Robinoff v. District Court

360 P.2d 114, 145 Colo. 225

• Court: Supreme Court of Colorado
• Decided: March 27, 1961
• Docket: 19356
• Status: Published

Opinions

Mr. Justice Doyle

delivered the opinion of the Court.

Petitioners seek review by Writ of Certiorari, or in the alternative, prohibition. They challenge the jurisdiction of the district court of the City and County of Denver to hear condemnation proceedings instituted incident to the so-called Urban Renewal Program of the City and County of Denver. Numerous preliminary motions were filed by petitioners in the district court, all of which were denied. On the theory that there is no adequate remedy other than the instant writs, they have proceeded on the authority of Swift v. Smith, 119 Colo. 126, 201 P. (2d) 609, and Old Timers Baseball Association of Colorado, et al. v. Housing Authority of the City and County of Denver, et al., 122 Colo. 597, 224 P. (2d) 219. The propriety of the procedure in the present circumstances is not questioned by the respondents.

The facts essential to a determination of the jurisdictional questions raised are contained in a stipulation which embraces everything relevant to the issues now presented.

The properties affected by the condemnation are located in an area comprising approximately 150 acres in the west part of Denver referred to as the Avondale Project. The petitioners are property owners whose homes or businesses are located within the limits of the Avondale Project, centering on West Colfax Avenue near Irving Street, the present location of Cheltenham School.

The legal authority for the present project is the act of the General Assembly, Colo. Sess. Laws 1958, Ch. 58, C.R.S. ’53, 139-62-1, et seq., authorizing a municipality to take action looking to elimination of slum and blighted areas within its boundaries. This act recognized that such areas exist in municipalities of Colorado and found them to be injurious to the health, safety, morals and welfare of the people of the state. Section 4 of the act provides for the creation by the-city of an. Urban Rénewal Authority charged with the duty of carrying out the purposes of the act. Pursuant to this authorization, the City and County of Denver created by ordinance the Denver Urban Renewal Project. The Authority and the City Council found as a fact that the Avondale Project area is a slum or blighted section within the meaning of the act. The litigation in the district court was instituted pursuant to Section 5 of the Urban Renewal Act, which authorizes the Authority to exercise the power of eminent domain.

Some, but not all, of the legal questions are related to the particular character of the properties sought to be condemned, and consequently it becomes necessary to recite those stipulated facts which throw light on the nature of these properties.

The stipulation discloses that the Authority proposes to acquire a substantial part, but not all, of the properties in the Avondale Project by either purchase or condemnation and thereafter to sell a substantial part of the properties to private enterprises for the purpose of redevelopment for residential, commercial or industrial uses pursuant to and consistent with the Urban Renewal Act. Some of the properties are to be used for public purposes such as streets, parks or schools, but it would appear that most of the property will be sold to private enterprises or to individuals for private development. The stipulation pinpoints this aspect of the problem. “ * * * It is agreed that when the Project, if allowed to proceed, is completed, most of the lands will be in use for purposes similar to those private purposes that now exist, and there is no factual dispute as to this use, but is a legal question as to the permissibility of condemnation of the property for development for such private uses. % * * )}

The parties agree that the properties in question are not slums in the sense that the entire area is in disrepair or deterioration. On the other hand, it would appear from the exhibits that the area poses a future hazard to the health and welfare of the community. Some allegedly do not comply with the Denver Health and Safety Ordinances, while others are conceded to be in full compliance with these ordinances. There are both residential and commercial uses in the area and some of the properties are combined residential and commercial. It is said that the properties sought to be condemned constitute a fair cross-section of those to be found within the Avondale Project from the standpoint of type and of condition. It is agreed by both parties that the condemnations in question are not based upon any non-compliance with the mentioned health and safety ordinances. Much of the money to be used for the carrying out of the project is to be furnished by the federal government, and there is some question as to whether the monies available are adequate to permit acquisition of all of the properties, in which event some of the properties may not be acquired because of lack of funds. No doubt this is brought out in the stipulation as suggesting a threat of discriminatory judgment by the Authority. This fact is also offered as bearing upon whether limitation of funds available to negotiate, may invalidate the project because of its tendency to prevent acquisition.

There are specific stipulations which reveal somewhat the condition of the particular properties which are here sought to be condemned. The agreement with respect to these is set forth as follows in paragraphs 12 to 15 inclusive:

“12. As to the property of the Respondents, Hartman, it is combined commercial and residential property, and there is no claim made by the officials of the City and County of Denver that the property is not in substantial compliance with all applicable City Health and Building Ordinances.

“13. As to the property of the Respondents, Medina, it is residential, and there is a claim made by the officials of the City and County of Denver, that the property does not comply in major particulars with all City Health and Building Ordinances.

“14. As to the property of the Respondents, Haney, it is residential, and there is a claim made by the officials of the City and County of Denver that the property does not comply in all respects with City Health and Building Ordinances.

“15. The property of the Respondents, Rabinoff, is combined commercial and residential, and there is a claim made by the officials of the City and County of Denver that the property does not comply in all respects with City Health and Building Ordinances.”

Numerous documents have been received in evidence and are part of the record before us. Included are exhibits offered by the Urban Renewal Authority to establish the legal basis for its existence; exhibits pertaining to the creation of the Avondale Project; and a publication of the Denver Planning Office entitled “The Denver Comprehensive Plan,” which describes the area embraced within the Avondale Project.

Three general groups of questions have been raised by the motions of the petitioners. The first group pertains to the validity of the entire urban renewal program; the second involves the validity of the Denver Urban Renewal Authority; the third questions the validity of the Avondale Project.

It is the principle contention of petitioners that the Urban Renewal program constitutes the taking of private property for private uses and that such taking is not permissible under the Colorado Constitution. Petitioners seek to draw a distinction between public use and public purpose, claiming that only a taking for a public use is permitted in this state. They contend that the determination that a taking is for a public use is a matter for ultimate resolution by the courts and not dependent on legislative pronouncement. They further argue that the police power may not be set up as an independent source of authority for a taking such as that sought in this case in order to circumvent the constitutional restrictions on public condemnation.

With respect to the Urban Renewal Authority of Denver, the petitioners contend that the statute and ordinances authorizing it are void, since they violate the Constitution, particularly Article XX, and the Charter of the City and County of Denver. The basis for this contention is that conferral of power on the authority constitutes an unlawful delegation of power; that the condemnation authority has been granted to the city by Article XX of the Constitution, thus rendering state delegation to this agency a nullity.

Apart from the constitutional challenge to the statute and the establishment of the Urban Renewal Authority, the Avondale Project itself is attacked as not having been initiated in compliance with the statutory requirements. Specifically, it is asserted that the requisite notice and hearing required by the statute and due process of law were not had. In addition, it is contended that a general plan for the City of Denver is required before such a project may be undertaken and no such plan existed.

Finally, petitioners argue that it is clear on the face of the record that the statutory requirement of negotiation before condemnation cannot be met in view of the stipulated fact that there may be insufficient federal funds available to meet this requirement in good faith.

I.

Does the Urban Renewal law, considered in the light of the action taken by the City and County of Denver and the Urban Renewal Authority of Denver, violate Article II, Sections 14 and 15 of the Constitution of Colorado and constitute the taking of private property for a private rather than a public use?

The petitioners argue that the act in question is devoid of public purpose and public use; that by authorizing the taking of private property, the demolishing of buildings thereon, the reselling to private persons with restrictions, it is not a public use as contemplated by the cited provision of the Colorado Constitution. It is said that this is a giant private real estate development designed to take private property from one group of individuals for the purpose only of vesting it in a different group. The present efforts are compared to the sequestration of property by Henry VIII. On this it is said:

“It is strange to find abhorred historic parallels reenacted in our own polity, without even being recognized. No difference obtains at all between the policy whereby in Medieval and Renaissance periods lands were redistributed or sequestered for the benefit of those who enjoyed state favor at the moment, and this procedure, whereby the lands of the many are taken deliberately to be redistributed to and agglomerated in the hands of the few, because the uses as so agglomerated concur more completely with the notions of the supra-governmental ‘planners’ as to what is good for the community.”

The Constitution, Article II, Section 15, restricts the power of eminent domain to takings for public use except for private ways of necessity and for reservoirs and other named purposes. It is said that this provision restricts and limits the power to be exercised thereunder so as to rule out the type of legislative scheme now before us involving, as it does, reconveyance to private persons.

The narrow inquiry, therefore, is whether the power of eminent domain can be exercised in circumstances such as the present, wherein the public authority does not intend to permanently retain the property which it proposes to condemn. We do not consider the actual use by the public after the taking to be the appropriate test as to whether or not the use is a public one. The main object of this legislation is to eliminate slum and blighted areas as defined in the act. Such areas are defined by the act as:

“(81 ‘Slum area’ shall mean an area in which there is a predominance of buildings or improvements, whether residential or non-residential, and which, by reason of dilapidation, deterioration, age or obsolescence, inadequate provision for ventilation, light, air, sanitation, or open spaces, high density of population and overcrowding, or the existence of conditions which endanger life or property by fire or other causes, or any combination of such factors, is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, or crime, and is detrimental to the public health, safety, morals or welfare.

“(9) ‘Blighted area’ shall mean an area which by reason of the presence of a substantial number of slum, deteriorated or deteriorating structures, predominance of defective or inadequate street layout, faulty lot layout in relation to size, adequacy, accessibility or usefulness, insanitary or unsafe conditions, deterioration of site or other improvements, unusual topography, defective or unusual conditions of title rendering the title non-marketable, or the existence of conditions which endanger life or property by fire and other causes, or any combination of such factors, substantially impairs or arrests the sound growth of the municipality, retards the provision of housing accommodations or constitutes an economic or social liability and is a menace to the public health, safety, morals or welfare in its present condition and use.”

The General Assembly has selected a method whereby the object shall be accomplished not by public ownership of the land but rather through private endeavor and ownership under the direction of authorized officials. The acquisition and transfer to private parties is a mere incident of the chief purpose of the act which is rehabilitation of the area. The point petitioners urge has been raised in numerous cases and resolved contrary to their contention. Thus in David Jeffrey Co. v. City of Milwaukee, 267 Wis. 559, 66 N.W. (2d) 362, the Wisconsin Court considered whether the taking of private property pursuant to an urban renewal act constituted a taking for a public use. The opinion pointed out that the right of eminent domain can be exercised in Wisconsin as in Colorado only in connection with the taking of private property for public use. It, nevertheless, was concluded that the fact that the property would not continue to be owned by the city did not mean that the use was not a public one. The Court relied on the following: Foeller v. Housing Authority of Portland, 198 Ore. 205, 256 P. (2d) 752; Zurn v. City of Chicago, 389 Ill. 114, 59 N.E. (2d) 18, and Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa. 329, 54 Atl. (2d) 277. All of these cases emphasize that the acquisition of properties and the elimination of their slum or blighted character constitutes a public purpose; that what is involved is an urban reclamation project; and the fact that when the redevelopment is achieved the properties are sold to private individuals for the purpose of development does not rob the taking of its public purpose. The Wisconsin Court concluded:

“We consider the acquisition of property pursuant to provisions of sec. 66.43, Stats., for the purpose of eliminating blighted areas and preventing the spread and recurrence of blight conditions in such areas, the removal of structures and improvements of sites, the sale or leasing of property for redevelopment incidental thereto and with restrictions to prevent recurrence of blight, are for public uses and purposes for which the power of eminent domain may properly be exercised. We find that the statute, sec. 66.43, in these regards does not contravene the constitutional provisions suggested on this appeal. The city of Milwaukee may acquire and assemble areas to carry out the purposes of the statute, and may contract with respect to property acquired under authority of it, and lease or sell such property to private persons or redevelopment corporation in manner as provided by the statute.”

The Supreme Court of the United States considered similar arguments in upholding a similar act which had been adopted by the Congress of the United States for the benefit of the District of Columbia. Although the constitutional restriction is different, the reasoning of the Supreme Court is persuasive in that it emphasizes that the ultimate private ownership aspect does not render the scheme invalid. In disposing of this contention, the Supreme Court said: (Berman v. Parker, 348 U.S. 26, 99 L. Ed. 27, 75 S. Ct. 98) “ * * * Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established. See Luxton v. North River Bridge Co., supra; cf. Highland v. Russell Car Co., 279 U.S. 253. The public end may be as well or better served through an agency of private enterprise than through a department of government — or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects. * * * ”

An annotation in 44 ALR 2d 1414 collects the numerous state court decisions upholding urban renewal statutes against contentions similar to those advanced in the case at bar. The high courts of 26 states have upheld such statutes. On the other hand, a decision of unconstitutionality has been reached in only two states, Florida and South Carolina. See Adams v. Housing Authority of City of Daytona Beach, 60 So. (2d) 663 (Fla.); Edens v. City of Columbia, 228 S.C. 563, 91 S.E. (2d) 280. In Georgia a constitutional amendment was adopted following the Court’s decision in Housing Authority of the City of Atlanta v. Johnson, 209 Ga. 560, 74 S.E. (2d) 891. See Bailey v. Housing Authority of Bainbridge, 214 Ga. 790, 107 S.E. (2d) 812.

The underlying philosophy which gives character to the argument that the use is a public one is well described in Horack and Nolan, Land Use Controls, p. 225. The authors explain the objections and reasons in support of urban renewal as follows:

“The reasons are many. Structures, like machines and people, wear out. Sound structures, if not maintained, become unsanitary, unsafe, and unsightly. Assessed valuations of such buildings decline rapidly but income may actually increase if landlords with lower taxes make no repairs and over-crowd the dwellings. The physical characteristics of neighborhoods may accelerate decline, or changing patterns of the community may isolate an area. Economic factors resulting from isolation, rising standards of living, attitudes created by advertising, all may depress some areas while creating demand for location in others. Political factors add to the problem. As an area deteriorates the cost of municipal services in the area increases and the tax revenue declines. Therefore the city tends to neglect the streets, omit garbage and trash collection, and refuse to extend sewer, water, and other utilities. The end of the cycle is an established social pattern of neglect which makes the area habitable only for those who must or do accept the lowest living standards. In result, the area is a slum. The structures are beyond economic repair. The district is a burden to the community economically. Its population is a source of immorality, juvenile delinquency, disease, and high public welfare demands. Rejuvenation is impossible. Removal of structures by public or private nuisance proceedings has failed. The occasional ‘wrist slapping’ fine for violation of health, sanitary, fire, or safety ordinances does not repair the buildings or improve the living conditions of the people. Urban population has increased more rapidly than urban building and this has made the removal of the slum dweller a political and physical impossibility.”

The comments in a note entitled Urban Renewal: Problems of Eliminating and Preventing Urban Deterioration, 72 Harv. L. Rev. 504, 519, 520, 521,' also furnish explanations for emphasis of the public objects rather than actual occupation as the criteria in determining validity of the method adopted by the Assembly. Cf. the comments of Haar, Land Use Planning, 444, 445.

In concluding that the proposed action is public and not private, we are persuaded not only by the underlying object of urban renewal, but the significant fact that the grant is to a public agency which acquires the lands in question under a master plan of rehabilitation. The factor of ultimate ownership by private individuals is an incidental and secondary consideration to the public objectives. In the light of these considerations, we conclude that a violation of sections 14 and 15 of Article II of the Colorado Constitution is not shown.

II.

Does the fact that the buildings here in question are not in an extremely dilapidated condition render the statute inapplicable or its application invalid?

The definitions of slum and blighted areas contained in Section 3 (8) and (9) of the act are sufficiently broad to include the Avondale area. A slum area is one which by reason of dilapidation, deterioration, age, obsolescence, insufficient light, air, sanitation or overcrowding so as to create a fire hazard or to constitute a menace to the health, safety, morals or welfare of the community. A blighted area is somewhat more broadly defined as one which by reason of a substantial number of slum deteriorated or deteriorating structures or by reason of inadequate street layout endangers life or property, retards the growth of the community, constitutes a social or economic liability, etc.

In view of the scope of these definitions, it is not essential that the properties affected shall be in a state of disrepair calling for condemnation as nuisances. The cases which have considered the present issue point out that the approach to urban redevelopment cannot be on a structure to structure basis, inconsistent with its basic objectives. A full discussion of this identical point appears in 44 ALR 2d 1433. The author concedes that there is a strict viewpoint in some of the cases that the area must be one which has deteriorated rather than one which is in the process of deteriorating. Most of the decisions, however, take a more liberal view and hold that the authority is not powerless to prevent deterioration.

In the case of Berman v. Parker, supra, the Supreme Court in upholding the statute recognized that it applies not only to out and out slums but that it has other objects equally valuable, and that these objects are also within the power of the legislative and administrative authorities. The Supreme Court concluded:

“ * * * In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.”

In the case at bar the City Council and the Urban Renewal Authority would appear to have carefully considered the pros and cons of undertaking renewal of the Avondale section prior to determining that it was properly subject to the act. There is no indication from the record before us that their action was arbitrary or capricious. There is an express finding in the authorizing ordinance that the area included within the Avondale Project is slum and blighted. This finding is as follows:

“WHEREAS, the Local Public Agency has made detailed studies of the location, physical condition of structures, land use, environmental influences, and the social, cultural, and economic conditions of the Project area and has determined that the area is a combination of a slum and blighted area and that it is detrimental and a menace to the safety, health, and welfare of the inhabitants and users thereof and of the Locality at-large, because of: a serious and growing menace, injurious to the public health, safety, morals and welfare of the residents of the Locality; that the existence of such area contributes substantially to the spread of disease and crime, constitutes an economic and social liability, substantially impairs or arrests the sound growth of the Locality, retards the provision of housing accommodations, aggravates traffic problems and impairs or arrests the elimination of traffic hazards and the improvement of traffic facilities; and that such area is a focal center of disease, promotes juvenile delinquency, and consumes an excessive proportion of its revenues because of the extra services required for police, fire, accident, hospitalization, and other forms of public protection, services and facilities; and the members of this Governing Body has been fully apprised by the Local Public Agency and are aware of these facts and conditions; and * * * ”

The fact shown by the stipulation that there are not widespread violations of building and health ordinances, does not of itself establish arbitrariness on the part of the responsible authorities.

We must conclude therefore that the facts before us are not inconsistent with the statutory definitions and further that the condition of the properties does not render the particular plan an unconstitutional taking. We are not unmindful of the individual hardship nor are we unsympathetic toward it. On the other hand, it was within the power of the Assembly to determine that the public interest outweighs these considerations. Moreover, our approval of the general principle underlying the program of urban renewal and its application in the case before us, to the extent that this application is apparent in these threshold motions, should not be taken to mean that scrupulous adherence to legal requirements will not be expected in this case and in future projects. Serious harm could result from an arbitrary exercise of the urban renewal power, but wisely used it promises to be the source of great good to the urban communities of Colorado.

III.

Does the Urban Renewal Act violate Article XX, the Home Rule Provision, of the Constitution of Colorado, by attempting to empower the authority to perform duties which are in their character local and municipal and which have been vested in the city?

The case of People, ex rel. Stokes v. Newton, 106 Colo. 61, 101 P. (2d) 21, is authority for the principle that the state may, in the absence of local legislation, adopt a uniform statewide legislative program even though the subject has a local or municipal character where the municipality has not acted. Here the state, pursuant to the United States Housing Act adopted by the Congress of the United States, enacted a statute authorizing cities to engage in slum clearance and housing projects. Included in the powers granted to cities of the first class was the right to exercise eminent domain. In an en banc decision (opinion by Mr. Justice Bock), the Court held that the statute establishing a Housing Authority for the City of Denver did not constitute an invasion of the constitutional powers of the city. The Court proceeded on the premise that the subject matter was local, but nevertheless held that the state had authority to regulate it until such time as the city itself assumed to exercise the power. The pertinent language of the opinion is as follows:

“Relator’s theory is that the state has lost all jurisdiction over a home-rule city in matters of local and municipal concern. The theory is untenable. Paragraph (h), section 6, of article XX provides, inter alia: ‘The statutes of the state of Colorado, so far as applicable, shall continue to apply to such cities and towns, except in so far as superseded by the charters of such cities and towns or by ordinance passed pursuant to such charters.’ As already stated, Denver has not amended its charter so as to take advantage of the provisions of the National Housing Act. There is no contention that the present charter forbids such action. Assuming, but not deciding, that the authority granted to Denver by chapter 131, supra, is a matter of local concern, and there being no question that, except for article XX, supra, action thereunder is a proper exercise of the police power of the state, Denver not having exercised the authority to legislate by amending its charter, the state law controls.”

The parallel between the Newton case and the case at bar on this question is almost complete. The Urban Renewal Authority is in the same relative position as was the Denver Housing Authority in the Newton case. Here, as in the Newton case, the City of Denver has not asserted any authority under Article XX to legislate in this field. On the contrary, it has consented to the exercise of legislative jurisdiction by the state.

Under the circumstances, we perceive no merit in the argument that the legislation here in question is in conflict with Article XX of the Constitution.

IV.

Are there procedural defects incident to the creation of the Urban Renewal Authority or in connection with the adoption of the Avondale Project itself or the Denver Comprehensive Plan?

A. Contrary to the contention of the petitioners that the petition is inadequate in failing to specifically set forth the authority under which the action was undertaken, we conclude that the source of the authority is adequately identified and that it sufficiently complies with the general condemnation statute, C.R.S. ’53, 50-1-2. See Lavelle v. Julesberg, 49 Colo. 290, 112 Pac. 774.

B. It is said that the “Denver Comprehensive Plan” does not satisfy the requirement of the statute subsection (1) of section 7. It is pointed out, however, by counsel for the respondents that Exhibit C, which is part of this record, is in fact the Denver Comprehensive Plan. Our attention is also called to the fact that a public notice was given of the filing of the plan and furthermore it was recognized as such, by the City Council. Thé further contention that such a plan is invalid unless prepared by the Zoning Commission is equally untenable. Section 219A of the Charter is not applicable to the comprehensive plan prepared by the Denver Planning Office as a prerequisite to the instant undertaking.

C. We see no merit in the other procedural arguments that the hearings were insufficient or that the required notices were not adequate. The comments of counsel with respect to the adequacy of the notice and the hearing are conclusions which do not establish their invalidity.

D. The argument that the stipulated fact that there “may be insufficient money to permit the acquisition of all of the properties by negotiation or condemnation” violates the condemnation statute which requires failure to agree on compensation prior to condemnation proceedings, is without merit. The possibility that such injury might develop is not sufficient. On the other hand, the door is not hereby closed to a showing of arbitrary or capricious action as this project develops. See Post Printing Co. v. Denver, 68 Colo. 50, 189 Pac. 39.

V.

Are the petitioners denied equal protection of the laws guaranteed by the Fourteenth Amendment of the Constitution of the United States?

The final argument of petitioners is that a threat of arbitrary action as between property owners is present; that this is brought to light by the stipulation that some of the properties in the area may not be subjected to the condemnation, destruction and rehabilitation process. This same issue was considered in Berman v. Parker, supra, and was also raised in Robinett v. Chicago Land Clearance Commission (D.C.) Ill., 115 Fed. Supp. 669, and in Redevelopment Agency of San Francisco v. Hayes, 122 Cal. App. (2d) 777, 266 P. (2d) 105. The fact that particular decisions will have to be made does not support a conclusion that such decisions will prove to be arbitrary.

There being nothing presented here to justify our interference with an orderly determination of the issues involved by the district court, the Rule to Show Cause heretofore issued is discharged.

Mr. Justice Moore and Mr. Justice Frantz dissent.

Mr. Justice McWilliams, not a member of the court when the opinion was originally announced, having heard and considered the argument presented on rehearing, concurs in this opinion.

Mr. Chief Justice Hall, formerly not participating, dissents.