Board of Commissioners v. Shaffer

367 P.2d 751, 149 Colo. 18, 1961 Colo. LEXIS 360
CourtSupreme Court of Colorado
DecidedDecember 26, 1961
DocketNo. 19,559
StatusPublished

This text of 367 P.2d 751 (Board of Commissioners v. Shaffer) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of Commissioners v. Shaffer, 367 P.2d 751, 149 Colo. 18, 1961 Colo. LEXIS 360 (Colo. 1961).

Opinion

Mr. Justice Day

delivered the opinion of the Court.

The parties are here in reverse order of their appearance in the trial court. We will refer to them as plaintiffs and defendants or by name.

. This writ of error is directed to a judgment of the trial court setting aside the Jefferson County zoning resolution as to plaintiffs’ property, and establishing by judicial decree the zoning to be in effect on the property.

Plaintiffs are the owners of three parcels of land in Jefferson County at or near the intersection of Wads-worth Blvd. and West 35th Ave. Several years ago, after extensive study and hearings, the County Commissioners of Jefferson County adopted an over-all plan for the development of the county, and pursuant to said plan prepared a map designating the zoning to be in effect in the various areas in the county. The zoning resolution affecting the property of the plaintiffs designated the area as Residential 2. The property on Wadsworth, including plaintiffs’ property, is in the Residential 2 classification permitting single or double residential construction.

Plaintiffs Shaffer and Johnson brought one suit attacking the resolution; plaintiff King brought a separate [20]*20suit. Both presenting questions of law and fact, the suits were consolidated.

The complaints allege that application was made to the County Commissioners for change in the zoning classification and that such applications were denied. The complaints contain the usual allegations that the subject properties are unsuitable for residential use and that they are suitable only for commercial use; that the zoning resolution as to them is confiscatory, discriminatory, unreasonable, and, therefore, unconstitutional and is violative of the equal protection and due process provisions of the Federal and State constitutions.

After trial to the court judgment was entered in favor of the plaintiffs and against the county. With respect to the Johnson property, the court set aside the R-2 zoning and enjoined the county from interfering with any use permitted by Residential-Commercial classification. Injunctive relief was denied Shaffer, and because of the effect on the adjoining residents, the court “suggested” that 95 feet of his property be withdrawn from the suit, which Shaffer did. The court then decreed that Shaffer could petition the Board of Adjustment for a variance and directed that the board “can permit” the property to be used for “some better use than purely residential.” The court further decreed that the permit be “for a commercial use with certain restrictions thereon which will protect the residential neighborhood which lies to the east thereof.” The effect of Shaffer’s decree was to leave 95 feet of the property zoned as residential and the balance with a classification not readily identifiable under the zoning regulations. The King decree established a Residential-Commercial 1 classification for the King property with an injunction restraining the county officials from interfering with the use of the property for a medical clinic building. The result of the three decrees is to establish on this corner four different zoning classifications.

It is contended that the court erred as follows:

[21]*211. By invading the legislative field and usurping the function of the county commissioners in itself declaring the zoning classification for each of the parcels.

2. In decreeing a zoning classification for each parcel of land of each of the plaintiffs different from that of any of the others.

3. In creating spot zoning in the area.

The county also contends that the evidence falls short of the quantum of proof required before a zoning resolution can be declared unconstitutional; that the validity of zoning classifications should be upheld where the wisdom thereof is fairly debatable.

The facts in this case are in many particulars similar to the conditions prevailing in Baum v. Denver, 147 Colo. 104, 363 P. (2d) 688, and the holding in that case is controlling here. However, in the instant action there are several facets not present in the Baum case which make out a case more strongly in favor of the zoning as established by the county commissioners. The error of the trial court in setting aside the zoning resolution and in attempting to decree judicially another and different zoning resolution will be discussed as we take up the points upon which the judgment is challenged.

The legislative history involved in the enactment of the zoning resolution shows that Jefferson County enacted the first comprehensive zoning resolution following a land use study in 1941. In 1945 the County Planning Commission, in cooperation with the Tri-County Planning Commission, worked more than eighteen months on a zoning study and planning. As a result the Board of County Commissioners adopted a revised zoning resolution and maps in 1946. Zoning generally and specifically was revised in 1953 and again in 1956. In 1957 the county engaged a planning director to supervise and direct the drafting of a master plan. In May 1958 the present zoning resolution, including revisions subsequent to 1956, was adopted.

During all of this time the owners of the property [22]*22involved had opportunity to present their views as to classification of their land. The testimony shows that much of the land surrounding the sites owned by the plaintiffs in this case is undeveloped or devoted to gardening or nursery activity, and that landowners are sitting back awaiting the trend of development. It was established at the trial that plaintiffs were not able to obtain the consent of other landowners to join in the request for re-zoning, hence the two actions were filed to re-zone the specific land of plaintiffs and not that of others either on Wadsworth or in the other residentially zoned areas. Out of the entire area which extends from the Denver county line on Sheridan Blvd. west of Wads-worth to Kipling, and roughly from West 32nd Ave. to West 44th Ave., the land involved in this application for a zone change consists of the Shaffer plot of 193 ft. fronting on Wadsworth, with a depth of 183 ft. on West 35th Ave. and the Johnson property at the southwest corner of the intersection with 163 ft. frontage on Wads-worth. The King property adjacent to the Johnson property has a frontage of 125 ft. on Wadsworth. East of the Shaffer property on West 35th Ave., for a period of six blocks, are many moderately priced to expensive single family dwellings in the cost range from $17,000.00 to $25,000.00, all built in reliance upon the R.-2 zoning classification. These owners appeared and testified to the depreciating effect plaintiffs’ re-zoning request would have on their property. It was this testimony which prompted the withdrawal of the easterly 95 ft. of the Shaffer property from the requested re-zoning as a buffer zone. Also it was the presence of these expensive residences that caused the court to “order” permission of some use which would still be so restricted as to protect these residences.

One of the factors in the case was the recent reconstruction and redesigning of Wadsworth. It is now six lanes with a median strip, and it carries a considerable volume of traffic. The county commissioners, in their [23]*23findings denying the application for re-zoning, assume the position that the change in the design of Wadsworth Blvd. makes it more imperative that the zoning along Wadsworth not be disturbed.

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Bluebook (online)
367 P.2d 751, 149 Colo. 18, 1961 Colo. LEXIS 360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-commissioners-v-shaffer-colo-1961.