Arndt v. City of Boulder

895 P.2d 1092, 18 Brief Times Rptr. 1636, 1994 Colo. App. LEXIS 291, 1994 WL 541810
CourtColorado Court of Appeals
DecidedOctober 6, 1994
DocketNo. 93CA1057
StatusPublished
Cited by1 cases

This text of 895 P.2d 1092 (Arndt v. City of Boulder) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arndt v. City of Boulder, 895 P.2d 1092, 18 Brief Times Rptr. 1636, 1994 Colo. App. LEXIS 291, 1994 WL 541810 (Colo. Ct. App. 1994).

Opinion

Opinion by

Judge KAPELKE.

Plaintiff, Jennifer M. Arndt, appeals from the trial court’s order affirming the decision of the Board of Building Appeals (Board) which reinstated a building permit for the construction of an addition to a neighboring property owned by Braco Holdings, Inc., a company held by Sally and Robert Dalton (collectively the Daltons). Plaintiff also appeals from the trial court’s order dismissing her claims against the Daltons. We affirm.

In October 1987, plaintiff applied to the City of Boulder (City) for a permit pursuant to the Boulder Solar Access Ordinance (Ordinance), Boulder Revised Code § 9-8-1, et seq. (1981), to provide solar access protection to her greenhouse. Following a hearing in November 1987 at which the Daltons appeared in opposition, the Board of Zoning Adjustment (Zoning Board) granted plaintiffs application and issued the requested solar access permit.

On December 9, 1987, plaintiffs permit was recorded in the records of the Boulder County Clerk and Recorder, but it was not recorded so as to affect the Daltons’ property-

In 1991, the Daltons applied for a permit to build an addition to their home. The addition would have shaded plaintiffs greenhouse more than the solar access permit allowed. In their application for the building permit, the Daltons did not disclose the existence of plaintiffs solar access permit or describe how the proposed addition would be affected by that permit.

On November 22, 1991, the City granted the Daltons’ application and issued a building permit allowing them to begin construction of the addition.

In January 1992, plaintiff complained to the City that the Daltons were about to violate her solar access permit. The City determined that it had granted the building permit in error and issued a stop work order. Thereafter, the City partially suspended the Daltons’ building permit pending a determination of the effect of plaintiffs solar access permit rights on the proposed construction of the Daltons’ addition.

The Daltons appealed the suspension of the building permit to the Board, which found, following evidentiary hearings, that the Daltons’ addition would create only an insubstantial breach of plaintiffs solar access permit and was therefore exempt from the Ordinance under Boulder Revised Code § 9-8-12(b) (1981). Accordingly, the Board revoked the partial suspension of the building permit, and the Daltons resumed construction of the addition.

On April 23, 1992, plaintiff filed a complaint against the Daltons and the City pursuant to C.R.C.P. 57, 65, and 106(a)(4), seeking judicial review of the Board’s decision and a preliminary injunction to prevent the Daltons from continuing construction.

The trial court treated plaintiffs request for a preliminary injunction as a motion for a temporary restraining order and, following a hearing on April 28, 1992, denied her request.

The Daltons filed a motion to dismiss the claims against them on the ground that, because plaintiff had failed to record her solar access permit against the Daltons’ property prior to the issuance of their building permit, she could not enforce her solar access permit against the Daltons. The trial court treated the motion as a motion for summary judgment and granted it on July 8, 1992.

With respect to plaintiffs remaining claims against the City for judicial review of the [1095]*1095Board’s decision, the trial court concluded, in an order dated December 3, 1992, that there was no evidence in the record to support the Board’s determination that the Daltons’ addition would not substantially breach plaintiffs solar access permit. The court therefore reversed the Board’s ruling and remanded the case to the Board for further findings and conclusions on the unresolved issues that had been presented to the Board.

At a hearing in January 1993, the Board heard oral arguments but did not receive any additional evidence. On January 29, 1993, the Board issued amended findings and conclusions in which it again determined that the City had erroneously suspended the Daltons’ building permit.

The Board’s ruling was based on its conclusions that: (1) plaintiffs permit had expired under Boulder Revised Code § 9-8-9(a)(2) (1981) because the solar energy system she installed was so different from the one for which the permit was issued that the system had not functioned to fulfill its intended purpose; (2) the Daltons’ addition was exempt under Boulder Revised Code § 9-8-12(e) (1981) because prohibiting the Daltons from building the addition would not materially increase plaintiffs access to usable direct sunlight; and (3) the Daltons’ addition did not “obstruct solar access protected by permit.”

Plaintiff again sought judicial review of the Board’s decision and renewed her request for an injunction.

In its order affirming the Board’s amended decision, the trial court concluded that there was competent evidence in the record to support the Board’s first and second rationales for revoking the suspension of the Dal-tons’ building permit.

There was never a hearing or ruling by the trial court on plaintiffs renewed request for injunctive relief.

I.

Plaintiff first contends that the trial court erred in remanding the matter to the Board for further findings after reversing the Board’s first order. We disagree.

Under C.R.C.P. 106(a)(4)(IX), if an administrative agency has “failed to make findings of fact or conclusions of law necessary for a review of its action,” a reviewing court may “remand for the making of such findings of fact or conclusions of law.”

Here, the Board’s decision addressed only the parties’ arguments regarding the applicability of § 9-8-12(b). The Board specifically noted that the parties had raised a number of issues that it deemed unnecessary to consider in light of its conclusion that the Daltons’ addition was exempt under § 9-8-12(b). Accordingly, after reversing the Board’s decision, the trial court remanded the case to the Board “for further findings on issues that were presented to it but not decided.”

Under these circumstances, the trial court did not abuse its discretion in remanding the case to the Board.

II.

Plaintiff next contends that there was no competent evidence in the record to support the Board’s decision of January 29, 1993. Plaintiffs argument is twofold.

A.

First, plaintiff maintains that there is no evidence in the record to support the Board’s conclusion that plaintiffs permit had expired under § 9-8-9(a)(2). We disagree.

At the outset, we note that the standard of review in a C.R.C.P. 106(a)(4) proceeding is limited to a determination of whether the administrative agency exceeded its jurisdiction or abused its discretion. Ross v. Fire & Police Pension Ass’n, 713 P.2d 1304 (Colo.1986). The Board’s decision must be upheld if it is supported by competent evidence in the record, and its findings may not be set aside merely because the evidence was conflicting or susceptible of more than one inference. See Colorado Municipal League v. Mountain States Telephone & Telegraph Co., 759 P.2d 40 (Colo.1988).

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895 P.2d 1092, 18 Brief Times Rptr. 1636, 1994 Colo. App. LEXIS 291, 1994 WL 541810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arndt-v-city-of-boulder-coloctapp-1994.