Nos. 80SA110, 80SC43 and 80SC59Supreme Court of Colorado.
Decided December 28, 1981. Rehearing denied January 18, 1982.
No. 80SA110 Original Proceeding No. 80SC43 Certiorari to the Colorado Court of Appeals No. 80SC59 Appeal from the District Court of Jefferson County, Honorable Joseph P. Lewis, Judge.
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McMartin, Burke, Loser Fitzgerald, P.C., Ronald S. Loser, Herbert C. Phillips, for petitioners in 80SA110.
Banta, Hoyt, Malone Banta, P.C., J. Mark Hannen, for respondents in 80SA110.
Blake T. Jordan, for amicus curiae, Colorado Municipal League in 80SA110.
Skelton, Oviatt and O’Dell, Jeffrey J. Kahn, for petitioners in 80SC43.
Gorsuch, Kirgis, Campbell, Walker and Grover, Robert E. Warren, Jr., Susan K. Griffiths, John S. Pfeiffer, for respondents in 80SC43.
Blake T. Jordan, for amicus curiae, Colorado Municipal League in 80SC43.
Calkins, Kramer, Grimshaw Harring, Richard L. Harring, for amicus curiae, Home Builders Association of Metropolitan Denver in 80SC43.
Myles J. Dolan, Charles T. Flett, for plaintiffs-appellants in 80SC59.
Benjamin King, Arvada City Attorney; Greengard, Blackman Senter, Richard D. Greengard, Thomas S. Rice, for defendants-appellees in 80SC59.
Blake T. Jordan, for amicus curiae, Colorado Municipal League in 80SC59.
En Banc.
JUSTICE LEE delivered the opinion of the Court.
[1] These three cases have been consolidated for the purpose of oral argument and opinion. They present the question whether zoning and rezoning by municipal governing bodies are legislative acts subject to challenge by popular referendum. We find that, in the context of these cases, zoning and rezoning are legislative in character and thus subject to the referendum and initiative powers reserved to the people under Colo. Const. art. V, sec. 1.[1]Page 299
I.
[2] The factual background and procedural setting of each of the three cases is different and is set forth separately.
The Greenwood Village Case
[3] The case of Margolis, et al. v. District Court, No. 80SA110 (the Greenwood Village case), concerns the original zoning of land recently annexed to the City of Greenwood Village.[2]
The Lakewood Case
[10] The case of Wright, et al. v. City of Lakewood, No. 80SC43, is before this court on certiorari to the court of appeals.
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[11] On June 12, 1978, the Lakewood City council adopted an amendment to the Master Land-Use Plan of the City and passed an ordinance rezoning certain properties within the area covered by the amendment to the master plan.[5] The amendment to the master plan and rezonings by the Lakewood City Council would allow development of an activity center in the area around the Villa Italia Shopping Mall. The plan called for increased commercial, office building, and residential usages as well as significant street improvements, in an apparent attempt to create an integrated “downtown” area within the City of Lakewood. [12] On July 11, 1978, Wright and other citizens of Lakewood filed petitions seeking a referendum on the amendment to the master plan and on the rezonings. The Lakewood City Council refused to repeal the ordinance and did not set a date for the referendum election. [13] Wright filed an action for declaratory relief and mandamus to force the City of Lakewood to hold a referendum election. On June 13, 1979, the District Court of Jefferson County granted Wright’s motion for summary judgment and ordered the city council to repeal the ordinances or set an election on the referendum petitions. [14] Lakewood appealed to the court of appeals. A divided court reversed, holding that the approval of an amendment to the master plan and the adoption of a rezoning ordinance were not “legislative” acts and therefore were not subject to the referendum power contained in the Colorado Constitution, art. V, sec. 1 Wright v. City of Lakewood, 43 Colo. App. 480, 608 P.2d 361 (1979). [15] We granted certiorari to review the decision of the court of appeals.The Arvada Case
[16] Yanz, et al, v. City of Arvada, No. 80SC59, is before the court on a writ of certiorari under C.A.R. 50 because of the important issues it presents.
II.
[22] Before reaching the main issues to be decided in this case, there are threshhold procedural issues raised in the Greenwood Village case which must be determined.
A.
[23] Greenwood Village first claims that the case is not properly before this court under C.A.R. 21 and that any error made by the district court may properly be corrected on appeal. We have previously held that original proceedings are authorized to
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a serious abuse of discretion where an appellate remedy would not be adequate.” (Citations omitted.) “It is not a substitute for appeal, . . . [and] the exercise of original jurisdiction under C.A.R. 21 is discretionary.”Coquina Oil v. District Court, 623 P.2d 40 (Colo. 1981).
[25] See also, Sanchez v. District Court, 624 P.2d 1314 (Colo. 1981). Since the ruling of the district court has allegedly denied the citizens their fundamental right to challenge government decisions by referendum and initiative, we have elected to accept jurisdiction to determine if a fundamental right has been denied, and, if so, to prevent the perpetuation of that denial.B.
[26] Greenwood Village also argues that Margolis failed to join indispensable parties under C.R.C.P. 19; that the failure to join these parties is a jurisdictional defect; and, that therefore, dismissal of Margolis’ claims was mandatory. See Norby v. Boulder, 195 Colo. 231, 577 P.2d 277 (1978). We disagree.
III.
[29] In determining whether the acts of zoning and rezoning are subject to the referendum and initiative powers reserved to the people, a review of recent cases is helpful. In Fort Collins v. Dooney, 178 Colo. 25, 496 P.2d 316
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(1972), we held that a rezoning ordinance passed by the city council was subject to the referendum provisions of the Fort Collins City Charter. In that case, we held that a city charter provision which provided that “[t]he referendum shall apply to all ordinances passed by the Council, . . .” (emphasis added) with certain non-applicable exceptions, required that the city council submit the rezoning ordinance to a referendum vote by the electorate.
[30] Snyder v. Lakewood, 189 Colo. 421, 542 P.2d 371 (1975), raised a question of the proper procedure for judicially challenging the rezoning of a particular piece of property. in Snyder, Lakewood residents, more than 30 days after final action by the city council, had brought a declaratory judgment action pursuant to C.R.C.P. 57 challenging a rezoning ordinance. In the context of that case, this court held that the action of rezoning was quasi-judicial and, therefore, the exclusive judicial remedy was review by certiorari under C.R.C.P. 106(a)(4). Since the residents had not brought the action within the 30 day time limit set forth in C.R.C.P. 106(b), their action was dismissed. [31] In Aurora v. Zwerdlinger, 194 Colo. 192, 571 P.2d 1074 (1977), referendum petitions had been filed seeking review of an ordinance setting water rates. The evidence showed that Aurora was contractually bound to set water rates at a level sufficient to cover the operational costs of its water system and to pay the principal and interest on bonds issued to finance construction of the water system. In Zwerdlinger we held that the Colorado Constitution, art. V, sec. 1, reserved the powers of referendum and initiative “only to acts which are legislative in character.” We also held that while city charter provisions may not limit the referendum and initiative powers reserved in the Colorado Constitution, the powers reserved by city charter may exceed those reserved by the Colorado Constitution. Id.[8] Additionally, this court held that while the Aurora Charter provided that the referendum power applies to “all ordinances,” except listed exemptions, the charter reserved the referendum power only as to “all legislative ordinances.”[9] The court concluded that the referendum power contained in the Aurora Charter was co-extensive with that of the Colorado Constitution. The court then held that the setting of water rates was administrative rather than legislative in character and, therefore, was not subject to the referendum power reserved in the Aurora Charter and the Colorado Constitution.IV.
[32] In deciding whether the zoning and rezoning powers of municipalities are subject to the people’s retained powers of referendum and initiative, we must examine the nature of that retained power. I Bernzen v. Boulder, 186 Colo. 81, 525 P.2d 416 (1974), we previously stated that “[w]e view recall, as well as initiative and referendum, as fundamental rights of a republican form of government which the people have reserved unto themselves.” See also Dooney, supra. In Brooks v. Zabka, 168 Colo. 265, 450 P.2d 653 (1969), we also held that “[s]uch a reservation of power in the people must be liberally construed in favor of the right of the people to exercise it. Conversely, limitations on the power of referendum must be strictly construed.” See also Election Commission v. McNichols, Jr., 193 Colo. 263, 565 P.2d 937 (1977); Common Cause v. Anderson, 178 Colo. 1., 495 P.2d 220 (1972); Burks v. City of Lafayette, 142 Colo. 61, 349 P.2d 692 (1960); Yenter v. Baker, 126 Colo. 232, 248 P.2d 311 (1952); and Brownlow v. Wunsch, 103 Colo. 120, 83 P.2d 775
(1938).
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[33] One of the unquestioned purposes of the referendum and initiative powers is to expeditiously permit the total and free exercise of legislative power by the people, except in rare circumstances. Brooks v. Zabka, supra. Thus, the power to call referendum and initiative elections is a direct check on the exercise or non-exercise of legislative power by elected officials. Indeed, a heightened community sensitivity to the quality of the living environment and an increased skepticism of the judgment of elected officials provide much of the impetus for the voters’ exercise of the powers of referenda and initiative in the zoning context Comment, The Proper Use of Referenda in Rezoning, 29 Stanford L.R. 819 (1977). [34] We conclude that under the Colorado Constitution, art. V, sec. 1, only those acts of a city council which are legislative in character are subject to the referendum and initiative powers. Zwerdlinger, supra.[10]It is therefore important to recognize that municipal governing bodies perform not only legislative functions, but quasi-judicial and administrative functions as well. See Snyder, supra, and Zwerdlinger, supra. [35] Zwerdlinger, supra, we set forth considerations for distinguishing, in certain circumstances, among the kinds of acts performed by municipal governing bodies. We stated: [36] “. . . that an action that relates to subjects of a permanent or general character are legislative, while those which are temporary in operation and effect are not. Additionally, acts that are necessary to carry out existing legislative policies and purposes or which are properly characterized as executive are deemed to be administrative, while acts constituting a declaration of public policy are deemed to be legislative.”Zwerdlinger, supra. [37] In Snyder, supra, we explored, in the context of the appropriate method of judicial review, the distinction between legislative and quasi-judicial acts. We held that, when deciding upon the proper form o judicial review, acts of a city council which had the earmarks of quasi-judicial proceedings, i.e., notice to individual landowners, hearings, and decision-making by the application of facts to specified criteria established by law, were properly reviewed under C.R.C.P. 106(a)(4). However, we have also noted that ordinances establishing general policies, such as a zoning ordinance, even though accompanied by procedures for notice and public hearing, were, when determining the proper procedure for review, legislative in nature and reviewable under C.R.C.P. 57 when the constitutional application of the ordinance is involved. See Collopy v. Wildlife Commission, 625 P.2d 994 at n. 19 (Colo. 1981). [38] For the purpose of determining whether they are subject to referendum and initiative, zoning and rezoning decisions have been held to be legislative in some states, while other states have held one or the other, or both, to be quasi-judicial. We recognize that there is significant authority supporting all views on this issue. Annot. 72 A.L.R.3d 991; Annot. 72 A.L.R.3d 1030; Glenn, Rezoning by Referendum and Initiative, 51 So. Cal. L.R. 265 (1978), Comment, The Proper Use of Referenda in Rezoning, 29 Stanford L.R. 819 (1977); Comment, The Initiative and Referendum’s Use in Zoning, 64 Cal. L.R. 74 (1976). [39] It is quite clear under the tests set forth in Zwerdlinger, supra, that original zoning decisions are legislative in character
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since the act of original zoning is of a general and permanent character and involves a general rule or policy. See Snyder, supra. Therefore, being legislative in character, it is subject to the referendum and initiative provisions of the Colorado Constitution. See Arnel Development Co. v. City of Costa Mesa, 28 Cal.3d 511, 620 P.2d 565, 169 Cal. Rptr. 904 (1980), and the cases cited therein.
[40] We do not believe that, for the purposes of determining whether it is subject to referendum and initiative, rezoning may be characterized as other than a legislative decision subject to referendum and initiative. It seems entirely inconsistent to hold that an original act of general zoning is legislative, whereas an amendment to that act is not legislative. It appears only logical that since the original act of zoning is legislative, the amendatory act of rezoning is likewise legislative even though the procedures may entail notice and hearing which characterize a quasi-judicial proceeding. Essentially, the city council ultimately amends the zoning ordinance or denies the amendment, a legislative function. See City of Coral Gables v. Carmichael, 256 So.2d 404 (Fla. Dist. Ct. App. 1971). [41] It cannot be disputed that large rezonings, such as occurred in the Lakewood case, are general and permanent in character and involve the setting of a general rule or policy. See San Diego Bldg. Contr. Ass’n. v. City of San Diego, 13 Cal.3d 205, 529 P.2d 570, 118 Cal. Rptr. 146 (1974), appeal dismissed 427 U.S. 901, 96 S.Ct. 3184, 49 L.Ed.2d 1195 (1976). [42] However, Arvada argues that a rezoning involving a small tract such as that rezoned in the present case under review is more adjudicative or quasi-judicial, an thus ought not be subject to referendum and initiative. We do not find such an analysis persuasive. As stated in Arnel Development Co. v. City of Costa Mesa, supra: [43] “The factual setting of the present case illustrates the problems courts will face if we abandoned past precedent and attempted to devise a new test distinguishing legislative and adjudicative decisions. The Court of Appeal, for example, found here that the instant initiative was an adjudicative act because it rezoned a `relatively small’ parcel of land . . . . The size of the parcel . . . [does not determine] the distinction between the making of land-use policy, a legislative act, and the asserted adjudicatory act of applying established policy. The rezoning of a `relatively small’ parcel, especially when done by initiative, may well signify a fundamental change in city land-use policy. [44] “Plaintiffs alternatively urge that the present initiative is adjudicatory because it assertedly affects only three landowners. But this is a very myopic view of the matter; the proposed construction of housing for thousands of people affects the prospective tenants, the housing market, the residents living nearby, and the future character of the community. The number of landowners whose property is actually rezoned is as unsuitable a test as the size of the property rezoned.” [45] While decisions on “small” rezonings may directly affect only a few people, such decisions may more properly be seen as the setting of policy for the future. While rezonings occur more frequently than initial zonings, they likewise tend to be permanent in nature. See Arnel, supra, for a listing of California cases which hold rezoning of “small” parcels of land to be legislative. [46] In view of the purposes for which the referendum and initiative powers were reserved, and the nature of the acts themselves, we find that zoning and rezoning decisions — no matter what the size of the parcel of land involved — are legislative in character and subject to the referendum and initiative provisions of the Colorado Constitution. [47] Arvada and Lakewood claim that Snyder, supra, is dispositive of the issue in these cases, because it stands for the proposition that rezoning is quasi-judicial, and that, therefore, rezoning is not subject to the reserved referendum and initiative powers. See also Corper v. Denver, 191 Colo. 252, 552 P.2d 13 (1976) and Westlund v.Page 305
Carter, 193 Colo. 129, 565 P.2d 920 (1977). As previously observed, in Snyder, supra, we were considering the proper procedure for seeking judicial redress for alleged illegalities in rezoning decisions. We held that, for the purposes of judicial review, rezoning was quasi-judicial in character. We adhere to our holding that rezoning is quasi-judicial for the purposes of judicial review. Any language contained in Snyder, supra, however, which might be read as indicating that rezoning is not legislative for the purpose of exercising the constitutional powers of referendum and initiative is hereby expressly overruled.
[48] The cities and amici curiae argue that subjecting zoning and rezoning decisions to referendum and initiative will lead to chaos, significant delays in development, and ultimately to unplanned grown and development. We do not agree. We note that the requirements for placing an issue before the voters of a city are significant. See Colo. Const. art. V, sec. 1; section 1-40-115 and 115, C.R.S. 1973 (1980 Repl. Vol. 1B); an the various city charter provisions, supra. Minor zoning and rezoning decisions which do not affect the broad base of the citizens of a community will be unlikely to generate the magnitude of opposition necessary to place such an issue before the voters in referendum or initiative form. In addition, we note that the courts of California and Ohio have for many years held both zoning and rezoning decisions to be subject to their respective referendum and initiative provisions. See Arnel, supra; Assoc. Homebuilders v. Livermore, 18 Cal.3d 582, 557 P.2d 473, 135 Cal. Rptr. 41 (1976); San Diego Bldg. Contr. Ass’n. v. City of San Diego, supra; Dwyer v. City Council, 200 Cal. 505, 253 P. 932 (1927); Forest City Enterprises, Inc. v. City of Eastlake, 41 Ohio St.2d 187, 324 N.E.2d 740 (1975) overruled on other grounds 426 U.S. 668, 96 S.Ct. 2358, 49 L.Ed.2d 132 (1976); and Hilltop Realty v. South Euclid, 110 Ohio App. 535, 164 N.E.2d 180 (1960). We have not been informed, nor are we aware, that subjecting zoning and rezoning decisions to the powers of referendum and initiative has, in and of itself, created significant problems or delays in planning the growth and development of California or Ohio cities. [49] The cities and amici curiae also argue that zoning and rezoning by referendum and particularly by initiative violate the Fourteenth Amendment due process rights of the affected landowners to prior notice and a hearing. See Note, Preserving “The Blessings of Quiet Seclusion,” 1977 U.Ill.L.F. 895 (1977). We do not believe such to be the case. “The election campaign, the debate and airing of opposing opinions, supplant a public hearing prior to the adoption of an ordinance by the municipal governing body.” Meridian Development Co. v. Edison Township, 91 N.J. Super. 310, 220 A.2d 121 (1966). See Eastlake v. Forest City, 426 U.S. 668, 96 S.Ct. 2358, 49 L.Ed.2d 132 (1976), and San Diego Bldg. Contr. Ass’n. v. City of San Diego, supra, but see Andover Development Corp. v. New Smyrna Beach, 328 So.2d 231 (Fla.Dist.Ct.App. 1976). Furthermore, any unreasonable, arbitrary, or capricious decision on the part of the people via referendum or initiative would be subject to the same judicial scrutiny as would such a decision by the municipality’s governing body. See Dooney, supra, and Eastlake v. Forest City Enterprises, Inc. supra. [50] For the above-stated reasons, we find that zoning and rezoning decisions are legislative in character and therefore are subject to the referendum and initiative provisions of the Colorado Constitution V.
[51] In the Lakewood case, Wright filed petitions seeking to review by referendum the changes made by the City of Lakewood in its master plan which brought it into conformance with the rezoning decisions. The amendment to the master plan was passed in resolution form. A master plan is advisory only as is evidenced by the statutory scheme for creation of municipal planning commissions. Section 31-23-201, et seq., C.R.S. 1973 (1977 Repl. Vol. 12). It is the duty of a municipal planning commission to adopt a master plan as directed in
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section 31-23-206 which shall show the commission’s recommendations to the governing body of the municipality for the development of the territory within the municipality, in accordance with the prescribed purposes expressed in section 31-23-207. The adopted plan is not of a permanent nature, but is rather subject to the control of the municipality’s governing body. Section 31-23-209. Thus, departures from the master plan may be authorized despite objection or disapproval of the planning commission. We do not regard an amendment to the master plan, which may be accomplished by resolution of a city council, as contrasted with an ordinance, to be legislative in character. Being advisory only, an amendment to a master plan is not legislation which is subject to the referendum powers reserved to the people. See King’s Mill Homeowners v. Westminster, 192 Colo. 305, 557 P.2d 1186 (1976). See also Copple v. Lincoln, 202 Neb. 152, 274 N.W.2d 520 (1979), Cochran v. Planning B. of Summit, 87 N.J. Super. 526, 210 A.2d 99 (1965).
VI.
[52] Accordingly, we make the rule absolute in the Greenwood Village case, No. 80SA110.
§ 5.13, Arvada Charter and §§ 5.1 and 5.3, Greenwood Village Charter. Therefore, they may not be read as authorizing referendum on non-legislative decisions. Since Lakewood is a statutory city, referendum and initiative are controlled by sections 1-40-115 and 116, C.R.S. 1973 (1980 Repl. Vol. 1B), and its City Code provisions §§ 2.52.010 and 2.52.140 which substantially conform to the statute. We view the statutory scheme to which statutory cities are subject to be co-extensive with but not more expansive than the power reserved to the people under the Colorado Constitution. Therefore, since the Lakewood City Code does not provide otherwise, only if an ordinance is legislative in character is it subject to the referendum and initiative powers in a statutory city.
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