property adjacent to land being considered for re-
zoning has standing to challenge the re-zoning and a legally protected interest in insulating his property from
adverse effects caused by legally deficient re-zoning of adjacent property, Board of Countv Commissioners
of Adams County v. Citv of Thornton, 629 P .2d 605 (Colo. 1981), and Coates v. City of Cripple Creek, 865
P.2d 924 (Colo. 1993).
Your determination has a significant impact on the Oates Property. To permit the increased
development allowed by R-6 zoning, including the duplex plus accessory dwelling unit proposed for the
Hower Property, would increase the burden on the Oates Property, including the use of a private access
crossing the Oates Property. This access was never intended for anything other than access to one single
family dwelling on the Hower Property. Re-zoning Hower on the basis of a map error would cause a severe
economic loss to the Oates Property.
Finally, you have stated that you are unable to find where the Hower Property was previously zoned
R-15. The annexation of the Riverside Addition should be researched since it may have been part of a larger
annexation. Large areas were annexed in the late 1950s and the 1960s. However, if the property was not
zoned R-15 or R-6, then it must have been un-zoned. This reinforces the conclusion in the Montl!omerv
County case cited above. If there is confusion as to the zoning of the Hower Property, then there must be
other properties as to which confusion exists. Perhaps a full and complete audit and inventory of zoning
OATES, KNEZEVICH & GARDENSWARTZ, p.e.
Ms. Julie Ann Woods
Community Development Director
November 8, 2000
Page 5
classifications needs to occur so that the mapping may be corrected to reflect valid and historic zoning
classifications. This needs to be based on an ordinance adopted after notice, hearing and consideration by
the City Council of the appropriate zoning to be applied to the Hower Property.
Sincerely,
OATES, KNEZEVICH & GARDENSWARTZ, P.c.
eys for Cherie G. Oates
DBK!wdf
cc: John Worcester, Esq., Aspen City Attorney
C:\DatalKellyIlb' Planning ComrriSSiOn 11.01.00.wpd
EXHIBIT A
LOTS 6, 7, 8 AND 9,
BLOCK 24,
RIVERSIDE ADDITION
TOGETHER WITH
A portion of the alley of Block 24, described as follows:
Beginning at the Southwest Corner of Lot No.9 of said Block 24;
thence S 89044' W 20.00 feet to the Southeast corner of Lot 22, Block
thence N 00016' W 73 feet along the East lines of Lots 22, 21, and 20
Block 24;
thence N 60004'
thence S 00016'
to the point of
24;
of
E 23 feet to
E 84.38 feet.
beginning.
the West line of Lot 6, Block 24;
along the West line of Lot 6, 7,
8,
and 9,
AND a parcel of land described as follows:
Beginning at the Northeasterly corner of Lot 11, Block 1, Riverside
Subdivision;
thence N 00016' W 100 feet, more or less, to the Northeasterly Corner of
Lot 6, Block 24, Riverside Addition to the City of Aspen;
thence N 89044' W 25.00 feet;
thence S 00016' E 100.00 feet;
thence S 89044' W 25.00 feet to the point of beginning.
11111111111111111111I11111111111111111111I1111111111111
422358 09/24/1998 12,05P QCD DRVIS SI~VI
2 of 2 R 11.00 D 86.82 N 0.00 PITKIN CDUNTY CO
WAINWRIGHT v. CITY OF WHEAT RIDGE
Cite as, Colo.App., 558 P.2d 1005
3. Zoning = 762
County zoning map erroneously depict-
ing zoning of realty as "restrictive commer-
cial," after it was zoned "commercial," had
no conclusive effect upon state of zoning
and no change of zoning classification was
effected by passage of ordinance by newly
incorporated city declaring county maps to
be adopted as they were in effect; thus
lessee's use permitted in commercial zone,
but prohibited in restrictive commercial
zone, did not violate the zoning. C.R.S. '73,
30~28~116, 31-28-201.
Archie L. WAINWRIGHT and Transpor-
tation Equipment and Body Coo, Inc_,
Plaintiffs-Appellants,
v.
CITY OF WHEAT RIDGE, Colorado,
Defendant-Appellee.
No. 7:H137.
Colorado Court of Appeals,
Div.2.
Dec. 30, 1976.
Selected for Official Publication.
~
Owner and lessee of realty sued city
for declaratory judgment after city advised
lessee that its use of realty violated existing
zoning. The District Court, Jefferson
County, Roscoe Pile, J., held that the use
violated zoning ordinance and plaintiffs ap~
pealed. The Court of Appeals, Smith, J.,
held that county zoning map erroneously
depicting zoning of realty as "restrictive
commercial," after it had been zoned "com-
mercial," had no conclusive effect upon
state of zoning and no change of zoning
classification was effected by passage of
ordinance by newly incorporated city de-
claring county maps to be adopted as they
were in effect; thus lessee's use permitted
in commercial zone, but prohibited in re-
strictive commercial zone, did not violate
the zoning.
Reversed and remanded.
1. Zoning <>= 233
To interpret and construe zoning ordi-
nance properly, court must ascertain legis-
lative intent by looking at familiar and
generally accepted meaning of words and
phrases.
2. Zoning =237
Where city council of newly incorporat-
ed city declared that county zoning maps
were adopted "as they were in effect," the
status of county zoning at time city incor-
porated maps into zoning ordinance gov-
erned. C.R.S. '73, 30~28~116, 31-28-201.
Colo. 1005
4. Zoning = 153
Substantial compliance with statutory
provisions is required for lawful enactment
of zodng change and failure to comply with
essential mandates of statutes invalidate
proceeding.
5. Zoning = 199
As soon as reasonably possible after
adoption by board of county commissioners
of changes in zoning, they should be placed
upon authorized copy of original maps or
maps with date of action shown along with
type of change. C.RS. '73, 30-28~116, 31-
23-201.
6. Zoning -197
In absence of resolution by county
board of commissioners amending zoning,
inadvertent or erroneous change in zoning
map was without effect. C.RS. '73, 30~28-
116, 31-28-201.
7. Zoning =132
Zoning map was only some evidence of
actual state of zoning of particular parcel.
C.RS. '73, 30-28-116, 31-23-201.
8. Zoning <>=231
Zoning law should be given fair and
reasonable construction in light of setting
in which employed.
Robert W. Caddes, Denver, for plaintiffs-
appellants.
Maurice F. Fox, P. C., Maurice F. Fox,
Wheat Ridge, for defendant-appellee.
~
I
I
I
I
1006 Colo.
558 PACIFIC REPORTER. 2d SERIES
~
SMITH, Judge.
Archie Wainwright, owner of certain real
property in Wheat Ridge, and Transporta-
tion Equipment and Body Company, lessee
of that property, filed suit for declaratory
judgment against Wheat Ridge, after
Transportation Equipment was advised by
the city that its use of the property violated
existing zoning. From a decision by the
trial court that the use of the subject prop-
erty was in violation of the city zoning
ordinance, plaintiffs appeal. We reverse,
The subject parcel, a part of Hale Subdi-
vision, was, prior to its inclusion in Wheat
Ridge, in the unincorporated portion of Jef-
ferson County. In 1949 the subdivision was
first platted and this parcel was zoned by
the county as Commercial One (C-l).
Sometime later, a county zoning map, re-
ferred to as "No.4", came into existence
which erroneously depicted the zoning as
Restrictive Commercial (R-C). Hale Subdi-
vision was made part of Wheat Ridge when
it became an incorporated municipality in
August 1969. Wheat Ridge adopted a zon-
ing plan through Ordinance No. 11, Series
of 1969. In relevant part, it reads:
"The Jefferson County zoning maps
which are a part of this ordinance, num-
bered 3, 4, 13 and 14 are designated as
the City of Wheat Ridge zoning maps and
are hereby declared to be a part thereof
as they were in effect on November 16,
1969
The fact that Zoning Map No.4 of Jeffer-
son County erroneously designated the sub-
ject land as being zoned R-C is not in
dispute. Mr. Wainwright purchased the
property in 1970 and leased it as a motor
vehicle sales lot, a use permitted under C-l
but not R-C zoning, until the city served
notice of the alleged zoning violation.
The city contends that, despite the error
in the map, its incorporation into the city's
initial zoning ordinance was an exercise of
its statutory authority to regulate the use
of land within its houndaries and to estah-
lish zoning districts. See C.R.S.1973, 31-
23-201. They argue that by passage of
Ordinance No. 11, incorporating Map "No.
4", the property became zoned R-C.
We agree that Ordinance No. 11 repre-
sents a legislative judgment as to where
lines of demarcation between different
zones should be drawn. See City of Greeley
v. Ells, 186 Colo. 352, 527 P.2d 538. The
problem, however, is essentially one of in-
terpretation and construction of the ordi-
nance which adopted the county maps.
[1-3] In order to interpret and construe
the ordinance properly we must ascertain
legislative intent by looking at the familiar
and generally accepted meaning of words
and phrases. Humana, Inc. v. Board of
Adj. of City of Lakewood, Colo., 537 P.2d
741. The intention of the city council in
declaring that the maps were adopted "as
they were in effect on November 16, 1969"
(emphasis added) is the crux of the matter.
Inasmuch as zoning maps derive their effec-
tiveness from the ordinance or resolution
that adopts them, it is the status of the
county zoning, at the time the city incorpo-
rated the map into its zoning ordinance that
governs. A zoning map merely reflects the
effect of exercises of the zoning power and
changes made thereon do not of themselves
constitute an exercise of that power.
[4,5] Section 30-28-116, C.R.S.1973, ex-
plains the procedure by which the county
can amend its zoning regulations; it pro-
vides that only the Board of County Com-
missioners may amend the zoning regula-
tions. See Colorado Leisure Products, Inc.
v. Johnson, Colo., 532 P.2d 742. Substantial
compliance with statutory provisions is re-
quired for lawful enactment of a zoning
change, Gordon v. Board of County Com-
missioners, 152 Colo. 376, 382 P.2d 545. and
failure to comply with essential mandates
of the statutes invalidates the proceeding.
Colorado Leisure Products, Inc, v. Johnson,
supra. Also, as soon as reasonably possible
after adoption hy the Board of County
Commissioners of changes in zoning, they
should he placed upon an authorized copy of
an original map or maps with the date of
the action shown along with the type of
change. Holly Development, Inc. v. Board
of County Commissioners, 140 Colo. 95, 342
P.2d 1032.
,
YANISH v. INDUSTRIAL COMMISSION
Cite as, CoJo.App., 558 P.2d 1007
[6, 'i] It therefore follows that sinet: Company are now estopped to protest the
there was no resolution by the Board of "zoning change."
County Commissioners amending the ZOTI- The judgment is reversed and the cause is
ing, the inadvertent or erroneous change in remanded for entry of a decree not incon-
the zoning map was without effect. We sistent herewith.
therefore conclude that Map No.4 was only
some evidence of the actual state of zoning ENOCH and V AN CISE, JJ., concur.
and that on November 16, 1969, contrary to
the indication on that map, the subject
property was zoned C-l,
I
~
I
I
t
[8] Because zoning laws should be given
a fair and reasonable construction in light
of the setting in which employed, Beckman
v. Grand Island, 182 Neb. 840, 157 N.W.2d
769, the factors surrounding adoption of the
ordinance should be considered. Circum~
stances attendant to passage of Ordinance
No. 11 indicate that the city did not intend
to change the zoning classification of the
property. The evidence is uncontradicted
that the county maps, as adopted, were
assumed to be correct. And, no one con.
tends that the passage of Ordinance No. 11
involved an attempt to change any existing
zoning. Quite to the contrary, it was
adopted to satisfy a statutory requirement
that the newly incorporated city provide an
initial zoning scheme within ninety days
after incorporation. Accordingly, since the
map was in error and had no conclusive
effect upon the state of zoning, we hold, as
a matter of law, that no change in zoning
classification as to the subject parcels was
effected by the passage of Ordinance No.
11.
Appellees argue that one claiming the
invalid exercise by a city of the statutory
power to classify land must establish such
invalidity beyond a reasonable doubt. See
Bird v. Colorado Springs, 176 Colo. 32, 489
P.2d 324. This contention, however, misses
the issue before this court, which is not the
validity of the city's exercise of its power to
zone, but rather is a question of the effect
of the ordinance enacted. The validity of
the ordinance is not in question.
Since We have held that the city council
effected no change in the zoning, we do not
reach the city's contention that Wainwright
and Transportation Equipment and Body
i
,
~'
t
,
,
I
t
t
,
I
t
l
Colo. 1007
aid S. YANISH, Petitioner,
v.
INDUSTR AL COMMISSION of Colorado
(Ex-officI Unemployment Compensation
Commissio of Colorado), and PCA Cor-
poration 0 Kansas, Photo Corp. of
America, pondents.
o. 7&-509.
Dec. 30, 1976.
Selected for 0 icial Publication.
Claimant sought view of Industrial
Commission order den 'ng unemployment
compensation benefits, he Court of Ap-
peals, Coyte, J., held that laimant, in fail-
ing to raise issue in rega to employer's
failure to submit its prote t to claim in
timely fashion until claimant filed petition
for review before Commissl n, did not
waive his right to object to sue failure on
part of employer.
Order set aside and cause
with directions.
1. Social Security
-553
Unemployment compensation claim nt,
in failing to raise issue in regard to empl _
er's failure to submit its protest to claim I
timely fashion until claimant filed petitio
for review before Industrial Commission,
did not waive his right to object to such
failure on part of employer. CRS '73, 8-
70-103(17), 8-74-105, 8-74-106(1).
I
/""
~
I
!
--
Copr. @West 2000 No Claim to Orig. U.S. Govt. Works
602 A.2d 425
(Cite as: 145 Pa.Cmwlth. 15, 602 A.2d 425)
< KeyCite History>
Commonwealth Court of Pennsylvania.
The BOARD OF SUPERVISORS OF
MONTGOMERY TOWNSIllP, Appellant,
v.
WELLINGTON FEDERAL DEVELOPMENT
CORPORATION and Julian Andre, Michael
Andre,
Ernest Andre, and William Andre, Appellees.
Argued Sept. 13, 1991.
Decided Jan. 13, 1992.
Petition for Allowance of Appeal Denied May 26,
1992.
Board of Supervisors denied applicants' application
for curative amendment, in which applicants alleged
that property did not have valid zoning by reason of
its misdesignation on zoning map. The Court of
Common Pleas, Montgomery County, No.
89-14235, Richard S. Lowe. 1., granted request for
curative amendment and allowed applicant's plan for
commercial development of property. Board
appealed. The Commonwealth Court, No. 1416
C.D.1990, Doyle, 1., held that: (1) zoning map
included in brief would be permitted for limited
purpose of identifying subject property, even though
it was not part of record; (2) inclusion of subject
property in wrong district on zoning map sold to
public. as result of administrative error on part of
township employees, did not operate to amend
zoning map or to render so-designated property
unzoned; (3) applicant could not be permitted to treat
property as unzoned or rezoned by reason of
municipality's error where it had knowledge of error
on zoning map and error was corrected on map prior
to filing of curative amendment; and (4) denial of
curative amendment was not error,
Motion for correction record denied; reversed.
West Headnotes
[11 Zoning and Planning k744 :*:c
414k744
Appellant would be permitted to keep photocopy of
zoning map in its appellate brief for limited purpose
of helping court understand location of property in
question, even though zoning map was not admitted
into record below; since zoning map was not part of
record, it would be permitted to remain in brief only
for very limited purpose of identifying subject
property. Rules App.Proc., Rules 2134, 2134(c), 42
Pa.C.S.A.
[2] Zoning and Planning k191
414kl91
~ Inasmuch as township employees had no authority to
amend zoning map, their mere administrative error
in changing designation on map could not operate to
amend zoning map or to render so-designated
property unzoned. 53 P.S. !l10402.
[3] Zoning and Planning k132
414kl32
Municipality has duty to create zoning map which
clearly delineates zoning district boundaries.
[4] Zoning and Planning k32
414k32
Municipality that fails to clearly indicate zoning
district boundaries on zoning map cannot place onus
of that failure upon landowners.
[5] Zoning and Planning k19I
414kl91
"*' Administrative error in misdesi~natinl! zoning
district of specifir. prnpprty on zooiD!! map did not
result in property being unzoned or rezoned where
applicant tor curative amendment had knowledge of
error on zoning map and error was corrected prior to
filing of curative amendment.
[6] Zoning and Planning kl91
414kl91
Mere administrative error in misdesignating zoning
d~tnct or spe~~c property cannot Change Zi'lhi;!g
classll1calIon 0 at property so that IllS cnmpl~]y
~d.
[7] Zoning and Planning kl91
414kl91
Applicants were not entitled to curative amendment,
on theory that property did not have valid zoning, by
reason of administrative error in misdesignating
property's zoning classification on zoning map:
lawful and valid zoning did apply to area of subject
property and error on map was known to applicant
and was corrected before applicant filed for curative
amendment.
**426 *17 Emory W. Buck, for appellant.
David H. Moskowitz, for appellees.
Before DOYLE and BYER, JJ., and LORD, Senior
Judge.
DOYLE, Judge.
The Board of Supervisors of Montgomery Township
(Board) appeals an order of the Court of Common
Pleas of Montgomery County which granted the
request for a curative amendment filed by
Wellington Federal Development Corporation
(Wellington) and Jnlian Andre, Michael Andre,
Ernest Andre and William Andre (the Andres) and
approved their plan for the development of a tract of
ground in Montgomery Township (Township).
The snbject property consists of approximately five
and three-tenths (5.3) acres and is located at the
intersection of Route 202 and County Line Road. It
was part of a larger tract of approximately 46.79
acres which was owned by the Andres prior to
February 27, 1979. On that date the Township
approved a two-lot subdivision of the 46.79 acre
tract which resulted in the creation of this 5.3 acre
parcel and a 41.49 acre parcel. The larger parcel
was subsequently *18 transferred by the Andres to a
developer known as Kasorex. On September **427
4, 1979, the Township enacted Ordinance 17-AAA
which rezoned by metes and bounds the subject
property (as well as a substantial area of adjoining
property) from R-I Residential to R-5 Residential.
No change in the zoning of the subject property has
taken place since the enactment of Ordinance
17-AAA on September 4, 1979.
Abutting the subject property to the southeast and
southwest is a three hundred sixty-two (362) acre
tract of land, which includes the 41.49 acre parcel
mentioned above, which had been the subject of
litigation. In settlement of that litigation, the
Township and the developer, Kasorex, entered into a
stipulation (Kasorex Stipulation) which was
approved by the common pleas court on July 10,
1984. [FNIJ Thereafter, the Township Engineer,
acting at the request of the Township Manager,
changed the zoning map to designate those areas
included in the stipulation as being "CA", or "Court
Approved" category. As this change on the map was
made. the R-5 designation of the 5.3 acre parcel was
inadvertently removed, which then caused the map
to show the 5.3 acre tract as included within the
"CA" category. The 5.3 acre parcel, the subject
property of this appeal, however, was never
included in the "CA" category nor was it ever meant
to be. [FN2]
FN 1. This stipulation imposed different
zoning classifications and restrictions on
various sections of the tract to permit a
mixed residential development within the
tract.
FN2. A copy of the portion of the zoning
map which illustrates the location of the
subject property and which shows the
property without the zoning designation is
included as an appendix to this opinion.
On or about June 8, 1988, two corporate officers of
Wellington purchased a zoning ordinance and a
zoning map from the Township. On the zoning
map, the subject property is shown to be included
within the area designated "CA.'. The officers of
Wellington then reviewed the Kasorex Stipulation
and determined that the property in question was not
included within that stipulation. On July 7, 1988,
Wellington entered into an agreement of sale with
the Andres for *19 the 5.3 acre parcel. Apparently
under the agreement, which was not in evidence,
Wellington could refuse to make settlement if
commercial development was not permitted.
On October 17, 1988 Wellington appeared before
the Board with an informal request that the Board
rezone the subject property to permit a commercial
development. The Board at that time informed
Wellington that it would not approve such a rezoning
request.
On November 10. 1988, the large zoning map on
display to the public in the Township Zoning Office
was corrected to indicate that the property in
question was zoned R-5. However, the zoning map
being sold to the public on that date still indicated
that the subject property was within the CA district.
On March 3. 1989, Wellington and the Andres filed
with the Board, pursuant to the Pennsylvania
Municipalities Planning Code (MPC), Act of July
31, 1968, P.L. 805, as amended, 53 P.S. SS
10101-11202, [FN3] a request for a hearing
concerning a challenge to the validity of the zoning
ordinance and zoning map of the Township together
with a proposed curative amendment to change the
zoning of the subject property to S-Shopping Center
District. [FN4]
FN3. This Act was reenacted by the Act of
December 21, 1988, P.L. 1329.
FN4. Wellington and the Andres filed their
request pursuant to Section 609.1 of the
MPC, 53 P. S. 10609. 1 , pertaining to
procedure for landowner curative
amendments. and Section 1004 of the MPC,
53 P.S. 11004, pertaining to validity of
ordinances. Article X of the MPC, of
which Section 1004 was a part, was
repealed by the Act of December 21. 1988,
P.L. 1329. Section 916.1 of the MPC, 53
P.S. S 10916.1, which now pertains to
validity challenges, was added to the MPC
by the Section 99 of the Act of December
21. 1988. P.L. 1329.
By decision and order dated August 4. 1989, the
Board denied the proposed curative amendment.
Wellington and the Andres appealed to the conunon
pleas court and by order dated June 28, 1990, the
conunon pleas court granted their request for a
curative amendment and allowed their plan for
development of the property.
**428 On July 5. 1990, the Board filed an appeal to
this Court. On November 21, 1990. Wellington
and the Andres filed a *20 petition to remand to the
Court of Conunon Pleas for correction of the record.
In this petition. they allege that the exhibit in the
record marked A-2, which shows the subject
property as being zoned R-5, is not the exhibit which
was introduced into evidence at a hearing before the
Board held on April 18, 1989. By order dated
December 5, 1990, the petition to remand was
granted.
On February 25, 1991, the parties entered into a
stipulation whereby they agreed that the zoning map
of the Township presently in the record as Exhibit
A-2 was not the zoning map the applicants entered
into evidence at the April 18, 1989 hearing. The
parties further agreed to correct the record to reflect
that Exhibit A-2, which was entered into evidence at
the hearing, is identical to the zoning map later
entered by the the Property Owners as Exhibit A-20.
[FN5] By order dated February 28, 1991, the
Stipulation was approved by the conunon pleas
court.
FN5. Exhibit A-20 shows the subject
property as being included within the CA
district.
[I] Thereafter, the Board filed a brief which
included, on page 24, a photocopy of a portion of a
zoning map. This map indicates that the subject
property is zoned R-5. On May 10. 1991,
Wellington and the Andres filed a petition requesting
that this Court dismiss the appeal or, in the
alternative, direct that this page of the Board.s brief
be removed. [FN6] They argue that no zoning map
designating the property as being zoned R-5 was
ever introduced into the record. Wellington and the
Andres further argue that a copy of a document
which is not part of the record may not be included
as an exhibit to a brief, especially when the
document is inconsistent with the exhibits which are
part of the record. They suggest that the Court has
authority under Pa.R.A.P.I926 to direct that this
page of the Board's *21 brief be removed in order to
ensure a correct record. [FN7]
FN6. By order dated May 31, 1991. the
motion to dismiss the appeal was denied.
The order further directed the Chief Clerk
to schedule the argument on the merits of
the motion for correction of the record
along with the merits of the appeal.
FN7. Pa.R.A.P.I926, entitled Correction
or Modification of the Record provides: If
any difference arises as to whether the
record truly discloses what occurred in the
lower court, the difference shall be
submitted to and settled by that court after
notice to the parties and opportunity for
objection, and the record made to conform
to the truth. If anything material to either
party is omitted from the record by error or
accident or is misstated therein, the parties
by stipulation, or the lower court either
before or after the record is transmitted to
the appellate court, or the appellate court,
on proper suggestion or of its own
initiative, may direct that the omission or
misstatement be corrected, and if necessary
that a supplemental record be certified and
transmitted. All other questions as to the
form and content of the record shall be
presented to the appellate court.
The Board, on the other hand, argues that
Pa.R.A.P. 2134(c) permits the inclusion of an
exhibit which is not part of the record if the exhibit
would be of assistance to the Court. Rule 2134
provides in pertinent part:
(a) General Rule. All maps, plans and drawings
used on appeal must conform to the provisions of
this rule.
(c) Prepared Specially for Argument. If a draft
or plan is not contained in the record, but would
be of assistance to the appellate court as
prescribed in Subdivision (a) of this rule, a simple
draft, plan or sketch, made by or for the appellant,
folded to the same size as the brief, shall be
attached to or filed with the brief of the appellant,
marked so as to show it was not part of the record.
Under like circumstances. the appellee may
prepare and attach to or file with the brief for the
appellee a draft, plan or sketch made by or for the
appellee. Either party may point out, in his brief
or reply brief, wherein he considers the one
presented by his adversary not to be correct.
(Emphasis added.)
Because the photocopy of the zoning map would be
helpful to the Court in understanding the location of
the property in question, we will deny Wellington
and the **429 Andres' motion and permit the
photocopy of the zoning map to remain in the
Board.s brief for this limited purpose. We *22
wish to make clear. however, that this zoning map is
not part of the record, was not the map given to the
corporate officers of Wellington and is not authority
for the fact that the subject property was zoned R-5.
We allow the map incorrectly designated as "A-2" to
remain in the brief at page 24, only for the very
limited purpose of identifying the subject property.
We now consider the issues raised by the parties in
this appeal, keeping in mind our scope of review.
Where the trial court takes no additional evidence,
our scope of review is limited to determining
whether the Board committed a manifest abuse of
discretion or an error of law in denying Wellington
and the Andres' request for a curative amendment.
Atlantic Refining & Marketing Co. v. Zoning
Hearing Board of Upper Merion Township, 133
Pa.Commonwealth Ct. 261, 575 A.2d 961 (1990).
We may conclude that the Board abused its
discretion only if the findings are not supported by
substantial evidence. Id.
[2] As a threshold matter, we consider the effect of
the erroneous inclusion of the subject property in the
CA district on the zoning maps sold to the public.
The Board concluded in denying the application for a
curative amendment, that the error on the zoning
map did not change the subject property's zoning or
render it UIlZoned. Wellington and the Andres, on
the other hand, contend that because of this error,
the property is totally UIlZoned.
Section 402 of the MPC, 53 P.S. ~ 10402. [FN8]
grants exclusive authority to the governing body to
amend a zoning map. In the instant case. the Board
enacted Ordinance No. 17-AAA on September 4,
1979, changing the zoning of the subject property
from R-l Residential to R-5 Residential. As part of
this ordinance, the zoning map was amended and
revised to reflect this change. No subsequent action
was *23 taken by the Board to change the zoning
classification of the property. [FN9] We therefore
conclude, because Township employees have no
authority to amend the zoning map, that their mere
administrative error in changing the designation on
the map could not operate to amend the zoning map
or to render the so-designated property UIlZoned.
Accordingly, we hold that the Board did not err in
concluding that the zoning of the subject property
remained R - 5.
FN8. Section 402 provides in pertinent part:
(a) Prior to the adoption of the official map
or part thereof, or any amendments to the
official map, the governing body shall refer
the proposed official map, or part thereof or
amendment thereto, with an accompanying
ordinance describing the proposed map, to
the planning agency for review. (Emphasis
added. )
FN9. Section 609 of the MPC, 53 P.S. ~
10609, grants exclusive authority to the
governing body to amend the zoning
ordinance,
[3][4] Wellington and the Andres cite Tohickon
Valley Transfer, Inc. v. Tinicum Township Zoning
Hearing Board, 97 Pa. Commonwealth Ct. 244, 509
A.2d 896 (1986), for the proposition that "zoning
district boundaries ... must appear upon the zoning
map with definiteness in order that landowners can
rely upon predictable content within the zoning
ordinance and map for the purpose of deciding
where they can develop structures and where they
cannot do so." In Jacquelin v. Zoning Hearing
Board of Hatboro Borough, 126 Pa.Commonwealth
Ct. 20, 558 A.2d 189 (1989), petition for allowance
of appeal denied, 525 Pa. 606, 575 A.2d 571 (1990),
this Court construed the above language in Tohickon
Valley Transfer as imposing a duty on a municipality
to create a zoning map which clearly delineates
zoning district boundaries. A municipality that fails
to do so. cannot place the onus of that failure upon
an applicant. Jacquelin.
[5] We recognize these general principles of law but
fmd them inapplicable in this case where Ca) the
applicant had knowledge of the error on the zoning
map and Cb) the error was corrected on the map
prior to the filing of the curative amendment. In the
instant case the large zoning map on display in the
Township Zoning Office was corrected on
November 10, 1988 to indicate ""430 that the
subject property was zoned R-5. Wellington and
the Andres' request for a curative amendment was
filed on March 3, 1989, almost four months after
this correction was made. According to the
testimony of the deputy zoning officer taken at the
"24 Board meeting on June 20, 1989, when the
president of Wellington came into the Office of Code
Enforcement on that day with an application for a
curative amendment, he was shown the large mylar
map on the wall which then designated the zoning of
the subject property as R-5.
We also fmd relevant as demonstrating Wellington
and the Andres' knowledge of the error on the
zoning map, a copy of a page of the minutes of the
October 17, 1988 meeting of the Board. According
to these minutes, representatives from Wellington
approached the Board with a preliminary plan for
rezoning the tract to include a shopping center on the
property. Had they truly believed their property
was within the CA district, obviously no such
request would have been made.
[6] While the general principles we enunciated in
Tohickon and Jacquelin remain true, it is equally
true, and we now hold, that a mere administrative
error in misdesignating the zoning district of a
specific property cannot change the zoning
classification of that property so that it is completely
UllZoned. Even if a contrary argument had any
merit at all. it is inexplicable why the zoning
classification would be "unzoned.' rather than take
on the new zoning classification of the error.
However, the consequence in either case would be to
allow an innocent administrative mistake alone to
bind municipal governments. a result we refuse to
tolerate.
[7] We next consider whether the Board erred in
denying Wellington and the Andres' request for a
curative amendment. They based their challenge to
the validity of the zoning ordinance and zoning map
solely on the alleged failure of the Board to provide
for lawful and valid zoning in the area of the subject
property. In denying the curative amendment, the
Board found that lawful and valid zoning did apply
to the subject property. We have held that the
Board did not err in concluding that the zoning of the
property remained R-5. It therefore follows that the
Board "25 did not err in denying a curative
amendment on the basis that the property did not
have valid zoning. [FNIO]
FN1O. Because we hold that the Board did
not err in denying the curative amendment,
we do not reach Wellington and the Andres'
third argument, that the plan for
development is reasonable under the
circumstances and should be approved by
the court.
Because we hold that the Board did not abuse its
discretion or commit an error of law, we reverse the
order of the Court of Common Pleas of Montgomery
County.
ORDER
NOW, January 13, 1992, the order of the Court of
Common Pleas of Montgomery County in the
above-captioned matter is reversed. Appellees'
motion for correction of the record is denied.
This decision was reached before the conclusion of
Judge BYER's service.
""431 APPENDIX
Image I (5.75 X 4.5 ) Available for Offline Print
to FAX
END OF DOCUMENT
316 Colo. 496 PACIl'IC REPORTER, 2d SERIES
\wcre contraband. We paint out that a~ the ~ures.as ;fa .rmed with all the t1I1bridled
tIme or the seizure the IllInoIs dnver 5 \1- and Illegal power of a general warrant."
cense was allegedly forged, a fact yet to be Not havi'irg, demonstrated that the items
~tahlIShed. True, as cOll~sel point~, ?U~, here. seized w----.ere,fru.;ts, instrumentalities,
ur statute forblds possessIOn of a flct\- contrahand, or evidence connected with the
tl us" operator 5 license. C.R.S.1963, 13- criminal activity being"iovestigated under
However, here, the license was the search warrant, and'--no probable cause
me ely suspected of bei~g f~ctitious. and being shown for their seiz~te.. the order of
a f ged document at the time It was seized. suppression was proper. ~,
Ratn r than contraband, a mo:e accu.rate The ruling is affirmed. ~
chara terization would be that It constJtut- . ~
ed eVl ence of criminal activity yet to be PRINGLE, C. J., not participating. ~
proved~ as is demonstrated by the filing of
the cri~S'nal charge of forgery three months
later.
Not ha 'ng been designated in the search
warrant, ahd being evidence only, in order
that it might be lawfully seized, a nexuS
must have ~een shown connecting it with
the criminal ~tivity being investigated un-
der the search\ warrant. Warden v. Hay-
den 387 U.S. 294 87 S.Ct. 1642, 18 L.Ed.
, \'
2d 782. ]n Peol\le v. Piwtorak. Colo., 484
P.2d 1227, where the search and seizure al-
legedly went beyohd the items specified in
the warrant, it was \tated:
"* * * [T]\e burden is upon the
People at a suppress.ion hearing to show a
connection between\the evidence seized
and the criminal activity for which the
search was initiated in order that the
evidence not be suppr sed. * * *"
See alsa, People v. Wilso , Colo., 482 P.2d
355; People v. Henry, sup
To countenance seizure evidence not
specified in the warrant an~ unrelated to
the criminal matters under ~'nvestigation
would open wide the door to general
searches and seizures based up' n mere sus-
picion but not upon probable ca:\ se as con.
stitutionally required. Mr. }ustic,e Stewart,
in his concurring opinion in ~tanley v.
Georgia, 394 U.s. 557, 89 S.Ct. 12f3, 22 L.
Ed.2d 542, states the caveat as folh,\ws:
II * * * To condone what happened
here is to invite a government off\cial to
use a seemingly precise and legal w"~rrant
only as a ticket to get into a man's ~ome,
and, once inside, to lallnc~ ~ort~ ~pon
unconfinf"d searches and IDdlscnml\ate
\
w
o ~ (0 .UMau S'lSTlM
,
The
CITY OF FORT COLLINS, Colorado, a
municipal corporation, and Joe J.
Straughn, Plaintiffs in Error,
v.
James T. OOONEY et ai., Defend.
ants in Error.
No. 24247.
~Ilprl'me COllrt of Colorado,
In Department.
:'I[nrch 27, 1072.
ltehearing Denied :'IIay 8, In72.
Action fo~ declaratory judgment, to de-
termine applicability of charter referendum
prOVIsions to amendatory zOTIlng ordi-
nances. The District Court, Larimer
County, Conrad L. Ball, J., rendered judg-
ment and city brought error. The Su-
preme Court, Kelley, }., held that under
charter providing that referendum should
apply to all ordinances except those mak-
ing tax levy, making annual appropriation,
or ordering improvements initiated by peti-
tion, zoning map amendment was subject
to referendum procedures.
Affirmed.
l. Municipal Corporations e=::>108.6
Cnder city charter providing that ref~
erendum should apply to all ordinances ex-
C)lo.
:317
CITY OF FORT COLLINS v. DOONEY
,"~:'': ::H:~'':: m:,~;'cg- '_l:--:: l~\.y! Ina~::,~ ;.:' ;Li~!l:Jzc1
Cite :l~, C,d.)" '1[;(; [',::!d 3~f,
"TTi
:lpprO~lrt::.t1011, or ')r(:eri~jg imprC;\'Cnl,.:n:s
initiated by pe~itiot" loni:lg- map amnd-
melt was subject to rciercndum proce-
dures. Canst. art. 20, ~ 1 et seq.' C.R.S.
'63. 139-60-5.
2. Constitutional Law (;::::>278(1)
Due process requirements of notice
and hearing must be ;-;let in amending 2On-
lTIg map by council action.
3. Statutes ~341
Referendum is iundamental right of
people. Canst. art. 5, ,~ 1.
4. Zoning c=:>164
Ordinance amending zoning map in
the v.'ay that would deprive owner of all
economic use may not be upheld even
though effected through referendum.
Const. art. 2, S 15; U.S.C.A.Const. Amend.
).
March, ~-1arch & Sullivan, Arthur P.
Roy, Fort Collins, for plaintiff in error,
City of Fort Collins.
Harden, Olson & Napheys, B. F. Na~
pheys, III, Fort Collins, for plaintiff in er-
ror Joe J. Straughn.
John E. Kochenburger, Fort Collins, for
defendants in error.
KELLEY, Justice.
On May 23. 1968, the City of Fort Col,
lins, following prescribed procedures, en-
acted Ordinance No. 19, rezoning certain
property owned by Straughn over the pro-
test of area residents, including the de-
fendants in error, Dooney, Duncan and
Katich. On June 13, 1968, the defendants
in error, and others presented to the City
Council a referendum petition protesting
Ordinance No. 19. The Board of Elec-
tior.s of the City certified to the City
Council that the petition contained the req-
uisite number of signatures; also, the peti-
tion was timely filed.
At its regular meeting on July 3, 1968,
the City Council reconsidered the ordi-
nance and rejected the petition on the
_ ,'1 n' : t",:, ~ L:l e r ~
,':It C:t ,_;~"rt.cr \\ ;'1-'pl ,'a:l,e tu <eLL
crcLn":,,,:c ;\lllc:~di',c: -:1t' ; (I: ',,;:; :~lap
The City', on J,Jnc 2~, '.'~68, l11it1a:ed the
fjresent proceediCl';-s Tor a declaratory judg-
ment to determir.e the applicallllity of the
crJartcr referendum pro'.'isions to amenda-
tory zoning- ordin:mces. Straughn \\.:as
gra~Jted leave to Inter'. ene as a plaintiff.
The trial coue held ,nat the ordina;:ce
in question \vas subject to referendum.
The City and Straughn brought the ques-
tion here for review on writ of error chal~
lenging that judgmer:t. .-\S wili appeal', in-
fm, our revie\v of tne charter, the state
constitution and the findings of ract and
conclusions of la\'\I' or the trial court con-
vince us that the trial court correctly de-
cided the matter. \Ve therefore affie11 the
judgment.
[lJ 'Tne only :sst:e to be resoh'e'~: IS
whether a zoning map amendment passed
by the City Council may be subjected to
the referendum procedures outlined in the
Fort Collins City. Charter. As indicated,
we answer the question in the affirmative.
A second question which was an issue in
the trial court has been resolved by our de-
cision in Roosevelt v. City of Engle\','ood,
Colo., 492 P.2d 65. The issue was whether
the provisions of C.R.S.1963, 139-60-5
which requires a three-fourths majority
vote of the Council to pass a zoning re-
quest over a legal protest applied to home
rule cities. We there held that the statute
did not apply.
As indicated, Fort Collins is a home rule
city by virtue of Article XX of the state
constitution. Its basic law is its charter,
adopted October 5, 1954. Article XVIl of
the charter provides for both the initiative
and referendum, in compliance with Arti-
cle XX.
Section 3, Article XVlI of the charter in
part provides:
"The referendum shall apply to all or-
dinances passed by the Council, except
ordinances making the tax lev)') making
the annual appropriation, or ordering im~
pro'i..'cments initiated by petition and to
',j
318 Colo.
496 P ACITIC REPORTER, 2d SERIES
he paid for by special assessments. If at
any time within thirty days after the fi-
nal passage of an ordinance to which the
referendum is applicable, a petition
" be presented to the Council,
protesting against the going into effect
of any ordinance, the same shall thereup-
on be suspended, and the Council shall
reconsider such ordinance. If the same
be not entirely repealed, the Council
shall submit the same to a vote of the
qualified electors of the City in manner
as provided in respect to the Initiative,
at the next general City election or at a
special election called therefor.
" (Emphasis added.)
In Burks v. Lafayette, 142 Colo. 61, 349
P.2d 692. we said:
"The interpretative approach to the
power of referendum which gives broad
effect to the reservation in the people
and which refrains from implying or in-
corporating restrictions not specified in
the Constitution or the charter is sup-
ported by the terms of Article V. Being
a reservation to the people, it should not
be narrowly construed. "
The language in the Fort Collins Charter
is clear, unequivocal and unambiguous, It
provides that all ordinances, with but three
exceptions, are subject to the referendum
provision. It is obvious that Ordinance
No. 19 does not fall within any of the enu-
merated exceptions. See Brooks v. Zabka,
168 Colo. 265, 450 P.2d 653.
Upon reconsideration of the ordinance,
following the filing of the referendum pe-
tition, the Council adopted a formal resolu-
tion in which it made extensive findings of
fact and, what amount to conclusions of
law, determining that zoning ordinances
are not subject to the referendum power
reserved to the people.
The Council found and determined (1)
that Ordinance No. 19 changed the zoning
classification of the Straughn property
"from the RL-Low Density Residential
District to the RM~Medium Density Resi-
dential District and the RP-Planned Resi-
dential District"; (2) that the property
was annexed in April, 19j7 and was then
zoned RL~Low Density Residential; (3)
that, although the land on all sides of the
subject property has been developed, such
developments including the South College
Heights and Indian Hills subdivisions and
the limits of the City have extended more
than a mile heyond the subject property, it
has remained undeveloped; (4) that "such
fact indicates to the City Council that orig-
inal zoning was not correct and
was one of the reasons for the passage of
the rezoning ordinance"; (5) that on the
basis of the evidence "that failure to grant
the rezoning would have constituted arbi-
trary and capricious action on the part of
the Council" which would have resulted in
court mandated rezoning as requested; (6)
that an ordinance changing the zoning
classification for property within the City
cannot be lawfully enacted without a public
hearing before the City Council after pub-
lic notice is pnblished and without a study
and recommendation concerning such
amendment by the Planning and Zoning
Board; that in addition, the hearing before
the Board requires notice to interested-per-
sons "all as set forth in Section 19-46 of
the Code of Ordinances of the City of
Fort Collins, Colorado, 1958, as amended.
Since neither an initiated ordinance nor a
referendum would comply with such notice
and hearing requirements the referendum
is not applicable to a rezoning ordinance."
Whether the conclusions reached by the
Council would have been proper arguments
for excluding zoning from the operation of
the initiative and referendum provisions at
the time of the adoption of the City Char-
ter is not before us. As noted above, we
are here confronted with a charter provi-
sion which is so explicit that it leaves no
leeway for interpretation.
[2] \Vhen the charter provides that the
referendum shall apply to all ordinances,
except three types, none of which encom-
passes zoning, we cannot read into the pro-
vision an exception which is not there,
The due process provisions of notice and
hearing alluded to in the Council's resolu-
r..:-; J:U~-, ~,:.~< \ '1'--':-
,L.. '-, \: ~ t
..,[ .,.
:,,1'..,1
,y (~IT'
"it'
"::': m;
'.1011. \j~'
!;t'l)k:L Coio., -+'.-
..:J
"
89 ;LC1:0 :~c,,-J F(;I:-u:\:-y :23, 1';;-2.
The
[J.ct th'Lt due -process requirernen:s m('.)' be
met 11J UCC :nal~;JtT when 'Jle chang-e is I)y
CO'.:I,C\1 ;LC'"IOI1 does not preclude other pro-
cedures {ro;ll meetlr'!g clue process I:r'.>
ments u;lclcr the reicrench:m.
"The election campaign, the debate
and airmg of opposing OpiOlO;JS, s',lppknt
a pU8];C hearing; prior to the adoption of
all ordin;,nce by i:le n1t:llicipal go\'c~nir,;::
body," :\leridian
Edisor. Townsl1ip,
,\.2d 121.
De\'elopmc1t Co v.
91 ?\.J.Supcr. 310, 220
.,
"
[3J The rderendum is a fundamental
right of the people of Colorado. In Sec-
tion 1, Article V of the Constltution of
Colorado, the people gan legislative po\\-er
of the state to the general assembly, but
the peopie reserved the "power at their
own option to approve or reject at the
polls any act, item, sectIon or part of an;.
act of the general assembly."
This same section continues:
"The initiative and referendum powers
reserved to the people by this section are
hcrcby furthcr rcserved to the legal 7.-'ot-
ers of C7.-'cry city, tOV.!H a.nd municipality
as to all local, special and municipal leg-
islation of c'vcry character in or for
their respective municipalities. The
manner of exercising said powers shall
be prescribed by general laws, except
that cities, towns and municipalities may
provide for the manner of exercising the
initiative and referendum powers as to
their municipal legislation. Not more
than ten per cent of the legal voters may
he required to order the referendum, nor
more than fifteen per cent to propose
any measure lry the initiative in any city,
town or municipality." (Emphasis add-
ed.)
[4] By adopting the view we have, we
do not mean to imply that the property
owner is ipso facto stripped of his consti-
tutional rights. The constitutional rights
tr.
') ,'~\:' r)x
',(>,1'
{ ~ \.' "
"":
)I
c.c'--
~lUJll~C' ('It: cou,:(~; I iJ~ I:':' ';w \i"=Clpl,~ :t~t-
I:,g d:rec::l;. ll: nlU;lLve ur rCTercnc.',:r,l.
\Ve can conc~i\'e of sltu:l:io:1S wh:re the
court rr.ight hold that the action ot :he
t>:cto:-a~e was :irb,tr:lry 2."cl
L'nc\t_l :i() ClrCl;"i<~,;lces co\.: ~ .:-.C (lr<"'Ll.;~''':
amer.dl:lg- \.he zen,ng map ~n a W~c'; tnac:
\VC,U;C deprive the Ol.\nn (.11 all eCQ:-',c,mlC
use be 1.:pl~eld, Colo.Canst art. II, S
l'.s.CCl:lst" Amenc. \,'.
Judg:1~et1t afii;-med.
D.\Y, HODCES a~ld LEE, jJ., CO:lCUr.
.
o ~ nr ~UMB[~ 11\;,"'1
,
ESTATE of Katharine C. nEWSON,
Deceased.
Malcolm C. SMITH, and Ilda R. Smith,
Appellants,
v.
Donald H. JACOBS, As Executor of the Es~
tate of Katharine C, Dewson, De.
ceased, et aL, Appellees.
No, 70-574.
,
,
Colorado Court of Appeals,
Diy. n.
Feb. 23, 1972.
Rehearing Denied :\Iarch 14, 1972.
Certiorari G-rantcd rvlay 15, ]972.
Selected for Official puhlication,
Executor of estate hrotljY~t action for
construction of article or will. The Pro-
bate Court of the City and County of Den-
ver, David Brofman, J., entered order after
determining that will \vas unambiguous
and refusing to permit parties to offer evi-
dence, and residuary 1egatees appealed.
:l19
\
,
'" ...., '-,,'.... "'.~'i"..'-~' ", "'j-I'" -..... -::; -'''"...:'- """u;,-,U 1)IU'Ilued'
tioo 31 ~23~222 or, in the case of an appeal. as awarded on such appeal as provlded i
31-2?-?23..shall at a~y time be paid by the muni.cipality ~r public to or recovered 7r
m~nlClpallty or pU,bil~ by any p,erson for .the takmg of?r Injury to any building Or St
bullt or erected wlthm the penod fixed In the resolution of the oovernino bOdy
. ' ::>::> upo
such reserved location. No compensatlOn or damages for any such reservation shall b
Of recovered except as pravideu]n ~ections 31-23-221 to Jl-23-223. e~
':/,iI'
\\.23~:
,"J..S..tl
..' l11Ul1
.-111
~ ~o"e
~j\~ber
',c)ccUj
:'- - ht ~1
~1~11
,(l.lctU1
.~lricti
':--.:-:Wl
1(.'\\,' ~r
~)Ylk
,,\J i~l
~rlJ"ls
~cure
"",S 0
f3tef
,'\Jose
,rty r
Juth\
tLl \~,\
p0S~
welL
(2
l[l1\
lllal
pro
\ncl
~\ re
thL
I
75: Entire title R&RE. p. 1154. S 1. effective July 1.
,1"1,
>~
.225. Major activity notice. When a subdivision or commercial or industrial-:&
osed which will cover five or more acres of land, the governing body of the ~
ipality i hich the activity is proposed shall send notice to the Colorado land USe co:~
slon. the s e geologist. and the board of :ounty commissioners of the county in wh' h1lli&.
Improvemen ' located of the proposal pflor to approval of any zoning change,subdi~' .~,_
?r building pe it application associated with such a proposed a.ctivity. Such notice sh~~
10 a standard fa . shall be promulgated as a rule and regulatIOn prescribed by the C0l-
orado land use co ission, and shall cantam such mformation as said land use comm' .
prescribes.
Source: L. 75: Entire .tle R&RE. p. 1154, 91, effective July 1.
f the state geologist upon receipt of a notice, see S 34-1-103(4). fF
.~
31-23.226. Applicability. is part 2 applies ta municipalities, including home rul~-
cities and towns, insofar as const tionally permissible and except as limits are placed upoi'~
its application within the bounda s of home rule cities and towns by the charter Or ordj:-:
nance adopted pursuant thereto of id cities or towns.
Source: L. 75: Entire title R&RE. p.
31R23-227. Allocation of powers or dut _ (1) The governing body of a municipality
may, by ordinance, assume and exercise an ower granted to or duty placed upon the
municipal planning commission by this part 2 a may, by ordinance, delegate to the munic~ ':"
ipal planning commission or other appropriate unicipal body any power granted to or
duty placed upon the municipal governing body this part 2, providing that the right to
appeal to the municipal governing body is retained any such delegation; except that the'-;~
power to impose fines and penalties may not be deleg ed. . ,Ii
(2) The governing body of a municipality may. by 0 'nance, enter into an intergovern.
mental agreement with the county or counties in which it ocated for the purposes of joint
participation in land use planning, subdivision procedure nd zoning for a specific area
designated in the intergovernmental agreement. However, a action taken pursuant to the
intergovernmental agreement that pertains to any land within e municipality is subject to i
final approval by the governing body of the municipality. .
~
96: Entire section ~
.ijj
i;~
~\ll
ul
III
"
Source: L. 83: Entire section added, p.
amended. p. 575. ~ 1, effective April 25.
PART 3
ZONING
~
~
Cross references: For county planning and building codes, see article 28 of title 30.
Law reviews: For comment, "The King Can Do Wrong: Local Government Immunity From Zon~
ing", see 57 U Colo. L. Rev. 639 (1986); for article, "Pronouncements of the U.S. Supreme Court Relat-
ing to the Criminal Law Field: 1985-1986", which discusses a recent case relating to municipal zoning,
-,',-'
?1;lil: !1
/ ,"
'!--
see ~ Col,) L> : ,~Ii': ~ ! (,i'\I;)
AC:iun". s'.:~: L" CJ:l'_ I ;jl-',' :::-1-1
'see 25 Colo. L:lw_1: I1\Lrch
; I "I'I-'u,-::c::Jl
'i-;:C:C: "__;I[h! "; [):':~>I,I r:Llkl,L: : ~'gl,l.l
I'),')ll:: for ;1:l1cL:. ':)iIOSiJIlIII.,-' Due; I'j')c:,:ss d~hl
J 31.23~30I. Graul of power. (1) Except as otber'A'ise prov:ded in section ~'-i--1-305,
:CKS., for the purpose of promoting health, safet}-'. morals, or the general ',\:elfare of the
.community. including energy cor.servation dnd the promotion of sOlar \..'ncrg~. utijizJlIOn,
..'~- the Qo\erning budy of each mUllicipalitv is r::mpowcred lO reguiate ami restrict the height.
I>um~ber of stories. and size of buildings ;ind other structures. the pncentage of lot that may
.t>eOCCUPJed. the SIZe of vards, courts. and otheropen spaces.lhe denslt:. ul population tl,e
' ~;helght and location 01 trees and other vegetation. and the lOCJtlon and use OL hurlolngs.
'structures, and land for trade. industry, residence, or other purposes. Rcgu13tJO;]S and
,Jestrictions of the height. !lumber of stones, and the height :1nd loc<ltion of tr;.;(:_~ (lnd other
<vegetation shzll not apply to existing buiJdi'lgs, structures. trces_ or vegetation except for
_;new growth on such vegetation. Such regulations shall prov'idc th;ll a board of i1.djllstment
_:may determine and vary' their application in harmony \vith their gener!l] purpose and intent
and in accordance with genered or speciJic ruks contained in such regulations. Subject to Lhe
-t.fovisions of subsection (2) of this section and to the end that adequate saf::::t.\' may be
!~curcd, said governing body also has powc;- to establish, regulate, restrict. and limit such
,uses on or along any storm or floodwater runoff channel or basin. as such storm or flood-
ft'ater runoff channel or basin has been designated ond Jpproved by the ColoTJc:c) \\ztrer
t'conservation bOi.trd, in order to ksscn or ;)void lhe hilzards to persons and damage to prop-
I~~:eny resulting from the accumulation of storm or lloodwaters. Any ordinance enacted under
: ~Buthority of this part :3 shal] exempt from the operation thereof any building or structure as
"10 which satisfactorv proof is presented to the board of ndiustmcnt thar the present or pro-
'it,;posed situation of s~ch buildin~~ or structure is reasonabJy 'nCCe5SJry for the cOf1\cn!ence or
'C"welfare of the public.
,'f~(2) The power conferred by subsection (J) of this section for flood prevention and con-
gl shaH not be exercised to deprive the Owner of any existing property of its future use or
maintenance for the purpose to which it was lawfully devoted on February 25, 1966, but
ovisions may be made for the gradual elimination of uses, buildings. and structures.
, luding provlsions for the elimination of such uses when the existing uses to \vhich they
'~ devoted are discontinued, and for the elimination of such buildings and structures \vhen
~ey are destroyed or d.Jmaged in major part. ~
;,,: (3) The governing body of any municipality or the board of adjustment thereat in the
e~cise of powers pursuant to this section, may condition nny zoning regulatlOn, any
~ndment to such regulation, or any variance of the application thereof or the exemption
Y building or structure therefrom upon the preservation, improvement, or construction
y storm or floodwater runoff channel designated and approved by the Colorado water
'ervation board.
4). No statutory or home rule city or town or city and county shall enact an ordinance
lhibiting the use of a state-licensed group home for either the developmentally disabled
e..mentally ill which serves not more than eight developmentally disabled persons or
'. entaIly ill persons and appropriate staff as a residential use of property for zoning
ses. As used in this subsection (4), the phrase "residen~ial use of property for zoning
. ses" includes all forms of residential zoning and specificai1y, although not exclusively.
e-familv residential zoning.
~~~, (a) As used in thiS subsection (5). unless the context otherwise requires:
1:'~fW( "Manufactured home" means_ a single fami_!.\' dwelling which
_ A) Is purtiedly \Jr l:ntlrcl~ Il1JDUJacturuJ III a tactor.\':
~.;.1(B) Is not Jess than twenly-four feet in width and thirty-six feet in length:
~ ~ Is installed on an engineered permanent foundation:
. Has brick, wood, or cosmetically equivalent exterior siding and a pitched roof: and
Is certified pursuant to the "National Manufactured Housing Construction and
Standards Act of 1974.'.42 USe. 540] et seq.. as amended.
"Equivalent performJnce engineering basis" means that by using engineering cal-
"ons or testing. following commonly <lccepted engineering practices. all components
SUbsystems will perform to meet health, safety. and functional requirements to the
Xtent as required for other single family housing units.
Ii
_~,-=':-<:'iJl
Gl)Vernmt:nt - \Iunicipal
I'h) II) 00 rnuni~ip(lli~y shall h~iVe or cnact zo~ing r~gllbti(1ns, 'iubJivisi?n regUlatio~~'
~'f (lny uthc:r rcgulau(ln al,kctlng Jevel(lpmC~1 \\'htch exclude ur h;l\'C the ctfect of exc\~'
~rg m;lnutacturcd homes from the mUnlClpallty If such homes meet or exceed. on an e .d..
alent per~orm.ance en~ineef1ng .basis~ st,:mdards cstablishcu .b;' the municlpal b~ilding~::: ~~':
(II) ~othln!!.l!l Ih15 subsectIon ()) shal1 prevent a munIClpaltl\' from enactmo anv ~:~.......
~ ' ' - ::> lor}..
ing, d(\'elopment~l. use, aesthetic. or hlsto.f1cal s~a~dard. inclmling, bu.t n.ot hmited -,.-.:;'--,
rcqum:.ments rebtmg. to permanent foun.datIOTIS, mlOlmum floor spClce, UTIlt sIze or sect.lt\~--
, lOn."o",,-
~:i :--....:q'JIf~llll'nl> and lnlprO\'CnlcTlt loclllnn. SIll:..: \aru. an~ scln,lck stcJndard~ to the C\kn
, >. >.~I~ <!.,:'h1:IT'L!" '\i' ~Tl\;1l1" :11'~' '{\ ,-:\h,11:;'_' I~r I!C'.~' !1'lL1"ln:,.' within .;1
:-.)JCClflC use district l)[the munIcipality. . \'11:
(llIJ :\()thin~ in this subs_eclion (~),'ihall r:-ccluJe :Joy nlLlllicir,tlity from enactin
muolclpal building code provisions tor unIque public safety requirements such as snow I &
roof. \vind shear, and energy conservation factors.
(IV) Nothing in this subsection (5) shall be deemed to supersede any valid coven
running with the land. 'c!,
Source: L. 75: Entire title R&RE. p. 1155. ~ L effective July 1: (4) added. p. 934. ~'57 ..
effective July L L. 79: (1) amended. p. 1163. ~ \3. effective January 1.1980. L. 84: (5) add~r","
p, 824. ~ 2, effective January 1. 1985. L. 87: (4) arne,nded, p, 1217. ~ 2. effective July 1, ,;-1
Am, Jur.2cl, See 83 Am. Jur,2d, Zoning and He:ghts, Ioc. v. Central Bank & Trust. 6S.s P,Zd ~""
P!unnins:. ~ 4 872 (Colo. 1(83).
c.J,S~St::c llllA CJS. Zoning & Land Plan- Subsection (4) constitutes a legitimate limit.J:;'
nln!!. ~ ~ :1. S, \1. II tion on the legislative p()\-vers delegated to Sl:ltu. -
Law re\ic~\s. Fur ;lrtick, "C<.)lorm]o Ne<.:ds J. tmy '.:itles. (iknnul1 I-kights, lnc, v. C~ntr;ti U;ll\t
Constllutional and Effective Roadsick Si!!n & Trust. 65S P2J.'\72 (Colo. 19C-;J).
Ln"''', ~ee 3h [}ict::i 475 (l (j59)_ For note, "Sp-ot State has authority to en:"lct legislation for lht
ZOOiD,,", sc:<:: 3'+ Rockv Ml. L Rev, 231 (1962). Wdrllrc of developmentally disabled cili:.tt:JlI
For note, "Zul':il1'! V;riJ.nces- The Colortldo under its police powers. Glennon Heights, Inc. '(,
Position", set:: :;.:\ Rockv Mt. L Rev. 382 (1%2), Central BD-nk & Trust. 6S.s P.2d 872 (Colo. \l)fG),
For article. "1974 Land Use Legislation in Col- Exemption of municipal activities from lOn-
orado". see 51 Den. LJ. 467 (1974), For com- iog ordinances. Exemption from zoning, ordi.
men!. "Rci!inn,l1ism or Paruchiulism: Tne Llilcl nJnce must he rur~U;l!lt tn statutory procedure,
L':-;e: Pl:ir,n~r's j)ikmlll~l--, see --IS L, Culn. L Rc\ :lnd the go\'c:rnmC:llt,-,I/prupric\dT'\' JiSlinctilln i\
575 (1917), For article. '.Cumulatlve lmpclct rejected as J m.;,ll1S for (kterminll1~ when II
Assessment of \\'estern Energy Devdopment. municip,tlity must obe)-,' its lonll1g or-din<lnce1
Will it H.lrmen'.'''. see 51 U. Cola, L Rev, 551 Cbrk v. Town or Estes Park, 686 P.2cl 777 (Colo,
(ly.'\I)). For' ,~rtick_ --\\iinlllng the Rezonin~". See 1\18.1)
11 C\JI(\. L ,)-1 (1%2), For articl<.:. "The Zoning is a matter of loc:ll and JIlunicipal eun.
Emerging R<.:b:i\lllship Between Environmental cern. Service Oil Co. v. Rhodus. 179 Colo. 335,
Rev-ulatlons ,IPj Colorado Water La",,'--. see 53 500 P.2d fl07 (1972): Nopro Co. v. Town of Cher-
E Colo. L Rev ,~~17 (19R2). For note. "Referen- rv Hills Villas:e, l~() Colo_ 217, 504 P.2d 344
dum :md R<':i"j!,in-,::". see 53 U. Colo. L. Rev, 1-15 (1972): City o(Gree1ey v. Ells. 186 Colo. 352.527
(1982), For DU'_''':.~ "The Permissible Scope of P.2d 53B (197.1),
CompulSOf\ !:>.:qllirements (or LJnd Develop- Zonin" IJWS is an area which is best left to
ment In C(,]\)L:l~U", see 54 U. Colo. L Rev. .147 local gov~rnmenL and deCIsions which relate to
(L983). For ;,!.'i_'k. "Judicial Review. Rderrzll the decided course or community development
and l!li:iatiC.lr; '_': Z<.1nin~ DeciSIOns". see 13 C.-)lo should be upheld. (:\'cn thuur,h a ;eviewing Cllurl
Law, 387 (llJK-I). Fur article. .'The Antitrust Ch<:d- may disagree with the wisc:n~ss of the municipal-
lenge to LocllCovernment Protection of the ity\ choice. Rndeman v. City & County of Dcn-
Cc~tral Business District", see 55 L'. Colo. L ver. 1K6 Colo. 25U. 526 P.2d 1325 \ 1974).
Rev_ 21 (19.')3). For comment. "State Clnd Local City council did not abu~c its discretion Of
Re!!ulJlion of Timesharing in Colorndo". see 56 exceed its jurisdiction in denying application t~
L Cola, L. Rev, 28lJ (1985). rezone property from residential to limited reSl.
Annotator's note. Since S 31-23-3()1 is similar dential-comme.rcial when there \Vas competent
to former ~ 31-23-201 prior to the IlJ75 repc31 eVIdence of a bctual basis in support of the zon- .
and reenactment of this title. and laws ing decision. Christiansen v. Golden City Coun-
antecedent thereto, relevunt cases construing cil. 757 P.2d 1121 (Colo. App, 1988). :.~>-
those provisions have been included in th~ Section does not make counties immune or
annotations to this section exempt from municipal zoning requirements. La~'*i;
General assemhly has power to legislate lOn. Plata County Comm'rs v. Board of AdJustmcnl.,:;:.'.
ing reguhl1io'ls appliClhlt: to statulory cities. ,15 768 P2J 1250 (Colo. App. 19.sS), -'
distillgulshed !rum home ruk citi<.:>:_ Gknr,un
I;"~lrd \II lllll 111\ c. IfJIIII issi lillt: 1-' d i L: JI' d
e,\l'ecd ih juri_sdiLtillll I!r :lhuse ib di,crt:li()!l
wht':~ :: (',Yl,::Uckd L1dl it [-'l~'-pd;(lk
P(I:<~,j ~:Sc: Ct)!llu:-:T,L'.j i;l II',,: Pc.. [) LUill'
~ii1CC: 11 \\,!5 ,,~;-':'(:<:CL:t ,)1 the etch\
;lU~S'i~:: ih1;11 , ;i1ll 1:1,
I~:' 1\'1': ~<l' .. J: I, '\\ (".I :",
:r:et .-\bl1U;' Bel,n,l u: (\ll;:l,\ r~
\\<:1(1 CIHI:1I~SL)5 P.:::( ilD_'" (COlO. Apr. IC;'j:
ZilIlin!! i~ <1 proper c:>..l'rrise of the,lale.'
p(Jlil'l~ pt;\\l'L R::L(k[~la:1 \ Cit:, &. (>.1:.1[:t\ ,-~I
Ll<:'lVtT ISh C;Jlu ':::511 :52(-, P2J 1325 (]\i;J
i-:,c P('\\'~:i ~:,ld (,1:-:::,' (11 :"'\,',~'I
~l i:C: [1 J 5 : n i 11 t' Iil '():~ II~ co
urjll;:\:lCI:S.ol till' Joclrlne (;-1
~~I\'r'pel do,.:> iwl F!l:m \ T:-e;Hhl(:;1 ::1)
Colo_ 117. ::'.CJ7 P.2~: (!',,l--1-9J: \Vltkiil l-jOrTh;-;.
Inc. \" City i..\: CUUillY UI Denver. 3: C')lcJ'\PTJ
4i(J, 5()--1- P.2d ] 121 '(Fi::'.)
Certain rights yield to zoning regu]:Jti()l1s.
r.\~:llhough ::1'': rl~!ll ()r' irt.::l:'JO:lll-,f ;:SS()Ci:i:,(l!l
: I :1 ~ 1
:li-~ CI',' <I'l.,:d ",<';1:'-; : ,1l\ '1'"
n'
,
,::;'"llh
i;:'(" ~:l ::-, ,I j-
\
\ ;~ I ,; ; l' L ,,1111
CilY & Cm:nt\" ();
!',2J L~25 (is:7..; \
If necessary to protect cOlllpl'llin;,: and sub.
l.llwtial government interbt. Ii' ~,: /.\Inll~f' rydi.
"',I'll iii', l'c'[',C:,I:11'~'nl:l: IIt:hb. Ih~ ':-~:I-
1\.11)(( m:1Y :;u~t,ii:lL'd unly upon :t ~iHi\\'lIlg
lhJ! the burden lmpmed IS nccess,-lry to prol<:ct
'compelling and substvnli;l] government lnter-
.;, r;~!. Rademan Yo.. City &:.. Coun'tv or Denver. 1.%
. Colo. 250, 526 P.2d 1325 (1 Y74),'
-- Such as to prnviul' for the health, safety, ami
1I-drllrc of its citizellS and the general put/lie. ,I
ClIy has the DO\\(;1 to c!:lssii\ I:lnd Within its
~'::'ld;lr:es fU'I- \]'ei:i!iL'd u-;c;s.13ii'd I, Cit\, u! Cu!-
\.I.,Ju Springs. 170 C 0]0. 32. 4SlJ P2d 324 ( 11)71 )
",' - A zoning ordinance is presumed to he \':Jlid
~~l1\d one assalimg it nr.:ars the burden of over-
.,<;urning that pres~umplion as the courts indulge
-~tevery.mtendment in favor of the validity of
':~t'h ordmance. City &. Counly 01 Denver \
t9tk Ruw:nt Ch<:no!et. Inc.. 31 Colo. App.
, .SOk P.2d 789 llyn).
O~ce the power to classify land to specified
IS. e>:ercised by a city, it is entitled to a pre-
lion of validitv and one assailing it bears
bur,den of overc~ming lh<:lt presumption. and
. Indulge even' intendment in favor of its
''''~C4lo1~~~ ~ird \, Cit':, (If Culurado Springs, 17(,
'L. J~.. 4,<';l) P.2u 324 (J Y7]).
,~ lnlr1~ ()ld!i~dllc;:> III::.: (>the! k'Ci',1:,tl\:':
~~':~>:;l:-" ,.[~' !'i-c',UIlIc:J \~dld. i ,Jld L\.:~n:i-L~
. f1l:5")~'\- Bodrdul ('\lUllt: ('umm'rs, 1,<";(> (ulo
-J.. ~P.2d ~37 (IY7--1-),
. home.rule Cltv zunino coue is (\ leoislative
":;~l ~nt which i,,'pJ'l.;sum:cJ lu he \'i.dil elly or
;:?rL~4)t:~ Y. Ells, ]Xh ColI), 352. 527 P.2rJ 530
*'~d()n'l . . .
~'-,' ,,~ bUrd .c t: l~lIel\glllg a ZOlllllg ordlnallce Iia,s
;ft~."lh en 01 proving heyond.<I rea~(Jnahle
'L"'" at'. . .
..,-. :"ltd of It IS 1lI\,..~id. h~lu L:aslng Dc\. (\~ \:
2J)(COUIll~ CUl11lll rs, 1,<..;6 Colu, 4],'-;. )20
-1,r. 1\)74).
I ,~(l ( ,du 25"_ 5:::6
ilL
~'lt \
el" tho:: ",,~
1'1:,-,-
,J,-
'-l' 1 ":lTl::~, : --;h 1_',]:1.)
]n i~~,:kngill~~
",'l1l-:
,) c: ;l:lf<I~:J ;i;:! t ,1:-'
) rc~ ; n : 1 :1 L- ~'
':1'
C:'
I;",,' hh :,I:L'
,~ (,'llIH\
1\:: hULl ~: Ue u, 1:, \\
DC:ll\'t:'1 Ru\\c:,,-
uiu \~l!l 1 (J;, 51\" ["-2.J :,-;,,)
Ci,t.::\'l':' ('1. he..
11'
1":1, 1':c.:' l:iI1 'II' u. :li.:::~ ",\ ,::-1'':
'-,i-ch' :L,L:: pl'< C::S, ~-S l!~,:c('S2~ tht: :iti~Jl:1
::1\.: ,y,lin,ll~i:~'~ tho:: bU:0C:;:
that the ,xlhn,lncc.: l~ dilCO,lstltclliu:Jil:
:1\ "C(:l; dnd
(ii-cc::,:\
c\ld2ni:::_ C:t~
352_ ~:::'7 P:::d 5:::',"
(]I.n.:)
Substantial compliance \\ ith statutory IHO\-i-
,ion' i_ ITljllirl:d fur la\\lul 1'1l~lctml'llt of a IOIl-
ill~ dl;IIl:":C [j(' ::11,1:: 1\:;:-, "C:i1
:T,:IIHi:J:L'S ll( thL' S;:.ilutl'''- I th:.: pro-
(('('din," (It \\'hc,,; Rid~c, :JS
Culo, A..rT- --1-;-;5, {l(rh~1
Fac1or~ to he con~idel"l'd in con.;[ruini! ordi-
1t~lIlce. [;eC,lU~:': 1',\jlli~C: IC[\\,-; :-,hl!ulc::''- c:i\:.;-'
:air ,IIKI r::'a~\\llabic co-n",rUClli.>ll 111 l!ght Ult:,\.:
sc:ttlno; in which employee. the Lluurs surround-
ing adoption pi an ordinanc<: shuuld be consid-
ered. \Vainwriuht y_ Cit\' of \VheJt Rluc:e. ?S
Colo Apr- --1-85,- 55S P.2d 1 U05 (l Sl7fi\ ~
Zoning. sinc(~ it restricts an owner\ right to
use hi~ property. constitutes a partial t:Jkill1,!. bUl
it is c{Jllstitutionall\' permlsslhk. hu'xc'\er. -;()
Inll02. ~l_~ il lS r~:~s'll~~I'bL:_ Sr.:n:ct' Oii C:, \_ Rh,'-
duS: 17l) Colo_ 335. suu P.2ci i)()7 (j Y72J
And Ll landowner need not he permitted to
make the most profit:Jble use of hi:, land. The
due process and just compensatIOn clauses do
not require that zoning ordinances permit a
lando\\ner to mak2 the most profitable use of
his property, Bird \'_ City uf Colorado Springs.
I7f) Colo. 32,489 P::'.d 324 (1971): Baum \'_ Cit\. &
County of Denver, ]--1-7 Colo_ 104,363 P.2d 6SS
(1961): Nopro Co. v. Town of Cherry Hills Vil-
lage, 180 Colo. 217,504 P.2d 344 (1972).
~1l1ere is simply no constitutional!y protectc:d
riaht under the federal or state constitutions to
z,~n the maximum profit from lhe us(' of proper-
1\'. .'\orru Co. v, 1'0\\-11 ()f Cherry HiPs Vi]L1g.c:, 1;:-;i)
\:,111,21' ';11..) P2d "-1-4 (!(i"7::'.i
j~l~l:i 'U >:~,iii l'ld\IIl)UI~', ri\':l 11,'Ii; Li~~
p]'()p~nY n()t~ cOllsli,ullund]I,' rnl\e:.:tcJ Th:.:re !'-
simply no conslIlullun:tlly prutected righl under
lhe federal or stale cOllstitutiol15 tn guin the
maximum rrufit frum tile use ur properl~, City- &.
Count\' of Denver ,', Chuck Ruw:lrt Chevrolet.
Inc.. 32 Cu]o, App. lLJl. 50<''; P.2J 7klJ (j 1)7:').
The vaJidit\ ul zpninl.'. urJin~lllc<,:~ hd~ rh;\CI
been JClcrm(nc0 h\' th~ hi!!heSl :ll10 hest U~l'
cUIKelll ur in lerrm l.lj' rroli!:j'hi]ity_ CilY S Coun-
ty uf DCI1\'L:r \', Chu('k Ru\\art ChL'\'rukt.lllC ..,2
Colu_ Apr. 1 LJL ~lJ<" P.~d 7,\lJ (jLJ7:,!
'1:,:
0;
:>] -2~ 31)]
(j',l\'Cr~rTl(:nt - 'lnlCI
Tile; ,T<;_ I:~t II,:' li-' ;cg 1:,\11;'" :'~;)I"e:, ;:k
;Jf()pt.:;~:i 1)),nCr, ilC ,!iU'it ;_;rill:u lk: Lhe: 01 :lh
prllpt.:i'ty i\ 11')1 :~'_;',':~'iCirilv C[II)u~h tu L'il_:lhli'i;'l
l:lC I)'.vm:r'; ri,;:1l ") ,-':(l:npe'n:)<lliun-_ An :-;o:on Co.
Cil'.- y (',)unt' >I Deiwcr. --1SS F=d I [S Illith
eir. ['n:n, <':<:;"1_. dt:nicJ, 417 US )]2, 9..J. S, Ct.
2644,41 L. Ed,2d 2311 (\974).
If th~ land in question is susceptible to any
re:I.'ion:Jhle fir J:l\\flll lIse linde, the Lbs,~ifit:utinn
Illlp(I'it:d by d ,.:iI' ; he \)rdin:,lh:c>\i!1 he :lll(i\\<':u
to stand, Bmi v, CIIY O[ CulorZlccl :)prings. liA
Colo. 32, --l.f-jl) P2d 324 \ 1971): TrClns-Rob!t:s Corp.
v_ City of Cherry Hdls V'illage, 30 Colo. App. 5 L1.
497 P_2d 335 (197:2), affd, 131 Colo, 35ri, 509 F2cl
797 (1973).
Zoning ordinance is unconstitutional if it
deprives property OWn~r of any reasonable use
to which his land may be put. City of Chary
Hills Village v, Trans-Robles Corp., 181 Colo.
350, 5U~ pid 797 (1973).
A zoning ordinance is unconstitutional if it
can be shown that the zoning ordinance pre-
cJueles the use or property for any reasonJble
purpose. Ford Leasing Dev. Co. v, Board of
Coumy Comm'~s, ISh Colo, -+18, 52~ P2d 237
( ll)74)
In order [or the courts to holel J zonms:. ordi-
nance to be violutlve of the due process rights of
a property owner or to iotert'ere with the discre-
tion at" the zoning uuthorities in dr:nvin2: zoning
boundaries, the person challenging the zoning
ordinance must establish bevond ~lr1V reasonable
doubt that the property ca"noot b~ devoted to
anv reasonable I:\\vlul use under the ch::llknged
ordin:.tncco_ Cltv & Countv l1f Denver v, Ch~c:":
Ruwart ChevT~ld, Inc., 3'2 Colo. App. 191. 50B
P2d 789 (1973).
Or if not substallti:.Jlly related to public health.
s<Jfety, or welf:ne. A lonUlg ordin'-lnCe is uncon-
::ititutiomll if it C~ll] be shown that It is not sub-
stantially related to the public henlth, safety, or
welfare, Ford Le3sing Dev. Co. v. Bonrd of Coun-
ty Comm.rs.186 Colo. 418, 528 P2d 237 (1974).
In a challenge to a general zoning ordinance.
the outcome turns on the exercise of the police
power as bearing a reasonable relation to the
public health, SJfcty, morals, or \velfure, Snyder v.
City of Lakewood, 189 Colo. ---l.2[, 542 P.2d 37L
(1975).
Whether zoning provisions are reasonable
and for promotion of public health, safet:y. and
welfare, is to be determined by the court tram
facts, circumstances. and locality in the particular
case. Bird v, City of Colorado Springs. 176 Colo.
32, -+89 P.2d 324 (1971),
Group homes permitted in residential neigh-
borhoods as matter of statewide concern. Group
homes for developmentally disabled persons are
permitted in residential neighborhoods as a mat-
ter of statewide concern. Roundup Foundation.
Inc. v. Board of Adjustment, 626 P.2d 1154 (Colo.
App.1980).
The 2:eneral assemblv intended thilt !!fOUP
homes far the uevelopm~ntally disabled b~ con-
sidered a residential Llse of property and thnt
':';~lit~c;,J I~ _~il .,_,~;, ". , ',-'
"llu I " I Ih I I H, n'l I ^
r - C <lrntl ..-~..::
t \ III thb ItlL..l1t to r
- Hllle,l 0 I d,,,, ,t~ 1"'1\ IL 01 1 spc...I:\1 ri
:; :TIlt Url lh_ ll,\I.; CS,,", "It_c 'Ill thc "rou h lilt .
h :y D 0...... '
., I" ,1I1'-!,1~ I,lnlllv '_h II' lCld ,l'c<; ot h ..~
e'lCI~
-( r:HJl,J ur <In lh" pc lee Clnu '-lll1et of the riel -
-rJfl'lood In clcklltlOn to the ,\ tltude of "'ne~ -
In thc r!r.;I~hhl)rh\Jl)d tu'\ lrd~ Lhl~ III .
~r d ,\j,lIm ("(\llnL ,\,\ 11 tor R':l~~
~- (:ti/t.:,1~. 1)1 \\c~t:nlfl\t-H 'I'll l" ,\,;.
- ,_ 5,--';(j P2d : 2ctf., (i ~, . -' ulQ.
Although mUllidpalities nwy regulate ce
aspects of construction and location. The ge -
JI assembly OdS expressly reserved to munici
ities the right to regulate several aspects of'
construction and location of group homes:
order to avoid adverse Impacts on the neigh'
hood. <:IS long as. such :cgulatiotl IS not tanl~~
Glount to prohibitIon ot such homes within an-f'
rtSldc:ntl<:ll dlstncL ~lennon Heights, Inc. v.~:il
[ral Bank & Trust, 0)8 P.2d ~72 (Colo. 19~3). ".
Zoning not disturbed unless r~gislathe hudy , .-
:xce,eds powers. Zoning determmatlOn cannot
Dc disturbed by the courts unless it 3.ppe:\rs [h.:lt
~~-:: kglslClllve body h,15 c,'\ccded its pO\,vcrs \If
>i aClcd Clfbttr:mly or unrc:1sonJblv, Citv uf
Greeky v, Ells, lKh Colo_ 352, 527'P.2d 'SJlt
~n--1.),
Proof that it is not possible to use land for any
of the uses permitt~d in the intervening ZOnes
hetween the zone sought and the existing zone Is
J prerequisite to showing that the property has
bt:::n unconstitutionally con!lscated under exist. ,""
::":'1: zoning Ford Le::t<;ing Dev Co_ v, Board ill
- )U:tly C()mm'r:~, 1<',,6 Culu_ --l.l;-). 520 P:J :ji
il'i7---l.),
\Vhen a citv annexes land from a eountv, the
power to zon~ that I:md shins to the city, S-ird v,
C,y or' ColorJuo Spnngs. l71S Colo, 32::1-.'\9 P.2J
3:::..:. I LlJ7l)
For issuance of writ of mandamus to compel
issu:Jnce or building permit where zoning onll.
nnl nee is luneonstiRtutional. see Hedgcocckl v. ~e22.o- ~.,:~
p e ex re . Arden ealty & Inv, Co., 98 0 0.) __:
j7 P2d 891 (1936). <
Property owners h:Jve the right to rely on "
existing zoning regul:Jtions where there hilS be~n
:10 material change in the character of the neigh.
borhood which may require rezoning in the ru~-
lic interest. Roosevelt v. Beau Monde Co" [)2
Cola, 5ri7. 384 P2d 9fi (L9h3)
Applicability of estoppel. To invoke the Joe-
trine of equitable estoppel in relation to a zon.
ing ordinance, the plaintiff must show substan-
tial reliance upon the zoning ordinance anJ
r:-:ere procurement of a buddmg permit IS Insuf.
ficient. WitkIn Homes. Inc. v. Citv & County of
Denver,31 Colo.App_410,504 piJ 1121 ([972),
Party seeking application ot' doctnne of eqUl- t...'
table estoppel to government action must sho":__
reasonable reliance. Bentley v. Valco, Inc., Jolt . ,c.
P2d 1246 (Colo. App.1987).
In order to invoke the doctrine ot" equit:lhk
es,oppel agJ.inst a city in rela[inn [0 J ~()l1IJl~
ordlllance, the plaintiff must shO\v as ,\ tactUJ
,', J: ,I ~ " ,I c.:,' "
f'
t
JC::\~[] 'h<..' ;Jt\ i,\ \\J:i~': h' ,';LI'-'~' [" lYY;1l'c'~ ]~\ :Jil~ ::<:~rh L~
rniskli i),jdd the :tIl:; )!
74; P'2c 126~' I,Co]o Arp. JljS-) iI' 1(J:liJ~g dist;:Cb
A Darty C3r.r1\): stille J Cb:ll fen r~l1cf un::L:J il \' C_<f,-~x l:nl:illtL;:d AS<:1. (J3.+
illL:)~\' ,11' ('sr_(~i'pcl :ig:Ji:lst :t stall:: or :(XLii'i_' (Colo, 1 ~:,"l,1
c;wncr" c:1[]'; Uil the: :l:iSi_, ,--,' :In Feder;d hi~hw:l.\ he:llllil'icltioll :Ict and (:(11,
JC\I,'n (1~ l~hl;i:i'l \, ("11\ c>l L,ui"', I;~. orado hi:.;h\\;IY ~i~ll :Ict 11~j\(~ Jlot preempted
\)6~ F:J 1- 11U[11 (:;1 ISF)::'} cities ill n:Ulllation of signs Jl,-:r cLJ rhe:: r'lild l:lC
lUlling ch:Hlges should he pluced 011 map <IS Cilic~ hv ~~~Jmr:L:, '-'1 s(;;nd~lrL':_ A,; '\'(:Ofl C,
~oon as po~sible.-\s Soon :is i-c3~0l'dbl\' i'(),;siblc Cr\ ....\:. -C()un[~' of De:1VU, 4",S F2J .:0 i j I)th
Jft::r ado:;:io,l by th" b(l,lId of county ~ol1:r'1is. CiJ; LJ73L cn: cicnicc!' --1-1' L,S u ~'" 'u :)_ c:
,ilJnn~ \li ch:Jn~cs in l_ur1ing.:;h::uIJ he ~6--1--':_ --1.' L. Ed,2d =_~() i >r~J
rl:J~'cd c:ri):l an ~,u:!1Oril.ccl :1:] Heqllirl'llH'f1I" for sustaining denial (If ~pt;ci;_d
n~:I~1 ur m;J1:'\ \,:[jl lh,c: cL:t~, or" e\:ceptioll to lIoodplain ordinallce. \\':1(:[(': "
~1(1~Q. with the t\'pe elf ch:Jncc \\':J.i~l\vTich, \ cOllr:~i! IS ,;uinQ. in Lln JdFIUICJti\t: CJ[l:;cit\ \',1'
of \\L:dl. Ridgl;, 3S Colo ;:>,.;)1', 4S5. 5S!'. -P2d 1 rcsr"c:'cl to :lil ,;pplic:1l10n tor ,J spcc:a; e:\c~pt>'.1
(:~76) t\J:l ;-1oodpl:lln ordi:l:1Il;::c, the foIL!\\ln:; \\()uld
A zoning map merely rdlects the ellect 01" he required to sus:d;n J der]):,! 01 the :lpph::a-
exercises of the zoning power. \Vairtl\'t'igl-.t ,. tiun: Jf rh'2re is a l,-Ick of c'-!ckr.ct' to shu\\ '];Ll:
o[\\,'he:" Ridge,.If; Cl)i()_ App --1.S5, :'i5S P2d ;1 c::rt,li:1 Df the req',l:rec1 :':ICle,rs existed. or if lhe
(\9711) L\'ickIlc~ :~ iIl dispute dS to ()nl.~ or r,lOre of t!lc;~'-'
And chan~e~ made thereon do not ()f them- LI~"~-,r-s, Jnd th(:':::~\ c('un~:i d,:~cry~lln,," t
~t:hl'~ conqi(uie :lfl L'xL'rci"l' of' that PO\\ l'r. \\-,,~1' - ::pp: ;c.:,~tiur; <-lliL<ld he J":ll(;d. (ilel~ i l \'. ould hd\'c;
I'.ri~:11 v, (lty ofWhc:l1 RiJgl:. 3,'\ Colo !:\pp ->)_" 10 ma;";e,: sDe::ific Lr;Cil~C:S 01 !:lct CIS to what 1<1-:':-
550 P.2d 1!:I(L'i C9-::(l) ~ors WC:'C ;-)1- were not :Sl;lblished Buuer v,
Sirlcc ih,,:-e \\Ll:) no resui:_Hlon by the board of of \Vht,lt Ridge, 1,';2 eplo_ 324, 5L~ P.2J
COun;\ comm:ssic'ners amenJinr. ,I ;'.(1llln(' r:12!' (1 in,~-:
Ih<.: in;ldve;-tenl ,_'r ~'r-r'l)ilt:()US :::1;[ng(' in lhL: lOt> And on I, factors which apply to all applicants
11l,l: lTI:Jp Vv'ilS wnhuul cneet, W,unwr:ghl \, Ci:y of m:.}\ he co~sidered. \\lh<.:r<.: ci~'.: <::llacc:J a Aood-
Wheal Ridge, 3H Culu, A;Jp- --+:-\5. 55t; P.2d jU()) p]a'in cHdln:lllCe, and the ord(n,mcc eStablishc::s
(l9i6). the criteria Llpon which a "special exception"
Slatu~ of county zoning at time map incorpo- \\-ill he !!:raIlted if the cit\' coulled believes that
t'1lled g()vern~. In<}smueh JS zoning m:Jps dell','e other r~asons 'should b; USed in denying an
their effectiveness from the ordin<}nce or resoJU- appiicJtion for the exception, then the appn1pfl-
tinn thzlt JdOplS (hem. it IS the status of the COUll- <}:e procedure is to dmclld the fluodpbin ordl-
I: !(lning, at the time the city incorporated tilt: nance. for once :J1l JfTliCiI:lt dPplies under thr:
mar lrtto its lonitH! ordil1dllc\.', th,ll !.'.O\erns ordinance onl\' those factors which ~\PDh- Q.(:llcr-
Wainwright y. ell \' ~or \Vheal Ridge, is Cola ally to all ;ppl;cants may be consider~d. B~ucr \
.~~~ App. 485~ 558 P2d ~1005 (1970)_ ~ City of Wheat Ridge, 182 Colo. 32--+. 513 P.2d :W::
7ft:- A Zoning rc~o]ution may legally restrict the (1973).
.' ri~ht of a landowner to extend or enlarge a non- Construction of ambiguou~ ordinance. The
ji,tonforming use. Bird. v. Cit\' of CO.lorado testimony of the zoning administrator. who dealt
~;..Springs.176 Colo, 32. 4R9 P.2d 3:2.4 0(71) with:1 zo-ninQ: ordinanZ'e on ,I d~lv-to-da\' b3,sis, is
A cit~, coullcil. if I the exerci\l' of its police sl>:niJlcant in- construin>: :Jmbigu'ous langU3ge in
\\"er. must atlord procedural due process as it th-e ordinance. Humana, Inc. v~ Board of AdJust-
been delineated in its zoning code. ment, 189 Colo. 79, 537 P.2d 741 (1975),
thur v. Zabka, 177 Colo. 337, 494 P.2d 89 Meaning of "structure". A parking lot is a
). "structure" within the meaning of this section,
ning proceedings are informal in nature Clark v, Town of Estes Park. 686 P.2d 777 (Colo.
do not require application of the rules of ]984).
!b.1 ence used in judicial prnce'.:::dinp_ The rri- Time limit for judicial review. Sl:lCL: th<;:
!lie r: [eljullcm~l1tls thdt thcprillClpks of fund2- municipal zoning staluks do nol a llm..:
~ :tal,falrness he ()hscf\ccllll<;uch rrnC('tGJr_:.', !irr;!! fnr !udiCl:rl i',_'\-IL'\\. ,!,~,_,
,'.l..;~;~_nAd:ppr.ic]':~I,~~~~)'.\." Inc. \. Prll/J. 72,\ V:u -:'-; Rule !()6(b). CR.C.V, IS :lpplictlbk. \orhy \
) 7<)" City of Boulckr. 195 Colo. 2.11. 57~ P.:d 2-;-::
;b.~'gU]ation of .signs pe'mitte.d. The pov.'crs (978).
1J~~led to a statutory Cltv by this section and Applied in Wood Bros. Homes \" City of Colo
.:"-:', IOn 31-] 5-1 03 ar~ Ct)l';-lm;>d1ouS enough to Springs. 42 Colo. App. 15, 5Y2 P.2d 1330 (]l)7c;).
f~23'302. Dist,ic!s. For any 01 the purposes enumerated in section 3 f -23-301. the gO\-
-'~~\' g bOdy m,l} diYlde the mUlltClp;J]lty Into dl~lncts .of ,such n~mber. shJpe. ilnd _~tre(j. as
~,"- i ' be deemed best SUI leu to C(lffY (Jut th,.: purposes or IhlS ran _~, and \\'Ithlll ::;uch CllstnCb
;' ~,Irlay regulate and restrict the t::rectiOIl. construction. reconstruction. alteration, repair. or
,.Of bUildings. structures. or bod. All such regul;:l!ions shall be uniform for each class or
J 1-23-:1rJ.l
(j()\Crnment - \lunicip;d
kind of huilJil12s throu!!hout each district. hut th:.: rG6ul,lti()ns in one district may differ'
from those in other dist;icts.
Source: L. 75: Entire title R&RE. p. [lSri, * I. effective July].
,\m. .fur.2e1. See S3 Am, Jur_20, Zonlng :lnd
Planning, ~ ~ 1M, L6lJ.
c.ol.S. See LOlA CJ.S., Zoning & Land Plan-
nin!.(,?,-Hl.
Caw reviews. For <utick, ""The Antitrust Chal-
I<..:n"(; to LOC:11 (;UI,CflllnC:1t Prul<:Clion (11' lhl.:
Ce~tral Business District"', see 55 U. Colo. L.
Rev. 21 (19H3),
Annotator's nole. Since 9 31-23-302 is similar
to former S 31-23-202 prior to the 1975 repeal
and reenactment of this title, and laws
antecedent thereto, relevant cases construing
those provisions have been included in the
annotations to this section.
Establishment of zoning district boundary
lines in a legislative function. Zoning necessarily
requires the establishment of boundary lines
between different districts and the selection of
the boundnry line is a legislative function wIth
which courts should not interfere, and only
','.-ht.:rc the determination of the zoning auth
IS ~o unreasonable, arbItrary, capriciou Ont)',~
unjus~iAable .as to amount to a violation oSi c:~'
<;t1tut.lonal rights (lrc the courts permitl~d
~ntc;rf,c~c. Norm ~()~ v. Town of Cherry Hills \~o
,c;;:, ~ ,~(j Culo_ 21 i. )(j4 F2u 3-1.4 (1 \)72). ,I.
And having different c1assilications in ct.,..
.,. . d 11Itt'.
~nt ulstm:t oes not deny equal protectinn.1be
:act that, u?de~ zoning laws, adjoining propertict..
lrl other dlstncts may be put to different
possibly more advantageous uses does
afford a basis for conduding there is a denial;"
equal protection of the laws. Nopro Co. v.1i
?f Cherry Hil.ls Village, 180 Colo, 217, 504 P.2d
A4 (1972); City & County of Denver v. Chuc~
Ruwart Chevrolet, Inc., 32 Colo. App. 191, 50!!, _;-
P.2d 789 (1973). '.
Applied in Wood Bros. Homes v. City of Cola. ,,_.-
Spnngs,42 Cola, App. 15,592 P.2d 1336 (L9n).
"'"
~.:o-
3t.23.303. Legi.sl<ltive ded<lnltion. (1) Such regulations shall be made in acCOrd~l1K::
with a comprehensive plan and designed to lessen congestion in the streets; to secure safe.
ty from fire, panic, floodwaters, and other dangers: to promote health and general welfare;
to provide adequate light and air; to prevent the overcrowding of land; to avoid undue con.
centration of population; to promote energy conservation; and to facilitate the adequate
provision of transportation, water, sewerage, schools. parks, and other public requirements.
Such regulations shall be made with reasonable consideration. among other things, as to the:
character of the district and its peculiar suitability for particular uses and with a view to
conserving the value of buildings and encouraging the most appropriate use of 1<lI1J
throughout such municipality.
(2) (a) The general assembly declares that the establishment of state-licensed group
homes for the exclusive use of developmentally disabled persons is a matter of statewide
concern and that a state-licensed group home for eight developmenwlly disabled persons IS
a residential USe of property for zoning purposc:s.'-\s used in this subsection (2), the phr<ls~
"residential use of property for zoning purposes" includes all forms of residential zoning
and specifically, although not exclusively, single-family residential zoning. "Developmental-
ly disabled" in this section means those persons having cerebral palsy, multiple sclerosis.,
mental retardation, autism, and epilepsy.
(b) (I) As used in this paragraph (b). unless the context otherwise requires:
(A) "Nonprofit group home'" means a group home for the aged which is owned Jnd
operated by a person or organization which is exempt from income taxes pursuant to sec.
tion 39-22-112. c.R.S.
(B) "Owner-occupied group home" means a group home for the aged which is ownc~
and operated by an individual or individuals I,;,.ho actually reside at and maintain their pn-
mary place of residence in the group home.
(II) The general assembly declares that the establishment of owner-occupied or non.
profit group homes for the exclusive use of not more than eight persons sixty years of age
or older per home is a matter of statewide concern. The general assembly further finds and
declares that it is the policy of this state to enable and assist persons sixty years of age or
older who do not need nursing facilities, and who so elect, to live in normal residential ~~r-
roundings, including single-family residential units. Group homes for the aged shall. be .dls. ~ .
tinguished from nursing facilities, as defined in section 26-4-103 (11), CR.S., and instItutl~r\i!S"
providing life care. as defined in section 12-13-101 (5), c.R.S. Every municipality having'
adopted or which shall adopt a zoning ordinance shall provide for the location of grOUP
homes for the a~ed, A !!ruup home for the aged established under this paragraph (b) sh.all
not be located within se~ven hundred Afty feet of another such group home, unless othcr\VI~~
':;1,
il
III
t
pro\'~ll::J I<)r by I,:,~ rnunlcip:il_it~ _ '\mh1l1::; in _li,ih pii~:l~2' I hi <ul~ I.,,:: Ulrl",,-u.:d
exempt sLlch grcw;) llOme~ t'r0111 cumplJ:lll(:': Wit: ;:my S::J:'~' ,~'()U:-] y, ll,' Lrlunic:l),i! h~JI::"
Safety, iind fire :odcs. On Apnl 2.0, [1);6. e.\'c~y ptr:;on Sl.\ty y~:Jrs of i1l!e ~}r ulcJer who ft:slde')
:a skilled or mtermedl;1tt' health care taclllty ilnd ",,"ho may be tramterrcd or (l1scharged
ere[rom to a group home for the aged shall not be so discharged or tr~l!ls(crrcd unless h~
received ninety days' advance 'vvritten nutice thne()f or hJ~ <2.re~d In writing to the pro-
ed transfer or dlscku9.e. -
(bj) Tllc general ilsscmbly decliues thac the establishment nf stil!.C-ilc(,11secl group
- mes for the e.\clu~lve use of mcntally ill persons as tkll t.:rm IS cleJined !Il section 27-1r)-
,CRS.. is J matter of state'vvide concern and that J stiltc-iJCcnsed group hume for eight
rsons with mental illness is a residential use of property fen 70rJlJlf!: PUi'j)\)ses:, iJS defIned
section 31-23-301 (4). A group home for persons \\'ith nl'.::nti~l illness t"::;Ld~']i~,hcd unJt:r
is pilra~rilph (h_5) :;11:111 not be located \-vitl1in ~(:\eJl !lulldr~~d fifty (eel i.l; :Ji1other sucl~
'oup home, unkss othcf\vise provided for by the municipality, :-"':0 person shalj be placed
-"a group home without being screened by .:ither a professiunal person. as defined in sec-
. n 27-10-102 (11). CR.S.. or any other such menta] health professional desi~n,Hed bv the
. ector of a facility, which facilit-y is approved bv the cxecut'iv,c director of th'e depart~lcnt
'-human services pursuant to section 27-1-lU3. C:,RS Persons determined to be not cuiJty
...."reason of insanity' to (j violent offense shall not be placed in such group home~. nOJ:- sheil]
y person who has been convicted of a felony involving a \'iolent offcmt: he L'!i:?lble tor
lacement in such g,oup homes, lliC rro\'isi()l1s (If this 0iH;~.:::rd!,h ib.:'1'j \n:~:1 '" .;lI'I''':ilier,t-
;fd, v.'ht:re appropriate. by the rules \)f th:.: depJrtment ul rubilc i1:::~dth diL: :il\ irOI1!nCnl
:tOncerning residential care facilities for the menully ill. \'othing III thiS P;l;-(i:-:raph (1'1,5)
l!all be construed to exempt such group honkS from cumpliar;ce \vith any :':::1'-.:, COUnty, or
If~nicipal health. safety. and tlre codes.
'/_(c) \'olhing ill this ~ubscctil)n (2) sheil! be construed 10 sLlp~rse(k ~!!L- ;o::thority 01
'unicipalities and countieS to regulate such homes approrniatc]y throl,.~il 1',leaJ zoning
dinances or resolutions. except insofar as such regulation would be tantamount to prohi-
'~on of such homes from any residential district. This section is specifically !lot to be coo-
Sd to permit violation of tbe provisions of any zoning ordinance or resolution with
. ct to height. setbacks. area, lot coverage or external sign age or to permit Jrchitectural
~ns substantiaJl)-' inconsistent with the character of the surrounding neighborhood. Tllis
on is also not to be construed to permit conducting of the ministerial activities of an)-'
, te Or public organization or agency or to pnmit types of lreiltllll.':llt acti\'ities or the
de ring of services in (j mIJnncr substantiall\' inconsistent with the activities othen-vise
'. 'tted in the particular zoning district. If r~asonably related to the requirements of a
~ular home, a local zoning or other development regulations may, without violating the
ions of this section, also attach specific location requirements to the approval of the
,.home, including the availability of such services and facilities as convenience stDres,
ercial services, transportation, and public recreation facilities.
~:The general assembly declares that the availability and affordabiEty of housing for
~ts of this state is a matter of statewide concern. It is the purpose of section 31-23-301
}Omote the public health, safety, and welfare by allowing residents of this state an
. al opportunity to be able to live in decent, safe, and affordable housing on a per-
'basis by prohibiting the exclusion of manufactured homes on single site lots from
alities where the manufactured homes meet or exceed on an equivalent perfor-
engineering basis the stJndards established by the municipZlJ building code,
~;
~e: L. 75: Entir:...,' litl,..: R,S,: R r:..), ~ ! _~h,; ! ciT:":li\t: Juh I. <.:::llirc St:Cl1llil ,JJll~JlJ'..:J. p.
-..~ )8. effective July 1. L. 7(l: (2)( a.S) added. p. I1Y5. S .2.' effective April 29. L. 79: (1)
ed. p. 1164. \ 1~. effective January 1.19BO. L. 84: (3) added. p. 825. \ 3. effective Jan-
']985. L. 87: (2)(b.5) added. p. 1217. \ 3. effective Julv 1. L. 90: (2)(b) amended. p.
. 2, effective Julv 1. L. 91: (2)(b)(II) amended. p. 1858..\ 21. effective April 11. L. 92:
J amended. p. 2179. \ 44. effective June 2. l. 94: (2J(b.5) amended. p. 2715. \ 298.
. e July 1.
..r'snote: Subsection (2) (hl \V:JS oril!in:Jlh' numhcred as (2) (a.S):n Hous(; Bi1l7fl-WSS hut hdS
nUrnbereJ on re\'jsiol1 rur ~,lS(: ur I(;c<.llio'n.
'.j-
Ci'l\Lr;HT1':l~i - '.:'JrilC:r:l!
.'''~Ti~;:,r,I!ly d:\;L'nkiJ, see -1[' I
' de c
~:;.i:
10.5 ti,.tii
(~PIS_S rt:krerl\.:(~s: j 'I)r :_:1~ ,;;1,-'-;
l:tk :::-
lnd ';<~l!;n'-il\ Ii
\Ill. Jur,2d. S<.:'...: ,'~ ,\;Tl_ JI~':::,~. />'11111" ~\:l'J
~)I,lnrc;, ;1!!,::: ~ 1", -, )->-;6,
c.J.S:Scc ID!,\ CJS_, Zuning &:: Land Plan-
r,in'!,:S S ),'-:. \) 11
Law rt:views. Fur [lUt<.:." ih<.: Ftlc~t ot L,lrhl
L\c: I \![1 '11'''': C\_lill:T','_I;l L:l's lit '.;-,11'
s()[~Ct: 1 n ;,j 1-',:JI1 :\ [''''::l<', sc;~ _~" Dll:l,l -~ \..:;. . "i5') }.
For ~Lrl_l(:k, '"RC(;'';rlt Dt.:vclllomc:nt~ In Zunin!!
Law In CalmClda", sc~ 3<) Di~tJ.1l1 (l~)fi2), fo-r
articl~, "'fl1e Antitrust Challenge to Loc.11 Gov-
ernment Protection of the Central Business Dis-
trict", see 55 U. Colo. L. Rev. 21 ([983).
Annotator's note. Since S 31-23-303 is similar
to former ~ 31-23-203 pnor to the 1975 repeal
and recn3ctment of thIS title, and laws
~lnt(;ccden\ thereto. i'ekvJnt C:lses construing
those provisions have be~n included in the
annotations to thi:; section.
Implicit in this <wthoriz:Jtion or LOning power
is a broad legislative disnetion of how to achieve
the declared objedives, and as long as the zon-
ill\! ~Hc.' wilhin tllc :,ut!lOrlZeU purpos~
cs-and ClHllOi'nllU .\L~\lUlOn' !!lliJdln'~s, mere ~~is-
a~reement with zoning- ~IClssifications and
district rec;ulatlons wlll not sutrkt: as ~I reason to
set th~m -aside. Nopro Co. v. To\,,;n of Cherry
Hills Villa\Se, lo() Colo, 217. 504 P.2l! 3--+4 (1972).
Parking re2ulatiolls are permissible under this
sedion, -fow~ ot Grand Lake v_ Lanzi. 937 P.2l!
785 (Colo, App. L99n).
Requirements I)t' this sedion ;.Ire met where
citv council weiuhed elements enumerated in
thi; section in light of facts pr~sented at public
meeting. Coutes \" City ot" Crlpple Creek, .s65
P2d 914 (Colu, App, 1993).
Group homes permitted in residential neigh-
borhoods;.ls mutter of sl;ltcwidi:: concern. (in)up
homes for l!c:velopmentally disabled persons are
permltted in residelllial n~ighburhouds ~lS J m~ll-
ter of statewide concern. Roundup Foundation.
Inc. v. Board of Adjustment. 626 P.2d 1154 (Colo.
App, 1980).
The general 3ssembly, by ~nacting this section
and ~ 31-23-30l intended that group homes for
the developmentally disabled be considerc:u 3
- _ ULO 1 j] ~l ll! rr()pcrt\ ,md thelt th -
_ 'I' 'I I I C\ be r--
~'-' 0 I r _'IOcOtl,l lones spec\ficCllh I ~-"~
- s thusc zunL:u rur s\nule fumllv ,IW II nclud.,.
'=' u e Ings.U'
....conslstent wIth thIS Intent for G clty
- __<; jls dC:1ldl of ,\ special us\:: pe; COuncil..
mll on t.bR
~rcc.: ~tkcts ()f the '2:fOUp home on the <;
--:L'" ' "" '''1'''1' t d 'I h' Inrlc:
,--" "','~;'d:...c.lL' ~lC\') .lilL: [lclg1_()['h(i(:dur'
..lc .pcClCl: clnJ 4u1t.:! ot tht: nep-,hbo h ""
'J . I' '=' r,oOti..
;j,t;;, Illon to t 1e attituue of g~neral hostllitv in' .
:lelghborhood towards thiS proposes f .
Adams County Ass'n for Retarded Citize~~
v. City of Westminster, 196 Colo. 79 580
1246 (1978). . .
Adoption of section permitting develo
tally disab.led per.sons to live in group ho . .
r:f1e~ts legislatIve .mten~ to assist such persona.,-
live III normal reSIdential surroundings. Double.
o \t!.anor v. Evergreen Meadows, 773 P.2d lcw.&.;i;:..-
lColo, \989), -'~,--
Rcasonabl.e means must be used to tcrminata :;=S
nonconformmg uses. Comprehensive zonine ~"
:ontcmpl<ltes th~ existence of non con for mint '
l_~:":~ ,lnJ. to uilltn,ltely ;1I1d dkctlvelv ~lU;;lIn.
~ltsb the c:nd sought lO be accomplis'hell. It 1\
inherent that reasonahle mc~ns must be affort!.
ed to terminate nonconforming uses. Sc:rvi((; Oil
Co, v_ Rhodus. 179 Colo. 335, 500 p.?u 307 {\.\)n~
Reduction of nonconforming uses to confor-
milY is [avo red. LaFollette v. Bd, of Adj, of Lake.
wood. 741 P.2J 1262 (Colo. App 1987).
Specific authority necessary for city agenc... to
expand nonconforming use. ..\ nonconlormiT11:
us~ cannot be ex:p~lnJed by the issuance vI ~
lictose or permit or by an order from any city I
c1gency unless the 3gency is given specific
~lutho~-ilY to counkrr:unJ Oi' override the term'
;)1 tht: !unin~ lnuII..1I1Ct.: bv the charter or within
the provisio~ns or the zun'inu ordinance. (it,. dl
Greekv v, Ells. 186 Colo.~ 352. 527 P.2t1'5Jli
(l~74J..
Applied in Wood Bros. Homes v. City of Col-
orado Springs, 42 Colo. App. 15.592 P.2d 1336
(1978): Glennon Heights, Inc. v. Central Bank &.
Trust, 65S P.2d 872 (Cola, 19S3).
31-23~304. Method of prucedure. The governing body of such municipality shall pro-
vide": for the manner in which such regulations and restrictions and the boundaries of such
districts are determined, establIshed,~ enforced. and, [rom time to tIme, amended, suppk.
mented. or changed. However, no such regulation. restriction, or boundary shall become
effective until after a public hearing thereon at which parties in interest and citizens shall
have an opportunity to be heard. At least fifteen days' notice of the time and place of such
hearing shall be published in an official paper or a paper of general circulation in such
municipality.
Source: L. 75: Entire title R&RE. p. \156.; 1, effective July 1.
Am. Jur.2d. See 83 Am. Jur.?d. Zoning and
P1ClIlnlng, ~ * 500-591'.
CJ.S: See lUtA C.lS.. Zunin~ ,,\:. Lind PLHi"
nin'l, * * 11-q
0liJ,~i-,jIJi!;l';~I: j,l,!:I';l'lI~)lt(: In l.~'~t;l1nri
rc\'icw. Enaclmt:llt (l[ ,1 rc:':Ll\n!Il~ ()rJill~lil":C: l~'.
"
..
the legislative body of a city, governed by. b.o1h
state zonincr statutes as well as the muruclpal
. .
code. pur,uant tu st,ltutorV cnteri:l. ~1fter n~)(~;C~
,\I1\.[ ,\ rublic he,Hln~. e()njtilllk~ ~l qU;lsi.Jl1u:.~"il
""i:-'" '<Ii~j<~ct ',;l--::C:r1I()[',ol" !-C:\'ICW SnyJd"
~1f11: '"_ Ii: : Z'Yl::l"
(ie' of L"L\\o':ld.'1j C,-,].; --1-::' L :,..:.= P:-:,j
. (I ~;') . .
fii, This sectlon expressly applies only to ;.}IlJellf]-
'1:' mellts made by lTIunlcipalities of their own ()rdl-
pances, and not to enactments {II' the gener2i
asscrnbiv Glenn,)[l HeighlS. Inc. \ C,-,nlr,11 Bdl,)..;
S: TrIlSt. 6:','; P.2ci ,~72 Culu '0:<3!,
SLlIlIton city lTJa\' !lot jH<I\idte for alltllll\:ltic
reloning \;hclI 'plat ;101 appnl\cd. \\'hll'-' ,1 ~t,,tu-
lury elly' 111<1}' pr(\\:dc thdl ~-'l-opert\. beln~
,'ezo!lcd m,1\' not be: uS<2d Lint:: th~' rL::.: uf lhl
~czoneJ ;:;ro"perty is ::pDro\'cd, il 1:0\ pro-
viue' :or' ,luU'm:l:ic rezu'ling :c 1:1c? cbssifi-
-:::ll:u:l if the pLlI I~ I:i.,t -,'l. \' Cl
of L::;kc:wood ! l)K (olu hi 1.'::, P U(, I C\-'() i
31-23-305. Changes. Such regul,Jtion:; rl?strictions, and bound~ui(:s may from ;;rnc In
time be ;1mcnded, suppiemcnlcd, chzlJlg'-':l~, modified, or repcJicd_ In C:IS(;, hcw,'ev:::r. of a
protest against changes in regillatlons or restrictions. or ch3ngcs in the zone district applic-
able to partlcul(]r [,1f1c!' \\'t]]~h protest I~ Ccd \\'ith thl' nnmiclj,;l1 ck'rk at k;\,< :\\l';jtY-((iW
hours prior to the governing body's \ute un the change anu is signee by the u\\'ners of tWel1'
ty' perc~nt or more of the area of land which is subject to the proposed ch!lnge or t\\'ent)
percent or more of the area of land extending a radius of one hundred feel from ~he ,[and
whICh is subject to the proposed chan?,.:, dlsregardl!lg IlltervcnlIlg public ~treets {!nd a;lc..ys,
such changes shajJ not become effective except hy the L-wor~lh!e vote of two-thirds of al! the
members of the gov'.:rning body of the municipality. The prO\isions of section :?' i -2:-1-_WJ rel-
ati\,t to public hcarings ;md official notice sh,dl apply' equJ)ly to all changes m amendnl(~nts
Am. Jur.2d. StC S:; Am_ Jur.::>J. Zoninc and
!'1;lI1Tli!12.~ > {;Un,6]cl,('II;__(~::'.~ ~
C.J.S: See 1'11.'; c.JS. L()lllnL': (\:. LdllJ J)]~I1'
nm~, ~ ~ 65.97 ~
.~~ Annotator's note. Since ~ 31-23-305 IS sil1lilar
~~to former ~ 31-23-2(J5 prior to the ]lJ75 rlCrecil
~f,,6Id reenactment of this tilk. and 1;:lws
tAtcccdent thereto, re!evdnt cJ.ses construlnQ
lhose rrovisions hnvc heen included in lh;
~n(ll,\lions to this section
[)Ul' process provisiom of notice and hcarin"
Ur limper and must hte followl'(] when arTH:nl
,i",,~lhC lOning map by council action. City of
. _-#'f'ftp,.,Colhns v, Dooney.170 Colo_ 25_ 4lJ6 P.2cJ 3111
,!!<~",).
:~lJe process may be satisfied b),' referendum,.
,:~t due process requHcmenls may be met in
. rT1:lnner when lhe chanl:':c IS hv counCIl
. """n d ~.
:$il~ oes not preclude other procedures from
- g d,ue process reqUlrements under a refer-
City of Fort Collins v, Doaney, 178 Colo.
P.2d 316 (1972).
e, Considerations in denying application.
~alntenance of stability in zoning and
. ~ conservation of propt:rtv \'Jlues hased
.,.-~ ~Xlstlng zoninQ, rC!2~d<Jti(IJ~\ ~lrL: prime CIJI1-
.,.-"'oICfitlon" d ' , , , ,
.~ _ S In enYln~ :1I)pllC<I1.lUIl~ 1(11' /J'nlne'
~,,\ \r11)]"'.' ,.. 'r'I" '"
,i. "t.:','.;' _- I, i ~ ,,_ \, 1, I' I,' r 1-,,' '-: I j: [,' \ ij.
_.__,:~~ ~l;j:J, 217. 5(J-l V2U -"14.0; (Jlf72).
~\I.JUdlcial function subject to certiorari
~..&.-, Enactment 01 LI rezoninl2 ordinance b\
:~-Psl~tive bod\' of J city. [!o~l'rneu hv hoth
-- lonln - , - -
1:-' g statutes as \'.-'ell i.lS thl.: municlpi.ll
':,~ _: 3~306. Zoning commission. In order to avail itself of the po\'.,'ers conferred b) this
"'. .rnee govermn~ bods sha!! "rroinl a commission. known as Ihe zoning commiSSion. to
tufa nd the houndarles (Jj the \''-lriou<, urlf:inal cJi::;tncLs and appropriate rl:~u!ati()ns 10
. reed therein. Such commission shall make a preliminarv report and hold pubilc
, he~h:reon before su~mittin~ its final rep.ort. The ~overnirig hody shall not h:)I~ its
'_ nngs or luke actlUJ1 unlll It hJS receIved the fll1aJ rC]_)()fl 01 "lIch comml'i~lOn.
Source: L. 75: Ent:r,-' I':\.: Rc\: f<T ~ ' :"1
,IIlICll(_kd.p.15L~ < 4,('l'fcC[l\e June.:+
I L'lkcli\ Juh' -j L. oSl: [,,';; Ie ~;..:u:un
COele, pU~S:U;H,ll ;l' slJ',1I1Ctf\', ,~r:kr::l. <]:L'r )Wi!(;2
:inJ cl ;IlU;,lC L1e<l1':I1'-'_ L(J[l~tiIUI.:~ ,J ',ll:,l~,- ci'--'L~'
fUI1Cl1(1ll sublecl tll~Cc?,.tloriHl )'C\'l(:\\_ Sn\(Jl ~ \
Cil\. uf LaKC\\'Ol.'lU. 189 Cola ':;'21. S42 r.:::d ,,-\
(1<)75).
The real issue~ involved ill d rezoning tease
focus on the reasonahleness of n city council's
application of the statntory criteria to till.' l.'vi-
denc.; prcsenteu_ Sn:'un \'. Cit;-, of La K:.':\\'ooJ.
HN Colo, 421. .542 P.2d 37111975)
Rc\'icw for ahnSte of discretion :llld e,\cecdill:';
jurisdictional hounds, The UclermlJldlinn 01
whether a council reasonably applied stdlmury
criteria In exercising its statmor\' power to
rezone involves a co;sideration of ~vhether the
council abused it discretion or exceeded the
bounds of its jurisdictIon and is properly
resolved in (j certiorari proceeding under rule
106(u)(4), eR.c? Snyder v, City of Lakewood.
189 Colo, 421, 542 P2d 371 (1975).
Statntory requirements do not apply to home-
rule cities. The provisions of this statute which
require a three-fourths majority vote of the
counciJ to pass a zoning request over a legal
protest does nOl npply to )wme-ruk Cili('~_ City
of Fun Collins \, DeHme). ]--;-~ Culn ::::', J\j(, F::'J
.' 1 h (Il)i~ I
Thi_~ :-.ectioll e'pre~~I~ applie~ 011 I! to amend.
Illt:nls made hy municipalities or their own ordi-
nances, and !lot to enilctments of the genefCiI
usscmblv, Glennon Heights. lnc. v. Central Bank
& TrusL.65~ P.2d ~72 (Colo, jlJ:-;3).