13 P.2d 264 | Colo. | 1932
WILLIAMS, as chief building inspector of Denver, refused to issue a permit to Reed to construct a store building at the southwest corner of Colfax avenue and Adams street, only for the reason that the proposed structure was to be built, not fifteen feet back from the sidewalk line as provided in the zoning ordinance, but up to the line. Reed was unwilling to accept a permit which would require him to set his building back in accordance with the provision of the ordinance, and seeking the sort of permit which would allow him to build to the sidewalk, he applied to the district court for a writ of mandamus. To a judgment awarding the writ Williams prosecutes error. Two points are urged: First, that the ordinance is controlling and concludes Reed; and, second, that mandamus may not be invoked.
At the trial it fairly appeared, and the court found, that Colfax avenue for many blocks east and west of Adams street, intersecting, was, and for many years had been, a business street, on which private residences were no longer being built. It may be proper to observe that the same general condition as to Colfax avenue property was found to obtain in an inquiry early in 1924. WeickerCo. v. Denver,
[1, 2] On the subject generally, following Village ofEuclid v. Ambler Realty Co.,
[3] It is claimed in behalf of the building inspector that mandamus does not lie, and that Reed's only remedy *159
is to be found in the charter of Denver. The charter provisions allow an appeal from the building inspector to a so-called board of adjustment, and the decisions of that board, the charter says, may be reviewed by a court of record by certiorari. Denver Municipal Code, 1927, pp. 115-119. It is argued that unless the procedure outlined in the charter be pursued, and within the time which it fixes, one aggrieved by the action of the building inspector is precluded, and resort to mandamus, as attempted here, is unavailing. The first answer is that a city charter cannot repeal provisions of the Civil Code, nor control jurisdiction of courts. People v. District Court,
The trial court rightly resolved both points and the judgment is affirmed.