(575 P.2d 425)
No. 27477Supreme Court of Colorado.
Decided March 6, 1978.
Declaratory judgment proceeding by appellants, amateur radio operators and enthusiasts, challenging the constitutionality of amended zoning ordinance which requires the acquisition of a special use permit for “radio towers and antennas,” and seeking injunctive relief against its enforcement. The trial court upheld the ordinance as a reasonable exercise of the city’s police power and the appellants appealed.
Reversed
1. ZONING — Ordinances — Narrowing Construction — Uphold Validity — Construction — Speculate — Principle — Inapplicable. Although a general principle of zoning law is that a court will apply a narrowing construction to zoning ordinances in an effort to uphold their validity, nevertheless, this principle does not apply where construction of an overbroad ordinance would require the court to speculate as to the city’s intent and to engage in judicial legislation.
2. Ordinance — Special Use Permit — Radio Towers and Antennas — Accessory Uses — Overbroad — Police Power — Invalid. Zoning ordinance which required the acquisition of a special use permit for “radio towers and antennas” must be declared void for overbreadth where it improperly required a special use permit for accessory uses; and since television and
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AM-FM radio antennas are accessory uses in residential and commercial districts, the ordinance, as such, was therefore invalid as an unreasonable exercise of the city’s police power.
3. Television — Radio — Antennas — Accessories. Regardless of whether erection of an amateur radio tower and antenna above a certain height is an accessory or specially permitted use in residential and commercial districts, it is not subject to serious debate that television and AM-FM radio antennas are such accessories.
4. Ordinance — Special Use Permits — Accessory Uses — Police Power — Unreasonable. Ordinance which improperly attempted to require acquisition of special use permits for accessory uses was invalid as an unreasonable exercise of the city’s police power.
5. Antennas — Height — Reasonable Regulations — Proper. A municipality may adopt reasonable regulations with respect to the height of antennas.
Appeal from the District Court of Adams County, Honorable Clifford J. Gobble, Judge.
Quiat, O’Fallon and Drake, Marshall Quiat, for plaintiffs-appellants.
Charles L. Sharp, Jr., City Attorney, City of Northglenn, for defendant-appellee.
En Banc.
MR. JUSTICE ERICKSON delivered the opinion of the Court.
In 1975, the City of Northglenn amended Article 31 of its zoning ordinance to require the acquisition of a special use permit for “radio towers and antennas” through the enactment of Ordinance No. 403.[1] The appellants, amateur radio operators and enthusiasts, in a declaratory judgment proceeding, raised an issue as to the constitutionality of the ordinance and sought injunctive relief against its enforcement. Trial to the court resulted in a judgment upholding the ordinance as a reasonable exercise of the city’s police power. We reverse.
[1] A general principle of zoning law is that a court will apply a narrowing construction to zoning ordinances in an effort to uphold their
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validity. See Bird v. City of Colorado Springs, 176 Colo. 32, 489 P.2d 324
(1971). This principle, however, does not apply where construction of an overbroad ordinance would require the court to speculate as to the city’s intent and to engage in judicial legislation.
[2,3] The appellants correctly assert that Northglenn’s ordinance must be declared void because it is overbroad. The ordinance applies not only to persons seeking to erect amateur radio towers and antennas, but also to all owners of television sets, AM-FM radios, and other devices whose operation requires the use of an antenna. Regardless of whether the erection of an amateur radio tower and antenna above a certain height is an accessory or specially permitted use in residential and commercial districts, it is not subject to serious debate that television and AM-FM radio antennas are such accessory uses. Town of Paradise Valley v. Lindberg, 27 Ariz. App. 70, 551 P.2d 60 (1976); Presnell v. Leslie, 3 N.Y.2d 384, 165 N.Y.S.2d 488, 144 N.E.2d 381 (1957); Village of St. Louis Park v. Casey, 218 Minn. 394, 16 N.W.2d 459 (1944).
[4,5] Northglenn’s ordinance improperly attempts to require the acquisition of special use permits for accessory uses and is, therefore, invalid as an unreasonable exercise of the city’s police power. A municipality may, of course, adopt reasonable regulations with respect to the height of antennas.
Our disposition of the above issue makes it unnecessary to address the appellants’ other allegations of error.
Accordingly, the judgment is reversed.
MR. JUSTICE LEE does not participate.
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