City and County of Denver v. Denver Buick, Inc.

18,699. No. County City et al. v. Denver, et al. Buick, Inc.,

Denver 919) (347 P. [2d] January Rehearing 1960. denied December Decided C. Mr. Earl Mr. Hans Mr. John Banks, Thrasher, T. error. plaintiffs W. Johnson, Mr. Theodore Messrs. Creamer Creamer, Epstein, & Buick, Inc., Denver Saleo Cor- defendants in error poration, Mollie and Lou Cohan. Cohan Dayton Denious, Mr. for defend- Mr. Omer Griffin, Roy Company Weaver-Beatty error Motor ants J. Weaver. Henry Messrs. Mr. W. Toll, Grant, Toll, Shafroth & Company.

for defendant in error Rainbo Bread En Banc. opinion

Mr. Justice Moore delivered the of the Court. judg- This cause is here writ error to review City County ment of the district court of of the Denver entered in an action filed to test the va- there lidity portions of certain the the of ordinance of : n city.

Plaintiffs defendants, in error were and the Denver Buick, Inc., Cohan, Cohan, Mollie Lou and Saleo Cor- poration plaintiffs, were in the trial court. Rainbo Bread Company, Weaver-Beatty Company Roy Motor J. permitted parties Weaver were as intervene additional plaintiff. opinion In we will refer in to defendants plaintiffs by error as or interveners or their individual plaintiffs names, and in error will be referred to as de- by parties plaintiff fendants or name. All attacked the validity adopted of Ordinance No. Series of by City County They prayed of 'Denver. a for judgment, declaring rights their a thereunder, and for restraining enforcing decree defendants from the ordi- nance.

Defendants filed motion to dismiss the action on the ground complaints plaintiffs that the and interveners granted. failed to state a claim which relief could be thereupon This'motion was overruled. Defendants filed tried to without an and the cause was the court answer jury. the intervention of complaint plaintiffs,

Although which was adopted by contained different interveners, seventeen court, with the consent of relief, claims the trial except parties, grouped claims, all of said counsel for the issues, under five main as follows: fifteenth, “(1) unconstitutional because of Is the ordinance title under the Charter? conformity passed

“(2) the ordinance Was concerning property owners? the Charter notice contemplated hearing “(3) un- held as aWas der Charter? passed provided

“(4) as If the ordinance was portion restricts Charter, the ordinance which is that designated C on De- district which is owners any Exhibit No. unconstitutional fendants’ plaintiffs’ com- or interveners’ set forth in the reasons plaint? County City

“(5) Is the defendant answer of resorting pertaining to ad- defense the affirmative good defense?” remedies ministrative relating plaintiffs, claim to noncon- The fifteenth apart forming issues above considered from the was uses, stated. originally adopted questioned as ordinance

Under the in a herein was located district all the classified as involved changed to B-6

B-4. This classification was appears from first affirmative an amendment defendants, as fol- defense contained the answer lows: pursuant 29, 1956,

“On December to Ordinance No. property alleged 1956, land and that 451, Series among by plaintiffs classified, to be theirs was other Zoning District under the Ordinance of lands, as a B-6 subject City County and Denver was made and regulations for that and established to the restrictions 1956, effective 450, Series of Ordinance No. district

125 450, No. 29, (a December of which Ordinance copy ‘A’ is and refer- marked Exhibit attached hereto such ” ence is made a part hereof.) the fol- allegations Plaintiffs answered above in lowing language: meaningless,

“7. That said B-6 Classification is void, and is an endeavor arbitrary, capricious, provi- circumvent and abusive the clearly discriminatory sions District, of the B-4 none conferring while District, benefits of B-5 all violation directly in their Ninth rights of the Plaintiffs as set forth Relief, each of which through Seventeenth Claims for hereof, incorporated part herein made specifically with specific reference to the said ordinances purported 450 and 451.”

A second affirmative contained in answer defense of defendants that all alleges substance the ordinances under attack for administrative from provide relief provisions thereof, and that not availed plaintiffs have themselves of these remedies. Plaintiffs that these allege allegations no state defense for the reason that the ordi- nance is unconstitutional and void.

April 4, 1958, the trial court entered its findings judgment. portion That decree to which defend- ants object and is now before us for review reads as follows:

“WHEREFORE, IT ORDERED, IS ADJUDGED AND DECREED:

“1. That the B-6 District part is a in law and use of the B-5 District, and subject same regulations.

“2. That Article of Ordinance 392 of the Series of 1956 as it relates to the so-called B-6 District requir- ing off-street parking violates the City Charter and par- ticularly B, Chapter in that the regulations are not uniform.

“3. That Article 614 of Ordinance 392, Series is unconstitutional II, violates Article Section Con- 25 of the Colorado II,

and Article Section State stitution. 1956, 392,

“4. That Article 614 of Ordinance Series oppressive, discriminatory is unconstitutional in that it is rights plaintiffs’ and an invasion of the and interveners’ property. to use of their municipal parking public

“5. That off-street is a property property and a cannot be function, owner’s public just compensation. taken for use without plaintiffs properties “6. That and inter- subject regulations pertaining veners are to the so-called B-5 District and none other. 403,

“7. That Councilman’s 392, Bill Ordinance Series repeals 1956, Ordinance Series of 1925. 14, operation apartment by plain- “8. That the anof Corporation conforming tiff Saleo is a use under the Or- dinance.”

Questions to be Determined. municipality First: Where a ordinance of provisions purport require contains the instal- by lation the owner of off-street facilities land as a condition which must be such fulfilled before permitted owner will be to make use his land purposes business in the authorized district within which provisions the land is are such located; unconstitutional process when tested the due clause the state and constitutions and II, Article Section 15, federal provides, “pri- State Constitution which inter alia, damaged, vate shall not be taken or private compensation”? just use, without question

We answer this in the affirmative, and provisions repugnant hold that such to each of said guarantees. again constitutional We think it essential to principles state some basic of constitutional law to which loving people, we are indebted aas nation of freedom steadfastly and to which we must adhere if individual freedoms and liberties are to survive. City County

In Denver v. Thrailkill, 125 Colo. P. this court (2d) held that the re straint freedom of upon one who provides transpor tation for hire to make use of public streets was “com out of pletely harmony the American constitutional of concept fundamental freedoms and liberties, under which the individual has the right a engage in lawful business- which is harmless itself and useful community, unhampered by unreasonable and arbitrary governmental interference or regulation.” Without res ervation we are firm in our adherence to the principle that “the of a privilege citizen to use his ac property to his will is cording not only but a liberty to such right, subject only restraints as the common wel fare may require.” People Norvell, 368 Ill. 325, N.E. 960. If a restriction (2d) upon the use of property is to be as a upheld valid of exercise the police it power must “a bear, fair relation to health, safety, morals, welfare,” or and have “a definite tendency or same.” promote protect In determining the va of lidity restraints freedom upon imposed by or statute ordinance, “The determination we are called upon to make is whether the ordinance has real and substantial relation to the of accomplishment those objectives which form the of police basis regulation.” Denver v. Thrail kill, supra. (Emphasis supplied.) Bohn v. Board Ad of justment Denver, 129 Colo. 271 P. (2d)

In Buchanan v. Warley, U. S. 38 Sup. Ct. Rep. 16, the Court of Supreme the United States asserted that: than is more

“Property mere thing which a person It is elemental owns. includes the right to ac- use, and of it. dispose quire, constitution protects essential attributes these (Italics property.” ours.) As stated forcefully former by Chief Justice of Court of the Supreme States, United Charles Evans at ceremonies Hughes, commemorating the establish- ment of government people: free

“Wé the fundamental protect right of minorities from government destroying democratic

order to save The firmest power. of its own itself the excesses more than in the future is that for confidence ground must have its or- while that, democracy ever we realize breath individual its vital controls, and ganization (Emphasis supplied.) liberty.” responsibility duty It is the unquestioned the decision through branch of judicial government, it, safeguard before controversies which come provisions guarantee constitutional maintain the of property maximum free and unrestricted those enactments which citizen, and to strike down him new upon fasten unnecessarily unreasonably action in the use enjoy- restraints freedom of ment thereof. any action which takes away

Any legislative unreason property, imposes the essential attributes clause thereon, process restrictions violates the due able United and the State of the Constitutions of the States 314, Mont. Sidney, In v. 79 Bettey City of Colorado. of significant find the most 1007, following Pac. we 257 language: shall be person constitutional no guaranty

“The due of law process may of his without deprived property for taking of physical property be violated without its use. be or private Property may destroyed, or public annihilated; it is owned and for some kept value it and it has no value unless can be used. useful purpose to some enjoyment adaptability Its for capability essential characteristics and attributes without use are conceived; and cannot be hence law any which property its value, it or takes of away any destroys his attributes, the owner of deprives property.” essential Q. Illinois, al., Co. v. et 200 U. S. Ry. In B. & Chicago Sup. find the 561, 341, following: 26 Ct. we Rep. law, process constitutional of due requirement “The taken private which embraces for compensation property use, in case of exertion of applies every public 129 any power, power. governmental in the execution of If, government, State, Federal or is, matter what no private property necessary to take finds it injunction obey make constitutional use, it must (Emphasis compensation just the owner.” or secure supplied.) ahas law the owner of At the common legitimate right such the fullest use of to make vested express legislative property. therefore, that follows, It per perimeter prohibition constitutional within place necessary in order to restrictions mission is property. legitimate in The ordinance here use of specific prop purporting question, use of to command right precedent business, erty to do a condition strictly derogation and must be of the common law is in person against pro whom its construed favor of sought applied. Thrailkill, Denver v. to be visions supra; Examiners, 128, Hart v. Board 129 Conn. 26 City (2d) Co. v. St. 780; National Exhibition Atl. App. (2d) Louis, 396. 485, 235 Mo. S.W. protect

This court has been careful to constitutional rights construing zoning 1925, ordinance provisions than now of which were far less drastic those this court us. With reference to the 1925 Act before said: only outline, so, but have held the

“In broad we building inspector ordinance invoked to be con- Realty Hedgcock People, stitutional.” ex rel. Arden Company, (2d) P. 522, and Investment 98 Colo. Adjustment Colby, Denver, et al. v. Board et In Pac. “in al., 81 Colo. broad outline” the old but ordinance held constitutional this court there was said: passing upon

“This be construed as decision is not to provision approving every each and of Denver fixing application every zoning ordinance, its nor that arise.” circumstance instances this court has held that even

In numerous old, less drastic zoning ordinance operated to deny rights constitutional to persons adversely affected terms. ex rel. People Friedman v. Webber, Building Inspector, 110 Colo. 132 P. 183, and there (2d) cases cited.

Section 614 of the Zoning Ordinance here in question deals with the subject of parking off-street as related the several district In classifications. so far as District B-5 (the main down town is concerned, pro- it is area) vided that “Off Street Parking Requirements shall be no force and effect in this district.” But in B-6 District in which the here involved is ordi- located, nance classifies off-street into parking requirements eight trade different categories, different parking requirements for each. The utter unreasonableness these off-street parking made requirements crystal letter, clear introduced evidence, which was written by defendant Lou plaintiff Cohan. latter had for applied permit, which de- building was nied. the course During of his frustrated put effort to' his use in property to lawful business re- enterprises, he ceived the following letter in explanation of the denial of his application to build:

“Plans submitted do not indicate amount specific of floor area assigned to each of several classes use. Nor is there indicated the area precise intended be devoted off-street Our parking. engineer, apply- ing various techniques estimating, has estimated automobile sales (Parking 6) 3,000 Class would occupy feet square and thus require feet off- square street that office uses parking; (Parking Class 2) would 106,000 feet, 53,000 occupy square feet requiring square parking; off-street and that a restaurant (Parking Class occupy feet, 15,000 would 4) square requiring — off-street square 69,500 feet of for a total of feet of off-street square parking. Attachment A of your application construction permit indicates ‘a sub- 37,000 stantial portion’ approximately square feet for used area would sub-basement basement the that off- evident it is From this parking purposes. the meet does to be provided street parking proposed informa- additional 614. Again, Article of requirements amount exact the determine tion would to be required of the excess.” proposed the ordinance parking provisions reference to

With that: in his decree learned stated judge the trial “ * * * the B-6 in parking requirements off-street un- discriminatory, District are confiscatory, oppressive, the pro- enforce unconstitutional, to reasonable and and inter- plaintiffs deprive visions thereof would of law.” due process without property venors their this we With statement agree. Denver, 129 Colo.

In Bohn v. Board Adjustment of P. said: court (2d) all the “It is a principle recognized fundamental or restriction regulation authorities that any safety, public use of relation to which bears no property sustained welfare, cannot be health, morals or general munici- of the power as a proper police exercise pality.” of the City effect of the argument legal traffic in

that it has a concentration problem is a under right, streets that there accordingly for zoning ordinance, to off-street appropriate to desiring substantial of citizens portions property that pro for property legitimate purpose, until hibit that for any purpose use of property parking; owners thereof devote a substantial portion District B-5 which is and this the fact that despite such no re respects general usage, all similar to B-6 in thus city such exists in the exists! No quirement power take without private property purpose It would be compensation taking. to the owner for un right, had the argue city quite proper private der the dedication of guise “zoning” to require itself, for the street if it were considered property traf- street given generally inadequate carry was fic; any legitimate and to use of prohibit true made. it be purpose until such dedication was If solved exists, that a traffic it cannot be legally problem compensa- of without private confiscation property under a of tion, “zoning.” pretense voluntary alert man as a matter of

The business action realizes which to advantages the are fully gained customers. affording facilities to his parking However, cannot be to do so under penalty he compelled of his the beneficial of forfeiting right to make “con has to control the property. city ample power gestion of traffic” of by adoption regulations adequate which prob related to that purpose, directly lem. main Compulsory, off-street involuntary tained expense at the of a owner as a property price tag or tribute for the exercise to right of constitutional do business, is out of “completely harmony with American constitutional of fundamental free concept doms and It has liberties.” no definite or substantial ten to or form dency promote protect objectives those which the basis power. of police

We attention direct to of opinion this court Cooke, Willison v. 54 Colo. Pac. 320, 130 828, from we quote:

“One of the essential of elements is the property right to its unrestricted use and and as have enjoyment; we seen, that use cannot be interfered with what is beyond necessary provide the welfare and se- general curity of the public. Enforcing provisions the or- dinances in does not question deprive the petitioner title to his He lots. would not be ousted of possession. He would still have the power to dispose them; but, although there would be no actual or physical invasion of his he possession, would be deprived of the right put them legitimate to a use, which does not injure public, this, without compensation any provision therefor. This would him clearly deprive of his property

133 law, process due without compensation, without in- only constitutions federal and state which our inde- be repugnant justice, would hibit, but which subject.” provisions constitutional pendent rel. ex v. People Building Inspector Hedgcock, In 264, recognized this court P. Reed, (2d) Colo. 13 best con- will be health and safety that where “public be imposed may reasonable restrictions served” we find in that case However the use of property. “ * * * less but not fundamental apt following language, to erect property] owner right inherent [of elect, as he such covering portions buildings thereof use.” (Emphasis any legitimate his put supplied.) direct attention

And we finally upon question Pennsyl- Mr. Justice Holmes pertinent language L. 393, 43 Mahon, U.S. S.C. vania Coal Co. v. Ed. 322: the Fifth in of protection private property

“The for public that it is wanted Amendment presupposes use taken such that it shall not be for use, but provides * * * compensation. without may least that is, property “The rule at while general too extent, goes a if regulated regulation be certain * * * are in far be as a We recognized taking. will a desire im- strong of danger forgetting public warrant enough the condition is prove the a cut than the constitu- desire shorter achieving by of the change.” tional way paying Thatcher, Co. 278 N.Y. Bay See also Arverne Const. 222, 15 N.E. (2d) a restrict Where ordinance purports

Second. as a the in a district which has use property flourished of business and commercial district more than fifty un- where such onerous and years; imposes ordinance reasonable conditions and terms under which pre-exist- be continued as noncon- ing may uses property lawful of uses, and events and means describes numerous forming terminated; will use be which the lawful former police upheld provision exercise such as valid power municipality? a negative. question This is answered building any question further ordinance in forbids the apartment houses in the District where additional B-6 property plaintiffs inter is located of the and the apartment venors. It situated on the defines the house plaintiffs nonconforming of some as a longer by right.” use, and declares the same no a “use provides register It then the owner “shall non such conforming by filing Department Zoning with the Registration Administration such Statement for non conforming use, this statement: “ * * * (cid:127) May require be in such form and the furnish- ing representations of such information as deemed ** * appropriate by Department. “ ** * copy original Registration and a of each State- giving ment, such other statement notice thereof as Department appropriate, shall deem shall be re- Department corded in the office of the Clerk and Recorder.”

Annually department may require thereafter filing questionnaire inquiring operation, as to the concerning status and nonconforming other details completed use. ninety If not returned days within from mailing, Department date shall record in the office of the Clerk and applicable Recorder a notice that the nonconforming presumed use is to have been abandoned; that if thereafter it shall be established to the satisfac- Department tion of the that said use has not been aban- Department doned, shall record with the Clerk and withdrawing a Recorder reasons certificate the notice. For other right to continue the uses plaintiffs similarly and others situated is in constant jeopardy, provides ordinance further a number whereby nonconforming of occurrences such use shall through many occur no terminated, of which fault of the owner. provides nonconforming use ordinance following: any

shall be terminated one or more of the (1) “Sec. 617. 1-4 “By nonconforming' Abandonment. Abandonment of right operate- immediately use shall terminate such use. (2) 1-4

“Sec. 617.

“By Violation of Ordinance:

“Any following one of the violations of the ordinance immediately right operate shall terminate non- conforming use: “ (a) Changing nonconforming use to another non- conforming except provided use as herein and author- ized;

“(b) period pro- Failure to make, within herein nonconforming comply vided, a with the Limitations on External Effects of Uses as established this ordi- subsequent nance hereof; or amendment Increasing “(c) or both either the land area or the occupied by nonconforming floor areas use without the approval Adjustment of the Board for such increase.. (3)

“Sec. 1-4 Specific “By Acts of Termination.

“Any following Specific one of the Acts of Termina- right immediately operate tion shall terminate a. nonconforming (Two provisions use; these are omitted nongermane problem) here as to our “ Non-operation (c) nonconforming aof use for a period of twelve more months; successive calendar

“(d) Vacancy period for a of twelve or more succes- part sive calendar months of the structure or that aof occupied by nonconforming (Five structure use. year provision germane eliminated as not case at (Three provision pertain- bar.) ing year eliminated as not bar.) the case at 1-4 (5)

“Sec. 617. of Struc- Obsolescence or Destruction, Damage “By ture: maintain nonconform- and any

“The right operate whenever shall cease to exist terminate and ing shall nonconforming in which the the structure or structures operated use is and maintained: what- from cause Is or “(a) damaged destroyed, any destruc- such or soever, damage and the cost repairing cost of the per replacement tion exceeds cent of fifty destruction. damage such on the such or structure date of any under Becomes or sub-standard “(b) obsolete the cost of applicable municipality ordinance of and the the compliance such structure lawful placing re- cent of the applicable fifty per ordinance exceeds the cost such structure the date placement struc- determine such proper officials of the municipality ture is substandard.” obsolete or County

In the first charter of place, City there- Denver, was amended 1923 to include which city pass zoning in Sec. 219-A council to authorizing council laws, none of the powers city confers to noncon- which it to exercise with relation purported as set forth in section 617-1 of the ordi- uses forming defines provision, certainly nance. charter area not within that authority the limits of the council’s follows: controlled reads as provision, constitutional pro- of Power. For the purpose “Section 1. Grant health, general or the welfare moting safety, morals City the Council of the County the community, Denver is and restrict empowered regulate hereby stories and size of and other number of height, buildings occupied, of lot be structures, percentage may size courts and other open spaces, of yards, build- location and use of density population trade, residence, and land for industry, structures ings, or other purposes. all Districts. For of said any purposes,

“Section 2. the Council divide the of Denver may City County manner, such and area as shape into districts of out of this purposes deemed best suited to carry Amendment; regulate and within such districts it may reconstruction, and erection, construction, restrict land. alteration, or use of structures or repair buildings, or All such uniform each class regulations shall be district, regu- kind of but the each buildings throughout other lations in one district differ from those in districts. shall

“Section in Such Purposes regulations View. and be made in accordance with a comprehensive plan to lessen secure designed congestion streets; to from safety fire, promote and other to panic dangers; health and the general welfare; provide light to adequate and air; to undue prevent land; to avoid overcrowding concentration population; to facilitate the adequate provisions schools, water, sewerage, transportation, parks and other regulation Such requirements. shall consideration, among be made reasonable other things, to the character of the district and its pe- culiar to uses, and with a view suitability particular conserving the value of buildings encouraging most appropriate use of land throughout City of Denver.” County

Section 617 and the to subdivisions thereof attempt legislate not within the lan- many things purview guage of the enabling amendment to the charter. Cer- tainly people have never intention expressed any by implication or otherwise Council should City have power to the drastic impose regulations upon own- ers of used property theretofore for lawful purposes, - them submit requiring to make to to annual reports, questionnaires, to record certificates which garble confuse their titles estate, to real to lose their rights use real estate short time lawfully vacancies or short time presumptive abandonment, or such rights to lose wind, reason of such fire, unfortunate disasters period procure inability

insurrection or of tenants for depressions, panics year, regard etc., one all without property or other unforeseen causes over people owner has control. did the of Denver no Nor say by implication or other- said charter amendment ever through City could wise that Denver its council authority arbitrarily regulate or take unto themselves space prohibit minor of structures or use of alterations might proper or which the owner necessary from time to time find augment therefrom, to make his income adaptable for the use of the same more comfortable or cited are his tenants. All the authorities hereinabove applicable equally question. to the instant provisions Third. Are the various set restrictions unlawfully and in Ordinance No. 392 Series forth unreasonably discriminatory they impose in that certain obligations and restrictions in the B-6 hardships District so as to work undue within that Dis- favoring imposing B-5 trict while the District obligations upon property those restrictions and the creating within the B-5 and a condition District, thus subserviency by in one district the other? favor of question This is answered affirmative. The in the any knowledge trial court determined from common to language citizen, itself, and from the of the ordinance appreciable apparent that there is no or difference in the except characteristics of District B-6 and B-5 that the in operation pawn latter the uses authorized include of a shop privileges studio, or music while these denied are reading in the Indeed, B-6 District. a of Sections 612.9-1 respectively and 612-10 lead to no other conclusion. With (cid:127)reference to the B-6 District the ordinance reads: present, large district,

“This at is a area located im- adjacent mediately to the B-5 acts District, for which it * * as a service area nothing justifies any We know of such conclu- sion. The trial court took notice that within the District a great B-6 are many and buildings enterprises business which serve the entire city Denver, state, the and large districts outside the state. regulations of the ordinance as do not re- to B-5 off-street

quire but in the parking, B-6 District the ordi- nance demands off-street facilities sets a parking up of oppressive maze rules and regulations pertaining thereto. None of these are as to the requirements made B-5 District. area up Gross floor set in provisions are the District, B-6 none of which in B-5 appears Dis- trict. The regulates city private in the B-6 property District so as to off-street require based on na- ture business, of the type trade the build- size of the ing, erected, to be building number em- ployees excess of five, belief of em- religious ployees, grade children, school serv- furnishing ices District, B-5 an residen- protecting adjoining district, tial a serving center the ad- shopping districts; residential joining while regulations no such in the required B-5 District all adjoining although types of business buildings-permitted are the same in both districts, the two noted. exceptions above

This is not to however, trial court say, was correct in that part of decision it finds wherein in the B-6 property District subject ordinance as set forth in the B-5 a District. result Such a involves function legislative beyond power court, and must we overrule judgment trial so court in far as purports place in the B-6 District into that classified B-5.

Fourth. Where ordinance is by city adopted and becomes a council law on a given date; will provi- sion the purporting date thereof fix effective ordinance as a time prior to its adoption upheld? In answer this is “No.” the in question stant case in the ordinance question was enacted 7, law A provision became on November 1956. therein to relate back purported the effective date the ordi- that say It is sufficient 11, to February nance “retro- that no law provides of Colorado Constitution the General be passed by in its shall spective operation” state do at the cannot What Assembly. legislature do in council cannot city connection, level in affairs. municipal a building

It who person applied follows that any to have 1956, entitled was to November permit prior in law zoning under the only his considered application was the ordinance zoning at that and that law time, force as amended. in respects all the trial court affirmed Judgment of declares as to that of the same which except part the ordi- subject in District to be B-6 B-5 District. pertains nance as it concurs. specially Mr. Justice Frantz in and dissents Mr. Justice concurs in part Sutton part. Day Doyle

Mr. Justice Justice dissent. Mr. Mr. Justice Frantz concurring: specially

I Mr. Justice in believe rightness opinion his Moore, aspects and further believe some can opinion amplification. bear name of ordinance Justification of this Constitutions, Fed- and on the progress, theory it, is not sustain enough eral and are flexible state, acceptance All too frequently warranted. opinion my progress, because it urged represents of legislation is al- of both Constitutions because the flexibility ac- documents of boundless has come to mean legedly Beguiling their commodation, adjustments. Protean in their advancement notions, and hence indeed are these scrutinized and should be proposition arguments with care. analyzed

Let us examine and evaluate of the ordinance aspects in in for the provi- Is there sanction the law question. — provision sion off-street regarding parking? keep technical demands one who desires to placing — a use? provision giving alive for the nonconforming the ordinance a retrospective operation? certain funda-

Answers to these begin questions ignoring immemorial law. In mental, rules property re- basic tenets the law has been these overlooking a en- contrarieties, ownership duced to state of where in but only privileges visions the law rights property, It is imperative in the law of zoning city planning. can get basic for then we concepts, we return to — the our goal direction and toward proceed correctly ills. municipál amelioration of The

What from ownership property? derives to attack one answer ordinance under here is typical has In so far as the owner question. zoning applies, use; a inchoate, an limited to his to right put property he an a his prop- must to go agency permit develop have in a certain The erty way. city planners zoners devised which must and obtain laws the owner seek a license do some with his particular thing property. certain are placed these laws Through rights property under lock and and in arises a place privilege their key, after granted application one’s improve property, only and then as the law only permits. a board a owner to permit issues to the

Today a certain board exercises his use. This put discretion in imposed passing upon ap- legislatively for the And this bestows a plication permit. permit privi- lege upon permit “partakes per- the owner. Such grant sonal attaches land. privilege far it is a is not right personal privilege so as- and it must be exercised within reasonable signable, Hanley Cook, time after its issuance.” 245 Mass. Law,

139 N.E. 654. See Rhyne, Municipal page There is another answer de- of what question ownership.

rives from crucible It has been tested in the provi- time, reason of its merit constitutional By sions were conceived and cast in mold. it an owner privilege property. has more than a conferable to use his legal right, subject He has a joy en- restraints, to certain property; ownership, enjoy- and use his his and his springing privileges, ment and use therefrom, are not but rights government pro- are which this was instituted to tect. persons

If this be true, not of what avail is it that “All rights, have certain natural, essential inalienable * * * among may right acquir- be reckoned the of ing, possessing protecting property .,” . cove- . nanted in II, Article our 3, Section of Constitution? Of property what avail that “Private shall not be taken or damaged, private just compen- or use without sation,” assured in II, Article Section 15? Of what avail person deprived liberty prop- that “No shall be life, of or erty, process solemnly pledged law,” without due of may II, Article Section 25? Of what avail that a state “deprive any person liberty property not of life, or with- process guaranteed out law,” due of XIV, Amendment 1, Section of the Federal Constitution?

Property meaning had a at the these well-defined time adopted. right may Constitutions were “The natural one property subject have to use his own as he wills al- is ways to the limitation that in its use others shall be injured. safety, That comfort, which is hurtful society may always prohibited of welfare be under plenary power the inherent or state, notwithstand- ing the incidental inconvenience or loss individuals thereby. power necessity, suffer This is the law of upon suprema populi maxim, founded ‘Salus lex.’ power The exercise of the is essential to the mainte- government society, nance establishment of and the of presupposes itself it individual the surrender to right regulate, forbid, citizen of the and even such private prove injurious property of his would

143 Park Water Rogers v. City Chicago citizens generally. Kansas, 123 U.S. 214 v. Co., 375]; Mugler Ill. 312 N.E. [73 equally It is Ct. L. Ed. 623, Sup. 273, 665 31 [8 205]. right has the owner true, however, property he doing in so desires, use he any provided put Legislative harm or threaten to others. does not imperil imposed only are restrictions of the use necessary is, they theory necessity; health, comfort, general the safety, welfare of v. Den Co. Distributing Curran Bill & Posting public.” (Em 261, Pac. 27 L.R.A.N.S. ver, 221, 47 Colo. 107 Lake, Orchard Village Cf. v. supplied.) Mooney phasis Moscow, 308; O’Connor 389, 333 Mich. 53 N.W. (2d) zon (both Ida. 202 P. 9 A.L.R. (2d) (2d) Colo. Adjustment, v. Board Colby See ing cases). 344, 255 Pac. 443. denied, It has been said that of use right “[i]f ownership is annihilated and the value the property Dallas, a 111 Tex. Moscow, is rendered barren v. right.” Spann 350, 1387; 19 A.L.R. O’Connor v. S.W. im- contemplated property Unless the use of

supra. health, the comfort or welfare perils safety, general the it that a denial of such community, appears a And a must have would be invalid. restriction zoning health, and substantial relation the safety, reasonable welfare; morals or general the connection tenuous, §7, or remote. 101 C.J.S. 683 et vague page seq. See 91 Colo. 13 P. People, (2d) Hedgcock Is such a relation to morals or health, there safety, welfare as warrants in the ordi- general provision As zon- parking? nance for off-street in the numerous other cities ordinances of the installation ing requiring of off-street facilities in order to make use of parking is provision property, justification question that Denver a traffic on the has urged ground problem: commercial and business industrial, certain streets in are choked with and moving parked areas the city cars, and further uses of will the con- magnify contemplated magnify

dition. To extent uses proper the condition, the ordinance is said to be holding-of-the-line effectual in that it will constitute a against intensifying problem.

Although generally question courts cannot wisdom policy they duty law, have the deter- power mine “that the must not be exercised arbi- so trarily unreasonably [zoning] as to make the ordi- operation Colby nance unconstitutional in effect,” Adjustment, supra. v. Board If the effect of off-street parking intensify facilities is to condition, the traffic putting operation ineffectual on examination, and it into destroy thing purports protect, clearly would it it Property would be unconstitutional. would then be taken provisions. in violation of cited constitutional very operation And that would be the effect of the parking provision. Parking space off-street in these moving areas parked has reached flood-tide; vehicles jamming possible streets; therefore, make more parking by requiring buildings pro- areas owners of thereby vide off-street facilities, and more concentrate moving traffic in the areas. Alleviate the lesser of two parked greater, moving evils, the car, so that the ve- put hicle, can be in increased mass movement. A self- defeating inevitably develop- condition follows such a ment, for with more facilities available, more vehicles are attracted area, and traffic becomes denser. large

If an (and owner builds structure his land no building let presenting us assume it is aspects a useful being nuisance), imperil safety, does health, general provision morals or welfare because no is made parking may building requiring, facilities? It a be because of the nature of the business therein, conducted very employees, very persons may few and few at- be tracted to it may for trade. On the other hand, it house having many employees bringing businesses many people. and to it building may very busy be located on ve- and parked with moving burdened streets, heavily attracted to traffic case, either automotive hicles. In may cent itor a minute of one part per be building may around the streets total traffic on be cent of the per one every day. structure any traffic total illustration: with our Continuing to handle of how represents problem and the 100%, It primarily traffic is concern. is municipal total one of with of vehicles it involves movement problem; street the total parking Even safety. convenience dispatch, traffic of the total an percentage be may inconsequential in streets Other building. the streets around the using and less less traffic the area have may substantially dealing are In all illustrations we parking. these reason- variants, of which go all the question the installation provision requiring ableness facilities. con- there a connection between traffic Is reasonable attracted gestion building which large less than one cent of per parked considerably street, cars on In most instances the the street? moving streets, to other width, important its accessibility it can reach using points directness with persons which other factors business, probably interest or of seen, traffic As can be problem congestion. create and ends problem in the street begins essence there. proposition there for the fact, authority

In traffic burdens or hazards matters mounting prov- and are not within the police problems constitute New Greenberg City ince of the authorities. (2d) Rochelle, 129 affirmed N.Y.S. (2d) N.Y.S. 716; Prop- dis. 124 N.E. (2d) 308 N.Y. 593, appeal Zoning Owners etc. v. Board Ass’n, Appeals, erty N.Y.S. (2d) City, of Garden College, village located

Adelphi Board application Zoning permis- N. made Y., 3,958 per- sion stands which would accommodate to erect approved only per sons, and the Board stands for 2,000 subject sons, to certain conditions. As stated the Su preme Property Ass'n, Court of New York in Owners “The Zoning supra: Appeals, principal etc. v. Board question hearing possible raised a related in parking upon village crease which traffic and streets residents allegedly would be detrimental justify but the evidence does not a conclusion that the presence permanent or absence of have seats would syllabus that effect.” In the is a succinct statement holding court, viz.: “Great increase in traffic parking village college granted streets, if a were permission seating adjacent to erect stands to its athletic village, problems police, village field in were for not. zoning authorities.” represents municipal This total traffic condition a public problem Property to be solved. dedicated to property public Involuntary solution is devoted to a use. property taking dedication of such to such a use is property. Only sophistry may a resort to sustain the constituting taking property ordinance as not for public use. argument only persons going Indeed, there is ato building permitted parking facility will be to use provided building. argued for It is furnished for their convenience, and therefore it is not put requiring an owner to his a use. taking private true, If that be then is a a tak- use, ing validity. of more doubtful go city requiring accessory

How far can a uses? city require apartment Could an house builder who in- accept tends to families with children to furnish class- rooms for such children in order to ameliorate traffic congestion problems and related on the streets on which building keep his will be located? In order to children streets, off the whether such children are tenants or city require tenants, visitors furnish could the such builder to — playgrounds gymnasium yes, super- safety and these facilities to maintain order while visors being city require an used? the builder of Could underpasses building office to construct over- or building patrons tenants and their where would heavily located on traveled streets? Instances could be multiplied, questions but measure of the these test the proposed power city. aof suggested by

aAs matter of the the fact, illustrations foregoing questions being have a better basis for held dealing, reality valid than the in with which we problem safety each of a the has illustrations the property closer than relevance to the use of the the off- parking provision property street has to the de- uses scribed in the instant ordinance. zoning question in that ordinance details action by preserve

must be taken a an owner him in order for to nonconforming through If over- inadvertence, mishap use. sight, misunderstanding or other the owner step process required, should fail to take some in the nonconforming placed jeopardy. use automatic in very property a Thus, on which is valuable conducted profitable very per business, all of which is inoffensive except permitted se that it does not conform to uses may, district, the ordinance in the reason of the perform required failure to condition to some save a non- conforming provisions subject use, become to the drastic zoning of the law. keeping

The conditions of the ordinance for alive non- conforming uses have no reasonable basis the exercise police power, they represent nothing of the more quicksands They than artificial for the owner. make it a city nonconforming task facile for the eliminate uses. expectation These conditions for their aim the have housing nonconforming guilty owner use will be place city position in a of an omission which will bringing speedy assume the offensive in about nonconforming liquidation use. effective pointed previously opinion, out has been in this As to protect were drawn provisions our constitutional of property. enjoyment use and rights of ownership, seeks the ordinance secures, That the Constitution extends protection Constitutional to render insecure. property quartering and to the use nonconforming such under a law. zoning use ordinance of a objective

It should not be the use nonconforming of a about extinction bring it should rather law; and arbitrary unreasonable through ordinance to protect and intent purpose “the ” * * * State non-conforming the owner’s to a right “The right 745. Hunt, v. 235 Wis. N.W. any provi right use is a non-conforming away takes or ordinance which sion of a statute a manner not manner, in an unreasonable right Schneider welfare, is invalid.” grounded 84 N.E. (2d) Board 402 Ill. Appeals, an reasonableness of case on the Perhaps leading cessation of about the a to devising way bring ordinance Moscow, supra. a is O’Connor v. nonconforming or arbitrary cannot be the purpose law for accomplishing is well application and this rule and its unreasonable, or- in case this decision. The ordinance in depicted a new and operate to open dained it would be unlawful area, and then pro- a certain business in or additional existing an ownership change vided that “Any a shall be deemed herein defined of the type business opinion In a well-reasoned business.” new or additional unreasonable, arbitrary held was to provision See zoning. purposes relation to the have no 14. 304, 295 Pac. 211 Cal. Los City Angeles, Jones v. opera- retrospective an ordinance given a city by May a lawful right put tion out a vested wipe the answer. makes obvious use? To put question or- Switzer, Zoning 223 N.Y.S. 856. Court v. See Calton look operation; they should have a prospective dinances confines within the future, development and to Moscow, v. ahead. O’Connor days of the law to the It has supra. been said “that a cannot statute be given effect, retroactive and be made affect operative rights v. and interests vested prior to its enactment.” Gardner M. & Resumption Co., S. 4 Colo. 35 Pac. App. 674. See U. S. McPhee, Pac. Colo.

Mr. Justice Sutton in and dis- specially concurring part senting part:

I I am Although zon- opinion the particular ordinance, ing has in question particulars gone some beyond permissible limits of and cannot propriety meet certain constitutional I cannot agree requirements, with the majority opinion when it would zoning deny authorities the right and power to reasonable zon- adopt ing laws which will land and its use properly regulate so that we dwellers city can live in a less frenetic more orderly society.

It requires no citation of to establish that authority constitutionally possible under only police of a powers state. In other words, such ordinances all statutes must have reasonable relation to the health, or morals. safety

Let us ma- examine the first posed question and its mu- jority opinion answer relating to whether can nicipality require of off-street any type parking. off-street for new Admittedly parking requirements construction or new uses of dilute the existing property bundle of an owner’s which in rights, permits theory him to do whatever he chooses But with his property. such rights have never been absolute. ownership in from Originally England, whence comes our common law, all to Crown and property belonged ownership could revert to the on failure of its to King possessor certain perform conditions. Later the Crown lost these rights of reversion but the owner was required pay to taxqs to the state for the of Failure privilege ownership. in the property resulted then as now the loss of pay government. be- words,

In other though firmly we recognize lieve in the right private property, own acquire bears property rights are absolute share of functioning gov- for responsibility orderly ernment tax burden with by carrying part restrictions it cannot be used to the detri- corollary ment of public, subject police and is to the always has power. Thus, law for centuries example, prohibited a man from nuisances or creating permitting on his land which harm a member public or annoy thereof; and, in the event disaster the state under its police can even powers destroy private prop- without erty to its owners. liability compensation Zoning laws in modern planning have evolved civilizations permit huge masses of to dwell people together in restricted fric- possible areas with the least tion and freest use of commensurate with the widest the land used in such areas. zoning

The determination officials municipal matters should not be approached the courts general Itallie v. feeling suspicion (Van Borough of Franklin Lakes 111). 28 N.J. 146 A. (1958), (2d) When ordinances are reasonable and uni- applied Mc- do not violate due of law formly they process (see Mahon City (C.A. Iowa 8th Cir. Dubuque, 1958), 255 F. Under rules of construction (2d) 154). general courts have an obligation construing validity construction, ordinances such if city apply possible, avoid New (City will an unconstitutional result. Orleans 226 La. 387.) v. Leeco 76 So. (1954), (2d) however, This is that when the subject, exception subject something matter to be sought regulated law, at common which was then restric- permitted tion is construed in favor of the strictly person against whom its to be Denver v. provisions sought applied. 488, 500, Thrailkill 244 P. (1952), (2d) Colo.

151 pow- mean, however, police not The latter does which situations meet new ers can never be used to and ve- of cities arise, growth to example, due but constitutional and need new traffic, hicular test to properly but one more exception solutions. The is en- governmental against freedoms unwarranted protect make a to not bar it is private rights; croachment welfare general act for the to government powerless under its powers. police what may live and society

We in a dynamic, growing in- or governmental have unreasonable arbitrary been his- our national period in one regulation terference or in later been recognized accepted has often tory applied and constitutional when as both necessary years within all reasonably people property equally a certain uniform class. concepts basic constitutional

I with the firmly agree application out It is in their opinion. set the majority I this case that dis- respectfully some the facts of is: words, In other the issue here what is reason- sent. exercise This necessary police power? able and “ * * * cannot be disposed by general of use degree ” * * * opinion succinctly so majority as propositions in Penn. Coal Justice Holmes Co. saying Mr. quotes C. L. U. S. 43 S. Ed. (1922), v. Mahon not, could statement contrary ordinance This “ * * * use of that prohibit opinion, the majority until owners devote sub- purpose for any ** this regard In parking; thereof portion stantial can continue their obviously out that the owners I point and possibly change without interference uses present more area than parking do require others which now exist. at- what off-street parking amiss to ask is It is not Without determining ordinance. to do this tempting reasonable, is regulation particular whether need for congestion traffic all obvious to is a im- public problem adequate paramount in Denver. portance if public welfare, more, nothing would officials to seek require public reasonable legal duty solutions Such officials recognize thereto. not to let speak, the stew in its own so to public juice, of traffic confusion and This seeks parking. ordinance correct help problem pro- the owners to by requiring vide certain off-street if and when build they parking new or buildings change make structural alterations or their uses in districts where the exists. zoning problem done majority opinion by states this can be only condemnation and of from payment compensation public funds, whereas I it is of believe the properly subject reasonable others zoning regulations. Apparently many concur, Law 1953, for according Yokley Zoning “ * * * and Practice, 2, §208', 76, p. Vol. 2nd Ed. 265 known en- localities in different states have thirty-three acted ordinances or amendments thereto re- (zoning) quiring off-street desig- accommodations nated uses.” We can that in the in- property presume terval list has the grown considerably larger.

In McMahon, the federal circuit court not supra, only upheld the of an Iowa ordinance constitutionality zoning but went on out that all point regulations impose full limitations use of enjoyment McMahon, and in a sense take away property rights. (1928), 452, cites Anderson v. Jester 206 Iowa supra, held: “That 354, 357, N.W. full use enjoy- is that ment of a the excluded plot ground prohibited, to which the land profitable use the most can be put, or that the owner of that prohibition deprives profit such use, would otherwise be derived from or that considerations enter into the deter- incidentally esthetic mination does not invalidate the regulation.” further opinion pointed

The McMahon out that though had refused authorities to rezone two corners zoning commercial a wide intersection because the just zoned, was not illegal other two were so arbitrary that determination legislative it was a reasonable saying emphasized and it there; should stop district line the land value and highest that lower market be con- factors not determinative are necessarily regulations. zoning validity in determining sidered 443, 225 Pac. 81 Colo. Colby In Board (1927), of Denver discussing constitutionality laws out that ordinance, such pointed court that “A full welfare and promotion development), (of perspective community growth merely however, this, like requires case en- but the future be present depicted, visaged.” supra appears addition comments Yokley’s

In by implica have either jurisdictions recently that many reason express holding principle tion or upheld im holding those able off-street so parking. Among Adj. Phila. Bd. Zoning are: Fleishon v. plication revoked (permits 385 Pa. 122 A. (2d) (1956), to provided parking as not valid because no access being not however, off-street was space; parking required 220 Ky. 483, 310 Kesselring (1949), ruled Hill v. upon); ade hearing 858 further on S.W. for (2d) (remanded traffic hazards on deadend of off-street quacy parking, v. street, etc., church); Wright for a Roselle proposed Ct. 507 off- (ordinance required 37 N.J. (1955), Super. pri desired for public parking, petitioner permit street it; and was denied reversed of a few trucks storage vate Ronda Realty of parking permit); denial off-street to 414 Ill. 111 N.E. 310 (2d) Lawton (1953), v. Corp. apartment (off-street parking requirements only use buildings other same multiple and not houses discriminatory). held zone, decisions off-street upholding following find the I Allendale Jehovah’s Congr. in direct fashion: parking of N.J. 152 A. (2d) (1959), v. Witnesses Grosman Leeco, (where Inc., supra New Orleans City 569; of Leeco, was defendant decided points one of several parking require- complied had with the off-street Inc., City theatre); Cleveland East State v. ments for of sought permit (2d) (owner (1958 Ohio), 153 N.E. supermarket; question off-street involved was build one point by saying: parking. Headnote 7 summarizes being city “Zoning within the exercise ordinance regulating police power, provisions off-street thereof parking constitutional.”). are parking is con- off-street true test as to whether ap- requirement stitutional seems to be whether the plied uniformly the amount a district and whether space required relation to the a reasonable bears (1958) proposed. Review 666-667 Columbia Law See 58 laid demarcation down various lines of for a discussion of zoning by controversies. courts in various supra, had been denied a church Allensdale, In propose provide permit building because it did parking space required required off-street Jersey supreme court of New ordinance. The require- saying upheld unanimously that the the denial did not violate its face invalid on was not ment either the state pertinent quote I constitutions. some or federal language: parts court’s is that the off-street real contention “The plaintiff’s amendatory are requirements ordinance abridge applied they because and as their face invalid worship contrary assembly the state ‘freedom contention We consider this constitutions.’ and federal parking requirements off-street merit. The to be without buildings indiscriminately applicable to all made are likely gather people numbers substantial where designed pro- private and are well vehicles motor via lessening general safety welfare mote the N.J.S.A.; 40:55-32, ‘congestion See R.S. streets.’ in the Adjustment Montclair, 40 of Town of Bd. of James (Law 1956); Div. 2 Super. A. 2d 660 212, 122 206, N.J. (3rd Zoning Planning Rathkopf, and ed. Law of The plaintiff’s They freedom 1956), not restrict do

155 present worship assembly quarters at at its any quarters .in zone or in the AA residential suitable any borough at of the zones in or even other plaintiff’s relatively Avenue, its Hillside if small lot on plans seating capacity proposed are altered to reduce its proposed parking so increase off-street facilities amendatory comply with the terms ordi- lib- nance. On the erty we not at all at record before us are say imposed requirements have not been good public they faith and are for the interest or that unnecessary they or excessive or that substan- tially promotion public safety related to the of the general they appear welfare; well within come principles expressed in cases which have heretofore held purposes, along prop- that erty used church purposes, subjected lawfully

used for other (Citing to reasonable restrictions. au- numerous thorities.) Appeal Congregation

“In of Trustees of of Jehovah’s Super. Witnesses, Unit, Bethel 183 Pa. 219, 130 A. 2d (Super. 1957), appeal 243 240, Ct. dismissed for want of question a substantial federal U.S. 79 S.Ct. (1957), Borough adopted L.Ed. 2d of Bethel had

an ordinance which contained an off-street re- applicable quirement churches, schools, auditoriums, places assembly; provided stadiums and similar it also places permitted that no such shall be within mile % appellant of each other. aIn decision adverse to the adjustment Witnesses, Jehovah’s the board of found proposed premises that its church violated the off-street parking requirement requirement. mile % Pennsylvania sustaining court, decision, board’s requirements first noted that each of the bore reason- safety able-relation to the and then made applicable fully these comments which are here: “ ‘Certainly worship freedom of does not mean that exempt police power churches are regu- from reasonable Supreme Zoning lations. Our Court in Kurman v. Board 156 247, 40 Pa. Philadelphia, of of Adjustment City are ap- that requirements 2d setback 381,

A. determined church purposes. used for to plicable properties freedom, speech freedom concepts religious Amendment in the First embodied press the which are and beyond absolute rights construed as have never been police under the regulation the of reasonable power Decatur, of Decatur v. Zoning Appeals Board of power. 117 N.E. Witnesses, 83, 233 Ind. Ind. Co. Jehovah’s 117 N.E. at 123 of page 2d used language 123. The case: present 2d opinion] applicable [dissenting appellee members the ‘It is evident that quite church as to and from could be killed as dead just going It is a a basketball game. to and from a theater or going appellee’s of the to police power protect exercise proper as from their as well negligence from own members would be There traveling public. negligence the members of ap- as much just logic holding com- not to when to church were pellee going required as in holding with traffic ply regulations make reasonable appellee provisions is not to required park- of the traffic hazards off-street lessening ing. “ Tf it proper police power was exercise ordinance to appellee city by require setback the resi- line of comply average dences, has a traffic remote only very bearing hazards, a fortiori was a exercise of the reasonable for 25 police power require appellee provide space cars to off the right appellee streets. The park not exercise its freedom is violated in religious either ” case.’ (Citing authorities.) numerous As I times it, see have constitutional changed, police power of the states is now being recognized in as the only reasonable and country practical way to with this ever called cope growing Frankenstein “Traffic It is belief that congestion.” firm such my regulations, con- applied only when equally, reasonable stitutional but urban survival. necessary Denver 247 P. (1952),

In Brodhead v. Colo. 140, this court of Denver’s (2d) recognized validity cre- problem to solve this some measure attempt by But as ating owned off-street facilities. publicly in most communities this been it has where has done 2 not been in Vol. at about enough. Yokley page says this problem:

“It must be debate that beyond private parking lot and the private have failed to meet parking garage large crisis solve the in most cities. problem This failure has into a two-fold brought being muncipal — public and the activity parking of automobiles inclusion of off-street parking provisions in municipal zoning ordinances.”

And 82 in Vol. page Yokley says: “The that has occurred to question many thoughtful communities, as the of time has passing aggravated the problem of traffic congestion, is this: We have building codes and plans master and their policing partner, law; then, zoning why can not be they put good at least in the case requiring, construction, of new that reasonable off-street parking facilities be furnished for the employees patrons building so con- structed and used?

“Thus, in the areas immediately outside the central theatre, business district, store, department center, medical business, commercial the industrial — plant, super-markets, the streamlined drug store all would be to have required some care and responsi- bility for the parking problems of their employees and patrons without the public requiring agency step in take hand in the streets of clearing vehicular traf- fic.

“It is beyond debate that some businesses, by their nature, very attract vehicular traffic and create con- gestion in the public thoroughfares. What have the mu- problem

nicipalities the stand- done to solve this from zoning?” point of (“Municipal authority Law”

Another well known page 967) (1957) by Rhyne, commented has Charles S. on this as follows: dwellings, apart parking requirements

“Off-street uses are theatres, churches and other ments, businesses, zoning today. ordinances A recent decision common in Chicago Supreme held that a Court of Illinois apartment provide zoning requiring houses to ordinance compounds private garages tenants or automobile boarding discriminatory houses, was invalid as rooming since uses which create traffic houses and similar problems required comply were not other (Ronda Corp. Realty requirement. Lawton, 414 (1953)). 2d But similar Ill. provisions 111 N.E. 312-13 zoning sus in other ordinances have been tained. have been valid Thus ordinances held provide parking space required theatres to one eight (New seats; Inc., for each Orleans v. 226 Leeco, (1954)) counters, La. 335, 387, 76 So. 2d 390 and lunch (Mirschel Weissenberger, App v. Div 100 1039, 277 NYS shown.) (1950), 2d 452 confiscation no or discrimination (Hill Kesselring, Ky. and 483, churches v. 310 220 SW (1949).) parking 2d ties. lower court for additional furnish 861-63 to suitable facili However, case latter was remanded to adequacy of

evidence parking the off-street facilities to furnished be zoning requiring places church. But a ordinance ‘all of assembly’ provide square parking feet of off-street space every person in attendance was held not a building permit valid reason for denial of which had more off-street for a church space

parking than the seat ing (State Tampa, capacity church. v. of the 48 So. 2d (Fla. granted compel 1945), mandamus issuance of building permit there had been because substantial com showing pliance and there was no of a because connec public safety, and health, the ordinance tion between and Likewise, zoning ordinance morals.) requiring one space off-street six in a parking seats every was held unconstitutional as a restraint church right of freedom of worship and unrea- assembly, sonable'in view of the fact would that services be held minimum traffic during hours sufficient parking all vehicles all space for was available for serv- ordinary Decatur, (Board Appeals ices. of Ind. Zoning Co. of 83, 117 Jehovah’s Witnesses 233 Ind. NE 2d 119-21 cited are from (1954).).” (Cases inserted footnotes.) One the public purposes is zoning planning “to in the congestion lessen streets” and the 1923 Denver (Sec. 219A, Charter Amendment so §3) expressly pro- vides. Heretofore some traffic has congestion been solved by public parking garages, all by prohibiting on certain parking thoroughfares restricting of time one period park in other areas. Some cities have found it prohibit even all necessary stopping vehicles on certain All this is highways. done exercise of the state or police powers city. reasoning majority opinion is that it is private for a

taking property without con- demnation and just compensation even reason- require ably computed parking. off-street I fail to see how that is so if an ordinance only an owner requires provide on his own for his parking property vehicles, own aor reasonable amount of space for himself and his those who use property. In is reality an applica- tion to accepted but distinct nuisance prin- that one shall not so use his ciple so as to inter- his neighbors fere with either or the public. When park- use, incident of a new land ing why an should it not on the land itself just required type busi- can ness or residential use itself be lawfully regulated? concurring opinion The of Mr. specially Justice Frantz opinion further than the and goes majority urges that if is * parking only persons the off-street for going to the “ * * it a in then is building question taking for pri- taking validity.” more doubtful For the use, a of vate reasons herein prin- agree I

set forth cannot this taking property ciple is in a or that it of results public primarily validity. for It is welfare doubtful congestion in the streets. The fact that lessen and to incidentally for use and benefit of those also property question in does not suffice to who use the void it. permit

Clearly require an owner to the law could parking pur- property general to use his only poses, that is not the case here. It is the reason- but requirement that we concern this should our- ableness of principle I be a consider the itself to selves since legislative power. proper And, constitutional exercise of necessary to the trial if I would remand this action court taking testimony need reasonable- for the regulation and for determination thereof. ness of the “ * * * opinion majority requirement labels this price the exercise tax or tribute for constitutional * * opinion my ignores right *,” do business right power governments, widely recognized only national, to not tax state and businesses but local, regulate right reasonably them deemed when also the prevent police purposes necessary or to nuisances. types provi- here the need not describe various I exist elsewhere in other ordinances sions which computed. detailing off-street how should representative samples appear say it to Suffice Rathkopf, Yokley, supra, 3rd “The Law and in ed. on Planning Zoning my colleagues, contrary learned I conclude Thus parking requirements, off-street when that reasonable “unreasonably applied, unnecessarily equally do not (the upon citizen) new him restraints free- fasten enjoyment” use and of his in the action dom of opinion urge majority I states. that we declare as the only part invalid if the ordinance we are con- particular thorough study pro- that these after vinced above, be- and, as out pointed visions are unreasonable be should evidence fore we can determine question allow the action. This would taken a retrial of the upon it in fact has amendment if its error by to correct city Mr. Justice I concur with his dis- Doyle erred. also he in this case as to the views ex- filed senting opinion cites the need for and and authorities he on presses off-street parking requirements. of reasonable validity

II majority opin- As second posed by to the question I am agreement thereto in general ion and its answer is un- non-conforming proviso this particular for the reasons hereafter given. constitutional but only of the ordinance by It to me that this provision seems uses, non-conforming restrictions so imposing many constitutional zone and made danger into the passed uses regulation property fetish of excessive out owners are unrea- unduly, where point property restricted as to non-con- and unconstitutionally sonably designed specifica- those who Though uses. forming used, are doubt sincere chose the terms no tions, and engineers, they neglected planning competent of those who own rights constitutional consider In other uses. non-conforming affected by property sometimes see vision planners only words, professional area in which all busi- metropolitan ideal city of the restricted to areas. planned are and industries nesses a “consummation to be devoutly this While fact that are confronted with the they wished,” planners land, unoccupied vacant hence starting courts, are restrained those limi- as well they, set as barriers an up constitutions which tations rights. protect These property personal invasion subject to such reason- rights, us in our each above off-street discussing as suggested restraints able view it is the task In my requirements. determine if valid facts to end to to evaluate court has been actually related demon- is the legislation which strated U.S. (see Uphause Wyman 172), (1959), in mind at all times that having in the public necessity protection health, of the morals or safety keystone regulations use of It police powers depends. is one that traffic thing say must be directed and restrained regulated, in interest, or we will have a public complete morass confusion, and on the other hand danger to we say should have an beautiful which can be esthetically city, accomplished if all only non-conforming uses are elimi- nated. The elimination of such a uses, though possibly ideal, desirable cannot be attained by either prohibition without just compensation, or so the citizen fettering that he cannot use his a property in reasonable manner. calls attention majority opinion to some of the shackles which this ordinance I would, believe, uncon- lock stitutionally rights of the owners of non- uses. I add some conforming additional For comments: use, a a example, non-conforming being protected as a constitutional property right, like all other property the police power is to of the state to subject reasonably health, regulate promote to or safety morals. I that it say appears cannot unreasonable or unconstitu- tional that if a building so require completely de- as to or razing rebuilding, it should stroyed require not rebuilt to the contrary building code or zoning ordi- nance of the district where was located. This is be- non-conforming cause the features have been eliminated or Act God, through happenstance giving the legis- lative take forward in its body opportunity step Also, if comprehensive plan. reasonable, the courts should uphold percentage destruction that will figure uniform zones over a help accomplish period of time when destruction of a use has occurred.

As abandonment of a non-conforming use we should also reasonable acts uphold legislative relating made prima thereto when are evidence of they facie regard intent abandon. In this the one year period am per- here seems unreasonable. I provided highly or do- obsolescence, suaded that compulsory registration, ordinance, acts under prohibited zoning under ing are all a lawful penalty forfeiting property right, methods to attain the desirable ob- illegal improper opinion of a and the jective planned city majority well however, is not to say, them. This properly rejects or the reasonable registration some reasonable type not be buildings may consideration of deterioration inserted ordinance to non-conform- relating ing uses. point America’s first zoning authority

Probably at page where “Zoning” (1940) time is Bassett existing and uses “Nonconforming buildings it is stated: con- into effect allowed to goes when an ordinance * * * to stabilize and protect tinue. seeks Zoning such uses Bassett then out points to destroy.” increase where harm- enlarge should not be allowed in a district. ful or improper and refinement of ordinances zoning

The development it, as I view done the have, following since 1940 uses: Allowed variances non-conforming (1) of concept but is abused in some districts, right being within this that over-all of purpose zoning so the the municipalities non-conformities is being new defeated. laws to restrict is the fault of the Boards of usually Adjustment This exceptions. The permit legally unnecessary (2) who of “Amortization” has developed, recog- which principle nizes that if a use is both in non-conforming small value that then it need be allowed to exist monetary of time is period to allow the only adequate owner to recover his reasonable investment therein. (See 3, 1959, Vol. No. Cornell Law Quarterly, Spring 450 et and cases cited page therein.) The er- seq. (3) arisen, roneous has as in concept supra stated this dis- sent, that of purpose limiting the uses non-conforming is The them. reason the latter destroy why objec- these uses it fails to recognize is because

tionable of privilege. matter of right, III court, finds that like trial majority opinion, The places and unconstitutionally unlawfully ordinance this Denver in one business zone down town so-called plaintiffs’ type the same denies arbitrarily been used for similar have many years lands which for this a matter of I believe to be legis- purposes. business in the uses be similar Though discretion. lative structure zones, types obviously in both great part nor is the particulars, nature many are not the same business carried or character of the generally this phase I would remand proceedings same. also take hear evidence thereon to to the trial court And, if reasonableness thereof. reason- determine be, for differences are apparent well able, might I skyline, uphold view the Denver would such a all who classification.

IV holds that all the majority permits opinion sought herein should because this ordinance issue cannot retroactive, II, Article held to be Section Colo- cited I being support rado Constitution thereof. agree all others plaintiffs, similarly these situ- any permits had under the ated, prior who ordi- applied this adoption one, now, nance and before the must should been and from have beginning given their subject the terms of the building permits, former concur, I fully Colby, ordinance. so aware that in supra, had held at court that no one can secure page operation police vested rights against power. this court, Heretofore attitude of as well as those other as many jurisdictions, expressed in has been in McQuillian Colby (see “Municipal Corporation,” 3rd Allendale, However, ed. and §25.181; supra). Colby to consider the Colorado constitutional neglected provi- cited herein and we are of majority sion course expressly latter I would overrule bound Colby point. it Even if we were not so bound that on only a rarest of could seems that in the instances to me power justified police zoning authority in under existing permit denying a new ordi- law while under being existing an ordinance nance an amendment to or adopted. have such cases would Each of drafted emergency be shown rest its own facts and real on reasoning. support because This is so such before I could say example, palpably unjust, that an owner it is plans specifications, spent large in on sums who has rights and his should forfeit is, law as it reliance on the good public spent fees what he has architects’ compensation. just in all It seems me without public health, except actual crisis in cases, in case of an rely right safety, have the builders should morals or upon official is, it some not what the law future. in the or be at some time thinks should will concept off-street I would hold the summarize, To non-conforming particular use parking hold this valid; zoning in district classifications invalid; hold section question permits indi- issued as valid; and certain order necessary to have more evidence deem it cated. If we parking particular reject off-street sustain this question, zoning I would classification section or these trial court to determine the case to the remand matters after hearing evidence thereon. further Doyle dissenting: Mr. Justice reasoning respectfully

I dissent from the decision and My expressed majority opinion. objections fall preface my specific objec- and I classes shall into two general tions with some observations. opinion sweeping seems unlimited in

First, expresses philosophical terms. It aversion to all holding efforts. decision is limited to a itself non-conforming provisions the off-street of invalid. expressions of the ordinance are Its zoning that at basic premise variance with the viewpoint general can be and that restrictions for the planned city conceding of the can be While good community imposed. had invalid, I of regulation arbitrary to impose the of the thought power municipality basic of the so community restrictions the interests that it cannot be From and fundamental now questioned. have earliest on the use of property times restrictions of the product development been necessary urban Such restrictions are up- town the community. and capricious. held unless shown to be arbitrary In the 1923 the of Denver enacted a Charter City year Amendment which authorized in broad (Sec. A) and terms the enactment council general of A, and B and C planning legislation. emphasize Sections and read of this as follows: scope grant power OF POWER. For purpose “A—-GRANT of pro- morals or the moting health, safety, general welfare the council of the and community, city county Denver is and hereby empowered regulate restrict and height, number of stories size of and other buildings structures, of lots that be percentage may occupied, size of courts and other yards, open spaces, the den- and the location and use population sity buildings, trade, structures and land for industry, residence or purposes. other For or all any

“B—DISTRICTS. of said purposes, council divide the and may city county of Denver into manner, districts of such shape and area as be may deemed best suited to out carry purposes amendment; within such districts it may regulate and restrict erection, construction, reconstruction, alteration, or use of repair buildings, structures or land. shall All such be uniform for regulations each class or each district, kind of buildings throughout but the regu- lations in district differ from one those in other dis- tricts. shall regulations IN VIEW. Such

“C—PURPOSES de- plan, a comprehensive made in accordance with streets; to secure safe- lessen in the signed congestion health promote fire, dangers; from and other ty panic welfare; light to provide adequate the general undue avoid land; air; overcrowding prevent facilitate the adequate concentration population; of schools, water, sewerage, provisions transportation, regulations and Such parks public other requirements. among consideration, shall made with reasonable and its pe- character of the district other to the things, and with a view uses, for particular culiar suitability encouraging and buildings the value of conserving and land throughout city most use of appropriate county of Denver.” recognized this Court have also decisions of

Early Colby See, example, regulation. need for this type Denver, et al. 81 Colo. Adjustment (1927), v. Board of 344, passing 255 Pac. which noted the horse 443, and stated: era and wherein was buggy “ * * * justice opinion Village The writing Euclid Ambler remarks on the de- Realty Co., supra, v. zoning cided trend of toward a broader view of opinion ordinances, courts them- reversing refers state selves, so, Even we citing apprehend instances. do as offending decisis, we are now the rule of stare are applied ap- of our decisions. We any previous only old plying conditions, changed to new or to the principles facts of modern deci- Thus, life. horse buggy day sion in case, Denver, stable livery Phillips City of 179, 34 Pac. 902, 19 Colo. allied with those intimately times, would be now if not considered in incongruous It modern industrial and civic light development. an situation. The would be the law to obsolete applying in a un- same be said of residence zone brickyards ” * * * der of this record. the state decision, Bilett, In a more recent Cross v. Colo. the Court commented 278, 221 P. (2d) (1950), follows: “ * * * popula- With urban growth congested tions, develop- areas of attractive residential containing ment, conformity, with values greatly dependent concern and beauty, increasing quiet, safety appropriate there have been enacted laws under or constitutional in most legislative authority municipali- ties in the United States and in rural areas. many welfare thereunder broadened. concept public has such Under ordinances uses in one permitted legal district of the in another. Such city prohibited pro- hibition is based not strictly upon danger the inherent public health, public morals, public safety, welfare of the but prohibited generally, interference with the use of appropriate prop- and the maintenance of its value in the erty zone which such use is We have sought. repeatedly upheld such restrictions. So in Flinn v. Treadwell, 120 Colo. 207 P. we held invalid a (2d) provision requir- ‘B’ in a district a ing residential front of not less yard than feet in twenty-five depth, directly to the contrary ” * * * Cooke, old in Willison v. ruling supra.

An definitive and early decision recognized upholding is that of Supreme Court of the United States Euclid v. Ambler Village Co. Realty (1925), 272 U.S. 47 S. Ct. 114. Mr. Rep. Sutherland, Justice who was not noted for his liberal economic never- philosophy, theless that recognized has community power to impose restrictions on the use and occupation of lands in urban communities. It was there stated: “ ** * laws Building zone are of modern origin. They in this began about 25 country years recent ago. Until years, urban life was with comparatively simple; but, increase and great concentration of population, prob- lems developed, have and are constantly developing, which and will require, continue to additional require, restrictions to respect the use and occupation pri- the wis- Regulations, communities. lands in urban vate ex- to which, applied as and dom, validity necessity, uni- are that now they are so conditions, apparent isting century half a or even a sustained, century ago, formly arbitrary rejected have been would ago, probably sustained, under are regulations Such oppressive. to analogous reasons our conditions of day,

complex before which, regulations, traffic those which justify railways, street transit automobiles and rapid advent of and un- arbitrary as fatally condemned would have been for, inconsistency, in this there is no reasonable. And never guaranties constitutional meaning while the con- must expand application of their varies, scope which different conditions meet the new and tract In operation. their within the field of constantly coming be other- that it should a it is impossible world changing thus im- a degree elasticity wise. But although of con- the application but meaning, not the parted, which, ordinances, statutes principles, stitutional found conditions, are the new after due giving weight course, Constitution, conform clearly ” * * * must fall. Justice from Mr. here opinion The majority quotes apparently which Holmes in an eminent domain opinion, However, that a taking. what constitutes dealt with has the the state jurist acknowledged distinguished good for the general restrictions impose authority his own to substitute that it is not the function of judge legis- that of the political viewpoint economic case in the dissenting opinion lature. In his now famous he stated: York, (1905), New 198 U.S. 45 of Lochner v. “ * * * theory an economic This case is decided If does not entertain. large part country I theory, I agreed whether were question making it further and before long should desire to study duty, I conceive that to be my -mind. But do not up my or dis- agreement because I believe strongly my a majority do with the right has agreement nothing embody opinions by their It law. is settled various decisions of this court that state constitutions and state may regulate many ways legis- laws life in which we as might injudicious you tyran- lators think as or if like as equally this, nical as and which with this interfere with liberty Sunday usury to contract. laws and laws are examples. prohibition ancient A more modern one is the liberty of lotteries. The of the citizen as to do he likes long liberty so as he does not interfere with the of others to do same, which has been a shibboleth for some by writers, well-known laws, is interfered with school by by every municipal the Post Office, state or institu- money purposes thought tion which takes his desir- able, whether he likes it or not. The Fourteenth Amend- Spencer’s ment not does enact Mr. Herbert Social Statics. day The other we sustained the Massachusetts vacinna- ” * * * (Emphasis supplied.) tion law. expression philosophy Another of the basic that com- munity requires rights existence curtailment of is found opinion in the of Chancellor Earl in Losee v. Buchanan (1873), 51 N.Y. 476.

“By becoming society, a member civilized I am com- pelled give up many my rights, natural I but re- compensation ceive more than a from the surrender every rights, other security, man of the same and * * * advantages protection gives which the law me. machinery, We must factories, have canals, dams, They railroads. are demanded the manifold wants of * * * mankind, at lie the basis of all our civilizations. rights property, Most of in the person, as well as of the state, social they are not relative, absolute but arranged must unnecessarily be so and modified, in- fringing upon rights, pro- natural the whole to general mote the welfare.” part majority opinion

Second, the third where- in the classification Bof 5 and B 6 is condemned as an especially unlawful discrimination is broad in its effect. appears regulations It to kill all the in the B 6 zone in

171 one fell swoop without to whether regard they reasonable or This arbitrary, applicable or inapplicable. is certain ruling to leave chaos and in its uncertainty wake. Does the 1925 ordinance with its onerous height and other restrictions now in this B is 6 section or apply this section free now from altogether zoning regula- any tion? These and other difficult will equally questions have to be faced as the aftermath of the “tornado” which decision. majority

Third, fundamental canons of been procedure have overlooked. This cannot be a mere legislation judged by reference to its terms. It is not invalid a se. If per judg- ment were be made from examination of the legisla- tion alone, it would be more conclude that it logical to is well founded and that factually does bear rela- to the health tionship safety. plaintiffs can succeed in case, according view, to my only by proving of this unconstitutionality legislation beyond a reasonable doubt. See Colorado, Consumers League of et al. v. Colorado & Southern Railroad 53 Company, 54, Colo. 577; Pac. People ex rel. Rogers Letford, 274; Colo. 79 P. Dunbar, Mosko v. 135 Colo. 309 P. 581. (2d)

The instant has legislation been killed without even requiring proof of its fact, In the court re- invalidity. fused to allow the plaintiff to introduce evidence to show the reasonable basis for its enactment. It strikes me that question has scope magnitude of before us should not be decided in a vacuum; evidence should be received to the end that the court might be to determine position whether the enactment as ap- facts plied to the is reasonable or arbitrary.

I also have specific objections rulings majority. Parking. Off-Street

If the court had determined that particular these off- street parking requirements were unrea- unnecessary, sonable and onerous as applied to these plaintiffs and be inclined I would have proposed, which they

the uses in a cannot, however, I join decision. to concur in the ex- as an invalid of all off-street condemnation It to conclude possible is not of the police power. ercise the land use of evidence that in the absence ordi- set in the up ratios which are parking requirement to conclude and it is unreasonable, impossible nance are a solution contribute to that do not such requirements congestion. of traffic problem of the tremendous urban establish hand, evidence needed to On the other no it is and that magnitude of great that this is problem simple expedient ignoring go away by not going con- and the extent and it. The number of automobiles at all constitute a problem traffic will congestion sequent not better qualified in future. Courts are times and enactments than questions legislators solve these such solutions should intended to look toward which are might disagree because we voided merely them. spe- cite decisions which any

The fail majority There are cases which conclusion. its cifically support invalid parking requirements off-street hold particular these, arbitrariness. All of special the basis of their that off-street parking however, premise on the proceed Law, 967. Municipal Rhyne, is valid. See generally general to the parking of off-street relationship Law Yokley, Zoning outlined in welfare is ably 78: 76, 77, Practice (2d ed.), drafting factor in the traffic is not the moving

“While ordi- zoning most ordinances, comprehensive of zoning proper pro- for the provision make some nances now improvements. traffic and future gramming present through can best be done this It has been found certain for parking requirements medium of off-street and structures. buildings classes of off- incorporating ordinances zoning “Amendments ap- in widespread are now street parking requirements in that provisions found having cities olication, many provision imperative ordinances which make zoning excellent application facilities constitute an parking traffic alleviating congestion. of the zoning concept fur- information “At from writing appears, Sec- Levin, David the Land Studies nished R. Chief of Commerce, Roads, Department tion of the Bureau of states localities in different thirty-three 265 known requir- or amendments thereto have enacted ordinances designated accommodations off-street ing uses. immedi- transportation “The effects it is realized that volume of when ately apparent di- must accommodate is traffic which the urban street related bulk and function rectly height, buildings comprising community. state before: “As we have had occasion to

“ for solution ‘Among many problems pressing America, crowded areas of traffic con- metropolitan takes near the rightful place top still gestion list.’ that an ade- cities it is prosper, imperative

“For our to spaces provided, of off-street terminal be supply quate districts, in central business in order to particularly parking ever demand for the expanding meet for off- provide automobiles. It is as essential equally for the spaces truck berths. The use of curb street of trucks unloading of autos and loading parking for vehicular hope capacities city out a final blots encroachments streets bled white already many prefer of the proportions population thereon. Increasing central for travel transportation autos to mass private Nothing centers. employment business districts mass illustrate this than the arguments could better in order to meet utilities for fares higher transportation revenue in the face of expenses increased operating who decreased former riders patronage by losses due to This ar- facilities. private transportation to use prefer 174

gument highlights every hearing almost rate in which sought. increased fares are beyond private parking

“It must be debate that the private parking garage lot and the the crisis and solve the meet have failed to

problem large in most cities. This brought being municipal failure has into a two-fold — activity public parking and the automobiles parking provisions municipal inclusion of off-street ” * * * zoning ordinances. uphold parking gener

The decisions which off-street ally spe legality deal in each instance with the regulation applied particular ap cific as fact. This is parent Rhyne, supra. from the discussion in case No principle that we have been able find invalidates the parking. example, City of off-street For New Or Wimberly, (2d) leans v. 335, 387, 226 La. So. parking ap requirement Court enforced an off-street as plied Wright, to movie theaters. In Roselle v. 37 N.J. Super. (2d) 661, 117 A. Court held an off-street parking storage requirement garage for a to be unrea particular sonable in view of its but at terms, the same recognized regulation validity time of such where relationship public it health, bears a substantial safety, general morals or welfare. Court said: “ * * * provision applied warehouses, That stores, buildings, office or other structures, commercial to which may reasonably anticipated large peo- numbers of ple giving would automobiles, come means of thus congestion appears streets, rise to in the to be en- ” ** * tirely logical. reasonable and Congregation See also Allendale Jehovah’s Wit- (2d) (1950), nesses v. A. Grossman 30 N.J. space every requirement This holds a of one three seats in church to be reasonable. (1958), (Ohio) City State East Cleveland (2d) provisions recognizes 177,

N.E. that such are valid (2d) McSorley Fitzgerald, A. cites 359 Pa. 59 264, v. many 142, and deal with similar and other cases which

175 App. 277 Weissenberger, Mirschel v. problems. related 1039, 452, recognizes general 100 N.Y.S. (2d) Div. holds that such and also requirements of validity deter in a board to make particular of vesting authority of constitute an unlawful delegation minations does not Fleishon v. Philadelphia See also legislative authority. 673, 122 A. and Hill v. Board, 295, 385 Pa. (2d) Zoning 858, 220 S.W. and see 438, 310 Kesselring, Ky. (2d) The Gen Relationship Zoning Foronoff, Traffic Law and Problems 197 erators, (1955). Contemporary 167, N.E. Town v. Summers 257 N.Y. Islip (1931), that it ordinance 409, zoning analagous upholds setbacks. The of the Court language requiring building J., is Pound, here relevant: per ordinance of

“The is whether question zoning is unconstitutional in so far as it Islip requires town of Mon- a setback ten that part feet from the street on tauk which is zoned for purposes. avenue business court below has held that such is detrimental ordinance building the use of the for prejudicial premises private and unconstitutional as a purposes, taking compensation. without public purposes just respect Can be said the ordinance in this “[1] on its the bounds of reason and assumes the ‘passes face Euclid, character of a fiat?’ merely arbitrary Village Ohio, Ambler Co., 365, 389, 272 U.S. 47 S.Ct. Realty 114, 119, 71 L. Ed. 54 A.L.R. 1016. ‘If validity of the be legislative zoning purposes classification debatable, legislative must al judgment fairly Euclid, Ohio, lowed control.’ v. Ambler Village Co., 388 of 272 supra, page U.S. 47 S.Ct. Realty 118; Burden, 288, 296, Wulfsohn v. N.Y. 150 N.E. 120, 43 A.L.R. 651. In the of these can a court light rulings, how say

“[2] inspection mere ordinance end in is not reasonably pursued view adoption in order to lessen in the congestion streets thereby promote public safety? Law, Law, Town Consol. ”* ** c. §349-o.

In I am of the that summary, opinion the off-street regulations which the holds invalid majority are not se per Moreover, unconstitutional. the evidence at the trial fails to specific demonstrate as invalidity ap- plied to and does plaintiffs not establish reason- beyond able doubt a lack of between relationship these regula- tions and health, safety welfare. They should, therefore, be upheld.

2. Invalidity Use Provisions. Non-Conforming The majority opinion determines the restrictions which were incident grant of non-conforming uses are so “onerous and unreasonable” as to be invalid. To mind, my is not holding here In the justified. first place, the use is a non-conforming fundamental as- pect of any comprehensive law. It zoning de- merely clares that a use at existing the time of the enactment aof zoning ordinance be continued though it is not in harmony with the character of the zone or district which is created the law. In effect, therefore, it is a recognition of a right continue an use is existing in legal effect a clause saving which protects a zoning ordinance from the charge it is retroactive. The behind philosophy non-conforming ex- well pressed in a case note recorded Quar- in 44 Cornell Law terly, 451, 452:

“Ever since the landmark case of Village of Euclid v. Ambler Realty Company, power of a municipality to pass reasonable ordinances has been firmly established. This case settled the over controversy pros- pective regulation of undeveloped land, but left unre- solved the problem of how to deal with previously exist- ing uses, nonconforming which were believed long to be entitled to constitutional protection as vested property rights.

“Ideally, in order to achieve the perfectly planned city, city zoning plan should start with virgin terri- put tory. everything in its outset be There, could at the theoretically, proper place there would and, or zone Obviously, complete conformity. this situation was present result, As a in most of the United States. areas up already developed areas, when zones were set harmonize, had to those established the zones who pre-existing they of the land. could, uses best various pre-existing before the zones uses, established These up viola- and to continue in technical were set allowed nonconforming prior zoning law, tion of the are called uses. prior nonconforming

“Generally, allowed uses were (1) it was to continue for basic reasons: Because two ap- zoning constitutionally be could not felt that laws plied deprive retroactively of his noncon- the owner zoning primarily forming (2) looks use, and because protect and and and not stabilize, ‘seeks to the future stages zoning, early destroy.’ it believed In the was nonconforming eventually prior uses elimi- would that period years through aban- a themselves over nate changes. destruction and other normal Con- donment, nonconforming expectations, trary uses still these primary problem frequently said that the abound. It is nonconforming zoning facing use.” is elimination upheld generally provisions been have These they certainly con- have never before been courts and a abstract, is, that in the absence of show- in the demned particular deprives plaintiff ing by a restriction a that Yokley, Zoning right. Law Prac- and of some See him Zoning, Rathkopf, Law §§ 151, 157, 149, 156, tice, Chapters Municipal McQuillen, also 60, 61 and pp. Corporations, indi- instant does not

Examination of the ordinance unjust. palpably The ordinance that terms cate require example, be eliminated the use to not, for does after merely period It demands that the a of time. any permission reported obtained before and that be

be provides change major that is made. It also structural can circumstances right be abandoned under certain one such as that can lost de- be year vacancy, a struction as the result of a fire or force building of nature. Such restrictions are not specifically ques- tion and their mere in the ordinance does presence the ordinance is se invalid. justify holding per A right case particular deprivation given that some is justify holding one restriction arbitrary is not the case. oppressive, present but This an not a injunction suit and action. declaratory judgment ruling is so to constitute majority fundamental a condemnation of all because if planning cannot made changes which look to eventual elimina- areas, tion of non-conforming spot itself is un- plan dermined to the that it means point little or nothing. can I

Nor agree conclusion that majority’s city council did not have under power Section 219 A the Charter provide uses. non-conforming above, As indicated this is need authority which not be set forth. It is a specifically part fundamental of any For these I comprehensive plan. reasons, disagree also with this determination. the Authority Council City Be- Distinguish

tween the B-5 the B-6 Districts. The holding of the that there is majority no appre- ciable difference between the downtown property and that which is South of Colfax Avenue, line dividing adopted by Council, the City ignores the facts. be To there sure, may similarities between the two dis- but tricts, there are also substantial differences which justify adoption dividing line. Certainly legislature must be in a position create districts and to determine differences to declare land uses in ac- cordance with findings. The Charter provision itself considers narrow in majority and which scope I as broad and regard comprehensive certainly contem- this plates type legislative decision. We need only look out of the windows of our own offices to observe the very marked differences. B-6 The district no stretch of imagination can be classified as concen- trated commercial area such as B-5. The ground South Avenue, of Colfax which is here is in the question, process from changing residential to commercial. The has classified it Council secondary rather than a district, commercial primary and it is within its power, as I it, view to so determine. Adoption ground rules to govern much development is easier than adoption of rules which seek to effect after area changes has and it quickened cannot be said that the classification of this district as a secondary commercial area is un- reasonable or unrealistic. On the contrary, holding that there is appreciable no difference between this district and the traditional “downtown” district seems to me to be unrealistic extremely and arbitrary. I

Finally, fail to see that it is unreasonable discrimi- nation to this require developing commercial area to provide off-street parking. impossibility requir- off-street ing in the so-called district downtown is at once It apparent. seems to me reasonable to dis- tinguish between these two areas and to demand that constructions new in commercial developing area comply the off-street parking requirement. Question

4. The Whether Is Legislation This Invalid by Reason its Being Retrospective.

Merely because the plaintiffs applied building permits prior to November 1956, the effective date of ordinance, does not mean that it not be consti- to them. In tutionally applied order to hold that legisla- tion is invalid because of its being retrospective, must appear provision authorizing retrospective ap- plication just more than form and operates so as to them aof substantive deprive right had matured I prior to the enactment of ordinance. cannot agree a building permit that mere for can application the re- a sult in one’s vested to build in having right accord- 180 the effect of and that is the application,

anee with the holding. alternative majority’s application mere of an filing that the holding The a constitutionally protected a creates building permit in supported majority opinion is not the right research indicates authority. My citation to any The are to the subject contrary. authorities on the the a deci- York in 1930 affirmed of New Appeals Court the defendant erecting apart- sion which restrained from ef- ordinance which became ment houses by said of a construc- permit fective the issuance after the had been commenced on tion but before work any 225 N.E. Vranken, N.Y. v. Van building. Rice the then chief justice It is to note interesting Cardozo. For more recent Benjamin of that court was decision in Van Vranken see decision the adhering to Ct. (Sup. 128 N.Y.S. Kunz, (2d) Application clear that authorities cited make there 1954). protections of sub- extending basis for underlying situation stantive due sort of process depends taken in steps extent to which has applicant permit, performing such justifiable reliance on expenses and incurring significant substantial work attempt has been'made where obligations. Similarly, date an ordi- undertaking prior an commence use, courts nonconforming declaring nance case of the Van Vranken applied principal have has the courthouse there prevent this race to where commitment of resources in reliance been no substantial St. Juillerat, Smith v. 161 Ohio preexisting on the law. Park Ohio State Students Trailer (2d) 611; 119 N.E. Franklin, 123 N.E. County (2d) (Ohio Coop. these Judged by principles plaintiffs App. 1953). substantive deprivation any have failed to show II, 11 of Constitution of Article sec. Colorado rights. As to retrospective operation. a law prohibits only retrospective only these this ordinance plaintiffs form. have to They attempted the law rather exploit than justifiably on it. rely

In conclusion, it is that my opinion the ordinance should that upheld be and that we should determine these that ordi- plaintiffs have failed to establish the nance, them any provision it, or operates deprive constitutional that any The mere fact right. plaintiffs cannot, under the land adopted plan, use so they can make the maximum economic use of it does justify the con- conclusion far-reaching sweeping tained in the There cannot be a zon- majority opinion. ing plan to all of the applicable people city having for purpose orderly development of which at city will the same time individual permit every to use his as he fit. So property exactly sees long scheme reasonable, itself is it upheld. should be If par- ticular individuals can show that a specific provision it then unreasonably oppressive, becomes appropriate strike that particular down provision. present The plain- tiffs have failed to demonstrate the their impossibility of living and prospering under this ordinance. The judg- ment of the district court should be reversed and the denial of the building permit adminis- trator should be upheld. Day

Mr. Justice concurs in this dissent. Day

Mr. Justice dissenting: more has been Probably written in this case than is it necessary desirable. Nevertheless should con- be sidered approaching this problem my brethren have scant given attention to the of the right people themselves, Denver to govern the fundamental concept of our democracy. people charter, Denver their “constitution,” is their own home rule free ballot expressed have themselves as to how their own should used the benefit of all of them. This can do in local matters if the they charter itself is has the state constitution. This charter

not violative power they upheld. every quoted Yet have not purposes been but objectives they granted have enu- people In do not violate constitution. merated authority city given ordi- their council enact have purpose carry and ob- out intent and nances people jectives forth the charter. The have set powers purposes, very fit the all of which well within governing is While it to them in themselves. reserved impose upon by people an cannot vote true that clearly unconstitutional, that are electorate restrictions particularly helpful of in this because their vote is case give judiciary duty imposed constitu- the tionality to pub- possible. at The to their enactments if all people may enact laws welfare, lic toward which end police powers, subject is a narrow construc- under the to majority opinion tion in the or to a liberal construc- as upheld tion which have the constitu- the states tionality not ordinances. So we do off-street unconstitutionality of have a situation here where the beyond unequivocal, clear-cut, is and rea- ordinance univer- doubt. Such ordinances have been so sonable — sally adopted accepted by and other communities — them that we think the vote on the charter was convey judiciary what was be to to a doubtful to meant regard problems policy of Denver in affect- people go ing growth. aIf its future free cannot orderly develop- polls by regulate their and vote city, neighborhoods, ment their own and own of their away then taken far we have from them more than given by majority opinion. attempted The people explicitly they quite have forth what think is set good They told, now a for the whole. benevo- despot judiciary, really a what is lent but solicitous good them. English poet, Cowper, wrote Robinson William years five

Crusoe his life alone for desert island: —

“I am I monarch of all survey there is none to My right dispute; From the all round the sea, centre I am lord of the fowl the brute.” This Crusoe, have been all right Robinson but if there are great numbers of Robinson Crusoes in home rule such city, proclaim can each I think right? not.

Writing shipwrecked two also cast on passengers isle, Gilbert, desert W. S. his ballad tell- delightful ing the story foundering the Ballyshannon drowning passengers except Gray all wrote: Somers,

“These reason their passengers, by clinging a mast, a desert cast.

Upon island were eventually meals, hunted for their as Alexander They used, Selkirk — But couldn’t chat had they together they not been introduced.

[*] ^{[*] [*]} And settled it a somehow thus without they mouth

word of That should take the northern half Gray

while Somers south.” took the It is the of the purpose poet to demonstrate that as soon as two are and people together thrown are likely some conflict, to is in order. regulation Though Gray have may and Somers been able to divide the island mouth,” a in growth population “withoút word of would a understanding rights have clear required rules, each. These as now in expressed duties of charters ordinances, to necessary protect were the people their common promote good. to of the grants power given of the specific by Some council, their own elected city in their vote to people effect, be of no are: To regulate which now to appear buildings structures, and. of restrict the size and other occupied, percentage of the the of be size lot popu- yards, open spaces, density courts and other of Among buildings, and land. lation, the use structures of purposes specifically sought expressed be accom- to — plished by zoning regulations my opinion, prehensive plan designed in all, and the charter — provide com- constitutional To a were: congestion lessen in to panic safety fire, from and other dan- streets, to secure gers, prevent overcrowding land un- and to avoid to of population, adequate facilitate due concentration provisions transportation. people and their com- The duplication prehensive plan prevent of or a com- pounding prevalent in the of the conditions downtown (which developed and which cannot area unrestrained naught. now) be held for undone years history beginning no Denver, with the regulation property in size of in the use of decades of inade- thereon, construction quate followed deadly deci- some of the ordinances and the blows legislate attempts sions this court struck at many city notice field, Judicial has left the scars. plainly and of can visible common be taken of what rugged knowledge. early and the individu- fathers Our pioneer days, of the individual most solicitous alists of having rights, city property has been created growth. great struggle con- As a the demands of to meet sequence every ings there are encountered individualism, of this blocked build- streets, streets

district dead-end whim on the individual and houses erected contiguous plats, regard property ex- owner without adjacent development. Oppo- isting streets or requirements, all set-back lack of uniform sition to or urged created conditions use, in the name of freedom they or, are, if widened, streets cannot be where splashes snow water on movement traffic “blighted,” heavily designated stoop. front Areas now standing many buildings in- or, vacant dotted with stances, rents, nominal attest not commanding only the fact that the buildings old, are many years many built functional, are well but rather stand as they monuments to the lack of as was planning (such hoped to be achieved permitted build- charter) ings houses to be one the other. jammed up against It was inevitable under such circumstances the very closed their and in owners themselves some instances sold for the best price obtainable. colossal waste is scant apparent everywhere, there is com- fort in the present day “protected properties” these federal looking government now for a pro- posed of urban renewal their program whereby prop- be down, will torn others be erty purchased, will a chance to commence anew. But what given value will start the area the new if under developed old con- cepts? If fine in the next potentially city seventy- five is to be allowed to years develop little more or restraint than plan, legislation were the downtown river, areas east and south from the Broadway, picture doesn’t tax the imagination catastrophic consequences.

Case Details

Case Name: City and County of Denver v. Denver Buick, Inc.

Court Name: Supreme Court of Colorado

Date Published: Jan 11, 1960

Citation: 347 P.2d 919

Docket Number: 18699

Court Abbreviation: Colo.