2012 COA 20
Colo. Ct. App.2012Background
- The Trust owns a vacant lot at 1476 King Street in Denver, zoned R-2 and later MS-2 in 2007.
- The lot was used for surface parking by the Trust's adjacent businesses since the mid-1980s, which was not a legal use in R-2.
- The lot was never legally authorized for parking before the 2007 zoning amendment.
- In 1987, the City issued two citations for parking in violation of the zoning ordinance; parking continued in 2008 after the amendment.
- On November 18, 2008, the City issued an Order to Cease and Desist parking use of the lot.
- The Board ruled for the City; the Trust sought judicial review under C.R.C.P. 106(a)(4); the district court upheld the Board, and the Trust appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2007 amendment allows the prior illegal parking use to become a legal nonconforming use. | Trust argues the prior illegal use becomes legal nonconforming. | City argues the amendment does not grandfather illegal uses. | Ambiguous provision; Board’s interpretation reasonable; no nonconforming use. |
| Whether the Board properly interpreted the ordinance to distinguish existing legal uses from illegal pre-amendment uses. | Trust contends the prior parking use should be grandfathered. | City contends prior illegal use is not grandfathered. | Board's interpretation reasonable; deference affirmed. |
Key Cases Cited
- Canyon Area Residents for Env't v. Bd. of County Comm'rs, 172 P.3d 905 (Colo.App.2006) (sets standard for reviewing board decisions and deference when ambiguous)
- Woods v. City & County of Denver, 122 P.3d 1050 (Colo.App.2005) (no factfinding on review of zoning board; record review only)
- Sierra Club v. Billingsley, 166 P.3d 309 (Colo.App.2007) (ambiguity allows deference to board if reasonable)
- Trailer Haven MHP, LLC v. City of Aurora, 81 P.3d 1132 (Colo.App.2003) (nonconforming use requires prior lawful existence; grandfathering concept)
- JJR 1, LLC v. Mt. Crested Butte, 160 P.3d 365 (Colo.App.2007) (interpretation of ordinance rules; look to plain language and intent)
- Abbott v. Bd. of County Comm'rs, 895 P.2d 1165 (Colo.App.1995) (when interpreting an ordinance, use definitions and context)