*1 within ness” bring petitioners within Colorado to executed The contract was statute. provisions in Denver. were delivered parties The cattle certificates for into The Wyoming shipment Colorado. of health one of the as to the signed by petitioners sub- show destined for Colorado they cattle Pay- to Colorado ject, therefore, requirements. entrance funds ment was made the Colorado purchasers drawn on a Colorado bank.
The motion to denied. properly quash rule discharged. The
No. 22080. George Fran D. Francis, J. D. Francis Vernon City County v. a Munici Vohoska of Denver, pal Mayor Currigan Corporation; Thomas Adjust County City Denver; Zoning County City Denver; ment for Harry W. S. Huttner, W. Leland Bean, Bundy, Thomas mem Michael and John Pomponio, Zimmerman, purporting to act of the Board of bers Adjustment. the Board as members (418 45) P.2d September 6, Rehearing 3, 1966. Decided 1966. denied October *2 pro plaintiffs in error. se and for J. George Francis, Attorney, As- City Max P. T. Thrasher, Earl Zall, Assistant, for defendants sistant, Kelly, Robert M. error. En Banc. opinion Moore delivered of the court.
Mr. Justice plaintiffs plain- in error as We will refer to the County city; City tiffs; of Denver as the Mayor; Currigan and to other defend- Thomas as the all Adjustment. the Board of ants as sought judgment court the the trial invalidating certain Board of orders concerning property own, now which prevent allegedly unlawfully full them from the which property in accordance with uses use of their those zoning ordinance authorized are applicable city in which real to the area is located. unimproved of a tract of
Plaintiffs are the owners 8th avenue and corner of land located on the southwest commonly Washington known Denver, street in acquired property. They tract of to this title Boettcher a “Zone Lot” land it had been included after purpose Adjustment-Zoning for the the Board of assembling a square-foot area sufficient authorize construction of a multiple story apartment house, the southeast corner of the intersection which the now apartments stand. Immediately April prior 1959 both of the properties were owned Green jointly Acres Investment Co., Great Western Park- Co., Building view Building, Inc., and Co. The Green Meadows Land two properties separated Washington street. owners the total land area made to the obtaining Zone Administrator for the purpose of permission to include “Zone parcels both of land as a Lot,” and also sought permit multiple story to erect a apartment avenue the southeast corner 8th house across Washington street, the street from the Boett- cher property. building which applicants sought erect on the southeast 8th and Washington contained a area than greater of floor space per- mitted by zoning regulations to that location. applicable *3 However, by including Boettcher land across the the street as of the Lot” which the Lido part upon “Zone was to built would sufficient area be there be to authorize The was proposed building. application the made to re- pursuant Section 616 of the municipal code Building Zone Plan for lating “Special Lot Planned Groups.” the Boettcher the By adding property appli- 40,000 cants an additional feet of gained gross square floor area in connection proposed apartment with the be southeast corner. building house erected on the The Administrator denied the of Zoning application the owners to southwest corner part include the of “Zone Lot.” the Upon appeal Adjust- the Board of ment, that the body reversed decision of the Zone Ad- and ministrator held that both parcels of land could be considered one Lot.” that By “Zone order Board of Adjustment thus authorized the a permit of issuance erect the Lido Apartments. “Planned
The Building Group” authorized act of the Board of Adjustment contemplated that the Boett- landscaping standing, its cher mansion remain would parking permitted, be restored, would be no would guests apartment would house of the tenants new of the sleeping quarters, and that mansion as use make property. Boettcher no other would be made of the use property of the Board of found that all The notwithstanding was it Lot,” one “Zone was single parcel by Washington of to it a divided was street, contiguous built the title land. the Lido was Before conveyed owners. to new the Boettcher was Boettcher that no use ever made It is clear was Apartments property by owners of February Board 1960 the In tenants of Lido. owners, Adjustment, upon application new temporary permitting use of entered an order showing dwelling upon single unit a mansion as destroying property, that occu- vandals pancy it never however, desirable; would be someone up, occupied. ulti- boarded windows were was mately order of structure was razed on entire city. va- remained as has at all times since corner early part ground. 1964 a deed cant, unused and title Boettcher corner foreclosed trust .of Savings passed Loan Associations three thereto Public Trustee. deed from the plaintiffs acquired to the 1964 the title In November applied they corner, 8, 1964, on December Boettcher for change Feb- 1959. On Lot” order of the “Zone ruary and the was denied 2, 1965, Adjustment reaffirmed the restrictions the uses put the Boettcher could to which Building Group,” “Zone Lot Planned allocated to *4 apartments. the Lido complaint 1965,
On March the in 1, the instant action alleged Essentially, filed the it is in Plaintiffs. placed complaint that the restrictions the on the Boett- including cher were void for various reasons imposed beyond claim that restrictions jurisdictional Board; powers deprived of all use of the subject land and are unable to to use it authorized under the R-3 status of area in which it is im- located; and that the Board which posed the It was restrictions was illegally appointed. urged in the trial court had that, if the restrictions even lawfully imposed 1959, grant plain- in the refusal tiffs’ for relief in 1965 because therefrom of changed circumstances was error and operated beneficial deny any use of the and was there- property, fore proc- amounted to a denial of due confiscatory ess and protection of the equal law. direct
We attention to first claim paragraph in contained follows: plaintiffs’ complaint. It reads as “Subsequent #65-59, to the decision in the zone Case ordinances with the Defendant were amended City bulk respect plane provisions gross and allowable floor area so that Lido at the time of application and appeal, hereafter referred to, was not in violation of bulk plane of the ordinance. requirements floor area gross violation was reduced.” substantially The answer filed all other city defendants admits the allegation the above-quoted paragraph.
Under this state of the record position city that, notwithstanding admitted fact that the south- west corner (Boettcher tract of has never land) at any time been used for any purpose beneficial by the used; not now apartments; so will not at any be used future time as part the Zone Lot assigned Lido; it must for all time to as come remain va- cant can, and no practical matter, use be made of it. contends, further in city effect, this result
must follow notwithstanding due to amendments that, in the applicable the Lido build- ordinance, apartments ing longer no needs the southwest corner Zone Lot allocated it in order to be full with “bulk conformity plane” requirements
445 plaintiffs the at the time in and effect full force they made acquired time and at the title to the Adjustment application from for relief to Board of the questionable had theretofore restrictions which put. placed could land use to which the reduced the further The amendments to the ordinance chargeable “gross requirements floor area” “gross by square area” floor 17,000 feet, at least its (if con- from violation sideration) the Boettcher land is excluded amount. reduced
was also parties and deal with are exhaustive briefs of the plaintiffs following questions: can be heard whether days than in this action was commenced more which Adjustment; Board of after the 1959 order of the simply original void or whether the Zone Lot order was appli- single under the erroneous; Zone Lot whether including therein created cable ordinances can be property public street; and which is divided body jure Adjustment Board of was a de whether the functioning appointment facto a de a valid under authority.” illegal body operating “color of under an contemplated Building Group” at the The “Planned controversy time ex- at outset of this never existed city steps cept paper. were ever taken No ever existed authorized “Zone Lot” see to it that nothing Apartments did whatever The Lido fact. justify of its inclusion the Boettcher of operations city by ordered affirmative act and the seeing Group” by Building “Planned destruction of the mansion to it the Boettcher was razed. foregoing circumstances
Under facts and all Adjustment say erred it that the Board sufficient February 2, 1965, it denied the when judgment court for trial relief. affirming denied the action right constitutionally protected to the particu use their land. Under make a beneficial against plain- which lar facts of this case the restrictions tiffs complain are unconstitutional, confiscatory, void.
By opinion we do not determine question to whether, under applicable charter and ordinance pro- visions, a “Zone Lot” can consist of land divided *6 two a parts public into On that there by street. question is a of opinion difference and it is decide unnecessary issue in of this case. disposing judgment and reversed the cause remanded with directions to grant the relief for prayed plaintiffs.
Mr. Justice McWilliams dissents. Justice Mr. McWilliams dissenting: I must I dissent, as remain unmoved completely plaintiffs’ plea that on present restrictions the use of their situate on the southwest Eighth and Washington are, Avenue Street character- ized majority opinion, “unconstitutional, confis- catory and void.” It is to be noted that the majority opinion in nowise points just out which provisions of what constitution negate present on this restrictions particular these property. Rather, restrictions in my opinion are a real sense of the plaintiffs own making, and I view entire a accordingly matter as merely of a rather bootstrap operation obvious one type, and that should not find sanction certainly in the law.
Furthermore, I regard the majority opinion as strik- at ing very heart of the Zone Lot concept. In this an regard ordinance of the City County of Denver provides as follows:
, “Zone Lot A Structures. area, separate for called herein the Zone. shall Lot, designated, be provided maintained for continuously each contain- structure a Use ing by Right. Each Lot shall have at least Zone one front line and shall occupied only by struc- Right ture a containing Use and a subordinate struc- Assessory containing only Uses. ture or structures ** * *” supplied.) (Emphasis unnecessary a size of going detail, Without into given lawfully building may on be constructed which upon, depends sur- the total to, Zone Lot is related words, particular In other Zone Lot. area of face apartment house, larger larger the Zone Lot the example, thereon. can be built for setting of the 1959 the owners that in It in this Eighth eight Avenue corner of southeast lots on the Washington owned the also time who at Street, intersec- same corner of the five lots tion, the southwest group these asked acceded to The Board Zone Lot. thirteen into lots one request southwest the five lots because their corner bigger much Lot, in the Zone included other- apartment could have house was constructed than possible. wise impor- my utmost matter, it view of the *7 where not an instance note that this is
tance to Board in involuntarily property any manner “took” property on the imposing situated restrictions an this is Rather, intersection. corner of this southwest their own lots of owners of these instance where the sought afore- included in the their lots volition to have knowing full well that this Lot mentioned Zone “continuously main- be thereafter area would have be built thereon. structure which was to tained” for the they got, They but now that for, asked what then, get they “bigger” constructed, seek Lido has been sug- question. in And is no Zone Lot there out gestion are in dif- this action that in predecessors position title, in their better than ferent persons namely, in 1959. the land who owned those purchased and land with both the actual this Plaintiff part knowledge lots were a that these constructive upon had been constructed, Lot which the Lido Zone pro- applicable knowing that further ordinance “continuously that a Lot vided Zone should thereafter be plainer maintained” for each structure lan- thereon. guage, plaintiffs they simply buying knew were a law they ques- in sense that knew the five in suit, lots tion Lot of the Zone on which had the Lido that five be constructed and these lots would they get little value unless could somehow five these particular lots removed from this Zone Lot.
This, then, an where is but owners instance Eighth lots Washington the southwest Avenue and being permitted by defy are Street us to adage may that ancient one not have cake his By I eat it too. mean in that this: owners of particular lots asked be included these Lot in Zone upon request which the built; Lido was to be this granted “bigger” was and a built thereon than could otherwise have been constructed; now the Lido blandly built, is new owners of these lots ask be same particular out taken jority opinion of this Lot; Zone the ma- request granted. now is to be This I cannot accede I to, therefore must dissent. opinion majority strong suggestion
In the is property question because the run and no is down doubt overrun with weeds tin it should cans, therefore released from the Zone Lot standing. the Lido is now There no citation of au- thority proposition for that because allows his one get thereby a run into down he condition, zoning from frees it valid course, restrictions. This, really bootstrap operation. be a would Finally, recognize urge many I that the do matters which debatable, indeed but such do not opinion. majority form the basis for the IWhat do *8 holding dissent from is the bald that the restrictions on plaintiffs’ property simply are con- unconstitutional, fiscatory why and void. Just how and such uncon- confiscatory spelled stitutional, and void has not been my satisfaction, out to at Flow least. the owners of the about complain successfully now can subject property sought, voluntarily title their predecessors me. defeats got, 21807. No. Louise, Harman v. Charles Harman W.
Gerald Mowry) , (Nee Donna Chase Chase, Dix, David Robert Bertha Chase M. Chase, Thomas Murphy, Rose Ann Jane Dix. 784) (417 P.2d 6, September 1966. Decided