No. 93CA1935Colorado Court of Appeals.
Decided February 9, 1995
Appeal from the District Court of Gilpin County Honorable Kenneth E. Barnhill, Judge No. 92CV31.
JUDGMENT REVERSED AND CAUSE REMANDED WITH DIRECTIONS.
Page 433
[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 434
Holley, Albertson Polk, P.C., Scott D. Albertson, Eric E. Torgersen, George Alan Holley, Golden, Colorado, for Plaintiff-Appellant.
Myers Hoppin Bradley Devitt, P.C., Jon T. Bradley, Gregg W. Fraser, Denver, Colorado, for Defendants-Appellees City of Central and City Council of the City of Central.
Ballard Spahr Andrews Ingersoll, C. Erika Zimmer, Denver, Colorado; Bartlit Beck Herman Palenchar Scott, Donald E. Scott, Denver, Colorado, for Defendant-Appellee Central City Opera House Association.
Division II
Plank and Hume, JJ., concur.
Opinion by JUDGE ROY.
[1] Plaintiff, William C. Russell, Jr., appeals a judgment of the district court upholding the approval by the City Council of Central City (Board of Aldermen) of the special review use application of the Central City Opera House Association (CCOHA). The district court also dismissed plaintiff’s action for declaratory judgment which sought to invalidate an amendment to the zoning ordinance upon which the special review use was predicated. We reverse and remand with directions. [2] Plaintiff contends that the amending ordinance is invalid because the Board of Aldermen did not enact it in accordance with the procedures set forth in the home rule charter and the zoning ordinance. We conclude that the amending ordinance is invalid and, therefore, the Board of Aldermen abused its discretion and acted arbitrarily in approving the special review use. [3] This action arose out of CCOHA’s plans to build a rehearsal facility on property it owned in Central City known as the “McFarlane Foundry.” Plaintiff owns property adjacent to the McFarlane Foundry. [4] The McFarlane Foundry is zoned Medium Density Residential (MDR), a zoning classification that does not permit a rehearsal hall as a use by right or as a special review use. While a rehearsal facility is arguably similar to permitted special review uses, the zoning ordinance provides that any use category not expressly granted is deemed excluded. The proposed use also required the approval of the City of Central Historic Preservation Committee, which was granted on January 16, 1992. [5] In light of the existing zoning, CCOHA requested that the City rezone or approve a special review use and grant a setback variance with respect to the McFarlane Foundry. In order to accommodate CCOHA’s request, Central City was required to amend the zoning ordinance to permit a rehearsal hall in a MDR zone as a special review use and then, by separate action, to approve the special review use for the McFarlane Foundry. [6] In pursuit of that result, the Board of Aldermen adopted an amendment to the zoning ordinance which stated as follows:[7] On January 16, 1992, Central City sent a notice to owners of property located within 300 feet of the McFarlane Foundry and published the same notice in a newspaper of general circulation in Central City the following day. The notice stated, in pertinent part:It is the intent of this Ordinance to encourage preservation of historic structures, including remnants thereof, as established by historic documentation . . . . Therefore, subject to the provisions, procedures and criteria of Section 5, Special Review Uses, the City Council upon recommendation of the Planning Commission and the Historic Preservation Commission, may permit any use or uses to be conducted on non-residential (as established by character, design, function and prior use), historic structures as special review uses if the City Council finds such use or uses appropriate and necessary to achieve the goal of historic preservation.
[8] NOTICE OF PUBLIC HEARING
[9] The notice, in addition, announced a hearing before the Planning Commission for February 4, 1992, a hearing before the Board of Aldermen on February 5, 1992, and a hearing before the Board of Adjustment to consider a requested and separately described variance on February 5, 1992. [10] On February 4, 1992, the Planning Commission held a public hearing and recommended approval of the amendment to the zoning ordinance and then held a public hearing on CCOHA’s special review use but postponed action until February 18, 1992. On February 18, 1992, the Planning Commission held a further public hearing and continued the matter to February 25, 1992, when it was again continued to March 3, 1992. On March 3, 1992, the public hearing reconvened, the Planning Commission took additional evidence, and it recommended approval of the special review use. [11] On February 5, 1992, the Board of Aldermen approved the zoning ordinance amendment on first reading but continued its hearing on CCOHA’s special review use application until March 18, 1992. The zoning ordinance amendment was first published on February 7, 1992, and included a notice of a public hearing with respect to the zoning ordinance amendment on February 19, 1992. On February 19, 1992, after holding a public hearing, the City Council passed the zoning ordinance amendment on second reading. The zoning ordinance amendment was published for the second time, and became effective, on March 20, 1992. [12] On March 18, 1992, the Board of Aldermen held a public hearing regarding CCOHA’s special review use and continued the matter to the first meeting in May 1992. However, the final hearing was scheduled for April 22, 1992, and notice to that effect was mailed to interested property owners on April 1, 1992, and published on April 3, 1992. The Board of Aldermen approved the special review use on April 22, 1992. [13] Russell then commenced these proceedings seeking review of the Board of Aldermen’s decision to grant CCOHA’s special review use pursuant to C.R.C.P. 106(a)(4) (certiorari) and C.R.C.P. 106(a)(2) (mandamus), and challenged the validity of the zoning amendment pursuant to C.R.C.P. 57 (declaratory judgment). The district court affirmed the City Council’s actions with respect to both the granting of the special review use and the validity of the zoning amendment on certiorari review and dismissed plaintiff’s claims for mandamus and declaratory relief. Russell appeals from these rulings.Pursuant to the City of Central Zoning Ordinance, notice is hereby given that the City of Central Planning Commission and Board of Aldermen will conduct public hearings to consider a request for an amendment to the zoning ordinance by the Central City Opera House Association to permit a special review rehearsal use in a
Page 435
residential area at the McFarlane Foundry site, Lots 8, 9, 10, 11, 12, and 13, Block 25.
I.
[14] Prior to oral argument in this court, defendants, relying on Zoning Board of Adjustment v. DeVilbiss, 729 P.2d 353 (Colo. 1986), submitted a motion, with supporting affidavit, for an order remanding this matter to the trial court for a factual hearing to determine whether this case had become moot. The motion was predicated on the additional facts that: (1) Russell had not sought any injunctive relief to prevent the construction of the rehearsal hall; (2) CCOHA had completed construction of the rehearsal hall during the pendency of this appeal; (3) Central City had issued all necessary permits with respect to the construction; and (4) the facility was specially designed for opera rehearsals. In addition, an affidavit stated that: (1) CCOHA had occupied and used the facility for a period of six months prior to the motion; and (2) the cost of construction exceeded two million dollars.
(Colo.App. 1994). A case is moot when a judgment, if rendered, would have no practical legal effect upon an existing controversy. American Drug Store, Inc. v. City County of Denver, 831 P.2d 465
(Colo. 1992). When the underlying substantive issue is capable of repetition while evading
Page 436
review, it is not moot even though the chance of recurrence is remote. Cloverleaf Kennel Club, Inc. v. Colorado Racing Commission, 620 P.2d 1051 (Colo. 1980).
[17] DeVilbiss is distinguishable. There, the applicant applied for a special use permit for the construction of a coal loading facility with a height in excess of that otherwise allowed. The permit was granted and the opponent commenced a proceeding seeking certiorari review and injunctive relief but did not ask for any preliminary injunction or stay. The applicant completed construction and commenced operations while the litigation was pending and the supreme court held that the matter had become moot. [18] We note at the outset that the supreme court limited its holding in DeVilbiss to the particular facts of that case. DeVilbiss addressed a height variance whereas the issue here is whether the use is permitted. More importantly, the relief sought in DeVilbiss was limited to certiorari review and injunctive relief. In this case, declaratory relief challenging the validity of an amendment of general application to the zoning ordinance has been requested. If the amending ordinance is invalid, then not only is the present zoning action invalid but any future action premised on the amendment would likewise be invalid. A matter is not moot if a judgment will have practical legal effect. In re Marriage of Hartley, ___ P.2d ___ (Colo. No. 93SC625, December 5, 1994). [19] Therefore, we conclude that the action is not moot.II. A.
[20] Defendants argue, relying on Snyder v. City of Lakewood, 189 Colo. 421, 542 P.2d 371 (1975), that declaratory relief is not available to challenge the validity of an amendment to a zoning ordinance as that act is quasi-judicial in nature and therefore subject to certiorari review only. We disagree.
Page 437
B.
[26] Defendants further argue that declaratory relief is available only as to the constitutionality of the ordinance and that the trial court properly dismissed plaintiff’s action. Again, we disagree.
III.
[30] Plaintiff asserts that the zoning ordinance amendment is invalid because the Board of Aldermen did not enact it in accordance with the procedures established by the zoning ordinance. Specifically, he asserts inadequate notice was given for the public hearings before the Planning Commission and the Board of Aldermen. We agree.
(1959). [35] The notice of public hearing must provide sufficient information from which an interested person can determine whether his or her rights may be affected by the proposed amendment. At a minimum, the notice must include the “date, time, and place of the hearing and apprise the public of the subject matter of the hearing and the nature of the proposed zoning change.” Hallmark Builders Realty v. City of Gunnison, supra, at 559. The notice must be reasonably understood by a layman. See Holly Development, Inc. v. Board of County Commissioners, supra.
Page 438
[36] Plaintiff first contends that the notice of January 16, 1992, was defective under the zoning ordinance because it did not clearly state that the Planning Commission and the City Council were to act on both a general amendment to the zoning ordinance and CCOHA’s site specific special review use application based upon the amendatory ordinance. Plaintiff also contends that the notice was misleading because it created the impression that the proposed ordinance affected only the McFarlane Foundry property rather than having a much broader application. Accordingly, plaintiff argues that the notice did not properly apprise the public of the subject matter of the hearing and the nature of the proposed zoning change. [37] We agree that the notice failed to distinguish between the hearings with respect to the proposed zoning ordinance amendment, which was legislative in nature, and the site specific special review use sought by CCOHA, which was quasi-judicial in nature. While the two actions were intertwined, they were, nonetheless, separate and distinct with quite different ramifications. [38] Here, the notice was adequate to advise the public that the Planning Commission, Board of Adjustment, and Board of Aldermen would consider a site specific request by virtue of the specific property description contained in the notice. While the notice states that “a request for an amendment to the zoning ordinance” will be considered, such amendments can be, and in many instances are, site specific. The notice refers to both the special review use and the variance request, both of which are site specific. In addition, the notice was published and served on the adjacent property owners, the manner of notification required only with respect to site specific actions. [39] Furthermore, it is evident from the plain language of the zoning ordinance amendment that it could, and apparently does, affect more than just the McFarlane Foundry property. The zoning ordinance amendment applies to any non-residential historic structure and is not limited to any particular zoning district. Thus, the zoning ordinance amendment had implications much broader than that implied by the notice. [40] We reject the argument that plaintiff’s participation in the proceedings relieved the City from strictly complying with the notice requirements. The absence of adequate notice is jurisdictional and neither the Planning Commission nor the City Council can proceed to conduct public hearings even though some opponents appeared or filed written objections. Holly Development, Inc. v. Board of County Commissioners, supra. [41] We conclude that the procedure followed in adopting the zoning ordinance amendment was not in accordance with the requirements of the zoning ordinance, and the amendment is, therefore, invalid. IV.
[42] Accordingly, we also conclude that the Board of Aldermen’s approval of CCOHA’s special review use, which was dependent on the validity of the ordinance, exceeded its jurisdiction and was arbitrary and capricious. See C.R.C.P. 106(a)(4); Holly Development, Inc. v. Board of County Commissioners, supra.
Page 439