*1 No. 26808 Harry Mosgrove, Coloroso, Alan Peiton, Rex J. West, Silbie and Peter Rasmussen v. Town of Federal Heights, a municipal corporation
(543 715) P.2d Decided December 1975. *2 Bauer,
Richard B. for plaintiffs-appellants. *3 Stitt, Roan, P.C., Stitt, Wittenbrink and R. James for defendant- appellee.
En Banc.
MR. JUSTICE DAY delivered the opinion of the Court.
This an appeal is from a ruling upholding trial court the consti tutionality of ordinance in the Town Heights of Federal requiring the con struction of types fencing two for dwellings. multi-family We affirm.
The ordinance in question requires six foot board fences to be erected (trash around trash collection areas receptacle fencing) and or ma- wood sonry fences to be erected around the side and rear lot (perim- boundaries fencing) eter of multi-family dwellings. Plaintiffs-appellants, five named individuals, brought an action for a declaratory judgment, alleging that the ordinance rights violates their to due process equal protection of the laws under the United States and Colorado Constitutions.
The trial following court reached the (1) determinations: that the or- dinance is a reasonable and exercise of proper (2) appellee’s police power; that would compliance not require prohibitive (3) financial expense; that there is a reasonable basis for the classification distinguishing between sin- gle dwellings; (4) and multi-family receptacle that trash fencing alone does scattering not eliminate the trash problem because of a variety conditions which necessitate the additional of perimeter construction fenc- ing. argue
Appellants that the trial determination (4) court’s was con- trary undisputed evidence adduced at trial established that trash on imposing ap- without problem would eliminate fencing erecting fencing. perimeter burden of additional financial pellants For ex is not the case. indicates that this of the record A review matter is effect that refuse to the testimony is in the record ample, there winds complexes, that apartment grounds scattered on continually would problem and that adjacent properties, material onto this blow areas alone. collection fencing around the trash by be curtailed not would combat reflects record further onto multi-family areas from trespass pedestrian recurring problem of fact findings appellate law It is a maxim of adjacent properties. will be disturbed on re evidence supported competent which are view.
II. constitutionality of that the oft-repeated an axiom It is of course Rubber Co. South is Gates presumed. enactments legislative District, and Park Recreation Metropolitan Suburban Colo. v. Industrial Harding P.2d 436 Commission. ordinance, bear appellants As assailant of P.2d doubt. Turner beyond reasonable it unconstitutional proving burden been That burden has not Lyon, here. met
III.
a viola
question
ordinance in
constitutes
assert the
Appellants
merit.
pro
has no
process.
of due
The contention
Constitutionally
tion
subject
regulation through
many are
rights are not absolute and
tected
*4
—may
in the exercise
cityA
police power.
exercise of the state’s
proper
a
—
a
of
in manner that is not arbi
property
that
restrict the use
power
of
relationship
legiti
and that bears a substantial
trary or unreasonable
Co.,
Realty
Euclid v. Ambler
governmental concern. Village
mate
of
365,
114,
(1926);
Cherry Hills
Nopro
L.Ed. 303
47 S.Ct.
71
272 U.S.
Denver,
217,
154 Colo.
Apple
180 Colo.
504 P.2d
Village,
166,
(1964).
P.2d 560 as using prevent so to property extent of one man from his preventing their making property.” a full and free use of corresponding others from object protection The ordinance is present of health, Refuse and litter control is safety community. welfare of the legitimate concern. See municipal of clearly within the framework that the conclu (20)(d), supports CRS. The evidence 31-12-101 1973. section fencing are means effective both trash sion that dealing problem. with the of
IV. Relating finding to the court the ordinance does not impose burden, an unreasonable financial the record reflects that the cost fences is no means prescribed prohibitive in to the of relationship values Denver, properties question. Apple Supra. V.
V. We reject also appellants’ arguments that the ordinance violates their right protection to of the laws. equal gravamen argument of their is multi-family dwellings owners of arbitrarily are discriminated against it when is shown that requirements are not imposed on single dwellings owners family as well.
The record reflects that the
problem refuse and litter control
becomes correspondingly more acute in
proportion
population density.
Accordingly, the multi-family property
classification has
rational basis.
This
infringement
case does
involve the
not
of fundamental rights or the
creation of suspect classification
trigger
the necessity
judi
for strict
Richardson,
cial scrutiny.
677,
1764,
Frontiero v.
411 U.S.
93 S.Ct.
583 (1973);
Putnam,
L.Ed.2d
Jarmel v.
factors,
Absent such
legislative classifications which are
un
reasonable and
and which
arbitrary
bear
rational
legiti
relationship
objectives
mate state
are deemed to
with
comply
traditional equal protec
Boraas,
tion standards. Village
Belle Terre v.
U.S.
S. Ct.
Co.,
Legislatures
presumed
are
to have acted constitutionally; statu
tory
will
classifications
be set aside only
grounds
if no
can be conceived to
justify
Commissioners,
them. McDonald v. Board
Election
VI. Appellants’ contention that the statute is unconstitutional as ap plied is not properly at They before us this time. argue that the ordinance might require adjacent owned commonly multi-family units with shared parking be facilities to severed by a fence. We would note parenthetically that the record reflects evidence to the effect that the ordinance would be interpreted to avoid such a result. The problem an appli unreasonable cation of the yet wholly ordinance is as hypothetical. *5 judgment
The is affirmed. KELLEY, MR. GROVES, JUSTICE MR. JUSTICE and MR. JUSTICE in part ERICKSON concur and part. dissent in part. dissenting in
MR. GROVES JUSTICE opinion upholds which of portion dissent to respectfully I fencing. reads that The ordinance of perimeter requirement ordinance . of the and rear lot lines site along the side be “installed fencing such shall to any barrier as to constitute a constructed as shall be so . which fence . be blown or other- might which trash, other waste refuse or waste paper, that the provision requires . To me this ...” property carried off such wise I re- to the front lot line. the rear lot line side fences must from proceed side fence in the to a require and unreasonable arbitrary gard highly it as the-front opposite pro- a point at the sidewalk to point from a yard front uncon- as an Further, regard requirement I such building. jection of the taking property. of stitutional dissenting part. ERICKSON
MR. JUSTICE
upholds
opinion
of the
portion
I
dissent to
respectfully
legislative re-
fencing. Absent valid
of perimeter
requirement
ordinance
enjoy
to
maximum
strictions,
are entitled
I believe the citizens of Colorado
If
of
upon
a restriction
the use
property.
use of their
free and unrestricted
re-
power, that
police
as a valid exercise
upheld
is to be
property
bearing a “rational relation-
arbitrary,”
“reasonable not
must be
striction
Boraas,
Terre
Belle
v.
objective.” Village
state
[permissible]
ship
(1974); see also San Antonio
“shall site, masonry permit- fence of wood or construction building a solid and so the Town Building Code or other ordinance of the Uniform ted from trash, and other waste refuse prevent wastepaper, as to constructed off being from blown or otherwise carried dwelling units multi-family said property.” must that side fences ordinance indicates A fair of this interpretation are The owners lot line. from the rear line to the front constructed lot be that a full The fact building materials. masonry to use wood or required rational solution to the prob- than required suggests less enclosure is otherwise carried “trash, being blown or . . . wastepaper, and refuse lem reasonably calculated statute is not this interpreted, As property.” off the arbitrary oppressive result. an its accomplish purpose produces attack, and that subject to constitutional is not Trash However, the additional burden to add is valid. the ordinance part of case, we this dictates that fencing, under the circumstances of the ordinance. portion down that strike
MR. JUSTICE KELLEY dissenting in part.
I I respectfully dissent. recognize legislation directed to the pro- health, motion of public safety and welfare is presumptively valid. Hills, Nopro v. Cherry 217, Town 180 Colo. 504 P.2d (1973). IWhile agree with the majority regarding of the ordinance re- portion quiring a six-foot board fence area, to be erected around a trash collection disagree I that the perimeter fencing portion valid ordinance is a ex- ercise of police power.
An exercise of the police power is valid
when
only
it is reasonably re-
health,
lated to the
morals,
safety,
general
or
welfare of
public.
Euclid
Co.,
365,
v. Ambler Realty
L.Ed. 303
Lakewood,
Snyder
371;
Littleton,
189 Colo.
542 P.2d
Wright v.
Whether or not the
employed
means
is reasonably related
legitimate
police power objective should be de-
termined
balancing the various competing values. Combined
Denver,
Communications
Corp.
(Dissent-
I recognize that legitimate trash control is a objective of police power. But in light around the area, trash receptacle I would hold that the expense to the landowner necessitated by the addi- tional perimeter fencing so outweighs the benefits to the public in terms of trash control it constitutes an unreasonable exercise of the police power. City Stevens v. Salisbury, 240 Md. 214 A.2d