Summary
recognizing that the general rule in most states is that contract zoning is illegal as an ultra vires bargaining away of the police power
Summary of this case from Ogden v. Premier Properties, USA, Inc.Opinion
No. 26445
Decided November 11, 1974. Rehearing denied December 9, 1974.
Zoning case. Land developer's predecessor in title filed an application for rezoning from agricultural district to planned development district. Board of County Commissioners denied rezoning. District court affirmed the Board and held the zoning ordinance constitutional, and developer, who was substituted as plaintiff after acquiring title to the property, appealed.
Affirmed
1. ZONING — Planned Development Application — Meet — All Standards — Ordinance. A planned development application must meet all standards, procedures and conditions of a planned development ordinance.
2. Application — Failure to Comply — Ordinance — Unified Control. Application for rezoning did not comply with county ordinance — which provided that a planned development must be under unified control — where planned development application stated that one developer would handle proposed auto dealership and another developer would develop and sell townhouses.
3. Planned Development — Catch-All — Negative. Planned development is not a catch-all; it is not supposed to inject in a neighborhood a use which would otherwise not be allowed.
4. Planned Development — Usurp — Function — Board — Prohibited. Planned development should not usurp discretionary function of board of county commissioners to deny or grant applications for rezoning.
5. Application — Denied — Final Regulations — Unnecessary. Where developer's application for rezoning of property from agricultural district to planned development district was denied by board of county commissioners, held, under such circumstances, the imposition by the board of any final regulations was not necessary.
6. Refusal — Inform — Developer — Additional Requirements — Proper — Patent Contract Zoning — Illegal. Refusal of board of county commissioners to inform developer of whatever additional requirements and regulations were necessary — in order to approve his application for rezoning of property from agricultural district to planned development district — was proper, since to act otherwise would be patent contract zoning, which is illegal.
7. Contract — Illegal — Ultra Vires — Police Power. Contract zoning is illegal as an ultra vires bargaining away of police power.
8. Seventeen Restrictive Recommendations — Developer — Compliance — Five — Denial — Application — Rezoning — Proper. Where county planning commission approved proposed planned development, subject to seventeen restrictive recommendations, and developer complied with only five of such recommendations, held, under the circumstances, board of county commissioners was not estopped to deny developer its application for rezoning from agricultural district to planned development district.
9. ADMINISTRATIVE LAW AND PROCEDURE — Court — Set Aside — Decision — Certiorari — Lack of Evidence. In order for a court to set aside a decision of an administrative body on certiorari review, there must be no competent evidence to support the decision.
10. Reviewing Court — Limited — Record. Reviewing court — on certiorari review of a decision of an administrative body — is limited to what appears of record.
11. Supreme Court — Super-Zoning Commission — Negative. The Supreme Court will not sit as a "super-zoning commission."
12. Planned Development — Compatible — Debatable — Denial of Application — Competent Evidence — Abuse — Negative. Where question — whether proposed planned development was compatible with surrounding development — was fairly debatable, decision of board of county commissioners denying application for rezoning from agricultural district to planned development district cannot be viewed as being supported by no competent evidence; hence, in such state of the record it cannot be said there was a clear abuse of discretion.
13. Ordinances — Presumed — Valid — Invalidity — Burden of Proof. Zoning ordinances — like other legislative enactments — are presumed valid and those asserting invalidity have the burden of proving such invalidity beyond a reasonable doubt.
14. Ordinance — Unconstitutional — Proof. To establish that a zoning ordinance is unconstitutional, it must be shown that it is not substantially related to the public health, safety, or welfare.
15. Rezoning — Best Interests — Negative — Ordinance — Unconstitutional — — Burden of Proof — Not Met. Where board of county commissioners made a specific finding that the rezoning of property from agricultural district to planned development district was not in the best interests of the health, safety, welfare and morals of the designated county, and contentions regarding the board's actions were fairly debatable, held, under these circumstances, developer had not met its burden of proving that zoning ordinance as applied to its property was unconstitutional.
16. Ordinance — Unconstitutional — Proof — Preclusion — Use — Reasonable Purpose — Confiscatory — Due Process. To establish that zoning ordinance is unconstitutional as applied to developer's property, it must be shown that the ordinance precludes the use of such property for any reasonable purpose and thus constitutes a confiscatory taking of property without due process of law.
17. Rezoning — Use — Applicant — Proof. In order to obtain rezoning to permit a use which applicant seeks, he must prove that it is not possible to use and develop the property for any other use enumerated in the existing zoning.
18. Contradictions — Use — Enumerated — Developer — Rezoning — Planned Development — Proof — Ordinance — Unconstitutional — Negative. Where record was replete with contrasts and contradictions on issue of whether developer could use and develop property for any use enumerated in existing zoning — which was for agriculture — held, under the circumstances, developer, who sought rezoning to planned development district, did not meet its burden of proof beyond reasonable doubt that zoning ordinance as applied to it was unconstitutional.
19. Rezoning — No Evidence — No Unreasonable Uses — Intervening Zones — Burden of Proof — Failure — Unconstitutionality — Negative. Where developer, who sought rezoning from agricultural use to planned development district, presented no evidence that there were no reasonable uses in approximately 8 intervening zones, held, under the circumstances, developer failed to meet its high burden of proof in attempting to show that existing ordinance was unconstitutional as applied to it.
20. Prerequisite — Confiscation — Proof — Use — Zones — In Between — Not Possible. As a prerequisite to showing that property has been unconstitutionally confiscated under existing zoning, there must be proof that it is not possible to use and develop land for any uses permitted in zones which are in between zone sought and existing zone.
21. Developer — Not Deprived — Reasonable Use — Ordinance — Constitutional. Based upon finding that developer was not deprived of any reasonable use of property by zoning ordinance, district court was perfectly justified in holding that ordinance as applied to property in question was constitutional.
22. Application — Denial — Agricultural to Planned — Developer — Appeals — Notice — Restrictions. Where application for rezoning of property from agricultural district to planned development district had been denied by board of county commissioners, developer, who thereafter purchased the property and began process of appeals, had full and complete notice and knowledge of zoning restrictions on its property, and any hardship was self-inflicted.
Appeal from the District Court of Jefferson County, Honorable Roscoe Pile, Judge.
Bradley, Campbell Carney, Leo N. Bradley, Victor F. Boog, for plaintiff-appellant.
Patrick R. Mahan, County Attorney, Gail E. Shields, Assistant, for defendant-appellee.
We will refer to plaintiff-appellant as Ford and the Board of County Commissioners of Jefferson County as the Board. The latter denied Ford's application for rezoning. The district court upheld that decision. This appeal is from that judgment. We affirm.
I.
Ford's predecessor in title filed an application for rezoning from A-2 (Agricultural Two District) to P-D (Planned Development District) for approximately 23 acres located at the southwest corner of West Hampden Avenue and South Wadsworth Boulevard in Jefferson County. Ford was to develop and occupy the land. The plan was submitted first to the Jefferson County (Jeffco) planning commission. It approved the proposed planned development, subject to 17 restrictive recommendations of which, according to the record, Ford complied with only five. The Board denied the change.
Pursuant to C.R.C.P. 106(a)(4), review was sought in district court. While the matter was still pending, Ford acquired title to the property and was substituted as plaintiff.
A two-pronged challenge to the Board's action was launched in the district court. In the Rule 106 certiorari proceeding, it was claimed that the Board was estopped to deny the application because Ford had complied with recommendations of the planning commission on which its approval was predicated. As a second string to this bow Ford claimed that the Board was arbitrary, capricious and showed an abuse of discretion. A second claim sought a declaratory judgment that the existing zoning as applied to the property was an unconstitutional confiscation.
Trial was held in two phases. On certiorari the lower court reviewed only the record at the hearing before the Board. The constitutional question was accorded a complete trial de novo. At its conclusion, the district court affirmed the Board and held the zoning ordinance constitutional.
II.
The subject property is zoned A-2 (agricultural). The area at the time of the original zoning was generally undeveloped. Medium and high density residences have since been built, as have restricted commercial businesses.
The most extensive land use in the area is the 300 acre Academy Office Park, a multi-complex commercial use. However, that entire area is protected by extremely strict covenants, voluntarily imposed by the builder, which last until the year 2000. They are designed specifically to preserve an open green space motif. The Jefferson County Comprehensive Future Land Use Plan recommends low density residential and light restricted commercial uses for the area.
The planned development submitted by the Ford application would be a concentrated commercial and medium to high density residential use. An auto dealership would cover about eight acres. It would be buffered from the surrounding community by townhouses, which would cover approximately 13.5 acres. The entire combination development would be artfully landscaped. Ford argued that a heavy commercial use, planned as it is to blend with the area, would not be out of place. The Board came to a different conclusion.
III.
[1] We take up first the question of whether the Board is bound to grant the change. Ford cites Dillon Companies, Inc. v. Boulder, 183 Colo. 117, 515 P.2d 627 (1973), for the proposition that the Board is estopped to deny its application for rezoning. We do not read Dillon as being that broad. In Dillon there were no findings of fact to support the city council's decision. Dillon also pointed out that a planned development application must meet all standards, procedures and conditions of a planned development ordinance.
[2] In addition to not implementing 12 of the planning commission's recommendations, Ford did not strictly comply with the Jeffco ordinance. Section 39-B and section 39-C-1 state in part that a planned development must be under unified control. The record reveals that Ford would handle the auto dealership and Broker House, which had a contract to purchase the residential site, would develop and sell the townhouses. That is separate, not unified, control.
Moreover, section 39-C-2 states in part that P-D parking, height, setback and area regulations shall be compatible with the surrounding development. The Board made a specific finding that the Ford proposal was "incompatible with the surrounding land uses at the present time." See Moore v. City of Boulder, 29 Colo. App. 248, 484 P.2d 134 (1971).
Ford argues additionally that the Jeffco ordinance mandates final compliance regulations and contends that the Board having failed to impose any final regulations, there was nothing remaining to satisfy. The resulting conclusion advanced is that Ford has met the county conditions by default and under the Dillon rule became entitled to the rezoning.
[3-5] Ford's thesis would require that any planned development proposal must automatically be granted by the Board, leaving it to only the power to issue final regulations. Then — merely by compliance — the plan would pass, regardless of whether the Board wants the design. Such bootstrapping is clearly obnoxious to the essence of planned development zoning. Planned development is not a catch-all. It is not supposed to inject in a neighborhood a use which would otherwise not be allowed. It should not usurp the discretionary function of the Board. Since Ford's application was denied no final regulations were necessary. This would be meaningless rhetoric, for there was nothing to comply with.
[6,7] At the conclusion of extensive hearings, Ford requested the Board to inform it of whatever additional requirements and regulations were necessary in order to approve the application. This the Board refused to do. To act otherwise would be patent contract zoning, a concept held illegal in most states as an ultra vires bargaining away of the police power. 1 R. Anderson, American Law of Zoning §§ 8.20-1.
[8] Thus, looking at the Jeffco statute as a whole, we cannot say that the rationale of Dillon applies in this case. The Board was not estopped to deny Ford its application for rezoning.
On the other phase of the certiorari review, Ford asserts that the district court erred in upholding the Board's arbitrary and capricious denial of the requested rezoning.
[9,10] In order for a court to set aside a decision of an administrative body on certiorari review, there must be no competent evidence to support the decision. Board of County Commissioners v. Simmons, 177 Colo. 347, 494 P.2d 85 (1972); Marker v. Colorado Springs, 138 Colo. 485, 336 P.2d 305 (1959). The reviewing court is limited to what appeared of record, which in this case was substantial. It is obvious from the record that Ford has tried to propose an innovative planned development design. It is equally obvious that many others contest the feasibility of such a plan.
[11,12] This Court will not sit as a "super-zoning commission." Garrett v. City of Littleton, 177 Colo. 167, 493 P.2d 370 (1972); Baum v. Denver, 147 Colo. 104, 363 P.2d 688 (1961). The question whether the proposed planned development was compatible with the surrounding development was fairly debatable. Radice v. New York, 264 U.S. 292, 44 S.Ct. 325, 68 L.Ed. 690 (1923); Simmons, supra. Consequently, we cannot say that the zoning decision of the Board was supported by no competent evidence. In such a state of the record, it cannot be said there was a clear abuse of discretion.
IV.
Ford also asked for a declaratory judgment that the zoning ordinance as applied to its property is unconstitutional.
[13] Zoning ordinances — like other legislative enactments — are presumed valid. Ford has the burden of proving beyond a reasonable doubt that it is invalid. Simmons, supra; Baum, supra.
[14,15] There are two methods to establish that a zoning ordinance is unconstitutional. First, it may be shown it is not substantially related to the public health, safety, or welfare. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); City of Englewood v. Apostolic Christian Church, 146 Colo. 374, 362 P.2d 172 (1961). Relating to this, the Board made a specific finding that the " rezoning [was] not in the best interest of the health, safety, welfare and morals of the citizens of Jefferson County." As noted above, contentions regarding the Board's actions were fairly debatable. Thus, Ford has not met its burden of proof here.
[16-18] The second method is to show that the zoning ordinance precludes the use of Ford's property for any reasonable purpose. Village of Euclid, supra; Madis v. Higginson, 164 Colo. 320, 434 P.2d 705 (1967); Baum, supra. A trial de novo was held on this point. Considerable evidence and many witnesses were produced for both sides. The answers were far from uniform. Still, we do not feel that there has been a confiscatory taking of property from Ford without due process of law. True, whatever use is available is perhaps not the highest and best use. But that has never been the test. Madis, supra. We have held that in order to obtain rezoning to permit a use which the applicant seeks, he must prove that it is not possible to use and develop the property for any other use enumerated in the existing zoning. Garrett, supra; Wright v. Littleton, 174 Colo. 318, 483 P.2d 953 (1971); Baum, supra. The record is replete with contrasts and contradictions on this point. We cannot say as a matter of law that Ford met its burden of proof beyond a reasonable doubt.
[19,20] Similarly, just because the land is unsuited for agricultural use does not mean the applicants can skip other intermediate zones up to planned development — the most advantageous for its purpose. Ford presented no evidence that there were no reasonable uses in approximately 8 intervening zones. Such proof is of crucial importance as a prerequisite that property is unconstitutionally confiscated. Simmons, supra; Garrett, supra. Without it, Ford failed to meet its high burden of proof.
[21] Upon finding that the landowners were not deprived of any reasonable use of their property by the zoning ordinance, the district court was perfectly justified in holding that the ordinance as applied to the property in question was constitutional.
[22] We note if there is hardship here it is self-inflicted. The application had been denied by the Board when Ford thereafter purchased the property and took up the burden of appeal through the courts. Thus, it had full and complete notice and knowledge. Accord Nopro Co. v. Cherry Hills Village, 180 Colo. 217, 504 P.2d 344 (1972); Madis, supra.
Judgment affirmed.