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TC Minutes 06-28-1988MINUTES OF THE REGULAR AVON TOWN COUNCIL MEETING HELD JUNE 28, 1988 - 7:30 P.M. The regular meeting of the Town Council of the Town of Avon, Colorado, was held in the Municipal Building, 400 Benchmark Road, Avon, Colorado, in the Council Chambers. The meeting was called to order by Mayor Allan Nottingham at 8:00 p.m. A roll call was taken with Emilie Harrison, Steve Miller, Clint Watkins, Gloria McRory, Al Connell and Jerry Davis present. Also present were Town Attorney John Dunn, Town Manager Bill James, Director of Engineering Norm Wood, Director of Public Works/Parks and Recreation Larry Brooks, Town Clerk Patricia J. Doyle, as well as, members of the press and public. The Mayor called for Citizen Input. There being no one wishing to be heard, the Mayor closed the discussion. The Town Manager introduced Liz Frazier to the Council. Ms. Frazier was the new finance officer, taking over Steve Midkiff's position. Second reading of Ordinance No. 88-11, Series of 1988, AN ORDINANCE AMENDING CHAPTER 17.22 OF THE TOWN OF AVON RELATING TO FRACTIONALIZATION OF DEVELOPMENT RIGHTS. The Town Manager stated that a resolution had been presented to the Council regarding the Planning and Zoning Commission's recommendation on fractionalization. He stated that a joint session was held last Tuesday with both, the Town Council and the Planning and Zoning Commission, to determine the wordage for a resolution to address fractionalization in residential areas. He stated that basically they were not dealing with any changes in the Commercial Zone Areas. Norm Wood stated that the square footage was changed from 601 to 651 through 800 square feet; and the 112 of development right unit was modified from 451 through 600, and from 451 through 650. The Planning and Zoning Commission had held a public hearing on the proposed revisions to the fractionalization portion of the Zoning Code, and recommended some modification to ordinance No. 88-11 as was passed on first reading. The Mayor entertained a motion to bring the ordinance to the floor for discussion. Councilman Connell moved approval of Ordinance No. 88-11, Series of 1988 on second reading. The motion was seconded by Councilwoman Harrison. The Mayor opened the meeting for public hearing. Ken Sortland, property owner of Avon, approached the Council. He felt that the Council should not be changing rules and regulations so quickly. He stated that he has been trying to have plans drawn up for a project, but cannot seem to get them to comply because of all the recent changes in the development rights. He suggested to leave it open and review the projects as they come before the Board. Mr. Sortland did have a concern with the 2 1/2 units per residential development rights. There being no one else wishing to be heard, the Mayor closed the public hearing. There was some confusion between ordinance No. 88-11, and the wording of the resolution with the recommended changes. The Town Manager stated that the Town Attorney recommended that the original ordinance be sent to the Council and to take that original ordinance and amend it according to the Planning and Zoning Commission's recommendation as drafted in the resolution. At that point, Tom-,Leroy requested to be heard. The Mayor gave him the floor. Mr. Leroy was associated with the group that was with the Wildridge project. He stated that he felt it was unfair of the Council of changing the laws of the Town in mid stream. He stated that they have complied with the laws and regulations in trying to get the project off the ground. He stated that they have spent a lot of money, time, effort and a lot of meetings. He stated that they have invested a lot of money in the project, and now the Council was trying to change the law that would greatly effect the project. He stated that they had received preliminary approval on the project of which he thought was the green light to continue. He stated it was not fair to bourden the developers that have already started under the premise that all of this was o.k. He stated now, they have heard from the staff, that the project was now tabled at the next process pending the outcome of this meeting. He then presented a copy of all the laws and regulations of the town, that pertained to fractionalization, to the Council. He asked that they be part of this record. He asked that their project be grandfathered. The Mayor.once again closed the public hearing. The Council discussed the matter of grandfathering projects that have already been heard by the Planning and Zoning Commission. -2- • i Councilman Davis stated that there would always be someone caught in the middle, and felt that this matter should be discussed. Councilwoman Harrison stated that she agreed with the fractionalization law that was presented, but also she agreed with the proposed project because there were a number of young people who would love to live in a 450 square feet unit. She stated that this type of project was needed in the area. Councilman Davis stated that he was not sure that that type of project would fit in the Wildridge Subdivision area, although in discussions of last week, there was an area in Wildridge that perhaps should be looked at. He stated this project was similar to the project on Nottingham Road, where certain things should be allowed, and certain things should not be allowed. He stated that on this issue being that the project was caught in the middle, and if the Council were to pass the ordinance on second reading, he felt the Council should consider this project and allow them to be grandfathered under the proposed project, and not on others. Mr. Dunn stated that the Council could take into consideration all the projects which have received design review approval. Councilman Watkins proposed some amendments to the ordinance. Beginning with subparagraph D, he proposed the following language: "Fractionalization of whole residential development rights may be considered for conversion, at the applicant's application, pursuant to the administrative procedures established, to any combination of housing types, based upon the application of the following fractions to the fractionalization formula. In the maximum unit size, change in the second line, 651 to 601; third line, 650 to 600. After the word "provided", add to the paragraph, "and provided the maximum number of :units shall be limited to 2 1/2 units per residential right except in:~the RTIDC(Residential High Density Commercial) SC(Shopping Center) and TC(Town Center) Zone Districts. the motion was seconded by Councilman Connell. After some discussion, Councilman Davis moved to amend the motion to add, after TC(Town Center)Zone Districts", "where a maximum of four units per residential development right shall be allowed". The amended motion was seconded by Councilman Miller. The Mayor called for a vote to amend the amendment to the ordinance. The motion was unanimously carried. The Mayor then called for a vote on the first amendment to the originial ordinance. The motion was unanimously carried. -3- • a The Mayor called for a roll call on the original ordinance. Councilmembers voting aye were Emilie Harrison, Steve Miller, Clint Watkins, Gloria McRory, Al Connell and Jerry Davis. There were no nay votes. The motion was unanimously carried. The Town Attorney stated that there was discussion to alter the effective date of the ordinance. He suggested that a Section 2 Effective Date be added to the ordinance. Councilwoman Harrison moved to reconsider the ordinance No. 88-11. The motion was seconded by Councilman Connell and was carried with Councilman Watkins opposing. The Town Attorney requested a few minutes so that he could draft some wordage for the new Section 2. In the meantime, Mark Donaldson, architect, and representing the Phoenix Group, approached the Council. He stated that his group had a different point of view, as far as, the Vested Rights as adopted by the State of Colorado, and subsequently adopted by the Town of Avon. He stated that the town's legal counsel should be made aware that, retrospective legislation was unconstitutional in Colorado. He believed that the Vested Rights had no bearing on their particular applications. He stated that one of their projects was denied and was appealed to Council, which was further denied. He stated the drawings have been revised, based upon the Planning and Zoning Commission's reasons for denial. He stated that they were scheduled for final review on the July 5th, 1988 Planning and Zoning Commission meeting for both projects. He stated they they would like to be considered under the existing Zoning Ordinance. Councilman Davis stated that that particular project was not approved, and the appeal was denied, but that the developer could have taken other avenues. He stated that he was not aware, without going through the whole process again, that they could resubmit the project, because it was denied. Discussion followed. Councilwoman McRory moved to amend the motion to add a Section 2 Effective Date to the ordinance. It was to read as follows: "This ordinance shall be effective upon final adoption and publication and shall apply to all applications now pending before the Planning and Zoning Commission of the Town, except those applications which had received preliminary design approval prior to passage hereof". The amended motion was seconded by Councilman Connell. Councilman Watkins stated that he was not comfortable with the grand- fathering of this type of project in the Wildridge area. The Mayor called for a vote on the amendment to the ordinance. The motion carried with Councilman Watkins opposing. -4- • ! The Mayor called for a motion to adopt the ordinance as amended. Those Councilmembers voting aye were Emilie Harrison, Steve Miller, Clint Watkins, Gloria McRory, Al Connell and Jerry Davis. There were no nay votes. The motion was unanimously carried. Next on the agenda was the approval of the Administrative Procedures for fractionalization projects. Councilman Watkins moved to adopt the Administrative Procedures for fractionalized projects as presented. The motion was seconded by Councilman Miller. After some discussion, Councilman Watkins amended his motion to include that the procedures shall apply to all projects that have already had preliminary design review. The amended motion was seconded by Councilman Miller and was unanimously carried. The Town Attorney report was next presented to the Council. Mr. Dunn reported on House Bill 1209. He asked that Council review the House Bill. He stated that this legislation becomes effective July 1, 1988. This House Bill was in regard to standards of conduct for all persons involved in government. The Wilson/McAdams Settlement was then discussed. The Settlement conference was scheduled for Tuesday, July 5th, 1988. The pre-trial for the Christie Lodge Case was set for Friday, July 1, 1988. The Trial was set for the first week in October. Depositions were held last week for this case. Mr. Dunn then proceeded with the proposal of which Buck Allen had made at the last council meeting in regard to raising certain Court Fines. Mr. Dunn had received information, that he had received from Aurora on this issue, and reviewed that information with the Council. Bill James recommended that this issue be reviewed at the budget process. It was suggested that the Town Attorney and the Municipal Judge review this issue, and come up with an outline of which the Council could act on. Next on the agenda was the Northwest Colorado Council of Governments/ Two Forks followup - Homestake Litigation. Norm Wood stated that following the Homestake hearings, it was now into the Court System. Northwest COG have requested support from various towns and counties in the area to help support the litigation regarding the Homestake Appeal. He stated that they were projecting the cost with no trial at $150,000, and if it goes to trial, that amount would be $170,000. -5- • 0 He stated that this would be in excess of between $55,000 to $105,000 of COG's budget. Councilman Davis stated that the town should support this issue. Councilman Watkins agreed, and that staff should notify them of the town's support. A request for an extension of the Subdivision Improvements for Eagle Bend Subdivision was next presented to the Council. Councilman Connell moved to grant the extension of the Improvements for the Eagle Bend Subdivision. The motion was seconded by Councilman Watkins. After some discussion, Councilman Miller moved to amend the motion to reflect the date not to exceed one year from now, the date being June 28,1-989. The amended motion was seconded by Councilman Watkins and was unanimously carried. The Financial Matters were next presented to the Council. Councilman Miller moved approval of the General Fund of Accounts Payable for June 28, 1988. The motion was seconded by Councilman Watkins and was unanimously carried. Councilman Watkins moved approval of the Reconciliation Sheet of Accounts Payable for June 28, 1988. The motion was seconded by Councilman Miller and was unanimously carried. The minutes-of the June 14, 1988 council meeting was next presented to the Council. Councilman Miller moved approval of the June 14, 1988 council meeting minutes as presented. The motion was seconded by Councilman Watkins and was unanimously carried. Councilman Miller commended the public works, the chamber, police and firemen for their work that went into the great Summer Solstice. -6- Councilman Connell had a concern of the Colorado West Mental Health and them handing out wrong material and information to the young adults, and that they were being charged a high fee for conseling. He suggested that someone should contact the president of the organization. He stated that he was showing his disapproval of the way the organization was handling this issue. There being no further business to come before the Council, Councilman Connell moved to adjourn. The motion was seconded by Councilman Miller. The meeting was adjourned by Mayor Nottingham at 9:40 p.m. FULLY SUBMIT africia J. I~dyle, ~Town[Clerk APPROVED: -7- 1 , , i. 670 RETPOACTIVrry of ZoviMc LAW 50 ALR3d 15 50 ALR3d 596 Boron Oil Co, v Kimple (1970) 1 Pa Cmwlth 55, 275 A2d 406, affd 445 Pa 327, 284 A2d 744 (by implication) ; Linda Development Corp. v Plymouth Township (1971) 3 Pa Cmwlth 334, 281 A2d 784. Friedman v Cheltenham Tp. (1961) 79 Montg Co LR 345 (recognizing rule); Fisher v Lansdowne Borough (1964) 51 Del Co 451 (by implication). Wis -State ex rel. Humble Oil & Re- fining Co. v Wahner (1964) 25 Wis 2d 1, 130 NW2d 304. 4 Mich-Willingham v Dearborn (1960) 159 Mich 7, 101 NW2d 294. NJ-For New Jersey cases, see infra. Pa-Shender v Zoning Board of Ad- justment (1951) 388 Pa 265, 131 A2d 90 (recognizing rule); Commercial Prop. erties, Inc. v Peternel (1965) 418 Pa 304, 211 AM 514. where the rezoning was not made in good faith, but was made for the sole purpose of preventing the applicants' legal use of their property, and therefore constituted special legislation which was unjustly discriminatory, arbitrary, un- reasonable, and confiscatory in its appli. cation, the introduction of the ordinance would have no effect upon the appli. cants' right to the permit sought. Although it is not certain that this view would be followed in all circum. stances, a few courts have said that it is immaterial that a new zoning regula- tion, enacted after the filing of an ap- plication for a building permit, was spe- cifically directed at the applicant's prop. erty. In State ex rel. Hayes v New Orleans (1923) 154 La 289, 97 So 446, a zoning ordinance was held constitutional on its until about 3 weeks after the building permit for the ice plant was applied for, zoning ordinance, the right to the permit may be defeated, and it u of no rn~t that the evil sought to be met by the tion of the governing body solely by The motives for enacting a zoning or* face and as applied to bar the construc. dinance may be relevant in determining Lion of an ice plant on a particular whether an application for a building avenue in the city of New Orleans, even permit, made before the enactment of though the ordinance was not enacted the ordinance, should be granted not. withstanding the fact that the new or- d the ordinance began by noting the dinance prohibits the use for which the fact that it was contemplated to estab- lish an ice-manufacturing plant on the 56 avenue in question. Permit Appeals (1967) b6 Cal 2d 34, Cal Rptr 672, 423 P2d 824. The court emphasized And the court in Crecca v Nucera ized that the case at bar (1958) 52 NJ Super 279, 145 A2d 477, actment said that when a building inspector was manifestly not one in which the en• refuses a permit and the municipality of the ordinance stemmed from very soon thereafter adopts a prohibitory any attempt to frustrate the developers' plena. In Commercial Properties, Ync v Peternel (1965) 418 Pa 304, 211 A2d ordinary zoning ordinance has come to the atten- 514, the court said that while under could reason of the application for the permit. true that a building permit be denied because its issuance This language was quoted in I. P. "pending Marron & Co. v River Vale (1959) 54 would not be in conformity with a " ordinance on the subject, this necessarily NJ Super 64, 148 AM 205, in which the ing court characterized as "ineffectual" the presupposed that the pend- ordinance was a valid one, and applicant's argument that the new son. 1 J IMZ O:cir;ance .ti as specifically directe at its application. See, hok ever, an earlier New Jerse case that may have been decided on different legal theory,1d Vine v Zabriskie (1939) 122 NJL 4, 3 A2d 8863 in whit the court held that an "eleventh-hou attempt," by means of a "hastily drak ordinance" amending the applicable zon- ing law, to prevent a property owns from building four apartment buildings on her property, was an arbitrary in. terference with the lawful and legitimate use of private property, and a writ of mandamus was allowed directing the defendant village to issue the requested building permit, The court noted that when it became known that the owner proposed constructing the apartment buildings, petitions of protest were filed with the city commissioners, and the amendatory ordinance was introduced and given a first reading on the eve- ning of the day on which the commission formally denied the application for the permit, and then at a later date the ordinance was adopted. Characterizing such action as ill-advised, capricious, and unreason'rble, the court pointed out that it u,as an attempt to prevent the owner from using her property for its highest use, for which it had been zoned for 1 years, during which time its assessed value had been substantially increased because it was so zoned. 16. Effect of diserWnatory rezoning under particular circumstances (a) Permit granted Where a new zoning regulation was enacted, after the submission of an ap- plication for a building permit, in order 50 ALR3d RETaoACrrvt-r 30 A 13. Although the court discussed the un. ' reasonableness of the rezoning, it apparently 4 attuned that any ordinance enacted after e the filing of an application for a building permit would be invalid with respect to such le application, since it said that the pertinent t. question presented in this case was whether 0 Y of Zotir.c LAW 67 l LR3d 596 116 (71 d to frustrate the zpplicant's plans for de. veloping his property, the courts in the y following cases held that such regulation a could not be used to bar issuance of the 1equested permit. h A cemetery association was held en- titled to a building permit for the con. n struction of a mortuary in the cemetery, notwithstanding the adoption of an r "emergency" ordinance specifically pro. hibiting certain commercial uses, includ. ing mortuaries; where the "emergency" ordinance, which was adopted one day after a writ of mandate was issued di. recting the building inspector to accept the application for the permit, was held invalid, in Sunset View Cemetery Asso. v Kraintz (1961) 196 Cal App 2d 115, 16 Cal Rptr 311. The building inspec. for apparently argued that the emer- gency creating the need for the "emer. gency" ordinance was the decision of the Superior Court in granting the writ of mandate, but the instant court, reject. ing this argument, pointed to such fac- tors as the nature of the circumstances prompting the passage of the ordinance, and the speed of its adoption, as showing its arbitrary and discriminatory nature. Nothing in the record in the instant case indicated that the ordinance formed an part of a zoning plan, or that the ordi- nance had even been contemplated be. fore the decision of the Superior Court, explained the court; rather, the enact. ment of the ordinance stemmed from the countv's attempt to frustrate the as. sociation's plans. ne court said that the generality of the language of the ordinance did not conceal its single, real- istic purpose; the prohibition of the as- sociation's mortuary. the use of the property in question by the erection of the proposed buildings was pro. hibited by the zoning ordinance in effect when the application for the permit was made. See the discussion of New Jersey cases in f 3, supra. -r s Z 11 3, PAGE 7 Services of Mead Data Central 0 Awfrx 447 A.1d 1231 printed in FULL format. RICHARD I.ITTLCF IS1.D V. INHABITANTS OF TRi- TOWN OF 1_'01411 AtiD PLANNING BOARD FOR THE. TOWN O I.YYAN 1,aw Docket tie. 1.aw-81-495 Maine Supreme Judicial. Court 447 A.2d 1231 Ar_ptsed May 4, 1987 July 22, 1982 CARTER, J. wrote the opinion, Before MCJUSICV. C.J., and NICHOLS, ROBERTS, CARTER, VIOLETTE and WATKEN, JJ. All concurrinq,. Attorneys for Plaintiff: Waterhouse; Carroll $ Cyr. Crl.and S. Hardv; Esq. (orally). James F. Malleur, Esq. Robert H. Cyr, Esq. 234 Main Street Biddeford, Maine 040135 Attorneys for Defendants: Nicholas C. Seaccia% Est2,. (orally). 3136 Main Street. P.O. Box 929. Sanford, Maine 04073 CARTER CARISR, J. This case involves the issue of whether the passage of a moratorium on subdivision applications and a subsequent enactment of a zonltp ordinance affecting, lot size reQlAireraents are applicable to a subdivision proposal that is submitted to the Planning Board of the muni capal i ty prior to the passage of such ordinances. Me conclude that the instant case is controlled by 1 M.R.S.A. 6 302 and agree with the St(perior Court that the application at issue was pending, as that terra is used in section 302. We are compelled however, to vacate the grant of injunctive relief and to direct the entry of a judgaent modified in accordance with this opinion. 1. The QlaintiffI Richard Littlefield, proposed a subdivision to be located in the town of Lyman (Town). He first appeared before the Town Planninja Board in October of 1975 to offer for submission a preliminary plan for the subdivision. n! the Board did not accept the plan "as Mr. Littlefield did not have the soil report to suboit." The Board also requested that several additional items be noted on the plan and advised the plaintiff to submit his plan at the next meeting,. Mr. Littlefield again apQeared before the Board on Detsuber 21, 1975" with a preliminary plan. Two caries of the plan, soil. tests and a fee of $85 were submitted. The minutes of that meeting. state: "The Board accepted tits ELI ttlefleld's3 preliminary plan. " n1 Under 30 M,R.S.A. 8 4956, the municipal planning, board adoQts requ2.ations .governing subdivisions and reviews requests for subdivision sop royal, A person may not build upon or sell land in a subdivision not approved by the Board. On January 9, 1979, the Planning Board imposed a moratorium on the review and consideration of subdivision plans until January 9, 1980. In apparent compliance with the roratorium, no further action has been taken by the Town Services of Mead Data Central O P As~~ A 447 A,1d 0131 on t_1tt1.ef1eld1S plan. In March of 1979 the Town aTnended the J.oca1. zoninu ordinance to require a minimum per-].et area of five acres In g9nera3. nurnose districts. Littlefield's Qroposal was for such a district but. his plan con5lsted of two acre lots, the minimum permltted prior to the amendmen t. The plaintiff Commenced the instant suit by bringlnta a complaint in Superior Court. In essence; the plaintiff sought reJ.leF From the defendants' failure to process and determine plaintiff's request for subdivision apQroval under the zoning ordinance as It existed prior to its amendment in March 1979. The Superior Court ruled in favor of the plaintiff and the defendants appealed, 11. Title 1 M,R,S.A. S 302 provides in pertinent part: Actions and proceedings pendinq at the time of the passage or repeal of an Act or ordinance are not affected thereby, For the purposes of this action, a proceeding shall include but not be limited to petitions or anplication for licenses or permits required by law at the time of their filing,. In Cardinall V. Planning Board of Lebanon,. Me,, 373 A.2d 251 (1977). we held that an application for subdivision approval was encompassed by the tens of section 3012 and therefore a subdivision aInpl,ication is not affected try a moratorium if the application was pendant at the tires of the moratorium's enactment. The Cardioal.i court also noted that no special savings clause need be inserted in the ordinance enacting the moratorium. We see no reason to depart from this interpretation of section 302 in either a subdl vlslon or zoning context, and therefore reaffirm and apply the principles of Cardinal] in the instant case. Indeed, a number of jurisdictions have reached a similar result without the benefit of legislative enactment of the content of section 302. The rationale of these courts for such a rule in the context of 7.oninq. cases i5 persuasive, The Vermont Supreme Court has recently stated: We are fully cognizant that the maiority rule, so-called, supports appellant's post tIon that nel ther the filing of an application for a permit for issuance of the pe mit, even though valid and conforming, to requlations, vest rights in the applicant against future changes In zonlrq reuu3.ations. Two major exceptions see.ia to be recognized, the first where there has been a substantial change of position, and the second where the amendment was enacted. prie►arlly to thwart the applicant's plans for development. Sath exceptions involve a factual determination virtually Impossible to arrive at ,short of litigation' a feature which, in our view, emQhasizes the undesirability of the rule generally. She minority rule, vesting rights under the then existlnq rv~qu3ations as of the tiafe when Qroper application is filed, is not without substantial support. The minority rule I s, we feel., the more practl cal. one to administer. In serves to avoid a great deal., at least, of extended litigation. It makes for greater certainty in the law and Its administration. It avoids much of the protracted maneuverinq,which too often characterizes zoning, controversies in our communities. It Is,, we feel., the more equitable" quitable rule in long run application.... Smith Y. Winhal.l Pl.anninq Co%sission, Vt. , 436 A.Zd 760, 761 (1981), (Citations amt t ted.) See Western Land 99th ties, Inc. v. City of Lggan, 617 P.2d 388 (Utah 1980); Mercer Enterprises, Inc, Y. City of Bremerton, 91 Uash.Zd 6Z4, 611 P,2d 1237 0980); Annot„ 50 A,L.R.3d 596 (1973), n2 ALF r/llAft-m AL /Am vl~ z ®murmAm® a em~ mAw' Services of Mead Data Central • PAGE 9 447 A.2d 1231 n2 The defendants arq»E that our decision in Thomas v. Zoning 'Board of Ap/Je~al.s of Bangor' me., 381 A.2d 643 (1978) madJ fie•s the holdl" of Cardinal! ano the meaning, of 1 M.R.S.A. % 302 so as to require application of the vested rights theory. In Thomas, we arplied the theory of vested rJaht.s it) determining that a permit applicant acquired no right to the application of a re~eal.ed zoning ordinance. We therefore concluded that a proceedinq for Judicial review of the zoninq board's action on the application had lost the characteristics of a live controversy and had become moot. The vested rights theory noted in Thomas is derived from limitations placed on the operation of the zoning power as a le;g1 timate exercise of the poll ce power. See 5 P. Rohan, Zoning, and Land Use Controls && 36.13x[41, (.51t 36.136. Neither the briefs of the parties nor the gainion of the Court in Thomas, however, made mention of either Cardinals or & 3021 and their interaction with this theory. The question presented by this appeal does not require that we delimit the precise contours of the coterminati s relation, if any, of these two theories. Where, as here, a statutory right in the form of % 3132 is disoositive of the matter at Issue, we need not lock to constitutional. Limitations or the judicIal constructs and derivations thereof to resolve the dispute. We conclude that if a party establishes his rights to the application of an ordinance under 8 302 as interpreted in Cardinali, the failure to satisfy the "vested rip,hts" theory of Thomas does not preclude application of that ordinance. That is not to say that the failure to satisfy & 302 prevents the assertion of any rights guaranteed by the Maine or United States Constitution. Since we find 9 302 applicable and determinative, we do not address the Superior Court's decision concerning,vested rights. The Town asserts, however, that even though section 302 is applicable, the Superior Court erred In Its determination that Li ttlefleld's ap 11 cation was "pending" as that term is used in section 102. The Town sub%its that in order for an application for approval of a subdivision plan to be pendinqthe application "must be co%Ql.ets and include all. Information required by the applicable development and subdtvlslon standards." Since Littlefield's plan fails to fulfill several informational. requirements specified by the ordinance, the Town contends that the appl}cation Is not "pendlnq" within the neanino of section 302. The Town in effect poses two questions when is a subdivision QroQosal an application under section 302 and when is a prgnosal or application ",pending" under that section. To a limited extent, the Court in Cardinals addressed these issues. In that case, are intimated that specific _quidelJnes set forth by the municipality as to what documents constitute an application could have a significant bearing on the application of section 307, Cardinall, 373 A.2d at 255. We also noted that the completed application contemplated by 3a M.R.S.k. $ 4956(2) n3 was not a necessary prerequisite to satisfaction of section 302. The Cardinali court stated. "We are not called upon to decide whether Cardinali has filed a completed application,, but only whether any app21 cation,, completed or not, was pending,." Id. at 254 n.4. n3 Section 4956(2) in effect creates two classes of applications. After an appl. i ca t 1 on is received by the mun 1 cipal i ty, it has 30 days to notify the applicant as to whether the application is co%pl.ete or incomplete. 30 M.R.S.A. 8 4956(2) (C-1). If the application 1s incomplete, the municipality is to ervlces of Mead Data Contra! 0 • PAGE 10 447 A.2d 1131 inform the an;al.icant of "the specific additional, materials needed to make a complete dt1,91.1 Catirrt. " id. After d?terntinatlon that a complete aL?nJJcation has been filet, the c~ucl;cinality beq.ins "full evaluation" of the proposal. Id. The municipality then, pu rsuan t to the last pa ra.9 rash of $ 495612)1. Issues an order "denying or granting, approval of the proposed subdivision or granting approval upon such terms and conditions as It may deem available to satisfy the crI terl on listed in subsection 3 [of 6 49561 and to satisfy any other regulations adopted by the reviewing authority...." In applying these principles to the case at bar, we note at the outset that no allegation Is made as to a lack of wood faith on the part of Littlefield in pursuing, his proposal or on the part of the Town in receiving or rejecting, Littlefield's application. The Town sfi poly asserts that failure to satisfy the ordinance dictating, the infor%ation to be contained in a preliminary plan thereby precludes a finding that an application is pending. We think the Town two narrowly circumscribes the impact of section 3132 on the application process. Neither Article 1l1 of the ordinance n4 nor section 4956(2) bars discussion, evaluation or modification of a subdivision plan by the parties Jnvolved until a plan can be deemed "pre]. I mi nary"complete" or 'final." Since a municipality can begin to act ot1 a proposal before the fruition of these characterizations' the applicant should not be barred from the protections of section 102 when the municipality acts in this %anner. We hold, therefore, that when a municipality takes the threshold step of acting on the substance of a proposal, the application process has covmenced and an application Is pending for purposes of section 302. However, presentment of a plan to a municipal clerk or board may not, in and of itself, result in a pending application under this section. When the municJnaJ.Jty accgpts the plan 48L. for the purpose of evaluating, the substance of the proposal, manifests that the plan is adequate to begin the review process, or fails to advise an annllcant of any restriction on the significance of acceptance of the plan, an application can said to be pending. n5 M Article III provides: 3.1 There shall be submitted to the Board a preliminary plan for study, and, If necessary., modification, and there shall be submitted a final. plan, The final plan shall not be prepared until the subdivider has received from the Board written notice of a vote of a ma Cori tv of the Board approving a preliminary plan. Notice of approval or disapproval shall'be given within thirty (30) days of submission of the preliminary plan to the Board, Notice of approval of a final Alan shall be given within thirty (3131 days of submission of the final plan to the Board. Until a final plan Is apnroved, no development steps shall be undertaken on the site of the subdivision. If requested, or if required by the Board In the public Interest, a publl c hearing may be scheduled on a subdivision proposal. If a public hearing, is ordered by the Mard, Interested parties will be notified 10 days in advance of the hearing and public notices posted. n5 We an_,ree with the Town that early action on the part of the municipality cannot obviate its responsibility under section 4956(3) to follow the guidelines set forth in that section in gyanting,final. approval. to subdivision plant;. That section does not require, however, that the municinality stay the evaluation process until all information on the subdivision has been provided. Moreover, we believe that section 495612) (C-1) Is flexible enough to allow 1 V W00" Alice' Y®&W° / ALWVffle© AL®i" vN Services of Mead Data Central P4GF 11 447 A.2d 1231 municipalities to screen proposals for adeo~tacY of infor,atc~,. a~tnaut reo_iirit~Q evaluatlon or acceptance of a proposal.. This distinction between of this certain the plan fact, by meetings because actions that its process: presetaent and acceptance is exhibited by the facts the Board over the submission and acceptance of applications,. at Board acceptance in this case manifests cantaencement of the evaluation case. At the October meeting,, the Board did not accept the plan because informational iteWs were %issinq. In Dece%ber, the Board accepted both and the filing fee. We find incongruous the control, exercised, in and the contention on appeal that the application was not pending of the failure to rkeet certain Informational prerequisites. The Board's made clear that it need not accept every plan offered for submission and Inaspauch as the plaintiff had an application pendinq.for subdivision avaroval at the time of the enactment of the xo ratorium and the zoning chartqe'. we hold that Littlefield is entitled to have the Board evaluate his subdivision proposal under the ordinance which existed at the time his application was accepted. 14 P.. find, however, that the Superior Court order granting a permanent injunction must be vacated for two reasons. Firs t, the order lacks the specs fi ci t,v required for the issuance and enforce%ent of a Dermanent in1unction. See 5ebagp Lake Camps., Inc. Y. Simpson,. Me., 434 A. 2d 519, 523 (1981); Vance v. 5neakman, Me., 409 A.Zd 1307, i311 n.4 11979). Second., the record contains neither allegation nor proof of the circumstances necessary to support the pram: of injunctive relief., see Bar Harbor Banking, v. Alexander, Me., 411 A.Zd 74, 79-79 (1980); Levesque v. Pelletier, 144 Me. 245' 2480 68 A.2d 90 11 (1949), particularly in view of the strong, policy of Judicial restraint in %andating, the activities of a coordinate branch of government. See Bar Harbor BankinQO 411 A.2d at 77; Kelly Y. Curtis, Me., 29) A.Zd 4251 429 (197Z). If such a Judgment were the only appropriate disposition, we could be compelled to remand for further proceedings. In the instant case, however, it is apparent that the parties have, in fact,. sought only to resolve the question of whether to apply the new ue the old ordinance provision. Because the record herein contains no evidence sgyesting an unwillingness on the part of the Board to accept a judicial determination of that question, inJunctive relief ati)ears to be unnecessary. Rather,, the Superior Court need only enter „fudgAent declarinq the right of the plaintiff to have his subdivision proposal considered under the Town of LyMan zoning ordinance as it existed prior to March 9?9790 and the duty of the Board to process his Drolosal acrordino The entry is: Judclment vacated. Case remanded for entry of judq_,went declarinq the rights and duties of the parties in accordance with the opinion herein. DISPOSITION: The entry declaring the herein. Is: Judgeent vacated. case re+kanded for entry of Vdoyeent rights and duties of the parties in accordance with the opinion SGrvlcea of Mead Data Central PAGE 2 436 A.?.d 760 printed in rULL format. Herbert 0. Smith, d/b/a Smith Meadows v, 14inhall. Planninn Commission No. 362-80 Supreme Court of Vermont 140 Vt. 178; 436 A.Zd 760 September I.. 1981,, riled, on Appeal from Qennington Superior Court Present: Barney,, C.J.; Larroa, Cillinps and Hill.. JJ., and Daley. J. Met.), Specially Assigned Lawrence G. Slason of Salmon and Nostrand, Bellows Falls,, for Qlaintiff, . Evans, O'Neil & Chamberlain,, Ltd., Manchester Center, for defendant. LARROW LARROW, J. Herbert 0. Smith, as owner of the property involved, aQQlied to the Winhall Planning Commission for ajynroval of a proposed subdivision ad,lacent to Gale Meadows Lake. The application was denied for claimed noncom9liance with existing zoning regulations. Smith appealed to the Penninaten Superior Court, which reversed the decision of the Planning Commission. A resulting notice of appeal to this Court was filed by the Plannlntl Commission. An initial question Qresents itself, although not raised by the' Darties. It 15 at best doubtful that the Planning Commission, as such. has standing to appeal a reversal of its own decision. Its decisions are aQQeaable in the same manner as decisions of a Zoning board of aq.1ustment. 24 V.S.A. S 4475. Those are governed by 24 V.S.A. 8 4472, which s@eaks in terns of aggeals_"by an interested person." The tribunal making the initial decision can scarcely be said to meet that qualification. And, while some of our previous opinions would indicate, from their titles,, an proyal of such procedure, analysis of their facts indicates that the aQQeal to this Court was taWtn by the town involved, rather than the administrative board as such. See., DeWitt Y. Town of Brattleboro Zoning, Board of AdIpstment, 128 Vt. 313, 262 A.2d 472 (1970)k Brassard Bros. v. Barre Town Zoning Board of Adjustment,, 128 Vt. 416, 364 A.2d 8i4 0 970). Absent the full briefing and consideration which this point merits, and in light of our affirmance of the„iudpment below in any event, we do not pass uQon this question at this time. Entertaining, the instant aQQeal, however, is not to be construed as confirmatory of the status of the purported appellant, or as Qrecl.udino future denial of such status, either with or without appropriate motion. The facts below were stipulated, and the legal issues involved were also the subject of apreement. The first question for determination is whether Issuance of the reauested subdivision permit was to be QQverned by the Mnhall zoning. regulations in effect at the time of application,, or by subsequent amendments enacted during, the Qendency of litioation to compel its issuance. If, as we hereinafter hold, the application was governed tv then existing regulations, the actions of the Planning,Commission, under those re4ulaations, is for lpdicial IF ®l" V/ &POT ■ ALW1W1 1r / AW VAI. • • ervlCes of Mead Data Central 140 Vt. 178;, 436 A.2d 760 PALL 3 review, other issues, not here material, were stit)ulated for review should the amended reptll a t i ons be held to be con t rol.l_ ! n_p . The tract in question in adjacent to Gale headows Lake in the Town of Winhall. The subdivision application. filed October 31,, 1978,, set out a nine lot subdivision, five of which are pe acre,. less (thane have acres li All aaeh of these five fats is larger than public hearing, the application was denied, for residential use only. Followinq.Q At the zoni and Smith appealed to the superior were court. effect. time ({arch 1b, 1979 ~ the Town regulations adopted riar , of Winhall adopted zoning amendments which would 'preclude the subdivision as planned, by requiring, five acre minimum lots in the area. These amendments had Smith not been either officially The stated process of enactment when the Plan intt, Co missionh or denying, application was filed. The s the application was its feeling that It was the intention of the zoning The amended regulations that the area in o~uestion "be zoned five acres." line ordinance clearly manifests that intent, were It con trol.l.ing. 1977 ordinance is not as clear, and reouires interpretation, should it be held controlling. We are fu111 coVizant that the malprity rule, so-called, supports appellant's pCsI tIoM that neither the filinp of an application or a erm vest r issuance of the hermit, even though valid and conforming, to rep, ti rights in the applicant against future changes In zoning regulations. Two major exceptions seen to be recognized, the first where there has been a substantial chanaE of ,oos f t i on,, and the second where the for development am See Annot S, 50 A 1d596 rily to thwart the aQQlicant's plans (1973). Roth exceptions involve a factual determination virtually Imaossible to arrive at short of litigation, a feature which, in our view, evaphasiz.es the undesirability of the rule generally. The minority rule, vesting rights tinder the then existinfl regulations as of the time when Qroper aQO.lication is filed, Is not without substantial support. See Western Land Equities.. inc. v. City of City of Idaho falls., 92 Logan, 617 P.2d 388 (Utah 19841: Ben Lomond, Inc. v. Idaho 5950 448 P.2d 209, 215 {1968)^ bibson v. City of Oberlin,. 171 Obia St. 1,. 167 N.E.216 651 09601. The teajority rule is, we feel, the more practical one to administer, it serves to avoid a great deal, at least. of extended litigation. It makes for theater certainty in the law anti its administration. it avnids mach of the protracted maneuverlnp which too often characterizes zoning controversies in our communities. me of where no amendment tts ndi Q at the e tirule in long run 2kppl i ca t i on, especially the aQQlication, as here. And, even apart from these considerations, we are confronted by the provisions of 1 V.S.A. 8 213,. dealt with by Chief Justice Barney in In re Preseault, 132 Vt. 471, 321 A.2d 65 0974). There a master Alan was adotatv-d by sion The the community after permit appa l ca t i on but before eventual cant deci detail froze the princiQle involved there did not differ y instant case, and we there held! Such a contention is, of course., flatly of contrary the to the Qollcy general assembly, expre5se in 1 V.S.A. S 213• That section provides that acts those relating, to comQetency of witnesses, practice in court or amendments of process or pleading shall not affect stilts bepun or pending at the time of passage. Since the authority rita t4 a~i ordinance stands no better than a skatute,~ivatory [sic] from State authority, ~_oJNiv _ ■MMUOMA Services of Mead Data Central ' o • l FW 4 140 Vt. 17B.; 436 A.2d 760 certainly and subject to the same 0011c11 l.itrltations, ThomQson v. Smith, 119 Vt. 488, 501, 124 A.2d 638 (1957), ";;irs the ln;~rren:~~ ad~nt;on pf a master plan is, by itself, ineffective to erall. ~rureeQlnyl val.ldly brougtht and pursued In good faith to Implement rights available under nrevI I ous Jaw. (Emohasis added) . Id. at 474, 321 A.1d at 66. The proceedint_s here were "validly brought and pursued in hood faith" to Implement the applicant's rights. Assuming those ri,phts to be contained in the re qulations existing when the application was filed, we concur with the trial. court that the attempted derailment was ineffective. A right cannot be dented, or an official action arbitrarily and capriciously postponed, for the purpose of passing a p rahibitory enactment. See Corcoran v. Village of t7epinnington, 124 Vt. 465, 492, 266 A.2d 457, 464 (1970), With our holding, supra,, that the zoning re alatiorls in effect when the application was filed governed, the next consideration (as the parties have stipulated) Is a review of the actions of the Planning Commission in light of the agreed facts and exhibits, Appellant seeks to justify those actions because one acre density under 1207.1(c) is unenforceable as Inconsistent with the Town Plan, or because the toning, ordinance is "ambiguous in its entirety" and subject to corrective interpretation by the Planning Commission. We disagree, and note in passing, that "corrective interpretation" is, in our 1Udo ent, merely a euphemistic aPpellatlon for capricious action based upon individual opinion rather than express legislative provisions, The Winhall Town Plan,, adopted in April. 1974,, quite clearly recommended that the area involved here be classified as Agricultural and Rural. Residential, with building densi ty not greater than one uni t per fI ve acres. That zonal restriction is carried forward in % 202 of the Zoning, Requlations subsequently enacted., and in force at the time of the application. Tart ii 207.1 of the Requlations set up land within 500 feet of the shoreline of Gale Meadows lake as a Special. Purpose Zoning District,, permitted residential use no closer than 200 feet from the shoreline, and set uQ lot size and similar renulrements "to be the same as for residential use in Section 206." Section 206 clearly requires only a one acre lot area for residential use. No mistake or ambinuity appears. The reference in 5 207.1(c) Is to "residential" use, rather than to "agricultural and rural residential," as it would be were it intended to refer to t 2132. Interpretation Is not required,. or permitted, where the lanquarle Is.plaf n. Valakowski v. John A. Russell Corp., 137 Vt, 219, Z23, 401 A.2d 9136, 9139 (1979). The regulations as adgnted may indeed be Inconsistent with the flown Plan,, but the total consistency upon which this argpteent is predicated is not a legal requIrenent. The plan Is a pe►neral guideline to the l.e.0slative• body, an overall guide to community developaent. Partial. implementation is not unusual! the specific Implementation Is the part adgnted in the toning regulations. Id, at 225, 401 A,2d at 9113. The regulations control the plan. See 3 R. Anderson, American Law of Zoning 9 21,15 (2d ed. 1977). Indeed, as the trial court correctly found, the regulations as adopted differed frora the plan in several material aspects. The trial court properly directed the Winhall Planning Commission to issue the revuested subdivision permit. Appellant's last objection relates to Paragraph 4 of the )(soment order entered below. Below, and here, it claims that it is not within the purview of the stipulated Issues. The paragraph In question,, in substance, is a finding and order that the development is in conformance with "the duly adopted LPYIA'AICY10" I Cvses ucv.. 0 Services of Mead Data Central 14fl Vt. 178; 436 A.2d 760 PAGE nhal c a pacjt't and devel.opmEnt and land use elan for t~lp . 7014 mn].e en t d,l es ales a t p Town Plan is only an overall pulde and only dart j a1 udtc2 to t~Qi f~•the Sst-a result, no l~ntrl.ation do sr no t Encc~atnass we visa 1t, th8 substance of our a,~ellant is jade to appear; Even A aragraph 4. AfFJreed . DtSPOS17104" Affirmed. - ~T t W ® V1 iz 388 Utah 617 PACIFIC REPORTER, 2d SERIES WESTERN LAND EQUITIES, INC., a Utah Corporation; LeGrand E. Reeder and Leah Dawn Reeder, Plaintiffs and Respondents, V. CITY OF LOGAN, a Municipal Corpora- tion; the Logan City Municipal Council; Mayor Desmond L. Anderson; Darwin W. Larsen; Carol W. Clay; Loye E. Martindale; Claude J. Burtenshaw and Glenn T. Baird, Defendants and Appel- lants. No. 16321. Supreme Court of Utah. Sept. 6, 1980.. Applicants owners sought.relief in re- gard to city's refusal to approve proposed single-family residential subdivision on land within manufacturing zone which had permitted single-family dwellings, The First District Court; Cache County, VeNoy Christoffersen; J., ruled that city had un- lawfully withheld approval and that it was estopped from enforcing a zoning change prohibiting the proposed use, and defend- ants appealed. The Supreme Court, Stew- art, J., held that: (1) applicant for subdivi- sion approval or a building permit is enti- tled to favorable action if application con- forms to zoning ordinance in effect at time of the application, unless there are pending changes in zoning ordinances which would prohibit the use applied for, or unless mu- nicipality or county could show a compel- ling, countervailing reason for exercising its police power retroactively to the date of application, and (2) reasons, which city gave for- withholding approval of the proposed single-family residential subdivision and which consisted of belief that fire protec- tion would be undermined because of limit- ed access to roads and consisted of objec- tions to inadequate sidewalks and other problems, were not so compelling so as to overcome the presumption that, despite the subsequent zoning change which would al- low such a subdivision only by special per- mit, applicants for subdivision appro, were entitled to affirmative official acts if they met zoning requirements in force time of application. Order affirmed. Crockett, C. J., concurred in res 1. Zoning and Planning ow6 Owner of property holds It subject zoning ordinances enacted pursuant state's police power. 2. Statutes 0-261 Generally, legislative enactments, of than those defining criminal offenses, not subject to constitutional prohibits against retroactive application. 8. Statutes 4-261 Legality of retroactive civil legisla is tested by general principles of faire and by due process considerations. _ d. Zoning and Planning 0-465 Vested right in a particular deve ment scheme may be created by scat 5. Zoning and Planning 4-432 Applicant for subdivision approval building permit is entitled to favorable tion if application conforms to zoning c nance in effect at time of the appl',cai unless there are pending zoning ordifu changes which would prohibit the use plied for, or unless city or county can a a compelling, countervailing reason for ercising its police power retroactively tc date of application. 6. Zoning and Planning 4-235 In instances in which an applicatioi subdivision approval or a building pe would Tor the first time draw attention serious problem calling for an imme- amendment to a zoning ordinance, suc amendment would be entitled to valid roactive effect. 7. Zoning and Planning 0-378 City must act in good faith anc reject an application for a subdivisioi proval or a building permit becaum application triggers zoning reconsiders iv"In approval ,V official action ntcats in force at ,urnvi in result. ti{x it subject to .td pursuant to ~,tuketmenU. other oinal offenses, are ~ih~aal prohibitions r~tn~a. ,ti",t civil legislation - Wilies of fairness k rations. *p 465 4,,rtkular develop- ..h,,ted by statute. M x432 +,,wwn *pW4,21 or a lk~ tb favorable so- rm3 to toning ordi- of the application, rg toning ordinance 1 hibit the use ap- or county can show ;.at'ing reason for ez- ...r retroactively to the ~•215 h an application for .x a building permit wee draw attention to a for an bnmsdiate ordinance, an to val"id ret- entitled 878 3r. and faith and not ~v f.Y a subdivision ap- permit because the reconsideratbona • WESTERN LAND EQUITIES, INC. v. CITY OF LOGAN Utah 389 Cite u, U" {17 f.M Sat that result in a substitution of judgment of then current city officials for that of their predecessors. 8. Zoning and Planning 4-196 Court must be cognizant of legitimate public concerns in considering whether a particular proposed development should be protected from effects of a desirable new zoning law. 9. Zoning and Planning e- 378 Reasons, which city gave for withhold- ing approval of proposed single-family resi- dential subdivision on land within manufac- turing zone permitting single-family dwell- ings and which consisted of belief that fire protection would be undermined because of limited access to roads and consisted of objections to inadequate sidewalks and oth- er problems that could be hanylled by modi- fication of apecificationa, were not so com- pelling as to overcome presumption that, despite subsequent zoning change which would allow such a subdivision only by spe- cial. permit, applicants for subdivision ap- proval were entitled to affirmative official action if they met zoning requirements in force at time of application. J. Blaine Zollinger, Logan City Atty., Lo- gan, for defendants and appellants. John Preston Creer, Kent B. Scott, and Brian Text Stewart of Senior dt Senior, Bait Lake City, for plaintiffs and respondents. STEWART, Justice: Defendants appeal from a ruling of the district court that the City of Logan unlaw- fully withheld approval of plaintiffs' pro- posed residential plan and was estopped from enforcing a zoning change that pro- hibits plaintiffs' proposed use.' We affirm the trial court's order. In February 1989 plaintiffs purchased 18.68 acres of property within the City of Logan. In April 1976, pursuant to a new land use ordinance, the property was zoned bl-1, a manufacturing zone which permit- ted tingle-family dwellings. Plaintiffs' in- tent was to use the property for moderately priced single-family housing. The procedure for securing approval of single-family residential subdivisions is es- tablished by city ordinance. The ordinance requires consultation with the city planning commission, preparation. and submittal of a preliminary plan showing compliance with minimum requirements of the subdivision ordinance, and approval of both preliminary and final plans by the city planning com- mission. The planning commission's prac- tice is to introduce the preliminary plan at one meeting ("first reading") and discuss its merits and take action in a second meeting. Plaintiffs' project was introduced on July 18, 1977; the second reading was scheduled for August 10, at which time the advisabil- ity of the residential development was ques- tioned and the matter was tabled and re- ferred to the municipal council. On August 18, the municipal council reviewed the mat- ter and referred' it back to the planning commission with a recommendation that protective covenants be drawn up and that more roadways in and out of the -proposed subdivision be provided. -The second read- ing of the preliminary plan occurred before. the-planning commission on September 14, and the matter was tabled for 60 days. On October 12 the planning commission went on record as opposing subdivisions in M-1 tones, and on November 9 the commission rejected the proposed subdivision on the following grounds: (1) Development of the proposed mi• dential subdivision was contrary to the land use ordinance and to the city's mas- ter plan; (2) The access roads provided by the plan were inadequate; . (3) The location of the railroad on three sides of the proposed subdivision made it an Inappropriate site for housing. In November plaintiffs unauccesafullyap- pealed the decision of the planning commis- sion to the municipal council, and in Decem- ber plaintiffs filed a complaint in district court. A restraining order was issued on January 3, 1978, enjoining the city from amending its zoning ordinance. The injunc• tion was lifted on April 18, 1978, at which i~. 390 Utah 617 PACIFIC REPORTER, 2d SERIES time a change in the zoning ordinance that had been enacted on January 19, 1978, be- came effective as it. applied to plaintiffs' property. In connection with plaintiffs' motion for summary judgment, the parties submitted stipulated statements of facts and issues. The issues submitted to the court were: 1. Did the M1 Land Use Description as set forth in the Logan City Land Use Ordinance of 1976, prior to the January 341978 amendment, permit the develop- ment of subdivisions consisting of single family dwelling units on property zoned M 1? 2. Does the amendment to the M1 Land Use Description of the Logan City Land Use Ordinance of 1976, which-was adopted January 81,-1978 and which pro- hibits the development of single family dwelling units in the M1 zone-except by .special use permit, give Defendants the authority to deny approval of Plaintiff's Willow Creek subdivision which was sub- mitted prior to the amendment - Plaintiffs sought a determination, as a mat. ter of law, that they had a vested right to develop a subdivision of single-family dwellings on their property and that de- fendants were estopped from withholding approval of the subdivision. The trial court in its findings of fact and conclusions of law held that plaintiffs' pro- posed development was permissible under the zoning regulations in existence prior to January 81, 1978, that plaintiffs had sub- stantially complied with procedural require- ments and had a vested right to develop the proposed subdivision, and that defendants were estopped from withholding approval of plaintiffs' subdivision on the basis of the amended ordinance enacted after the appli- cation for subdivision approval had been submitted. On appeal defendants argue that the planning commission was justified in its disapproval of plaintiffs' proposed subdivi- sion because of its undesirable or noncon- forming aspects. However, the statement of facts stipulated to by the parties and submitted to the trial court contained tl following language: It has not been contended by defendan that this preliminary plan did not comp in all particulars with the minimum r quirements of the Logan City subdivial( Ordinance with the exception that LV City has raised questions concerning i grew and egress in and out of the subs vision, the fact that the subdivision surrounded on three sides by railrol tracks and the need to establish prate tive covenants restraining manufacturh uses within the subdivision The order of the court below made plal tiffs' right to develop their proposed sub( vision eontingent upon their complian "with the reasonable requirements of V Logan City Ordinance." The trial court d not rule on the issue of whether the devi opera had failed, or were unable, to me those requirements. We therefore do n consider on this appeal defendants' arg meets concerning specific objectionable fe tures of the subdivision plan. Defendants also contend that, in a, event, the application for approval of subdivision does not create vested rights the owner which immunize him from sub: quent toning ehangw. Singe the decision the court below was based on a finding th plaintiffs did have such a vested right, & not on the arbitrariness or unreasonablem of the commission's action, we deal or with the issue of whether the amendme to the zoning ordinance enacted by the d could be retroactively applied to plaintif application for subdivision approval. [1-3] It is established that an owner property holds -it subject to zoning or' nances enacted pursuant to a state's poli power. Euclid v. Ambler Realty Co., 2 U.S. 866, 47 8.Ct. 114, 71 L.Ed. 308 {192 With various exceptions legislative enso ments, other than those defining crlmh offenses, are not generally subject to t constitutional prohibitions against tetra tive application. The legality of retroactl civil legislation is tested by general prin T,fi; 7 7, ~ j to ~ ]3]}}]!lIIII z r +ti •".a' fir, i~' { _ -k. court contained the nded by defendants plan did not comply A the minimum re- gan City subdivision xception that Logan Lions concerning in- nd out of the subdi- t the subdivision is e aides by railroad to establish protect ,fining manufacturing ivision t below made plain- their'proposed subdi- Dn their compliance requirements of the " The trial court did A whether the devel- vere unable, to meet We therefore do not ,si defendants` argu. ifie objectionable fea- in plan. intend that, in any n for approval of a mate vested rights in unize him from subse- Since the decision of axed on a finding that eh a vested right, and as or unreasonableness action, we deal only ether the amendment ice enacted by the city V applied to plaintiffs' vision approval. _ shed that an owner of abject to zoning ordi- rant to a state's police mbler &SAY Ca, 872 4, 71 L FA = (1926). Sons legislative enact- hose defining criminal merally subject to the oitions against retrosa- s legality of retroactive sted by general princl- WESTERN LAND EQUITIM INC. V. Ate a. 04 $1? Fu US plea of fairness and by due process consider- area to ations.l This Court has previously dealt with the issue of retroactive application of zoning laws In Contracts Funding & Mortgage F.x• change v. MVnes, Utah, 527 P.2d 1078 (1974). In Contracts Funding the plaintiff arranged to purchase property which was unzoned, and the application to construct mobile homes on the property was condi- tionally approved, Following a period of further review, during which time.the ob- jections of neighbors were considered, the building permit - vas denied, and soon there- after a zoning ordinance was passed which excluded plaintiff's proposed use. This Court held that the date of application for a building permit fixed the applicable zoning laws and that the application could not be denied on the basis of a subsequently-en- acted ordinance. There was' no contention in that case that there wets countervailing public interests that outweighed the right of the property owner to- use his land pursu- ant to the. law in effect at the time of application for a permit. The holding of Contracts Funding is not in accord with the rule generally accepted in other jurisdictions that an applicant for a building permit or subdivision approval does not acquire any vested right under existing zoning regulations prior to the issuance,of the permit orofficial approval of a pro- posed subdivision. Generally, denial of an application may be based on subsequently- enacted zoning regulations. See 8 McQuil- lin, Municipal Corporations § 25.165 (1976); 1 Anderson, American Law of Zoning § 6.28 2d ed. (1976); and cases cited in Annot., 50 A.L,R.8d 596, 607 (1978). However, for the reasons discussed below, we are of the view that the majority rule fails to strike a proper balance between public and private interests and opens the 1. See discussion of retroactive legislation in Cunningham and Kremer. Vested Rights, Es- toppel, and the Land Orvelopment Process, 29 Hastings L.J. 623• $W et seq. (1978). 2. See People v. County of Cook, W III.App.2d 436, 206 N.E.2d 441 (1965); Heeter, Zoning Estoppel: Application of the Pr/neipies of Equi• CITY OF LOGAN Utah 391 so many variables as to result in unnecessary litigation. We hold instead that an applicant for subdivision approval or a building permit is entitled to favorable action if the application conforms to the zoning ordinance in effect at the time of the application, unless changes In the zon- ing ordinances are pending which would prohibit the use applied for, or unless the municipality can show a compelling reason for exercising its police power retroactively to the date of application. In the present case, the trial court found that plaintiffs had acquired a vested devel- opment right by their substantial compli-- anoe with procedural requirements and that the city was estopped from withholding ap- proval of the proposed subdivision. The court used the language of zoning estoppel, a principle that is widely followed' That principle eatops a government entity from exercising its zoning powers to prohibit a proposed land use when a property owner, relying reasonably and in good -faith on some governmental act or omission, has made a substantial change in position or incurred such extensive obligations or ex- penses that it would be highly inequitable to deprive the owner of his right to com- plete his proposed developments . The focus of zoning estoppel is primarily upon the-conduct and interests of the prop- erty owner. The main inquiry is whether there has been substantial reliance by the owner on governmental actions related to the superseded zoning that permitted the proposed use. The ooncern underlying this approach is the economic hardship that would be imposed on a property owner whose development plans are thwarted. Some courts hold that before a permit is issued no action of the owner is sufficient reliance to bar. application of changes in zoning ordinances because there has been table £dtoppel and Vested Rights to Zoning Disputes, 1871 Urban L.Ann. 63. 3. These requirements are discussed in Heeter, supra n,2, and Delaney and Kominers, He Who Rests Less. Vests Best Acquisition of Vested Rights In Land Development, 23 St. Louis U.L.J. 219 (1979). 392 Utah 617 PACIFIC REPORTER, 2d SERIES no governmental act sufficient to support an estoppel. Accordingly, a landowner is held to have no vested right in existing or anticipated zoning. Avco Community De- velopers, Inc. v. South Coast Regional Comm'n, 17 Cal-3d 785, 132 Cal.Rptr. 386, 653 P.2d 546 (1976). Other courts consider any substantial change of position in deter- mining the estoppel issue. This Court in Wood v. North Salt Lake, 15 Utah 2d 245, 890 P.2d 858 (1964), held a zoning ordinance change requiring larger lots unenforceable because water mains and sewer connections had already been provided for lots that conformed in size tQ a previous ordinance, The Court stated that enforcement of the new ordinance in those circumstances would be unfair and inequitable. Generally, "substantial reliance" is deter- mined by various testa employed by the courts-for example, the set quantum test, the proportionate test, and a balancing test. The set quantum test, used by the majority of courts, determines that an owner is enti- tled to relief from new, prohibitory zoning if he has changed his positron beyond a certain point, measured quantitatively. A related test is the proportionate test, which determines the percentage of money spent or obligations incurred before the zoning change as compared with the total cost. The problem with both of these tests is that there is no predictable point short of adjudi- cation which separates reliance that is less than "substantial" from the reliance suffi- cient to result in a vested right or to sup- port an estoppel. The balancing test, although likely to pro- duce a more fair outcome in a particular cane, also results in little predictability. The test weighs the owner's interest in de- veloping his property and the reasonable- ness of his proposed use against the inter- ests of public health, safety, morals, or gen- eral welfare. If the gain to the public is small when compared to the hardship that would accrue to the property owner, the actions of the owner in preparation for de- velopment according to a formerly permit- ted use may be seen as sufficiently substan- tial to justify the issuance of a permit or continuation of development despite an amendment to the zoning ordinances. Nott v. Wolff, 18 111.2d 362, 163 N.E.2d ! (1960). An additional requirement generally c sidered in zoning estoppel cases is that the existence of some physical construct as an element of substantial reliance. p construction activities such as the exeeut of architectural drawings or the clearing land and widening of roads are not stuff cient to create a vested right, nor genera are activities that are not exclusively rel ed to the proposed project- Farrlawns Ce etery Assn v. Zoning Comm'n; 138 Col 434, 86 A.2d 74 (1952); F.L.D. Construct; Corp. v. Walsh, 35.7 N.Y.S.2d 112, 45 A.D. 832 (1974); Edelbeck v. Town of There 67 Wis.2d 172, 203 N.W.2d 694 (1973). If the substantial reliance requirement zoning estoppel were applied to the facts the present case, we could not agree w the trial court that plaintiffs' "substant compliance" with procedural requireme, justified the estoppel of the city's enfor ment of a new zoning ordinance. Althou plaintiffs allege they proceeded with sub vision plans and incurred significant co with the encouragement of certain city of cials, they had not yet received official a proval of their plan, and their expenditm were merely for surveying and prelimina plans. The record indicate' that plaintil spent $1,335 for a boundary survey a $890 for the preparation of a prelimina subdivision plat. The boundary survey h value regardless of the city's approval disapproval of the plaintiffs' proposal. T expenditure of $890 for the plat is not si nificant in.relation to the size of the par and is not fubstantial enough to justify estoppel with regard to the enforcement valid zoning ordinances that became effi Live before official approval of plaintif proposed. subdivision. In rejecting the zoning estoppel approa in this matter, we are not prepared to sts that it would never be relevant to a deti mination of the validity of the retroacti application of a zoning ordinance. We a of the view, however, that the releva nine ordinances. See d 862, 163 N.E.2d Bog rrment generally con- oppel cases is that of I physical construction ltantial reliance. Pre- I such as the execution ings or the clearing of f roads are not suffi- ed right, nor generally z not exclusively relat- oject. Fairlawns Cem- Ig Comm'n, 138 Conn. A1,.D. Construction q.Y.5.2d 112, 46 A.D.2d k v. Town of Theresa, i,W.2d 694 (1973). reliance requirement of applied to the facts of e could not agree with plaintiffs' "substantial rocedural requirements at of the city's enforce- kg ordinance. -Although y .proceeded with subdi- curred significant costa nest of certain city offi- yet received official ap- , and. their expenditures rveying and preliminary indicates that plaintiffs i boundary survey and ,ration of a preliminary `he boundary survey has f the city's approval or plaintiffs' proposal. The 0 for the plat is not sig- to the site of the parcel tial enough to justify an rd to the enforcement of rnts+s that became effect ,l approval of plaintiffs' M. toning estoppel approach are not prepared to state it be relevant to a deter- alidity of the retroactive mine ordinance. We are vever, that the relevant WESTERN LAND EQUITIES, INC. v, CITY OF LOGAN Utah 393 Cite as, Vtak, a I1 pad 3" public and private interests are better ac- commodated in the first instance by a dif- ferent approach. A number of other approaches have been followed or suggested as alternatives to zoning estoppel in an effort to promote fairness and consistency. The Maryland Court of Appeals, for example, in Mayor, and City Council of Baltimore v. Crane, 277 Md. 198, 362 A.2d 786 (1976), recognized a "vested contractual interest" that enabled landowners to proceed with a development that had been disapproved by the city in reliance on a new ordinance. The develop- ers had previously conveyed 4.6 acres of their 11.19 acre tract to the city pursuant to an ordinance that promised density benefits in consideration for land dedications. The court held that the owners h4,l acquired no vested right to build in reliance on an exist- ing zoning classification, but that the city was estopped from enforcing a new zoning ordinance against defendants because of their substantial change in position in ac- cepting and acting upon ther city's offer by ordinance., Under those circumstances the court. ruled that the developers' interests were constitutionally protected against im- pairment. Courts In several states have adopted the view, not unlike that stated in Contract Funding & Mortgage Exchange v. lltaymL% Utah, 527 P.2d 1078 (1974), that an applica- tion for a building permit creates a vested right as of the time of application. Penn- sylvania,'one of these elates, initially fol- lowed the general rule that a vested right accrued when an owner could show substan- tial reliance, made in good faith, on a valid- ly issued permit.4 Schechter v. Zoning Board of Ad f ustmeat, 895 Pa. 310, 149 A.2d 28 (1969): In 1968 the Pennaylvania court in Gallagher Y. Building Inspector, City of Erie; 492 Pa. 801, 247 A.2d 572 (1968), elimi- nated the need to show reliance on a permit to create a vested right when the. amend- ment to the zoning ordinance was not con- sidered by the city council until after a permit had been Issued. At the present time Pennsylvania follows whist is termed the "pending ordinance rule." This rule provides that an application for a permitted use cannot be refused unless a prohibiting ordinance is pending at the time of applica- tion. Boron Oil Co. Kimple, 445 Pa. 827, 284 A.2d 744 (1971), stated the applicable teat as follows: (A]n ordinance is pending when a Bor- ough Council has resolved to consider a particular scheme of rezoning and has advertised to the public its intention to hold public hearings on the rezoning. (284 A.2d at 747.] The pending ordinance rule reflected the court's attempt to , balance the interest of the municipal- ity in effecting a change in . its zoning laws free from the perpetuation of non- conforming uses against the Interest of the individual property owner to be free from lengthy restraints, tipon the use of his property. (264 A.2d at 747.). The court in Boron Oil Co., also imposed a duty of good faith on the part of the munic- ipality: - (I]t Is to be emphasized that the various governmental authorities charged with the responsibility of proposing, promul- gating and administering local zoning and planning laws are under a basic duty to act reasonably. In sum, a building permit may be property refused in situa- tions such as the one at bar only when the municipality acts initially in good faith to achieve permissible ends and thereafter proceeds with reasonable dis- patch in considering the proposed rezon- ing. (284 A.2d at 745.] The Pennsylvania cases do not indicate - -whether an owner need show substantial reliance on the permitted zoning prior to the advertisement of a zoning change as an element of acquiring a vested development right. Not is there a time limit on 'an owner's right to develop in accordance with a superseded. use pursuant to the pending ordinance rule, 4. The Pennsylvania experience with the vested Vested Rights in Pennsylvania, 83 Dickinson zoning tights Issue is analyzed in Kilter, L.Rev. 513 (1979). Emerging from the Confusion: Zoning and I 394 Utah 817 PACIFIC REPORTER, 24 SERIES Idaho has also adopted the view that an applicant is entitled to a building permit upon compliance with the zoning ordinance in effect at the time of the application, at least where no zoning change is pending. Ben Lomond, Inc. v. City of Idaho Falls, 92 Idaho 595, 448 P.2d 209 (1968). In Ready- to-Pour, Inc. v. McCoy, 95 Idaho 510, 511 P.2d 792 (1973), the court ruled that the elimination of an industrial zone after an applicant had sought a building permit for erection of a concrete batch plant did not alter the applicant's right to a building per- mit. The zoning change was found to be confiscatory, arbitrary, and capricious. The court upheld the applicant's right to a per- mit to build in a formerly authorized indus- trial district and stated, "People are enti- tled to rely upon the law." (511 P.2d at 797.] The applicant it the an had pur- chased its property in reliance on the city council's previous action in creating the in- dustrial district and was held to be entitled to a permit to proceed. In Pure Oil Division v. City of Columbia, 254 S.C. 28, 173 S.E.2d 140 (1970), the South Carolina court stated that in the absence of "intervening considerations of public neces- sity," (w)e see no sound reason to protect vest- ed rights acquired after a permit is is- sued, and to deny such protection to simi- lar rights acquired under an ordinance as it existed at the time a proper application for a permit is made. In both instances, the right protected is the same, that is, the good faith reliance by the owner on the right to use his property as permitted under the Zoning Ordinance in force at the time of the application for a permit. (178 S.E.2d at 148.1 The State of Washington has also refused to follow the general rule that building permits are not protected against revoca- tion by subsequent toning change unless a permittee has gained a vested right through a substantial change in position in reliance on the permit. As stated in Hull v. Hunt, 53 Wash.2d 125, 331 P.2d 8b8, 859 (1958): Notwithstanding the weight of authority, we prefer to have a date certain upon which the right vests to construct in ac cordance with the building permit. W prefer not to adopt a rule which force the court to search through (to quot from State ex rel. Ogden v. Bellevue, [4 Wash.2d 492, 275 P.2d 899] supra,) 11th moves and countermoves of • • parties " * * by way of passing ord nance and bringing actions for injum tiona'"-to which may be added the atal ing or acceleration of administrative ai Lion in the issuance of permits-to fin that date upon which the substanti, change of position is made which finall vests the right. The more practical ru'. to administer, we feel, is that the rlgl vests when the party, property owner 4 not, applies for his building permit, that permit is thereafter issued. Th rule, of course, assumes that the perm applied for and granted be consiste, with the zoning ordinances and buildiT codes in force at the time of applicant for the permit. The court met the argument that its ru would result in speculation in building pe mite by noting that the cost- of preparli plans and meeting permit requirements w such that an applicant would generally ha, a good faith expectation of proceeding cording to his application, and, furthermoi that the city building code renders a pern null and void if work authorized by. t; permit does not commence within 180 da; A "rule of irrevocable commitment" w suggested as an appropriate standard In extensive treatment of the vested develc ment rights problem in Cunningham a Kremer, Vested Rights, Estoppel, and I Land Development Process, supra, n This approach would protect from new I8 any project to which the developer t made a "reasonable and irrevocable co mitment of resources." The scope of 1 protection granted would be determined a detailed analysis of the resources Boma ted, the. planned objectives of the projc and the concerns of the general welfare. the investment made in the project prior passage of a new prohibitory zoning regt tion could be utilized for another legitim use, there would be less need to protect 4 to construct in as wilding permit. We s rule which forces h through (to quote )g'den v. Bellevue, (45 '.?,d 8991 supra,) "the rmoves of ' ° f way of passing ordi- I actions for injunc- ,y be added the stall. of administrative se. e of permits-to find Nich the substantial is made which finally- se more practical rule reel, is that the right ty, property owner or w building permit, if weafter Issued. This umes that the permit granted be consistent dinances and building he time of application argument that its rule tlation in building per the coat of preparing rmit requirements was t would generally have ition of proceeding ae- itiofi. sud, furthermore. I cods.rendera a permit ;rk authorised by the moo" witldn 180 days. ebb eommitment" was ropriate standard In an of the vested develop- n in Cunningham and rota, Estoppet and the Pt eem supra, n.l. protect from new laws ieh the developer has i 'and Irrevocable com- es." The scope of the would be determined by I the resources commit- Jectives of the project, the general welfare.. If e in the project prior to obibitory zoning regula- d for another legitimate less need to protect the ~.0 F + +i rt ys,li"r WESTERN LAND EQUITIES, INC. v. CITY OF LOGAN Utah 395 Cite es, Utah. e 1? P.24 she developer's right to proceed than if signifi- cant expenditures were uniquely related to the original project. Minnesota utilized this type analysis in Hawkinson v. County of Itasca, 304 Minn. 867, 231 N.W.2d 279 (1975), in which the issue was whether the plaintiff had ac- quired a vested right to complete the work he had commenced on' a nonconforming commercial--recreational development in an area that had been rezoned residential. The court stated: The kind of improvements which were made on the outlots were as consistent with the development of a residential area as with a commercial-recreational area. The grading and clearing of the land, and the dredging and development of the pond and stream added substantial value to the property for residential pur- poees. The effort and expense applied to these outlots are not wasted by the zon- ing. The same may be said of the lakeshore property. While it is true that plaintiff's long-range plans have been frustrated, he is not prevented from carrying on at the same level which obtained before the zoning ordinance was adopted. (231 N.W.2d at 282.1 The court held that the expenses incurred by plaintiff did not result in such substan- tial prejudice as to create in him a vested right to complete the project. Although this approach seeks to avoid economic waste, it does not foster predictability. (4] A vested right in a particular devel- opment scheme may be created by statute. For example, in Pennsylvania, § 5080) of the Municipalities. Planning Code confers a vested right on property owners who have previously received approval of a subdivi- sion plan in which the lots are too small to conform to the requirements of a newly-en- acted ordinance. This vested right has a three-year duration. The California Legis- lature has also considered bills which would grant a limited expansion of vested rights.b In our view the teats employed by most other jurisdictions tend to subject landown- ers to undue and even calamitous expense because of changing city councils or toning boards or their dilatory action and to the unpredictable results of burdensome litiga- tion. The majority rule permits an unlimit- ed right to deny permits when ordinances are amended after application and prelimi- nary work. It allows government in many cases broader power with regard to land regulation than may be justified by the public interests involved. A balancing test, though geared toward promoting fairness, must be applied on a case-by-case basis and offers no predictable guidelines on which landowners can intelligently base their decisions regarding extensive develop- ment projects. Tests currently followed by the majority of states are particularly un- satisfactory in dealing with the large mul- tistage projects. The-threat of-denial of a- permit 'at a late stage of development makes a developer vulnerable to, shifting governmental policies and tempts him to manipulate the process by prematurely en- gaging in activities that would establish the substantial reliance required to vest his right to develop when inappropriate. The economic waste that occurs when a project is halted after substantial costs have been incurred in its commencement is of no benefit either to the public or to landown- ers. In a day when housing oasts have severely escalated beyond the means of many prospective buyers, governmental ac- tions should not be based on policies that exacerbate a severe economic problem with- out compelling justification. Governmental powers should be exercised in a manner that is reasonable and, to the extent possi- ble, predictable. On the other hand, a rule which vests a right unconditionally at the time applica- tion for a permit is made affords no protec- tion for important public interests that may legitimately require interference with planned private development. If a proposal 5. See McCown Hawkes and King, Vested Rights to Develop Land: California's Avco De• cision and Legislatlvr Responses. 8 Ecology L.Q. 755 (1978). 0" Utah 617 PACIFIC REPORTER, 2d SERIES met zoning requirements at the time of application but seriously threatens public health, safety, or welfare, the interests of the public should not be thwarted. {61 The above competing interests are best accommodated in our view by adopting the rule that an applicant is entitled to a building permit or subdivision approval if his proposed development meets the toning requirements in existence at the time of his application and if he proceeds with reasona- ble diligence, absent a con-polling, counter- vailing public interest. Purthermom,.if a city or county has initiated proceedings to amend its zoning ordinances, a landowner who subsequently makes application for a permit is not entitled to My on the original toning classification. This rule follows from and extends our previous decision in Contracts Funding & Mortgage Exchange v. Maynes, Utah, 527 P.2d 1070 (1974). It is intended to strike-a reasonable balance between important, con- flicting public and private interests in the area of land development. A property own- er should be able to plan for developing his property in a manner permitted by existing zoning regulations with some degree of ks- surance that the basic gromnd rules will not be changed In midstream. Clearly it is desirable to reduce the necessity for & de. veloper to resort to the courts. An appli- cant for approval of a planned and permit- ted use should not be subject to shifting policies that do not reflect serious public concerns. [6-81 At the same time,.compelling pub- lic interests may, when appropriate, be giv- en priority over.individual economic inter. ests. A city should not be unduly restricted in effectuating legitimate policy changes when they are grounded in reoognized legis- lative police powers. There may be Instanc- es when an application would for the first time draw attention to a serious problem that calls for an immediate amendment to a zoning ordinance, and such an amendment would be entitled to valid retroactive effect. It is incumbent upon a city, however, to act in good faith and not to reject an applies. Lion because the application itself triggers zoning reconsiderations that result in a sub. stitution of the judgment of current city officials for that of their predecessors. Re. gardless of the circumstances, a court must be cognizant of legitimate public concerns in considering whether a particular develop- ment should be protected from the effects of- a desirable new law. X91 In the present case, the toning of the property in question was found by the trial court to have permitted the proposed use at the time of the application. The owners had received encouragement from city officials, although no official approval was rendered: After the application, the city council members decided to reexamine the pertinent zoning regulation and-there- after voted to amend or "clarify" the ton- ing ordinance to disallow subdivisions in an M_ 1 zone and permit residences only by special permit. Their actions may have had a reasonable basis. It was argued that fire protection would be undermined because of limited access roads, but it does not appear the problem would be any less serious if the unarguably-permitted manufacturing faeil- ities were erected instead of single-family houses. Objections as to inadequate side- walks and other problems can be handled by requiring modification of specifications that do not meet city subdivision require- ments: Indeed, the order of the trial court stated that- the developer must comply with all the reasonable requirements of the city's subdivision ordinance. We do not find the reasons given by the city for withholding approval of plaintiffs' proposed subdivision to be so compelling as to overcome the presumption that an appli- cant for a building permit or subdivision approval is entitled to affirmative official action if he meets the zoning requirements in force at the time of his application. The order of the trial court is affirmed. No costs awarded. ' city AND couNTY Or DENVER Y. DENVER 8171(78, INO. Colo. 919 Cite as 517 P,2d 919 the female person have intended also to use whatever de- installation of off-street parking facilities resists, but her re- gree of force might be necessary to by owner of land as condition which must no by force or vio_ overcome her resistance and accom- be fulfilled before such owner would be ale person of what. - plish his object." permitted to make use of land for business emale person what- The judgment is reversed and the cause purposes authorized in district within which evented from resist. remanded for a new trial, land was located were repugnant to due immediate and great process and to provision of state Constitu- npanied by apparent SUTTON and HALL, J J, concur. tion that private property shall not be tak- 't• en or damaged for public or private use f assault and specific without just compensation, but that it was of the assaulter must beyond power of District Court to decree constitute the crime ° fthat District B-6 was subject to same regu- tertt to rape." lations as District B-5. e seen' that this is the e involved since it sets tnts: (1) the assault; mit rape; (3) the pur- intent. In Crump v. 266 P.2d 1100, while ~ve before it the question f aq instruction, It was hat the elements of as. tent on the part of the ist in order to consd- therefore, follows that fails to define all the of the crime is deficient ich vras approved in Neb. 907, 79 N.W. 719, covers the crime as de- 40-2.34, Is as tollows 1tructs the jury that to ime charged in the see- he information, there an attempt to commit intent must have been n assault for that pur- peraoa of the prose- and, in order to eon- ant, the jury must be i a reasonable doubt force, and that against said in an at- iexual intercourse with instructed that to sus ion for assault with nit rape, the evidence tt the accused had a ly to have sexual inter- ; prosecutrix, but must- CITY AND COUNTY OF DENVER, a Mu- nicipal Corporation, and John D. MoLaoas, as Zoning Administrator of the City and County of Denver, Plaintiffs in Error, r. ~ DENVER BUICK, INC., a Colorado Corpo- ration, Mollie Cohan, Lou Cohan, and 8al- to Corporation, a Colorado aorporatlgn, Ralaeo Bread Company, 4 Delaware cor- poration, Weaver-Beatty Motor Company and Roy J. Weaver, Defendants In Error. No. 18689. Supreme-Court of Colorado, En Banc. Dec. 6, 16u0. As Modified on Denial of rtehearing and Dissenting Opinion F11e4 Jana 11, 1860, Action by property owners to test va- lidity of certain portions of municipal zon- ing ordinance, wherein other property own- ers were allowed to intervene as additional parties plaintiff. -The District Court of the City and County of Denver, William A. Black, J., entered decree that District B-6, in which plaintiffs' land was located, was subject to same regulations as District B-5, which was not appreciably different in characteristics, and that the portions of the ordinance requiring oft-street parking in District B-6 were unconstitutional, and municipal corporation brought error. The Supreme Court, Moore, J., held that provi- sions of the ordinance purporting to require Affirmed In part; reversed in part. Sutton, J., dissented in pait Doyle and Day, JJ., dissented 1, Constitutional Law 4=278(i) Eminent Domain 4=2(1) Provisions of municipal zoning ordi- nance purporting to require installation of off-street parking facilities by owner of land as condition-which must be fulfilltd be- fore such owner would be permitted to make use of land for business purposes au- thorised in district within which lord was located were repugnant to due process and to provision of state Constitution that pri. vate property shall not be taken or damaged for public or private-use without just cons- pensation. Const, -arL 2, 13, 23. 2 Constitutional Law e~D87 Privilege of & ,citizen to use his proper- ty according to his own will is not only a liberty but a property right subject only to such restraints as common welfare may re- quire. 3. Constitutional Law "I If a restriction upon use of property is to be upheld as a valid exercise of the po- lice power it must bear-a fair relation to the public health, safety, morals, or welfare, and have a definite tendency to promote or protect the same. 4. Municipal CorPeratloos 4=694(l) In determining the validity of re- straints upon freedom imposed by ordi- nance, the determination Supreme Court is called upon to make is whether ordinance 920 Colo. $47 PADIFIO REPORTER, 2d SERIES f; I~ . f ~ i it has a real and substantial relation to the ac. eomplishment of those objectives which form the basis of police regulation, 3. Conatltutlonal Law 0+87 Property is more than the mere thing which a person owns; it includes the right to acquire, use, and dispose of it, and Con- stitution protects these essential attributes of property. Const. art. 2, 15, 25. 8. Conatltutlonal Law 6=87 It is duty and responsibility of judicial branch of government, through decision of controversies which come before it, to safe. guard and maintain constitutional provi. sions'which guarantee maximum free and unrestricted use of property by the citizen, and to strike down those enactments which unreasonably and unnecessarily fasten up- on citizen new restraints upon freedom of action in the use and enjoynAnt thereof. 7. Constitutional Law 1+278(1) - . Any legislative action which takes away any of the essential attributes of property, or imposes unreasonable restric- tions thereon, violates due process. Const. art. 2, 125. t1 Constitutional Law 4-280 The constitutional requirement of due process of law, which embraces compensa- tion for private property taken for public use, applies in every case to the exertion of governmental power, and if in execution of any power, no matter what it is, the govern- ment, federal or state,.finds it necessary to take private property for public use, it must obey the constitutional injunction to make or secure just compensation to the owner. Const. art. 2, 15, 25. 8. Constitutional Law 4=81 -Express legislative prohibition within the perimeter of constitutional permission is necessary in order to place restrictions up. on the legitimate use of property. Const. art. 2, 15, 25. 10. Municipal Corporations 4=801(IB) Municipal zoning ordinance purporting to command installation of off-street park- ing facilities by landowners as condition which must be fulfilled before such owner would be permitted to make use of such land for business purposes authorized in district within which land was located was in deco. gation of common law and was therefore required to be strictly construed in favor of person against whom provisions were sought to be applied. 11. Conatltutlonal Law C-278(1) Municipal Corporations t-601(7) Off-street parking requirements, which were-classified by municipal zoning ordi. nance into eight different trade categories in certain district and were required to be fulfilled before landowner would be permit. ted to make use of land for business pur. poses authorized in district within which the land was located, were confiscatory, oppressive, discriminatory, unreasonable, and unconstitutional, and enforcement of such provisions would deprive landowners of their property without due process of law. Const, art. 2, 15, 25. 12. Municipal Corporations X800 Any regulation or restriction upon the use of property which bears no relation to public safety, health, morals, or general wel- fare cannot be sustained as a proper exer. cise of the police power of the municipal:ty. 13. Conatltutlonal Law 4-81, 87 Where public health and safety will best be served, reasonable restrictions may be imposed upon use of property, but not less fundamental is the inherent right of owner of property to erect buildings cover. ing such portions thereof as he may elect and to put his property to any legitimate use. 10. Constitutional Law 9-81 A strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. Const, art. 2, § 15. 18. Municipal Corporations 9=801(7) . Where municipal zoning ordinance pur- ports to restrict use of property in a district which has flourished as a business and com- mercial district for more than 50 years, and such ordinance imposes onerous and unrea. CITY AND COUNTY or DENVER T. DENVER BUICH, INC. Colo. 921 cite as 347 P.2d 019 to make use of such land es authorized in district mas located was in deco. taw and was therefore ctly construed in favor whom provisions were .aw 4-278(1) orations 4=601(7) sing requirements, which municipal zoning ordi- lifferent trade categories and were required to be downer would be permit. if land *for business•pur- in district within which ated, were confiscatory, minatory, unreasonable, ial, and enforcement of ,ould deprive landowners without due process of J$ 15; 25. orations 4x800 in or restriction upon the thich bears no relation to th, morals, or general wel- ;stained as a proper exer- power of the municipal:ty. Law 4-81, 87 c health and safety will :asonable restrictions may use of property, but not is the inherent right of y to erect buildings cover- s thereof as he may elect )roperty to any legitimate taw 4=81 blic desire to Improve the is not enough -to warrant sire by a shorter cut than it way of paying for the ,rt. 2,§15. rporstioas Q=801(1) cipal zoning ordinance pur- use of property in a district Ihed as a business and corn- ror more than 50 years, and mposes onerous and unrea- sonable conditions and terms upon which serving as shopping center for adjoining pre-existing lawful uses of property may be residential districts were unlawfully and continued as nonconforming uses, and de- unreasonably discriminatory. scribes numerous events and rn ans by 18. which the former lawful use may be ttrmi- nated, such a provision will not be upheld erty as a valid exercise of the police power df do the municipality, ere t8. Municipal Corporations 4=601(7), M Under municipal charter provision au- thorizing city council to pass zoning taws, city council had no power to impose upon owners, who had theretofore used property for lawful purposes, regulations requiring owners to make reports concerning uses which had become nonconforming, to sub- mit annual questionnaires, to record certifi- cates which would garble and confuse their titles to real estate, to lose their rights to lawfully use real estate by short-time va- cancies or short-time presumptive abandon- ment, or to lose such rights by reason of unfortunate disasters such as fire, wind, insurrection, or inability to procure tenants for a period of one year, all without regard to depressions, panics, or other unforeseen causes over which property owner would have no control, and council had no authori- ty to arbitrarily regulate or prohibit minor alterations of structures or use of space which owner might from time to time find proper or necessary to augment his income therefrbm, or to make same more com- fortable or adaptable for use of tertanta. V. Munlelpal Corporations 4;DWI(9) Where there was no appreciable differ- ence in characteristics of zoning districts denominated District B-S and District B-6, but use of property to include pawn- shop or music studio was permitted in Dis- trict B-S and forbidden in District B--b, and ordinance as to B-5 did not require. off- street parking, requirements for off-street parking facilities in District B-6, based on nature of business, use of building, size of building to be erected, number of employees in excess of five, religious belief of errl- ployees, grade in school of children, fur- nishing of services to District B-S, protec- tion of adjoining residential district, and 847 P.24-411% qui whi Dis not Munlelpal Corporations 4=601(17) Although trial court, in action by prop- owners to test validity of certain por- ns of zoning ordinance, correctly de- ed that portion of ordinance which re- red off-street parking in District .B-b, ch was not appreciably different from trict B-S where off-street parking was required, violated city charter in that regulations were not uniform, it was be- yond power of court to decree that District B-6 was subject to same regulations as Dis- trict B-5. 19• Munlelpal Corporations X601(7) In view of provision Of state Con?titu- tion that no law retrospective in its opera- tion shall be passed by the General Assem- bly, where zoning ordinance was adopted by city council and-became•law on a given date, provision of ordinance purporting to fix,the effective date of the ordinance as of a time prior. to its adoption would not be upheld. Const. art. 2, 8 11: 20. Munlelpal Corporations 4=621.12 Any property owner who had applied for building permit prior to date present zoning ordinance was enacted and became law was entitled to have application con- sidered under zoning law in force at time of making application. John C. Banks, Earl T. Thrasher, Hans W. Johnson, Denver, for plaintiff in error. Theodore Epstein, Creamer & Creamer, Denver, for defendants in error Denver Buick, Salco Corp.-and Cohan. Dayton Denious, Omer L. Griffin, Den- ver, for defendants in error Weaver-Beatti Motor Co. and Roy J. Weaver. Grant, Shafroth & Toll, Denver, for de- fendant in error Rainbo Bread Co. MOORE, justice. This cause is here on writ of error to re- view a judgment of the district court of the , Ci f'. A a 922 Colo. 347 pAOIYIo REPORTER, gd SERIES City and County of Denver entered in an action there filed to test the validity of cer- tain portions of the zoning ordinance of the city. Plaintiffs in error were defendants, and the Denver Buick, Inc., Mollie Cohan, Lou Cohan, and Salco Corporation were plain- tiffs, in the trial court. Rainbo Brea Com- pany, Weaver-Beatty Motor Comp y and Weaver were permitted to intervene Roy J' as additional parties plaintiff. In this. opinion we will refer to defendants in er- ror as plaintiffs or interveners or by their individual names, and plaintiffs in error will be referred to as defendants or by name. All parties plaintiff attacked the S validity of Ordinance No. ands County of ounty of 1456, adopted by the City 1 Denver. They prayed fora judnerit, 4 _ clarin their rights thereunder, and or a decree restraining defendants from en- unconstitutional for any of the reasons set forth in the plaintiffs' or interven- ers' complaint? "(5) Is the answer of the defendant City and County pertaining to the af= firmative defense of resorting to ad- ministrative remedies a good defense?" The fifteenth claim of plaintiffs, relating to nonconforming uses, was considered apart from the issues above stated. Under the questioned ordinance as orig- inally adopted all the property involved herein was located in a district classified as B-4. This classification was changed to B-6 by afi amendment as appears from the first affirmative defense contained in the an- swer of defendants, as follows: "On December 29, 1956, pursuant to Ordinance No. 451, Series of 1956, that land and that property alleged by plain- tiffs to be theirs was classified, among other lands, as a B-6 District under the Zoning Ordinance of the City and County of 'Denver and was made sub- ject to the restrictions and regulations established for that district by Ordi- nance No. 450, Series of 1956, effective December 29, 1956 (a copy which Ordinance No. 450, marked Exhibit 'A'is attached hereto and by such ref- erence is made a part hereof.)" Plaintiffs answered the above allegatic in the following language "y, That the said B-6 Classificatim is meaningless, arbitrary, capricious and void, and is an endeavor to or cumvent the clearly discriminatory an, abusive provisions of the B--4 Distric while conferring cone of the benefit of the B-5 District, all directly in A4 lation of the rights of the Plaintiffs set forth in their Ninth through Se enteenth Claims for Relief, each which is incorporated herein and ma specifically a part hereof, with speci reference to the said purported or nanees 450 and 451." A second affirmative defense conb in the answer of defendants alleges in stance that all the ordinances unde forcing a ordinance. Defendants filed a motion to dismiss the action on "the ground. that the complaints. of plaintiffs and interveners failed to state a claim upon which relief could be granted. This motion was overruled. Defendants thereupon filed an answer and the incause was tervention tried to the court without the in of a jury. Although the complaint of plaintiffs, con- which was adopted by interveners, tamed seventeen different claims-for relief, the trial court, with the consent of counsel for the parties, grouped all of said claims, except the fifteenth, under five main issues, as follows: "(1) Is the ordinance unconstitu- tional because of its title under the Charter ? 11(2) Was the ordinance passed in conformity with the Charter concern- ing notice to the property, owners? ."(3) Was a public hearing held as contemplated under the Charter? "(4) If the ordinance was, passed as provided by the Charter, is that por- tion of the ordinance which restricts the owners of the district which is des- ignated C on Defendants' Exhibit No. 6 CITY AND COUNTY OF DENVER v. DENVER BUICK, INO. Cite as 347 P 2d 919 I d th 1 f A- of the defendant pertaining to the af; of resorting to ed- dies a good defense?h of plaintiffs, relating to was considered apart ed ordinance as orig. Inse stated. he property involved a district classified as tion was changed to t as appears from the contained in the an. as follows: 29, 1956, pursuant to 1, Series of 1956, that perty alleged by plain- was classified, among B-6 District under the ce of the City and r and was made snb- ions and regulations hat district by Ordi- ries of 1956, effective 56 (a copy of which 450, marked Exhibit reto and by such ref- part hereof.)" ed the above allegations said B-6 Classification arbitrary, capricious, an endeavor to cir- xly discriminatory and as of the B-4 District, r none of the benefits -ict, all directly in vio- hts of the Plaintiffs as ,r Ninth through Sev- for Relief, each of rated herein and made rt 'hereof, with specific said purported ordi- S1:' native defense contained 'efendants alleges in sub- le ordinances under at- have not .vat a erase ves o ese e r Questions to be Determined dies. Plaintiffs allege that these allegations state no defense for the reason that the First. Where a zoning ordinance ordinance is unconstitutional and void, of a municipality contains provisions April 4, 1958, the trial court entered its which purport to require the installa- findings and judgment. That portion of the tion of o,(f•strtet parking facilities by decree to which defendants object and the owner of land as a condition which is now before us for review reads as which must be fulfilled before such follows: owner will be pctiuitted to make use L.* la "Wherefore, It Is Ordered, Ad- judged And Decreed: "1. That the B-6 District is a part In law and use of the B-5 District, and subject to the same regulations. "2. That Article 614 of Ordinance 392 of the Series of 1956 as it relates to the so-called B-6 Distr~t requir- ing off-street parking violates the City Charter and particularly Chapter 219 B, in that the regulations are not. uni- form. '3. That Article 614 of Ordinance 392, Series of 1956, is unconstitution- al and violates Article II, Section 15, And Article II, Section 25 of the Colo- rado State Constitution. "4. That Article 614 of Ordinance 392, Series of 1956, is unconstitutional in that it is oppressive, discriminatory and an invasion of the plaintiffs' and interveners' rights to use of their property. "S. That off-street parking is a public and municipal function, and a property owner's property cannot be taken for a public use without just compensation. "6. That the properties of the plaintiffs and interveners are subject to the regulations pertaining to the so-called B-5 District and none other. 17. That Councilman's Bill 403, Ordinance 392, Series of 1956, repeals Ordinance 14, Series of 1925. "8. That the operation of an apartment by the plaintiff Salco Cor- of u nd for bunness purposes au- thorised in the district within which the land is located; are such provi- sions unconstitutional when tested by the due process clause of the state and federal constitutions and by Article 11, Section 15, of the State Constitu- tion which provides, inter alia, that "private property shall not be taken or damaged, for public or private use, without just compensation"l. jl] We answer this question in the af- firmative, and hold that such provisions are repugnant to each of said constitu- tional guarantees. /AVe think' it essential to again state some basic principles of constitutional law to which we are in- [ debted as a nation of freedom loving peo- ple, and to which we must steadfastly ad- here if individual freedoms and liberties are to survive. (2-5] In City and County of Denver r. Thrailkill, 125 Colo. 488, 244 P.2d 1074, 1079, this court held that the restraint up- on the freedom of one who provides trans- portation for hire to make use of public streets was "completely out of harmony with the American constitutional concept of fundamental freedoms and liberties, un= der which the individual has the right to - engage in a lawful business which is harmless in itself and useful to the com- munity, unhampered by unreasonable and arbitrary governmental interference or regulation," Without reservation we are firm in our adherence to the principle that "the privilege of a citizen to use his prop- erty according to his own will is not only a liberty but a property right, subject only for any of the reasons ' plaintiffs' or interv tack provide for administrative relief from potation is a conforming use under the provisions thereof and that plaintiffs the Ordinance." 924 Colo. 347 PACIFIO REPORTER, 2d SERIES 3 f' to such restraints as the common welfare may require." People ex rel. Schimpff v. Norvell, 368 111. 325, 13 N.E.2d 960, 961. If a restriction upon the use of property is to be upheld as a valid exercise of the police power it must bear, "a fair relation to the public health, safety, morals or wel- fare," and have "a definite tendency to promote or protect the same." In deter- mining the validity of restraints upon freedom imposed by statute or ordinance, "The determination we are called upon to make is whether the ordinance has a real and substantial relation to the accomplish- ment of those objectives which form the basis of police regulation." City and Coun- ty of Dcnver v. Thrailkili, supra [244 P.2d 10791 (emphasis supplied), Bohn Y. Board of Adjustment of City and County L of Denver, 129 Colo. 539, 271 P.2d 1051. In Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 18, 62 L.Ed. 149, the Supreme Court of the United States asserted that: "Property is more than the mere thing which a person owns. It, is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attritutes of property." (Italics ours) [6] As forcefully stated by the former Chief Justice of the Supreme Court of the United States, Charles Evans Hughes, at ceremonies commemorating the estab- lishment of a government of free people: "We protect the fundamental right of minorities in order to save demo- cratic government from destroying it- self by the excesses of its own power. The firmest ground for confidence in the future is that more thou ever we realise that, while democracy must have its organization and controls, its vital breath is individual liberty." (Emphasis supplied.) It is the unquestioned duty and responsi- bility of the judicial branch of govern- ment, through the decision of controver• sits which come before it, to safeguard and maintain the constitutional provisions which guarantee the maximum free and unrestricted use of property by the citizen, and to strike down those enactments which unreasonably and unnecessarily fasten up. on him new restraints upon freedom of-ac- tion in the use and enjoyment thereof. (7, 8) Any legislative action which . takes away any of the essential attributes of property, or imposes unreasonable re- strictions thereon, violates the due process clause of the Constitutions of the United States and the State of Coloradp.~ In Bettey v. City of Sidney, 79 Mont. 314, 257 P. 1007, 1009, 56 A.L.R. 872, we find the following most significant language: "The constitutional guaranty that no person shall be deprived of his property without due process of law may be violated without the physical taking of property for public or pri- vate use. Property may be destroyed, or its value may be annihilated; it is owned and kept for some useful pur- pose and it bat no value unless it can be used. Its capability for enjoyment and adaptability to some use are es- sential characteristics and attributes without which property cannot be conceived; and hence any law which destroys it or its value, or takes away any of its essential attributes, de- prives the owner of -his property." In Chicago, B. & Q. Ry. Co, Y. State of Illinois, 200 U.S. 561, 26 S.CL 341, 350, So _Ed. 596, we find the following: "The constitutional requirement of due process of law, which embraces compensation for private property taken for public use, applies in every case of the exertion of governmental power. If, in the execution of any power, no matter what it is, the gov- ernment, Federal or state, finds it nec- essary to take private property for public use, it must obey the constitu- tional injunction to make or secure just compensation to the owner." (Emphasis supplied.) (9, 103 At the common law the owner of property has a vested right to make the fullest legitimate use of such property. It property by the citizen, those enactments which unnecessarily fasten up- nts upon freedom of ac. enjoyment thereof, glstative action which the essential attributes poses unreasonable re- ~iolates the due process itutions of the United ate of Colorad9, In idney, 79 Mont, 314, A.L.R. 872, we find ignificant language: anal guaranty that be deprived of his due process of law without the physical y for public or pri. ty may be destroyed, be annihilated; it is 'or some useful pur- o value unless it can bility for enjoyftlent o some use are es. tics and attributes roperty cannot be nce any law which slue, or takes away tial attributes, de. bf his property." Ry. Co, v, State of S1, 26 S-Ct. 341, 350, f the following : nal requirement of w, which embraces private property se, applies in every on of governmental : execution of any what it is, the gov- t state, finds it nec- ivate property for obey the constitu- .o make or secure to the owner." nmon law the owner ted right to make the of etch property. It CITY AND COUNTY OF DENVER v. DENVER BUICK, INC. Colo. 925 Cite as 347 P.2d 910 follows, therefore, that express legislative as District B-5 (the main down town prohibition within the perimeter of con- area) is concerned, it Is provided that "Off stitutional permission is necessary in order Street Parking Requirements shall be of to place restrictions upon the legitimate no force and effect in this district:" But use of property. The ordinance here in in District B-6 in which the property here question, purporting to command a specific involved is located, the ordinance classifies use of property as a condition precedent the off-street parking requirements into to the right to do business, is in deroga- eight different trade categories, with dif- tion of the common law and must be strict- ferent parking requirements for each. The fy tonitrued in favor of the person against utter unreasonableness of these off-street ! whom its provisions--are sougla to be op- parking requirements is made crystal clear plied. City and County of Denver v. by a letter, introduced in evidence, which Thrailkill, supra; Hart v. Board of Ex- was written by defendant to the plaintiff aminers, 129 Conn. 128, 26 A.2d 780; Na- Lou Cohan, The latter had applied for a tional Exhibition Co. v. City of St. Louis, building permit, which was denied. During 235 Mo.App, 485, 136 S.W.2d 396. 1 1 the course of his frustrated effort to put - This court has been careful to protect his property to use in lawful business enter- constitutional rights in construing the zon- prises, he received the following letter in ing ordinance of 1925, the provisions of explanation of the denial of his applica- which were far less drastic th&p those now tion to build: before us. With reference to the 1925 Act this court said:- "In broad outline, but *only so,_ we have held the' zoning ordinance in- voked by the building inspector to be constitutional." Hedgeock Y. People ex rel. Arden Realty & Investment Co., 98 Colo. 522, 57 P.2d 891, 893. In Colby Y. Board of Adjustment of Denver, 81 Colo. 344, 255 P. 443, 446, "in broad outline" the old ordinance was held constitutional but this court there said: "This decision is not to be construed as passing upon or approving each and every provision of the Denver zoning ordinance, nor as fixing its application to every circumstance that may arise." In numerous instances this court has held that even the old, less drastic zoning ordi- nance operated to deny constitutional rights to persons adversely affected by its terms. People ex rel. Friedman v. Webber, 110 Colo. 161, 132 P.2d 183, and cases there cited. [11] Section. 614 of the Zoning Ordi- nance here in question deals with the sub- ject of off-street parking as related to the several district classifications. In so far "Plans submitted do not indicate the specific amount of floor area to be as- signed to each of several classes of use. Nor is there indicated the precise area intended to be devoted to off-street parking. Our engineer, applying vari- ous techniques for estimating, has esti- mated that automobile sales (Parking Class 6) would occupy 3,000 square feet and thus require 1500 square feet of off-street parking; that office uses (Parking Class 2) would occupy 106,- 000 square feet, requiring 53,004 square feet of off-street parking; and that a restaurant (Parking Class 4) would oc- cupy 5000 square feet, requiring 15,000 square feet of off-street parking-for a total of 69,500 square feet of off- street parking. Attachment A of your application for construction permit in- dicates that `a substantial portion' of approximately 37,000 square feet of basement and sub-basement area would be used for parking purposes. From this it is evident that the off-street park. ing proposed to be provided does not meet the requirements of Article 614, Again, additional information would be required to determine the exact amount of the proposed excess." 926 Colo. ;r 847 PAOIFIO REPORTER, 2d SERIES With reference to parking provisions of the ordinance the learned trial judge stated in his decree that: • s the off-street parking re- quirements in the B-6 District are eon- fiscatory, oppressive, discriminatory, unreasonable and unconstitutional, and to enforce the provisions thereof would deprive the plaintiffs and intervenors of their property without due process of law." With this statement we agree. [12] In Bohn v. Board of Adjustment of City and County of Denver, 129 Colo. 539, 271. P.2d 1051, 1054, this court said: ' "It is a fundamental principle recog- nized by all the authorities that any regulation or restriction upon the use of property which bears no relation to public safety, health, morals or gen- eral welfare, cannot be sustained as a proper exercise of the police power of the municipality." The legal effect of the argument of the City is that it has a problem of concentra- tion of traffic in the streets and that accord- ingly there is a right, under the zoning ordi- nance, to appropriate for off-street park- ing substantial portions of property of citi- zens desiring to use that property for a legitimate purpose, and to prohibit the use of that property for any purpose until its owners devote a substantial portion thereof to parking; and this despite the fact that in District B-5 which is in all respects simi- lar to B-6 in general usage, no such re- quirement exists l No such power exists in the city thus to take private property for a public purpose without compensation to the owner for the taking. - It would be quite as proper to argue that the city had the aright, under the guise of "zoning" to require dedication of private properly for the street itself, if it were considered that a given street-was generally inadequate to carry the traffic; and to prohibit the use of property for any legitimat purpose un- ri til such dedication was madeIf it be true II that a traffic problcm exists, it cannot be legally solved by confiscation of private 1property without compensation, under a } lipretense of "zoning". _,J The alert business man as s matter of voluntary action fully realizes the advan- tages which are to be gained by affording parking facilities to his customers. How- ever, he cannot be cotnpclled to do so under penalty of forfeiting the right to make a beneficial use of his property. 'The city has ample power to control the "congestion of traffic" by adoption of regulations ade- quate for the purpose, which are directly related to that problem. Compulsory, in- voluntary off-street parking maintained at the expense of a property owner as a price tag or tribute for the exercise of the con- stitutional right to do business, is "com- pletely out of harmony with the American constitutional concept of fundamental free- doms and liberties." It has no definite or substantial tendency to promote or protect those objectives which form the basis of police power. - We direct attention to the opinion of this court in Willison v. Coolie, 54 Colo. 320, 130 P. 828, 832, 44 L.R.A.,N.S., 1030, from which we quote : "One of the essential elements of property is the right to its unrestricted use and enjoyment; and as we have seen, that use cannot be interfered with beyond what is necessary to pro- vide for the welfare and general se- curity of the public. Enforcing the provisions of-the ordinances in ques- tion does not deprive the petitioner of title,,to his lots. He would not be ousted of possession. He would still have the power to dispose of them; 'but, although there would be no actual or physical invasion of his possession, he would be deprived of the right to put them to a legitimate use, which does not injure the public, and this, without compensation or any provision therefor. This would clearly . deprive him of his property without compen- sation, and without due process of law, which our federal and state constitu- tions not only inhibit, but which would ompensation, under a , s man as a matter of I1y realizes the advan. be gained by affording his customers. How- >mpelled to do so under g the right to make a is property. The city control the "congestion on of regulations ade- se, which are directly tem. Compulsory, in. parking maintained at petty owner as a price e exercise of the con- do business, is "eom- ony with the American pt of fundamental free- ' It has no definite or f to promote or protect hich form the basis of n to the opinion of this F. Cooke, 54 Colo. 320, L.R.A.,N.S., 1030, from ssential elements of ht to -its unrestricted nt; and as we have cannot be interfered t is necessary to pro- Ifare and general se- iblic. Enforcing the e ordinances in ques- )rive the petitioner of He would not be Sion: He would still to dispose of them; !re would be no actual lion of his possession, )rived of the right to legitimate use, which the public, and this, ation or any provision would clearly deprive werty without compen- )ut due process of law, 'al MW state constitu- hibit, but which would CITY AND COUNTY Or DEi)1'V8R v. DENVER, BUICB, INC. Colo. 9e` Cite as U7 P.2d 019 be repugnant to justice, independent of as a valid exercise of the police power constitutional provisions on the sub- of a municipalityr ject." (13] In Hedgcock v. People ex rel. Reed, 91 Colo. 155, 13 P2d 264, 265, this court recognized that where "public health and safety will be best conserved" rea- sonable restrictions may be imposed upon the use of property. However in that case we find the following apt language, * but not less fundamental is the ink-rent right of the owner [of property] to erect buildings covering such portions thereof as he may elect, and put his property to any legitimate - use." (Emphasis supplied.) r [141 And finally upon this question we direct attention to pertinent language of Mr, Justice Holmes in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 160, 69 L.Ed. 322: "The protection of private property in the Fifth Amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use Without compensation. The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will i be recognized as a taking. * * * We are in danger of forgetting that a strong public desire to improve the public condition is not enough to war- rant achieving the desire by a shorter cut than the constitutional way of pay. ing for the change." See also Arverne Bay Const. Co. Y. Thatcher, 278 N.Y. 222, 15 N.E2d 587, 117 A.L.R. 1110. Second. Where a soning ordinance purports to restrict the -use of prop. arty in a district which has flourished as a business and commercial district for more than fifty years; where such ordinance imposes onerous and unre'a- sonable conditions and terms under which pre-existing lawful uses of property may be continued as non- conforming usts, and describes nu- merous events and means by which the former lawful use may be fermi. nated; will such provision be upheld [15] This question is answered in the negative. The ordinance in question for- bids the building of any further or addi- tional apartment houses in the B-6 District wherein is located the property of the plaintiffs and the intervenors. It defines the apartment house situated on the prop- erty of some of the plaintiffs as a non- conforming use, and declares the same no longer a "use by right." It then provides that the owner "shall register such non- conforming use by filing with the De- partment of Zoning Administration a Reg- istration Statement for such nonconforming use, and this statement: of* * * May be in such form and require the furnishing of such infor- mation and representations as deemed appropriate by the Department. ' • " * * and a copy of each orig- inal Registration Statement, or such other statement giving notice thereof as the Department shall deem appro- priate, shalt be recorded by the Depart- . ment in the office of the Clerk and Recorder," Annually thereafter the department may require the filing of a questionnaire in- quiring as to the operation, status and other details concerning the nonconforming use. If not returned completed within ninety days from date of mailing, the De- partment shall record in the office of the Clerk and Recorder a notice that the ap- plicable nonconforming use is presumed to, have been abandoned; that if thereafter it shall be established to the satisfaction of the Department that said use has not been abandoned, the Department shall record with the Clerk and Recorder a cer- tificate withdrawing the notice. For other reasons the right to continue the uses of the property of plaintiffs and others simi- larly situated is in constant jeopardy, for the ordinance further provides a number of occurrences whereby such nonconforming use shall be terminated, many of which may occur through no fault of the owner. 828 Colo. $47 PACM0 REPORTER, 2d SERIES i1. I{i, 'l ,f The ordinance provides that the non- conforming use shall be terminated by any one or more of the following: "Sec. 617. 1-4(l) "By Abandonment. Abandonment of nonconforming use shall terminate im- mediately the right to operate such use. "Sec. 617. 1-4(Z) "By Violation of Ordinance: "Any one of the following viola- tions of the ordinance shall terminate immediately the right to operate a non-. conforming use: "(a) Changing a nonconforming use to another nonconforming use except as herein provided and authorized; "(b) Failure to make, within the pe- riod herein provided, a nonconforming use comply with the Limitations -on External Effects of Uses as established by this. ordinance or subsequent amend- ment hereof; "(c) Increasing either-or both the land area of the floor areas occupied by a nonconforming- without the ap- proval of the Board of Adjustment for such increase. ('t'hree year provision eliminated as not pertaining to the case at bar.) "Sec. 617. 1-40) "By Destruction, Damage or Obso_ lescence of Structure: "The right to operate and main- tain any nonconforming use shall ter- minate and shall cease to exist when- ever the structure or structures in which the nonconforming use is op- erated and maintained: "(a) Is damaged or destroyed, from any cause whatsoever, and the cost of repairing such damage or destruc- tion exceeds fifty per cent of the re- placement cost 'of such structure on the date of such damage or destruc- tion, - "(b) Becomes obsolete or sub-stand- and under any applicable ordinance of the municipality and the cost of _ placing such structure in lawful com- pliance with the applicable ordinance exceeds fifty per cent of the-replace- ment cost of such structure on the date that the proper officials of the municipality determine such structure is obsolete or substandard." ."Sec. 617. 1-4(3) "By Specific Acts of Termination. "Any one of the following Specific Acts of Termination shall terminate immediately the right to operate a nonconforming use; (Two of these provisions are omitted here as nongermane to our problem) "(c) Non-operation of a noncon- forming use for a period of twelve or more successive calendar months; "(d) Vacancy for a period of twelve or more sucecessive calendar months of the structure or that part of a structure occupied by the nonconform- ing use. (Five year provision eliminated as not germane to the case at bar.) In the first place, the charter of the City and County of Denver, which was amended in 1923 'to include therein Sec. 219-A authorizing the city council to pass zoning laws, confers none of the powers upon the city council which it purported to exercise with relation to nonconforming uses as set forth in section 617-1 of the ordinance. The charter provision, which certainly defines the limits of the council's authority within that area not controlled by constitutional provision, reads as fol- lows : "Section 1. Grant of Power. For the purpose of promoting health, safe- ty, morals or the general welfare of the community, the Council of the City and County of Denver is hereby empowered to regulate and restrict the height, number of stories and size of buildings and other structures, t vision eliminated as he case at bar.) 1. 1-4(5) Damage or Obso. ructure: operate and main- ,rming use shall ter. :ease to exist when. •e or structures in iforming use is op- ained : d or destroyed, from Sever, and the cost damage or destruc. per cent of the re. f such structure on. damage or destrue- obsolete or sub-stand- applicable ordinance ity and the cost of cture in lawful com- applicabl'e ordinance cent of the replace. ch structure on the oper officials of the rmine such structure otandard." e, the charter of the >f Denver, which was o include therein Sec. the city council to pass rs none of the powers cil which it purported ation to nonconforming n section 617-1 of the tarter provision, which t limits of the council's iat. area not controlled roviaion, reads as fol- rant of Power. For omoting health, safe- general welfare of the Council of the of Denver is hereby eguiate and restrict fiber of stories and and other structures, CITY AND COUNTY OF DENVER v. DENVER BVIO$, INC. Colo. 929 Cite a 347 P.2d 818 the percentage of lot that may be wise that the City Council should have occupied, the size of yards, courts and power to impose the drastic regulations other open spaces, the density of pop- upon owners of property theretofore used ulation and the location and use of for lawful purposes, requiring them to buildings, structures and land for trade, make reports, to submit to annual ques- industry, residence, or other purposes. tionnaires, to record certificates which "Section 2. Districts. For any or garble and confuse their titles to real es- all of said purposes, the Council may tate, to lose their rights to lawfully use divide the City and County of Denver real estate by short time vacancies or short into districts of such manner, shape time presumptive abandonment, or to lose and area as may be deemed best suited such rights by reason of unfortunate dis- to carry out the purposes of this asters such as fire, wind, insu-rreetion or Amendment; and withip such districts inability to procure tenants for a period it may regulate and restrict the erec- of one year, etc., all without regard to . tion, construction, reconstruction, . al- depressions, panics -or other' unforeseen teration, repair or use of 'buildings, causes over which the property owner has " structures or land. All such regula- no control. Tor did the people of Denver tions shall be uniform for each class in said charter amendment ever say by or kind of buildings throughout each implication or otherwise that the_ City of district, but the regulations in one Denver through its council could take district may differ from those in other unto themselves authority to arbitrarily districts. regulate or prohibit minor alterations of . st ' t "Section 3. Purposes in- View. Such regulations shall be made in ac- cordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to pro- vide adequate light acid air; to pre. vent overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provisions of transportation, water, sewerage, schools, parks and other public re- quirements. Such regulation shall be made with reasonable consideration, among other things, to the character of the district and -its peculiar suit- ability for particular uses, and with a view to conserving the -value of buildings and encouraging the most appropriate use of -land throughout the City and County of Denver." rue ures or use_of space which the owner might from time to time find proper or necessary to augment his income there- from, or to make the. same more com- fortable or adaptable for the use of his tenants. All the authorities hereinabove cited are equally applicable to the instant question. Third. Are the various provisions and restrictions set forth its Ordi- nance No. 392 Series of 1956 umlaw. fully and unreasonably discriminatory its that they impose certain obliga- lions and restrictions upon the prop- erty in the B-6 District so as to work undsre hardships within that District while favoring the B-5 District by not imposing those restrictions and a& lirgatim upon (lie property within the B-5 District, and thus creating a con- dition of sub-serviency by one district in favor of the otherf . [161 Section 617 and the subdivisions thereof attempt to legislate many things not within the purview Of the language of the enabling amendment to the charter. Certainly the people have never expressed any intention by implication or other- $47 p.sd--81111 .[17) This question is answered in the affirmative. The trial court determined from knowledge common to any citizen, and from the language of the ordinance itself, that there is no appreciable or ap- parent difference in the characteristics of 930 Colo. 847 PAOIFIO REPORTER, 2d SERIES District B-6 and B-5 except that in the latter the uses authorized include opera- tion of a pawnshop or music studio, while these privileges are denied in the B-6 Dis- trict. Indeed, a reading of Sections 612.9-1 and 612.10 respectively lead to no other conclusion. With reference to the B-6 District the ordinance reads "This district, at present, is a large area located immediately adjacent to the B-5 District, for which it acts as a service area • * We know of nothing which justifies any such conclusion. The trial court took notice that within the District B-6 are a sl` great many buildings and business enter- prises which serve the entire city of Den- ver, the state, and large districts outside the state. The regulations of the ordinance as to B-5 do not require off-street parking, but in the 13-6 District the ordinance demands off-street parking facilities and sets up a maze of oppressive rules and regula- tions pertaining thereto. None of these requirements are made as to the B-5 Dis-' trict. Gross floor area provisions are set up in the B-6 District, none of which ap- pears in the B-5 District. The city regu- lates private property in the B-6 District so as to require off`-street parking based on nature and type of the trade or busi- ness, use of the building, size of the building to be erected, number of em- ployees in excess of five, the religious belief of employees, the grade in school of children, furnishing services to the B-5 District, protecting an adjoining residen- tial district, and serving as a shopping center for-the adjoining residential dis- tricts; while no such regulations are re- quired in the adjoining B-5 District al- though all types of business and buildings permitted are the same in both districts, with the two exceptions above noted, [18) This is not to say, however, that the trial court was correct in that part of its decision wherein it finds that the property in the B-6 District is subject to the ordinance as set forth in the B-5 Dis- trict. Such a result involves a legislative function beyond the power of the court, and we must overrule the judgment of the trial court in so far as it purports to place property in the B-District into that classified B-5. Fourth. Where a coning ordinance is adopted by a city council and be. comet a law on a given date; will a Provision thereof purporting to fix the effective date of the ordinance as of a time prior to its adoption be upheldl [19] The answer to this question i "No" In the instant case the ordinane in.question was enacted and became lai on November 7, 1956. A provision thert in purported to relate back the effectiv date of the ordinance to February 11, 195; It is sufficient to say that the Constitutio of Colorado, art. 2, § 11, provides that n law "retrospective in its operation" sha be passed by the General Assembly. Wh. the legislature cannot do at the state ltv, in this- connection,- the city council cant do in municipal affairs. (20) It follows that any person wit applied for a building permit prior to N4 vember 7, 1956, was entitled to h8ve h application considered under the on: ioning law in force at that time, and th law was the zoning ordinance of 1925, amended. Judgment of the trial court is affirm4 in all respects except as to that part the same which declares the property the B-6 District to be subject to the ok nance as it pertains to the B-5 District FRANTZ, J., specially concurring. SUTTON. J., concurs in part and d sents in part DAY and DOYLE, J J., dissent FRANTZ, Justice (specially cons ring). 1 believe in the rightness of the *r of Mr. Justice MOORE, and further ' 7I it 932 Colo. $47 PADIFIf7 REPORTER, 2d 8SRIES Property had a well-defined meaning at the time these Constitutions were adopted. "The natural right one may have to use his own property as he wills is subject always to the limitation that in its use others shall not be injured. That which is hurtful to the comfort, safety, and wel- fare of society may always be prohibited under the inherent or plenary power of the state, notwithstanding the incidental inconvenience or loss individuals pray suffer thereby. This power is the law of necessity, and.is founded upon the maxim, 'Sales populi suprcma lex,' The exercise of the power is essential to the maintenance of society, and the establishment of govern- ment itself presupposes the surrender to it by the individual citizen of the right to regulate, and even forbid, such use of his private property as would prove injurious to the citizens generally. . City of Chicago v. Rogers Park Water Co.,•214 Ill.' (212], 73 N.E. 375; hiitgler v. [State of] Kansas, 123 U,S. 623, 665, 8 S.Ct. 273, 31 L.Ed.. 205. 1f is equally-true, however, that the ou-ner of property has the right *to put it to any use lie desires, provided its so doing he does not imperil or threaten harm to others. Legislative restrictions of the use of property are imposed only upon the theory of necessity; that is, they are nec- sssary for the safety, health, comfort, or general welfare of the public." Curran Bill Posting & Distributing Co. v. City of Denver, 47 Colo. 221, 107 P. 261, 263, 27 L.R.A.,N.S., 544. (Emphasis supplied.) Cf. Mooney v. Village of Orchard Lake, 333 Mich. 389, 53 N.W.2d 308; O'Connor Y. City of Moscow, 69 Idaho 37, 202 P.2d 401, 9 A.L.R.2d 1031 (both zoning cases). i See Colby v. Board of -Adjustment, 81 Colo. 344, 255 P. 443. It has been said that "(i]f the right of use be denied, the value of the property is annihilated and ownership is rendered a barren right." Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513, 515, 19 'A.L.R. 1387; O'Connor v. City of Moscow, supra. Unless the contemplated use of property imperils the safcty, health, comfort or gen- eral welfare of the community, it appears that a denial of such use would be io valid. And a zoning restriction must have a reasonable and substantial relation to the safety, health, morals or general welfare; the connection may not be tenuous, vague or remote. 101 C.J.S. Zoning 4 7, p. 683 et seq. See Hedgcock v. People, 91 Colo. 155, 13 P22d 264. Is there such a relation to safcty, health, morals or general welfare as warrants the provision in the ordinance for off- street parking? As in the numerous zoning ordinances of other cities requiring the in- stallation of off-street parking facilities in order to make use of property, justifi- cation for the provision in question is urged on the ground that Denver has a traffic problem: certain streets in the in- dustrial, commercial and business areas of the city are choked with moving and parked cars, and further uses of property will magnify the condition. To the extent that contemplated uses magnify- the con- dition, the ordinance is said -to be proper and effectual in that it will constitute a - holding-of-the-line against intensifying the problem. Although courts generally cannot ques- tion the wisdom and policy of a zoning law, they have the duty to determine "that the power must not be exercised so arbi- trarily or unreasonably as to make the (zoning) ordinance unconstitutional in its operation and effect," Colby v. Board of Adjustment, -supra (81 Colo. 344, 255 P. 4451. If the effect of off-street parking facilities is to intensify the traffic condi- tion, is ineffectual on examination, and putting it into operation would destroy the thing it purports to protect, clearly it would be unconstitutional. Property would then be taken in violation of cited constitutional provisions. And that would be the very effect of the operation of the off-street parking provision. Parking space in these areas has reached flood-tide; moving and parked vehicles are jamming the streets; there- fore, make possible more parking areas by requiring owners of buildings to provide -esult involves a legislative i the power of the court, ,errule the judgment of the so far as it-purports to in the B-District into that 'here a coning ordinance i a city council and be. on a given date; will a •eof purporting to fix the of the ordinance as of o its adoption be upheldf aswer to this question is instant case the ordinance s enacted and became law 1956. A provision there. relate back the effective nance to February 11, 1955. o•say that the Constitution t. 2, § 11, provides that no ive in its operation" shall General Assembly, What oi:annot -do at the state level on, the city council cannot il affairs. . >ws that any person who tilding permit prior to No- , was entitled to have his iIsidered under the only orce at that time, and that ning ordinance of 1925, as the trial court is affirmed except as to that part of i declares the property in t to be subject to the ordi- ,ains to the B-5 District. , specially concurring. concurs in part and dis- )YLE, JJ., dissent. ustice (specially concur- it rightness of the opinion MOORE, and further be- 4 i 1 r CITY AND COUNTY OF DENVER v. DENVER BUNS, INC. Colo. 931 Cite 11847 P.24 919 lieve that some aspects of his opinion can in their place arises a privilege to improve bear amplification. one's property, granted only after applica- tion and then only as the law permits. Justification of this zoning ordinance in the name of progress, and on the theory that the Constitutions, Federal and state, are flexible enough to sustain it, is not in my opinion warranted. All too frequently acceptance of legislation is urged because it represents progress, and because the flexibility of -both Constitutions allegedly has come to mean documents of bound- less accommodation, Protean in their ad- justments. Beguiling indeed are these no- tions, and hence their advancemeni' as arguments for a proposition should be scrutinised and analyzed with care.- Let us examine and evaluate aspects of the ordinance in question. Is there sanc- tion in the law for the provisfon regarding off-street • parking? -for the provision placing technical demands upon one who desires to keep alive a nonconforming use? -for the provision giving the ordinance a retrospective operation? Answers to these questions begin with certain fundamental, immemorial rules of property law, In ignoring or overlooking these basic tercets the law has been reduced to a state of contrarieties, where owner- ship envisions rights in the law of prop- erty, but only privileges in the law of zoning and city planning. It is imperative that we return to basic concepts, for then we can get direction and proceed correctly toward our goal--the amelioration of mu- nicipal ills. What derives from the ownership of property? The ordinance under attack here is typical of one answer to the question. In so far as zoning applies, the owner has an inchoate, limited right to put his prop- erty to a use; he 'must go to an agency for a permit to develop his property in a certain way. The zoners and city plan- ners have devised laws by which the owner must seek and obtain a license to do some particular thing with his property. Through these laws certain rights in prop- erty are placed under lock and key, and Today a zoning board issues a permit to the owner to put his property to a certain use. This board exercises a legis- latively imposed discretion in passing upon the application for the permit. And this permit bestows a privilege upon the owner. Such permit "partakes of a personal privi- lege and grant which attaches to the land. The right in so far as it is a personal privilege is not assignable, and it must be exercised ' • 4 - within a reasonable time after its issuance." Hanley v. Cook, 245 ?mass. 563, 139 N.E. 654. See Rhyne, Municipal Law, page 893. There is another answer to the ques- tion of what derives from ownership. It has been tested. in the crucible of time, and by reason of its merit constitutional provisions were conceived and cast in its mold. By it an owner has more than a conferable privilege to use his property. He has a legal right, subject to certain restraints, to enjoy and use his property; his ownership, and his enjoyment and use springing therefrom, are not privileges, but are rights which this government was instituted to protect. If this be not true, of what avail is it that "All persons have certain natural, es- sential and inalienable rights, among which may be reckoned the right • 4 * of acquiring, possessing and protecting prop- erty • • covenanted in Article II, Section 3, of our Constitution? Of -what avail that "Private property shall sot be taken or damaged, for public or private use, without just compensation," assured in Article II, Section 157 Of what avail that "No person shall be deprived of life, liberty or property, without due process of law," solemnly- pledged in Ar- ticle II, Section 25? Of what avail that a at ate may not "deprive any person of life, liberty, or property, without due proc- ess of law," guaranteed in Amendment XIV, Section 1, of the Federal Constitu- tion ? CITY AND COUNTY OF DENVER v. DENVER BUICK, INC. Colo. 933 Cite as 34r P11 910 I such use would be i& ng restriction must have ubstantial relation to the rals or general welfare; y not be tenuous, vague J.S. Zoning $ 7. p. 683 cock v. People, 91 Colo. elation to safety, health, l welfare as warrants the ordinance for oJI- in the numerous zoning r cities requiring the in- strcet parking facilities use of property, justifi• rovision in question is and that Denver has 'a ertain streets in the in. al and business areas of Dked with moving and further uses of property :ondition. To the extent uses magnify the con. nee is said to be proper that it will constitute a against intensifying the generally cannot ques- and policy of a' zoning duty. to determine "that of be exercised so arbi- otiably as to make the c unconstitutional in its c ect" Colby v. Board of a [81 Colo. 344, 255 P. ect of off-street parking tensify the traffic condi- al on examination, and operation would destroy its to protect, -clearly it onstitutional. Property ken in violation of cited Id be the wy effect of f the off-street parking ing space in these areas .tide; moving and parked ming the streets; there- le more parking areas by s s of buildings to provide off-street facilities, and thereby concen- trate more moving traffic in the areas. Alleviate the lesser of two evils, the parked car, so that the -greater, the moving ve- hicle, can be put in increased mass move- ment. A self-defeating condition inevita- bly follows such a development, for with more parking facilities available, more ve- hicles are attracted to the area, and traffic becomes denser. If an owner builds a large structure on his land (and let us assume it is a useful building presenting no aspects of being a nuisance), does it imperil safety, health, morals or general welfare because no pro. vision is made for parking facilities? It may be a building requiring, because of the nature of the business conducted therein, very few employees, and very few persons may be attracted to it for trade. On the other hand, it may house businesses having many employees and bringing to it many people. The building may be located on very busy streets, heavily burdened with moving and parked vehicles: In either case, automotive traffic attracted to the_ building may be a minute part of one per cent or it may be one per cent of the total traffic on the streets around the structure on any or every day. Continuing with our illustration: the total traffic represents 100%, and the prob- lem of how to handle this total traffic is one of municipal concern. It is primarily a street problem; it involves movement of vehicles with despatch, convenience and safety. Even the total parking may be an inconsequential percentage of the total traffic using the streets around the build. ing. Other streets in the area may have substantially' 4ess traffic and less parking. In all these illustrations we are dealing with variants, all of which go to the question of the reasonableness of the provision re- quiring the installation of parking facil- ities. Is there a reasonable connection between traffic congestion and a large building to which may be attracted considerably less than one per cent of the parked and moving cars on the street? In most instances the street, its width, its accessibility to other important streets, the directness with which persons using it can reach points of in- terest or of business, and probably other factors create the problem of traffic con- gestion. As can be seen, in essence the problem begins in the street and ends there. In fact, there is authority for the proposi- tion that mounting traffic burdens or haz. ards are matters which constitute police problems and are not within the province of the zoning authorities. Greenberg v. City of New Rochelle, 206 Misc. 28, .129 N-Y.S.2d 691, affirmed 284 App.Div. 891, 134 N.Y.S.2d 593, appeal dismissed 308 N.Y. 736, 124 N.E.2d 716; Property 'Own- ers Ass'n, etc. Y. Board of Zoning Appeals, 2 1lfisc.2d 309, 123 N.Y.S.2d 716, 718. Adciphi College, located in the village of Garden City, N. Y., made application to the Zoning Board for permission to erect stands which would accommodate 3,958 persons, and the Board approved stands for only 2,000 persons, subject to certain conditions. As stated by the Supreme Court of New York. in Property Owners Assn, 'etc. v. Board of Zoning Appeals, supra: "The principal question raised upon the hearing related to a possible increase in traffic and parking upon the village streets which allegedly would be detrimen. tal to the residents but the evidence does not justify a conclusion that the presence or absence of permanent seats would-have that effect." In the syllabus is a succinct state- ment of the holding of the court, viz.: "Great increase in traffic and parking on village streets, if a college were granted permission to erecf-seating stands adjacent to its athletic field in village were prob- lems for police, not village toning author- ities." This total traffic condition represents a municipal and public problem to be solved. Property dedicated to its solution is prop. erty devoted to a public use. Involuntary dedication of such property to such use is a taking of the property. Only a resort to sophistry may sustain the ordinance as i 834 Colo. 347 PACIFIC REPORTER, 2d SEMS not constituting the taking of property for a public use, Indeed, there is argument that only per- sons going to a building will be permitted to use the parking facility provided for the building. It is argued that parking is fur- nished for their convenience, and therefore it is not requiring an owner to put his property to a public use. If that be true, then it is a taking for private use, a taking of more doubtful validity. - How far can a city.go in requiring ac- cessory uses? Could a city require an apartment house builder who intends to accept families with children to furnish classrooms for such children in order to ameliorate traffic congestion and related problems on the streets on which his build- ing will be located? In order to keep children off the streets, whether such chil- dren are tenants or visitors of tenants, could the city require such builder to fur- nish playgrounds and a gymnasium-yes, and supervisors to maintain safety and order while these facilities are being used? Could the city require the builder of an office building to construct over-or under- passes for tenants and their patrons where the buiding would be located on heavily travelled streets? Instances could be multi- plied, but these questions test the measure of the proposed power of a city. As a matter of fact, the illustrations sug- gested by the foregoing questions have a better basis for being held valid than the reality with which we are dealing, for in each of the illustrations the problem of safety has a closer relevance to the use of the property than the off-street. parking provision has to the uses of property de- scribed in the instant ordinance. The zoning ordinance in question details action thnt must be taken 6y an owner in order for him to perserve a nonconforming use. If through inadvertence, oversight, misunderstanding or other mishap the own- er should fail to take some step in the process required, the nonconforming use is placed in automatic jeopardy. Thus, a very valuable property on which is con' ducted a very profitable business, all of which is inoffensive per se except that it does not conform to the uses permitted by the ordinance in the district, may, by reason of the failure to perform some condition required to save a nonconforming use, be- come subject to the drastic provisions of the zoning law. The conditions of the ordinance for keep- ing alive nonconforming uses have no rea- sonable basis in the exercise of the police power, for they represent nothing more than artificial quicksands for the owner. They make it a facile task for the city to eliminate nonconforming uses. These con- ditions have for their aim the expectation that the owner housing a nonconforming use will be guilty of an omission which will place the city in a position to assume the offensive in bringing about the speedy and effective liquidation of the nonconforming use. As has been pointed out previously in this opinion, our -constitutional provisions were drawn to protect the rights-of owner- ship, use and enjoyment of property. That which the Constitution secures, the ordi- nance seeks to render insecure. Constitu tional protection extends to the noncon- forming use and to the property quartering such use under a zoning law. It should not be the objective of a zoning ordinance to bring about the extinction of a nonconforming use through unreasonable and arbitrary law; rather it should be "the purpose and intent of the zoning ordinance to protect the owner's right to a noncon- forming use • • State ex rel. More- house V. Hunt, 235 Wis. 358, 291 N.W.. 745, 750. "The right to a non-conforming use is a property right and any provision of a 'statute or ordinance which takes away that right in an unreasonable manner, or in a manner not grounded on public.wel- fare, is invalid." Schneider Y. Board of Appeals, 402 Ill. 536, 84 N.E.2d 428, 432. Perhaps the leading case on the reason- ableness of an ordinance devising a way to bring about the cessation of a noncon- forming use is O'Connor v. City of Mos-- rty used for other lawfully subjected coning. restrictions. authorities.) Trustees of Congrt- 's Witnesses, Bethel r. 219, 130 A.2d 240, 7), appeal dismissed stantial federal ques- o~ugh of Bethel, Pa.), i.Ct. 120, 2 1-.Ed2d rough of Bethel had nce which contained ing requirement ap_. es, schools, auditori- d similar places of provided that no be permitted within )ther. In a decision eliant Jehovah's Wit- of adjustment found church premises vio- yet parking require- Ile requirement. The rt, in sustaining the first noted that .each its bore a reasonable ety of the public and comments which are :re: Aom of worship does hutches are exempt police power regula- me Court in Kurman f Adjustment of City t51 Pa. 247, 40 A2d hat setback require- Me to properties used ses, The concepts of ,-freedom of speech ich am embodied in ient have never been Mute rights and be- ef ,reasonable regula- olice power. Board Is of Decatur r. De- s. of Jehovah's Wit- 83, 117 N.R2.d ells, ire used at page 123 issenting opinion) is present case: 'It is bens of appellee when going to church were not required to comply with the traffic regulations as in holding that the appellee is not required to make rea- sonable provisions for a lessening of the traffic hazards by off-street park- CITY AND COUNTY OP DENVER. T. DENVER BUIOK, INO. Colo, 93 Cite as MT P.14 919 quite evident that the members of the "It must be beyond debate that the appellee could be killed just as dead private parking lot and the private going to and from church as going parking garage have failed to meet to and from a theater or a basketball the crisis and solve the problem in game. It is a proper exercise of the most large cities. This failure has police power to protect appellee's mem- brought into being a two-fold municipal bets from their own negligence as activity-the public parking of auto- well as from the negligence of the mobiles and the inclusion of off-street traveling public. There would be just parking provisions in municipal zoning as much logic in holding that the mem- ordinances." ""'If it was a proper exercise of the police power for the city by its zoning ordinance to require.Ahe appellee to comply with the average setback line of the residences, which only has a' very remote bearing on traffic hazards, a fortiori it was a reasonable exercise of the police power tri require appellee to provide space for 25 cars to park off the streets: The right of appellee to exercise its religious freedom is not violated in either case." i's (C.iting numerous authorities.) As I see it, times have changed, and the constitutional police power of the states is now being recognised in this country as the only reasonable and practical way to cope with this ever growing Franken- stein called 'rraf6c congestion". It is my firm belief that such regulations, when reasonable and applied equally, are not only constitutional but necessary to urban survival. In Brodhead Y. City and County of Den- ver, 1952, 126 Colo. 119, 247 P2d 140, thin Court recognized the validity of Den- ver's attempt to solve this probler4 in some treasure by creating publicly owned off- street parking facilities. But as In most communities where this has been done it has not been enough. Yokley in Vol. 2 at page 78 says about this problem: And on page 82 in Vol. 2 Yokley says: "The question that has occurred to many thoughtful communities, as the passing of time has..aggravated the problem of traffic congestion, is this: We have building codes and master plans and their policing partner, the zoning law; why then, can they not be put to good use by requiring, at least in the case of new construction, that reasonable off-street parking facilities be fumshed for the employ- ees and patrons of the building so constructed and used? "Thus, in the areas immediately out- side the central business district, the theatre, the department store, the medi- cal center, the commercial business, the industrial plant, the super-markets, the streamlined drug store-all would be required to have some care and respon- sibility for the parking problems of their employees and patrons without requiring the public agency to step in and take a hand in clearing the streets of vehicular traffic- "It is beyond debate that some businesses, by their very nature, at- tract vehicular traffic and create con- gestion in the public thoroughfares. What have the municipalities done to solve this problem from the standpoint of zoning?" Another well-known authority ("Munici- pal IAw" (1957) by Charles S. Rhyne, page 967) has commented on this as follows : "Off-street parking requirements for dwellings, apartments, businesses, thea- tres, churches and other uses are com- mon in zoning ordinances today, A n- Colo, $47 Mina REPORTER, 2d SERIES 940 cent decision by the Supreme Court of Illinois held that a Chicago zoning ordi- nance requiring apartment houses to provide private garages-or automobile compounds for its tenants was invalid as discriminatory since boarding ( houses, rooming houses and similar uses which create traffic and other problems were not required to com- ply with this requirement. (Ronda Realty Corp, v. Lawton, 1953, 414 tti • . 111, 313,- 111 N.E.2d 310, 312-313), But similar provisions in other zoning ordinances have been.sustained. Thus zoning ordinances have been held valid which required theatres to provide one parking space for each eight seats; ( (City of] New Orleans v. Leeco, Inc., 1954, 226 La. 335, 76 So2d 387, 390) and lunch counters, (Mirschel v. W eis- scnberger, 1950, 277 Apf,Div. 1039, 100 N,Y.5,2d 452, no confiscation or dis- crimination shown.) and churches (Hill v. Kessclring, 1949, 310 Ky. 4&3, 220 S.W.2d 858, 861-863 [10 A.L.R.2d L301].) to furnish suitable parking facilities. However, the latter case was remanded to the lower court for. additional evidence on the adequacy of the off-street parking facilities to be furnished by the church. But a zoning ordinance requiring 'all places of assembly' to provide 100 -square feet of off-street parking space for curry person in attendance was held not a valid reason for denial of a building permit for a church which had more off-street parking space than the seating capacity of the church. (State [ex rel. Tampa, Fla., etc] v, (City of] Tampa, F1a.1945, 48 Sold 78, man- damus granted to- compel issuance of building permit because there had been substantial compliance and because these was no showing of a connection between the ordinance and public health, safety, and morals.) Likewise, a zoning ordinance requiring one off- street parking space for every six seats in a church was held unconstitutional .as a restraint upon the right of freedom of worship and assembly, and unreason- able in view of the fact that services would be held during Minimum traffic hours and sufficient parking space for all vehicles was available for all ordi- nary services. (Board of Zoning Ap- peals [of Decatur] v. Decatur, Ind. Co. of Jehovah's Witnesses, 1954, 233 Ind. 83, 117 N.E.2d 115, 119-121.)". , (Cases cited are inserted from footnotes.) One of the public purposes of zoning and planning is "to lessen congestion in the streets" and the 1923 Denver Charter Amendment (Sec. 219A, § 3) expressly so provides. Heretofore some traffic conges- tion has been solved by public parking garages, by prohibiting all parking on cer- tain thoroughfares and by restricting the period of time one may park in other areas, Some cities have even found it necessary tc prohibit All stopping of vehicles on certair highways.. All this is done in the exercise of the police powers of the state or city. The seasoning of the majority opinion i that it is a taking of private property fo a public use without condemnation and jug compensation to require even reasonabl computed off-street parking, 'I fail to se how that is so if an ordinance only require an owner to provide parking on his ow property for his own vehicles, or a reasoi able amount of parking apace for hin self and those who use his property. 1 reality it is an application to zoning of tl accepted but distinct nuisance princip that one shall not so use his property as to interfere with either his neighbors the public. When parking is an in6de of a new land use, why should it not required on the land itself-just as the ty of business or residential use can itself lawfully regulated? The specially concurring opinion of h Justice Frantz goes further then the n jority opinion and urges that if the c street parking is only for persons going the building in question " • • • tl it is a taking for private use, a taking more doubtful validity". For the teas herein set forth I cannot agree that mbly, and unreason, fact that services ng minimum traffic parking space for ailable for all ordi- 4rd of Zoning Ap, v. Decatur, Ind. Co. uses, 1954, 233 Ind. 119-121.)". (Cases rom footnotes.) urposes of zoning and :n congestion in the )23 Denver Charter M. f 3) expressly so some traffic conges- d by public parking ig all parking on cer- nd by restricting the iy park in other areas, i found it necessary to Df vehicles on certain i. done in the exercise of the state or city, ye majority opinion is private property for :ondemnation and just wire even reasonably arking. I fail to ste rdinance only requires parking on his own vehicles, or a remson- 6ng space for him- nse his vroperty. To ttion to stoning of the t nuisance principle i use his property so ither his neighbors or irking is an incident Nhy should it not be Itself just as the type itial use can itself be rring opinion of Mr. 'urther then the ma- rges that if the off- for persons going to ;ion • • then vote use, a taking of Y'. For the reasons ,nnot agree that this OITY AND COUNTY Or DENYEB, v. DraMR EUICK, INC. Colo. 941 Cite as $47 P.Yd 019 principle results in a taking of property or low the city to correct its error by amend- that it is of doubtful validity. It is primari- ment if it in fact has erred. I also concur ly for the public welfare and to lessen con- with Mr. justice Doyle in his dissenting gestion in the streets. The fact that inci- opinion filed in this case as to the views he dentally it is also for the use and benefit of expresses and authorities he cites on the those who use the property in question does need for and validity of reasonable off. not suffice to void it. street parking requirements. Clearly the law could not require an own- er to permit the general public to use his property for parking purposes, but that is not the case here. It is only the reasonable- ness of this requirement that we should con- cern ourselves with since I consider the principle itself to be a proper constitutional exercise of legislative power. -And, if nec- essary I would remand this action to the trial court for the taking of testimony on the need and reasonableness of the regula- tion and for a determination thereof. The majority opinion labels this require- ment 4 • a price tag or tribu•tc for the exercise of the constitutional right to & business * • $ e which in my opin- ion ignores the widely recognized right and power of governments, local, state and na- tional, to not only tax businesses- but also the right to regulate them when deemed reasonably necessary for police purposes or to prevent nuisances, I need not describe here the various types of provisions which exist elsewhere in other zoning ordinances detailing how off-street parking should be computed.* Suffice it to say that representative samples appear in Yokley supra and in Rathkopf, 3rd ed. on 'The Law of Zoning and Planning". Thus contrary to my learned colleagues, I conclude that reasonable off-street park- ing requirements, when equally applied, do not "unreast)pably and unnecessarily fasten upon him (the citizen) new restraints upon freedom of action in the use and enjoy- ment" of his property as the majority opin- ion states. I urge that we declare this part of the ordinance invalid only if we are con- vinced after a thorough study that these particular provisions are unreasonable and, as pointed out above, before we can deter- mine that question evidence should be taken upon a retrial of the action. This would al- II As to the second question posed by the majority opinion and its answer thereto I am in general agreement that this particu- lar non-conforming use proviso is unconsti- tutional but only for the reasons hereafter given. It seems to me that this provision of the ordinance by imposing so many restrictions on non-conforming uses, passed into the constitutional danger zone and made a fet- ish out of excessive regulation of property and uses to the point where property owners are unduly, unrtasonably and unconstitu- tionally restricted as to non-conforming uses. Though those who designed the spec- ifications, and chose the terms_ used, are no doubt sincere and competent planning engineers, they neglected to consider the constitutional rights of those who own prop- erty affected by non-conforming uses. Its other words, professional planners some- times see only a vision of the ideal city or metropolitan, area in which all businesses and industries are restricted to planned areas. While this may be a "consummation devoutly to be wished," planners are con' fronted with the fact that they are not starting with vacant unoccupied land, hence they, as well as the courts, are restrained by those limitations which the constitutions set up as barriers to an invasion of personal and property rights. These protect each of us in our property rights, subject to such reasonable restraints-as suggested above in discussing off-street parking requirements. In my view it is the task of this court to evaluate the facts to determine if a valid end to which the legislation is related has actually been demonstrated (see Uphaus v. Wyman, 1959, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090), having in mind at all titnts that public necr.uity in the protection of the 942 Colo. 347 PAOMO REPORTER, 2d SERIES `1. if1 health, morals or safety of the public is the keystone upon which regulations by use of the police powers depends, It is one thing to say that traffic and parking must be reg- ulated, directed and restrained in the public interest, or we will have a complete morass of danger and confusion, and on the other hand to say we should have an esthetically beautiful city, which can be accomplished only if all non-conforming uses are elimi- nated. The elimination of such uses, though possibly a desirable ideal, cannot be attained by either prohibition without just compensation, or by so fettering the citizen that he cannot use his property in a reason. able manner.. under penalty of forfeiting a lawful prop erty right, are all illegal and imprope, methods to attain the desirable objective o a well-planned city and the majority opin ion property rejects them. This is not tt say, however, that some reasonable type o, registration or the reasonable considera tion of deterioration of buildings may no be inserted in a zoning ordinance relating to non-conforming uses. Probably America's first zoning authority in point of time is Bassett on "Zoning, (1940) where at page 105 it is stated "Nonconforming buildings and uses exist. ing when an ordinance goes into effect are allowed to continue. * * Zoning seeks to stabilize and protect and not to de. stroy." Bassett then points out that such uses should not be allowed to -enlarge of increase where harmful or improper in a district. The development and refinement of zon= ing ordinances since 1940 have, as I view it, done the following to the concept of non-conforming uses: (1) . Allowed vari- ances within districts, but this right is be- ing abused in some municipalities so that the overall purpose of the zoning. taws to restrict new non-conformities is being de- feated. This is usually the fault of the Boards of Adjustment who permit legally unnecessary exceptions. (2) The princi- ple of "Amortization" has developed, which recognizes that if a use is both noncon- forming and small in monetary value that then it need be allowed to exist only for a period of time which is adequate to allow the owner to recover his reasonable invest- ment therein. See Vol. 44, No. 3, Cornell Law Quarterly, Spring 1959, page 450 et seq. and cases cited therein. (3) The er- roneous concept has arisen, as stated supra in this dissent, that the purpose of•limititig non-conforming-uses is to destroy them. The reason why the latter is objectionable is because it fails to recognize that these uses are a matter of right, not of privilege. III The majority opinion, like the trial court, finds that this ordinance unlawfully and The majority opinion calls attention to some of the shackles which this orditance would, I believe, unconstitutionally lock up. on the rights of the owners of noncon- forming uses. I add some additional com- ments: For example, a non-conforming use, being a use protected as a constitution- al property right, like aJ] other property is subject to the police power of the state to reasonably regulate to promote the public health, safety or morals. Icannot say that it appears unreasonable or unconstitutional to require that if a building is so complete- ly destroyed as to require razing or rebuild- ing, it should not be rebuilt contrary to the building code or zoning ordinance of the :district where it was located. This is be. cause the non-conforming features have been eliminated through happenstance or Act of God, giving the legislative body the opportunity to take a step forward in its comprehensive plan. Also, if reasonable, the courts should uphold a percentage de- struction figure that will help to accom. plish uniform zones over a period of time when destruction of a use has occurred. As to the abandonment of a non-con- { forming use we should also uphold reason- able legislative acts relating thereto when they are made prima facie evidence of in- tent to abandon. In this regard the one- year period provided here seems highly un- reasonable. I am persuaded that compul- sory registration, obsolescence, or doing prohibited acts under the zoning ordinance, feiting a lawful prop, illegal and improper desirable objective of nd the majority opin. them. This is not to me reasonable type of reasonable considera. of buildings may not ng ordinance relating es. first zoning authority Bassett on "Zoning" ,re 105 it is stated: Pings and uses exist- e goes into effect are * * Zoning protect and not to de- points out that such flowed to enlarge or iul or improper in a d refinement of zon- 1940 have, as I view to the concept of (1) Allowed vari- but thii right is be- tunicipalities so that I the zoning laws to - >rmities is being de- Ily the fault of the who permit legally s. (2) The princi- ! as developed, which se is both non-con- monetary value that 1 to exist only for a is adequate to allow is reasonable invest- 44, No. 3, Cornell 1959, page 450 et erein. (3) The er- sen, ai stated supra purpose of limiting s to destroy them.. tter Is objectionable ecognixe that these ht, not of privilege. like the trial court, cc unlawfully and CITY AND OOVNTY OF DENVER v. DENVER, BUTOK, INO. Colo. 943 Cite se 347 P.2d 910 unconstitutionally places so-called down er in denying a permit under existing law town Denver in one business zone and while a new ordinance or an amendment arbitrarily denies the same type of zoning to an existing ordinance is being drafted to plaintiffs' lands which for many years and adopted. Each of such cases would have been used for similar business pur- have to rest on its own facts and a real poses. I believe this to be a matter of leg- emergency be shown before I could sup- islative discretion, Though the uses may be port such reasoning. This is so because similar in great part in both zones, the it is palpably unjust, for example, to say types of structure obviously are not the that an owner who has spent large sums on same in many particulars, nor is the nature plans and specifications, in reliance on the or character of the business carried on gen- law as it is, should forfeit his rights and erally the same. I would also remand this what he has spent on architects' fees for phase of the proceedings to the trial court the public good without just compensation. .to take and hear evidence thereon to de- It seems to me that in all cases, except in termine the reasonableness thereof. And, case of an actual crisis in public health, if reasonable, as well it might be, for differ- morals or safety, builders should have the ences are apparent to all who view the Den- right to rely upon the law.as it is, not what ver skyline, I would uphold such a classi- some public official thinks it should or will fication. be at some time in the future. • To summarize I would hold the cosice t IV The majority opinion holds that all the permits sought herein should issue because this ordinance cannot be held to be retro- active, Article II, Section 11, of the Colo- rado Constitution being cited in support thereof. I agree that any of these plain- tiffs, and all others similarly situated, who had applied for permits under the prior or- dinance and before the adoption of this one, must now, and from the beginning should have been given their building permits, sub- ject to the terms of the former ordinance. I so concur, fully aware that in Colby. supra, 81 Colo. at page 352, 255 P. at page 446 this court had held that no one can se- cure vested rights against the operation of the police power. p of off-street parking valid; hold this par- ticular .non-conforming use section invalid; hold the zoning district classifications in question valid; and order certain permits issued as -indicated. If we deem it neces- sary to have more evidence to reject or sus- tain this particular off-street parking sec- tion or the zoning classification in question, I would remand the case to the trial court to determine these matters after hearing further evidence thereon. DOYLE, justice (dissenting). - I respectfully dissent from the decision and reasoning expressed in the majority opinion. My objections fall into two class- es and I shall preface my specific objections with some general observations. First, the opinion seems unlimited in its sweeping terms. -It expresses a philosophi- cal aversion to all -zoning efforts. The deci- sion itself is limited to a holding that the off-street parking and non-conforming use provisions of the zoning ordinance are'in- valid. Its expressions of viewpoint are at variance with the basic premise that a city can be planned and that restrictions for the general good of the community can be im- posed. While conceding that arbitrary reg- ulation of property is invalid, I had thought that the power of the municipality to im- Heretofore the attitude of this court, as well as those in many other jurisdictions, teas been as expressed in Colby (see 8 Me- Quillin "Municipal -Corporations", 3rd ed. 471, 125.181, and Allendale, supra), How- ever, Colby neglected to consider the Colo- rado constitutional provision cited by the majority herein and we are of course bound by' the latter and I would expressly overrule Colby on that point. Even if we were not so bound it seems to me that only in the rarest of instances could a zoning authority be justified under the police pow- 944 Colo. 947 PA0IFIC REPORTER, 2d SERIES i Post restrictions in the interests of the com- munity so basic and fundamental that it cannot now be questioned. From earli- est times restrictions on the use of proper- ty have been a accessary product of the de- velopment of the town or the urban com- munity. Such restrictions are upheld un- less shown to be arbitrary and capricious. In the year 1923 the City of Denver en- acted a Charter Amendment .(Sec. 219A) which authorized in broad and general terms the enactment -by council of zoning and planning legislation. Sections A, B and C emphasize the scope of this grant of power and read as follows: "A-Grant of Power. For the pur- pose of promoting health, safety, mor- als or the general welfare of the com- munity, the council of the city and county of Denver is hereby empowered to regulate and restrict the height, number of stories and size of build. ings and other structures, the, percent- age of lots that may be occupied, the size of yards, courts and other open spaces, the density of population and the location and use of buildings, struc- tures and land for trade, industry, resi- dence or other purposes. "B-Districts. For any or all of said purposes, the council may divide the city and county of Denver into dis- tricts of such manner, shape and area as may be deemed best suited to carry out the purposes of this amendment; and within such districts it may regu. late and restrict the erection, construc- tion, reconstruction, alteration, repair -.or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of buildings throughout each district, but the regu. lations in one district may differ from those in other districts. "C-Purposes in View. Such rtgu- lations shall be made in accordance with a comprehensive plan, and de- signed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of popula- tion; to facilitate the adequate provi. sions of transportation, water, sewer. age, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitabili- ty for particular uses, and with a view to -conserving 'the value of buildings and encouraging the" mast appropriate use of land throughout the city and county of Denver." Early decisions of this Court have also recognized the need for this type of regula. tion. See, for example, Colby v. Boars] of Adjustment of Denver, 1927, ~81 Colo. 344, 255 P. 443, 446, which noted the passing of the horse and buggy era- and wherein-it was stated: `d i - " ' The justice writing the opinion in Village of Euclid [Ohio] v. Ambler Realty Co. [272 U.S. 365, 47 S.Ct. 114, 71 "L.Ed. 303], supra, re- marks on the decided trend of opinion toward a broader view of zoning ordi. nances, and refers to state courts re. versing themselves, citing instances. Even so, we do not apprehend that we are now offending the rule of stare de. cisis, as applied to any of our previous decisions. We are only applying old principles to new conditions, or to the changed facts of modern life. Thus,. a horse and buggy day decision in the livery stable case, Phillips v. City of Denver, 19 Colo. 179, 34 P. 902, inti- mately allied with those times, would be incongruous now if not considered in the light of modern industrial and civic development. It would be apply- ing the law to an obsolete situation. The same may be said of brickyards in a residence zone under the state of this record. • • dangers; to promote general welfare; to light and air; to crowding of land; to centration of popula- e the adequate provi. Cation, water, sewer- ks and other' public uch regulations shall ionable consideration,' gs, to the character its peculiar suitabili- uses; and with a view e value . of buildings the most appropriate- iughout the city and f this Court have also for this type of regala- tple, Colby v. Board of ver, 1927, 81 Colo. 344, 5ieh noted the passing 9 sra and wherein it justice writing the of Euclid (Ohio] v. . [272 U.S. 365, 47 303]. supra, re- ded trend of opinion view of zoning ordi- to state courts re. CS, citing instances. t apprehend that we the rule of stare de- any of our previous re only applying old conditions, or to the modern life. Thus, day decision in the Phillips Y. City of. 179, 34 P. 902, inti- h those times, would ow if not considered Modern industrial and . It would be apply- .n obsolete situation. e said of brickyards to under the state of In am Jett, 1950, 928, the 11 t a • With the growth of con- gested urban populations, containing areas of attractive residential develop- ment, with values greatly dependent on conformity, and with the increasing public concern for quiet, safety and beauty, there have been enacted zon- ing laws under appropriate legislative or constitutional authority in most mu- nicipalities in.the United States and in many rural areas. The concept of public welfare thereunder has broad- ened. Under such ordinances uses per- mitted and legal in one district of the city are prohibited in another, Such prohibition is based not strictly upon the inherent danger to the public health, public morals, the public safety, .or the public welfare of the prohibited use generally, but upon its interference with the appropriate use 'of property and the maintenance of its value in the zone in which such use is sought. We have repeatedly upheld such restric- tions. So in Flinn v. Treadwell, 120 Colo. 117, 207 P.2d 967, we held valid a provision requiring in a 'B' residen- tial. district a front yard of not less than twenty-five feet in depth, directly contrary to the old ruling in Willison Cooke (54 Colo. 320, 130 P. 828, 44 L.R.A.,N.S., 1030, supra. * • An early definitive and recognized decl- sion upholding zoning is that of the Su- preme Court of the United States in Vil- lage of Euclid, Ohio v. Ambler Realty Co„ 1925, 272 U.S. 365, 47 S.Ct. 114, 118, 71 L.Ed. 303. Mr. justice Sutherland, who was not noted for his liberal economic phi- losnphy nevertheless recognized that the community has the power to impost restric- tions on the use and occupation of lands in urban communities. It was there stated • s Building zone laws are of modern origin. They began in this country about 25 years ago. Until re- 347 P.24-80 CITY AND COUNTY Or DENVER v, DENVER BUICK, INC. Cite a$ 517 PId 910 ore recent decision, Cross v. Bi- cent years, urban life was 122 Colo. 278, 221 P.2d 923, 926, ly simple; but, with the Court commented as follows. and concentration of pop Colo. 945 comparative- great increase ulation, prob- lems have developed, and constantly arc developing, which require, and will continue to require, additional restric- tions in respect of the use and occupa- tion of private lands in urban commu- nities. Regulations, the wisdom, neces- sity, and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such reg- ulations are sustained, under the com- plex conditions of our day, for reasons analogous to those which justify traf- fic regulations, which, before the ad- vent of automobiles and rapid transit street railways, would have been con- demned as fatally arbitrary and un- reasonable. And in this there is no inconsistency, for, while the mean- ing of constitutional guaranties never varies, the scope of their application must expand or contract to meet -the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be other- wise. But although a degree of elastic- ity is thus imparted, not to the mean- ing, but to the application of consti- tutional principles, statutes and ordi- nances, which, after giving due weight to the new conditions, are found clear- ly not to conform to the Constitution, of course, must fall. • • • " The majority opinion here quotes from Mr. justice Holmes in an eminent domain opinion, which apparently-dealt with what constitutes a taking. However, that distin- guishcd jurist acknowledged that the state has the authority to impose restrictions for the general good and that it is not the func- tion of a judge ' to substitute his own eco- nomic and political viewpoint for that oL the legislature. In his now famous dissenting opinion in the case of Lochner v. State of I 1 I~ 946 Colo. 347 PAOIFIC REPORTER, 2d SERIES New York, 1905, 198 U.S. 45, 25 S.CL 539, 546, 49 L.Ed. 937 he stated : * + + This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a ma- jority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical, as this, and which, equally with. this, interfere with the liberty to contract. Sunday laws and usury laws are an- cient examples. A more modern ont is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as'he does not interfere with the liberty of others to do the. same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Postoffice, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The 14th Amand"tent does not enact Mr. Her- bert Spencers Social Statics. The oth- er day we sustained the Massachusetts vacinnation law. * + (Empha- sis supplied.) Another expression of the basic philoso- phy that community existence rcquires cur- tailment of rights is found in the opinion of Chancellor Earl in Losee v. Buchanan, 1873, 51 N.Y. 476. "By becoming a member of civilized society, I am compelled to give up many of my natural rights, but I receive more than a compensation from the surren- der by every other man of the same rights, and the security, advantages and protection which the 12w gives me. 0 6 + We must have factories, ma- chinery, dams, canals, and railroads. They are demanded by the manifold wants of mankind, and lie at the basis of all our civilizations. + * * Most of the rights of property, as well as of the person, in the social state, are not absolute but relative, and they must be so arranged and modified, not unneces- sarily infringing upon natural rights, as upon the whole to promote the gen- eral wel f are." Second, the third part of the majority opinion wherein the classification of B 5 and B 6 is condemned as an unlawful dis- crimination is especially broad in its effect It appears to kill all the regulations in the B 6 zone in one fell swoop without regard to whether they are reasonable or arbitrary, applicable or inapplicable. This ruling is certain to leave chaos and uncertainty in its wake. Does the 1925 ordinance with its onerous height and other restrictions now. apply in this B 6 section or is. this section now free altogether from any zoning regu. lation? These and other equally difficult questions will have to be faced as the after- math of the "tornado" which is the majority decision. Third, fundamental canons of proecdnre have been overlooked. This legislation can- not be judged by a mere reference to its terms. It is not invalid per se. If a Mg- ment were to be made from examination of the legislation alone, it would be more log- ical to conclude that it is well founded fac- tually and that it does bear a relationship to the public health and safety. The plaintiffs can succeed in this case, according to my view, only by proving the unconstiCutional- ity of this legislation beyond a reasonable doubt. See Consumers' League of Colorado v. Colorado & 'Southern R. Co., 53 Colo. 54, 125 P. 577; People ex rel. Rogers v. Let- ford, 102 Colo. 284, 79 P.2d 274; Mosko V. Dunbar, 135 Colo. 172, 309 P.2d 581. The instant legislation has been killed without even requiring proof of its invalid- ity. In fact,. the court refused to allow the plaintiff to introduce evidence to show the reasonable basis for its enactment. It canals, and railroads, ;ded by the manifold id, and lie at the basis tions. • • • Most roperty, as well as of e social State, are not ive, and they must be modified, not unneces. upon natural rights, to promote the gen- part of the majority classification of B 5 ed as an unlawful dfs.. ally broad in its-effect. the regulations in the swoop without regard reasonable or arbitrary, icable. This ruling is s and uncertainty in its ordinance with its other restrictions now tion or is this section from any zoning regu- other equally difficult be faced as the after. which is the majority I canons of procedure . This legislation can. mere reference to its id Per se. If a judg- from examination of it would be more log. it is well founded fac. bear a relationship to safety. The plaintiffs ase, according to my the unconstitutional- beyond a reasonable s' League of Colorado rn R. Co;, 53 Colo. 54, rel. Rogers v. Let- ~ 19 P.2d 274; Mosko Y. 309 P2d 581. ltion has been killed g proof of its invalid- t refused to allow the evidence to show the r its enactment. It CITY AND COUNTY or DENVER Y. DENVER BUIOK, INO. Colo. 947 Cite As 847 P.2d 919 strikes me that a question which has the "While traffic is not the moving scope and magnitude of that before us factor in the drafting of zoning ordi. should not be decided in a vacuum; evi- nances, most comprehensive zoning or- dence should be received to the end that the dinances now make some provision for court might be in a position to determine the proper programming of present and whether the enactment as applied to the future traffic improvements. It has facts is reasonable or arbitrary. been found that this can best be done I also have specific objections to the rul- ings of the majority. 1. Off-Street Parking If the court had determined that these particular off-street parking requirements were unnecessary, unreasonable and oner- ous as applied to these plaintiffs and the uses which they have proposed, I would be inclined to concur in the decision. I can- not, however, join in a condemnation of all off-street parking as an invalid exercise- of the police power. It is riot possible to con- clude in the absence of evidc*ce that the land use and the parking requirement ratios which are set up in the ordinance are un- reasonable; and it is impossible to conclude that such requirements do not contribute to a solution of the tremendous urban problem of trafHc'congestion.* On the other hand, no evidence is needed to establish that this is a problem of great magnitude and that it is not going to go away by the simple ex- pedient of ignoring it. The number of automobiles and the extent and consequent traffic congestion will constitute a problem at all times in the future. Courts are not better qualified to solve these questions than legislators and enactments which are in- tended to look toward such solutions should not be voided merely because we might dis- agree with them. The majority fail to cite any decisions which specifically support its conclusion. There are cases which hold particular. off- street parking requirements invalid upon the basis of their special arbitrariness. All of these, however, proceed on the premise that off-street parking generally is' valid. See Rhyne, Municipal Law, 967. The relationship of off-street parking to the general welfare is ably outlined in 2 Yokley, Zoning Law and Practice (2d ed.), 76, 77, 78: through the medium of off-street park- ing requirements for certain classes of buildings and structures. "Amendments to zoning ordinances incorporating off-street parking re- quircments are now widespread in ap- plication, many cities having found that provisions in zoning ordinances which make imperative the provision for parking facilities constitute an excel- lent application of the zoning concept in alleviating traffic congestion. "At this writing it appears, from in- formation furnished by David R. Lev- in, Chief of the Land Studies Section of the Bureau of Roads, Department of Commerce, that 265 known localities in thirty-three different states have'en- -acted ordinances or amendments there- to requiring off-street parking accom- modations for designated property uses. "The effects of zoning on transporta- tion are immediately apparent when it is realized that the volume of the traffic which the urban street must accom- modate is directly related to the height, bulk and function of the buildings com- prising the community. "As we have had occasion to state before, "'Among the many problems press- ing for solution. in the crowded metro- politan areas of America; traffic con- gestion still takes its rightful place .near the top of the list.' "For our cities to prosper, it Is im- perative that an adequate supply of. off-street terminal spaces be provided, particularly in central business dis- tricts, in order to meet the ever ex- panding demand for the parking. of su- tomobiles. It Is equally as essential to provide for off-street truck berths. ! , ~i sr: 948 Colo, 947 PAOIFIO REPORTER, 2d SERIES The use of curb spaces for the parking of autos and loading and unloading of trucks blots out a final hope for vehicu- lar capacities of- city streets already bled white by the many encroachments thereon. Increasing proportions of the population prefer private autos to mass transportation for travel to central business districts and employment cen- ters, Nothing could better illustrate this than the arguments of mass trans- portation utilities for higher fares in order to meet increased operating.ex- penses in the face of revenue losses due to decreased patronage by former' riders who prefer to use private trans- portation facilities. This argument highlights almost every rate hearing in which increased fares are sought. "It must be beyond debate that the private parking lot and the private parking garage have failed to meet the crisis and solve the problem in most large' cities. This failure has brought into being a two-fold municipal activity --the public parking of automobiles and the inclusion of off-street park- ing provisions in municipal toning ordinances. • • * " The decisions which uphold off-street parking generally deal in each instance with the legality of the specific regulation .as applied to particular fact. - This is ap- parent from the discussion in Rhyne, su- pra. No case that we have been able to find invalidates the pri"ciple of off-street parking. For example, in City of New Orleans v. Leeco (In re Wimberly), 226 La. 335, 76 So.2d 387, the Court enforced an off-street. parking requirement as ap- plied to movie theaters. In Roselle Y. Wright, 37 N.J.Super. 507, 117 A.2d 661, 667, the Court held an off-street parking requirement for a storage garage to.be un- reasonable in view of its particular terms, but at the same time recognized the va- lidity of such regulation where it bears a substantial relationship to the public health, safety, morals or general welfare. The Court said: " ♦ • • That provision as applied to stores, warehouses, office buildings, or other commercial structures, to which it may reasonably be anticipated large numbers of people would come by means of automobiles, thus giving rise to congestion in the public streets, appears to be entirely reasonable and logical. v • • " See also. Allendale Congregation of Jeho- vah's Witnesses v. Grosman, 1950, 30 N.J. 273, 152 A.2d 569. This holds a require- ment of one parking space for every three seats in a church to be reasonable, State ex rel. Killeen Realty Co. Y. City of East Cleveland, 1953, 108 Ohio App, 99, 153 N,E2d 177, recognizes that such provi- sions are valid and cites 1lcsorley v, Fitz- gerald, 359 Pa. ?64, 59 A.2d 142 and many other cases which deal with similar and re- lated problems. Mirschel v. Weisse'n- berger, 277 App.Div. 1039, 100 N.Y,S2d 452, recognizes the general validity of such requirements and also holds that-the vest- ing of authority in a board to make par- ticular determinations does-not constitute an unlawful delegation of legislative au- thority. See also Fleishon v. Philadelphia Zoning Board, 385 Pa. 295, 122 A.2d 673 and Hill v. Kcssclring, 310 Ky. 438, 220 S. W.2d 858, 10 A.I..R2d 1301 and see Foro- noff, The Relationship of Zoning to Traffic Generators, 20 Law and Contemporary Problems 197 (1955). Town of Islip v. F. P_ Summers Coal & Lumber Co., 1931, 257 N.Y. 167, 177 N.E. 409 is analogous in that it upholds a zoning ordinance requiring building setbacks. The language of the Court per Pound, J., is here relevant: "The question is whether the zoning ordinance of the town of Islip is uncon- stitutional in go far as it requires a set- back of ten feet from the street on that part of Montauk avenue which is zoned for business purposes. The court be- low has held that such ordinance is detrimental and prejudicial to the use of the premises for building purposes, and unconstitutional as a taking of t provision as applied )uses, office buildings, crcial structures, to sonably be anticipated f people would come omobiles, thus giving i in the public streets, tirely reasonable and Congregation of Jeho- Grosman, 1950, 30 N. J, This holds a require. g space for every three be reasonable. teen Realty Co. v. City 1958, 108 Ohio App. 99, ognizes that such provi- cites McSorley V. Fitz. 59 A.2d 142 and many eal with similar and re- Mirsehel v. Weissen- iv. 1039, 100 N.Y.S.2d general validity of such Iso holds that the vest- a board to make par. )ns does not constitute Ilion of legislative au- leiahon v. Philadelphia Pa. 295, 122 A.2d 673 ing, 310 Ky. 438, 220 :2d 1301 and see Foro- tip of Zoning to Traffic iw and 'Contemporary Town of Islip V. F. Lumber Co., 1931, 257 409 is analogous in that ig ordinance requiring The language of the is here relevant: s whether the zoning D n of Islip is uncon- ir as it requires a set- -orn the street on that venue which is zoned oses. The court be- it such ordinance is irejudieiat to the use or building purposes, ins.) as a taking of CITY AND COUNTY OF DENVER Y. DENVER. BVIO$, INC. Cite as 847 P.2d 919 private property for public purposes without just compensation. "(I] Can it be said that the ordi- nance in this respect on its face 'passes the bounds of reason and assumes the character of a merely arbitrary fiat?' Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 339, 47 S.Ct. 114, 119, 71 L.Ed. 303, 54 A.L.R. 1016. 'If the validity of the legislative clas- sification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.' Village of Euclid, Ohio v. Ambler Realty Co., supra, at page 383- of 272 U.S., 47 S. Ct. 114, 118; Wulfsohn Y. Burden, 241 N.Y. 288, 296, 150 N.E. 120, 43 A.L.R. 651. "[2] In the light of these rulings, how can a court say upon mere inspec- tion of the zoning ordinance that the end in view is not reasonably pursued by its adoption in order to lessen con- gestion in the streets and thereby to promote the public safety? Tbwn Law, Consol.Law, c. 62, J 349-0. ' ' *11o In summary, I am of the opinion that the off-street parking regulations which the majority holds invalid are not per se un- constitutional. 3doreover, the evidence at the, trial fails to demonstrate specifie in- validity as applied to plaintiffs and does not establish beyond reasonable doubt a lack of relationship between these regulations and the public health, safety and welfare. They should, therefore, be upheld. 2. Invalidity of the Non-conforming Use Provisions. The majority opinion determines that the restrictions which were incident to the grant of non-conforming uses are so "oner- ous and unreasonable" as to be invalid. To my mind, this holding is not here justified. In the first place, the noncon- forming use.is a fundamental aspect of any comprehensive zoning law. It merely declares that a use existing at the time of the enactment of a zoning ordinance may be continued though it is not in harmony with the character of the zone or district Colo. 949 which is created by the law. In effect, therefore, it is a recognition of a right to continue an existing use and is in legal ef- fect a. saving clause which protects a zon- ing ordinance from the charge that it is retroactive. The philosophy behind the non-conforming use is well expressed in a case note recorded in 44 Cornell Law Quarterly, 451, 452: "Ever since the landmark case of Village of Euclid v. Ambler Realty Company [272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 3031, the power of a mu- nicipality to pass reasonable zoning ordinances has*bcen firmly established. This case settled the controversy over prospective regulation of undeveloped land, but left unresolved the problem of how to deal with previously exist- ing nonconforming uses, which were long believed to be entitled to con- stitutional protection as vested prop- erty rights. "Ideally, in order to achieve the per- fectly planned city, a city zoning plan. should start wit17 virgin territory. There, everything could at the outset be put in its proper place or zone and, theoretically, there would be complete conformity. Obviously, this situation was not present in most areas of the United States. As a result, when zones were set up in already developed areas, those who established the zones had to harmonize, as best they could, various pre-existing uses of the land. These pre-existing uses, established before the zones were set up and allowed to con- tinue in technical violation of the zon- ing law, are called prior nonconform- ing- uses. "Generally, prior nonconforming uses were allowed to continue for two basic reasons: (1) Because it was felt that zoning laws could not Constitution- ally be applied retroactively to deprive the owner of his nonconforming use, and (2) because zoning looks primarily to the future and 'seeks to stabilize, and protect and not to destroy.' In the 7,71 + i r i! I i r. 950 Colo. 347 PAOIFIo REPOR T>rx, sa aER,ns early stages of zoning, it was believed that prior nonconforming uses would eventually eliminate themselves over a period of years through abandonment, destruction and other normal changes. Contrary to these expectations, noncon- fortning uses still abound, It is fre- quently said that the primary problem facing zoning is elimination of the non- conforming use.,, These provisions have been generally up. held by the courts and certainty they have never before been condemned in the ab- stract, that is, in the absence of a showing by a plaintiff that a particular restriction deprives him of some right. See 1 Yokley, Zoning Law and Practice, 149, 151, 156, 157 and Rathkopf, Law of Zoning, Chapters 60, 61 and 62, also 8 McQuillin, Municipal Corporations, pp. 464, 465* Examination of the instant ordinance does not indicate that its terms are palpably unjust. The ordinance does not, for ex- ample, require the use to be eliminated after a period of time. It-merely demands that the use be reported and that permission be obtained before any major structural change is made. It also provides that the right can be abandoned under certa' Nor can I agree with the majority's con. cluthesion that the city council did not hav power under Scction 219 A of the e ter to provide for non-conforming mar. indicated above, this is authority which need not be specifically set forth, It is a funda. mental part of any comprehensive pt For these reasons, I disagree also With an. determination. this 3. Authority of the City Council to Distinguish Between the B-5 and the B-6 Dirtricts. The holding of the majority that there is no appreciable difference between the -downtown property and that which is south of Colfax Avenue, the dividing line adopted by the City Council, ignores the facts, To be sure, there'may be similari. ties between the two districts, but there are also substantial differences which jus- tify the adoption of the dividing line. Certainly, the legislature must be in a position to create districts and to deter. mine differences and to declare land uses in accordance with- its findings, The Charter provision itself which the ma- jority considers harrow in scope and which I regard as broad and comprehen. to etr- sive certainly contemplates th cumstances such as one-year vacancy, and that it can be lost by destruction of the building as the result of a fire or a force of nature. Such restrictions are not spe. cifically in question and their mere presence in the ordinance does not justify a holding that the ordinance is per se invalid. A particular deprivation of right may in a given case justify a holding that some one restriction is arbitrary and oppressive, but that is not the present case. This is an injunction suit and not a declaratory judg. ment action. The majority ruling is so fundamental as to constitute a condemnation of all zoning and planning because if changes cannot be made which look to eventual elimination of non-conforming spot areas, the plan itself is undermined to the point that it means little or nothing. legislative decision, We hype of out of the windows of our own only to. observe the very marked differences. The 13.6 district by no stretch of t ti he imagina- on can. be classified as a concentrated eommercial area such as B 5. The ground south of Colfax Avenue, which is here in question, is in the process of changing from residential to commercial.. The Council has classified it as a secondary rnathe1t dr ithans awithinprimaitsrypowercommercial district, a , as I view it, to SO determine. Adoption of ground rules to govern development is much easier than adoption of rules which seek to effect changes after the area has quickened and it cannot be said that the classification of this district as a secondary commercial area is unreasonable or unrealistic, . ()it the contrary, the holding that there is no- appreciable difference between this district- f i ! i th the majority's council di coi- n 219 A of not hav e conformin the Char. autA g uses. As outhority, which It i need s a fun mprchensive da. Plan. agree also with this city council to B-S and thf 8-d Ice °ritY that there the 'hat which which is e dividing line ignores the aY be similari. Cts, but there es which jus- dividing line. ust in a rid to deter. re land uses dings ch The thf ma. scope and COmPrehen, is type of only took °ffices to Ces; . The Imagina. centrated 0ground Here in The rit,* to rules r than effect 1 and n of On no CITY AND COUNTY OF DE > RV.D and the traditional ° mt" "'s47 p•sa DIG yL$ 8~~~ Colo. seems to me to be extremely mown" district justice of 9~1 and arbitrary, unrealistic d that court was Benjamin Car_ Fina11 For a more recent decisi Y, I fail to see that it is unrea ing to the decisio on adher- able discrimination son- APPlicad n in Van Vranken see velapin t° require this de- 2d 680. on of Kunz S commercial area to The authorities SUP1954, 128 N,Y.S• street parking, The ; provide off. Clear that the un titre cited make 9uiring off-street mpossibility of re- ing the denying basis for extend- downtown district iParking in the so-called process to this sot t o of s at s sort substantive due seems to once apparent. It the extent to w of situatli me reasonable to distinguish n depends on tween these two areas and to a be- en she itch the applicant has. tak- new constructions in d nand that trait ps in justifiable reliance on the per. n er c area the developin ' such as performin comply with th g COfn and incurrin g substantial work parking requirement, a Off-street ligations, g significant expenses and ob- Sfmilarly, where been made t attempt has lation is a Question whether this Legis- prior to commence an a undertaking Retrorpec invalid by Reason of its Being inur it tobedit " nconform~innce declar_ n'ferely because th is have applied the g use, the buildin a Plaintiffs Van Vranken Principle of the g permits applied Prior for to the case to Prevent 1956, the effective to November courthouse w ti's race ective date of 7, no substantial here there has does not me an this ordinance commitment been that it may not be reliance on the of resources in tionally applied to them, constitu- Preexistin that In order to Juillerat, 16, Cfhio g law' Smith V. being is invalid because hold 611 ; St 424, 119 1V ing retrospective of its COOP- Ohio State Stud the Pr0V1$l°n au thorizin ents .1~•Zd it must appear that v County of Franklin railer. Park , ptication is S retrospective ap. E Zd gq2 erates so as more than just form and ° 1953, principles 123 Nthe Plaintiffs Judged by Ohio App, these to-deprive them of P- show de r v have failed tive right that. h a substan_ P i ation of to enactment matured rights. Article II any substantive ad prior to the tion of Colorado ' sec. i l agr that of the ordinance. I ee Of the Constitu- the mere app cannot rose Prohibits only a law ret- building permit application for a P Mive in its Operation, • As th to these a vested ri h t to g onl ordinance have is ve e application, and that is with retrospective exploit it_ the law attempted to the majority's alter the effect of it. rather. than justibabl native holding, _ y rely The holding that the mer In conclusi application for a filling of an ordinance on, it is my opinion that constitutional] a building Permit creates a should be u the that we not supportedyin throtected PropertY right is Should determine that th Sed and citation to . an the majority opinion b d to establish that Plaintiffs have indicates that any authority, M Y any provision the ordinance, or the autho Y research them of it, operates to pp are to tit contra nt,es on the sub- mere of any constitutional ion rigiddeprive Appeals of The Court of fact that plaintiffs cannot, Tie adopted plan, use.the land rider the _ New York in 1930 armed decis restrained the a so that they can ing ordinance g apartment houses by a zon- does sweeping not justify the far-ln °f it er the issuance of which a became effective aft- g conclusion contained g and before reach structin but Permit for said con- . j°rity Opinion. There in the ma' any work had been plan aPPlicable cannot be a zoning is commenced on the to al, of the Vranken building, Rice v. Van CdY and having for it PeOPie of the 225 N'Y 511, 175 N lY develo m its Purpose the ordcr- interesting to note E' '104' It p rat of the that the then the same time ty which will at chic( ci use his Permit every individual to property exactly as he sees At So 952 Colo. 347 PACIFIC) REPORTER, 2d SERIES long as the scheme itself is reasonable, it should be upheld. If particular individu- als can show that a specific provision is unreasonably oppressive, it then becomes appropriate to strike down that particular provision. The present plaintiffs have failed to demonstrate the impossibility of their living and prospering under this or- dinance. The judgment of the district court should be reversed and the denial of the building permit by the zoning admin- istrator should be upheld. opinion or to a liberal construction as in the states which have upheld the constitu. tionality of off-street parking ordinances. So we do not have a situation here where the unconstitutionality of the ordinance is clear-cut, unequivocal, and beyond reason- able doubt. Such ordinances have been so universally adopted and accepted by other communities---265 of them-that we think the vote on the charter was meant to con- vey to a doubtful judiciary what was to be the public policy of Denver in regard to problems affecting its future growth. If a free people- cannot go to the polls and_ by their vote regulate the orderly develop- ment of their own city, and their own neighborhoods, then we have taken away from them far more than is attempted to be given by the majority opinion. The people have set forth quite explicitly what they think is good for the whole. They are now told, not by a benevolent despot but by a solicitous judiciary, what is really good for them. The English poet, William Cowper, wrote of Robinson Crusoe and his life alone for five years on a desert island, "1 am monarch of all I survey-- My right there is none to dispute; From the centre all round to the sea, I am lord of the fowl and the brute." This may have been all right for Robinson Crusoe but if there are great numbers of Robinson Crusoes in a home rule city, can each proclaim such right? I think not. Writing of two shipwrecked passengers also cast on a desert isle, W. S. Gilbert, in his delightful ballad telling the story of the foundering of the Ballyshannon and the drowning of all the passengers except Gray and Somers, wrote, "These passengers, by reason of their clinging to a mast, Upon a desert island were eventually cast. They hunted for their meals, as Alex- ander Selkirk used, But they couldn't chat together---they had not been introduced. DAY, J., concurs in this dissent. DAY, justice (dissenting). Probably more has been written in this case than is necessary or desirable. Never- theless it should be considered that in ap- proaching this problem my bretlhern have given scant attention -to the 'right of the people of" Denver to govern themselves, the fundamental concept of our democracy. The people of Denver in their charter, which is their own home rule "constitution," by free ballot have expressed themselves as to how their own property should be used for the benefit of all of them. This they can do in local matters if the charter itself is not violative of the state constitu- tion. This charter has been quoted but not upheld. Yet every power they have granted and the purposes and objectives they have enumerated do not violate the constitution. In it the people have given to their city council authority to enact ordinances to carry out the intent and purpose and ob- jectives of the charter. The people have set forth the purposes, all of which fit very well within the powers reserved to them in governing themselves. While it is-true that the people cannot by vote im- pose upon an electorate restrictions that are dearly unconstitutional, their vote is particularly helpful in this case because of the duty imposed upon the.judiciary to give constitutionality to their enactments if at all possible. The public welfare, toward which end the people may enact laws under the police powers, is subject to a narrow construction as In the majority 0 $ is 4. :rat construction as in ee upheld the constitu- et parking ordinances, a situation here where ty of the ordinance is sl, and beyond reason. -dinances have been so and accepted by other ~ them--that we think 'ter was meant to con_ diciary what was to be Denver in regard to is future growth, If it go to the polls and to the orderly develop- city, and their own we have taken away c than is attempted to iajority opinion. The h quite explicitly what r the whole. They are benevolent despot but try, what is really good William Cowper, wrote and his life alone for island, ell I survey- none to dispute; ill round to the sea, fowl and the brute." all right for Robinson are great numbers of a home rule city, can right? I think not. tipwrecked passengers -t isle, W. S. Gilbert, llad telling the story the Ballyshannon and the passengers except ote. by reason of their t, end were eventually heir meals, as Alex- ed, chat together-they oduced. 0 0 0 CITY AND COUNTY OF DENVER V. DENVER BUICK, INC. Colo. 953 Cite u 347 P.sd 919 And somehow thus they settled it with- notice can be taken of what is plainly visi- out a word of mouth ble and of common knowledge. Our early That Gray should take the northern fathers and the rugged individualists of half while Somers took the south." pioneer days, most solicitous of the indi- It is the purpose of the poet to demon- vidual property rights, created a city which erate that as soon as two people are thrown has been having a great struggle to meet g a together and are likely to conflict, some the demands of growth. As a consequence regulation is in order. Though Gray and of this individualism, there are encountered Somers may have been able to divide the in every district dead-end streets, streets island "without word of mouth," a growth blocked by buildings and houses erected on in population would have required a clear the individual whim of the property owner understanding of the rights and duties of without regard to contiguous plats, existing each. These rules, as now expressed in streets or adjacent property development. charters and ordinances, were necessary to Opposition to or lack of uniform set-back protect the people and to promote their requirements, all urgtd in the name of common good. freedom of use, created conditions where streets cannot be widened, or, if they are, Some of the specific grants of power the movement of traffic splashes snow and given by the people in their vote to their water on the front stoop. Areas now own elected city council, which appear now designated as "blighted," heavily dotted to be of no effect, are: To regulate and with buildings standing vacant or, in many restrict the size of buildings and other instances, commanding only nominal rents, structures, the percentage of lot that may attest not to the fact that the buildings be occupied, 'the size of yards, courts and are well are many years old, for many other open spaces, the density of population, _ built and functional, but rather they stand the use of buildings, structures and land. as monuments to the lack of planning Among the expressed purposes specifically (such as was hoped to be achieved by the sought to be accomplished by zoning regu- charter) which permitted buildings and lations and the charter-all, in my opinion, houses to be jammed- up one against the constitutional-were; To provide a com- other. It was inevitable that under such prehensive plan designed to lessen conges- circumstances the very owners themselves tion in the streets, to secure safety from closed their property and in some instances fire, panic and other dangers, to prevent sold for the best price obtainable. The overcrowding of land and to avoid undue colossal waste is apparent everywhere, and concentration of population, to facilitate there is scant comfort in the present day adequate provisions of transportation. The that these "protected properties" now are people and their comprehensive plan to pre- looking to the federal government for a vent a duplication of or a compounding of proposed program of urban renewal where, conditions prevalent in the downtown by their property will be purchased, torn by area (which developed unrestrained and down, and others will be given a chance which cannot be undone now) are to be held to commence anew. But what value will for naught. be the new start if the area is developed The history of Denver, beginning with under old concepts? If this potentially fine the years of no regulation in the use of city in the next seventy-five years is to be property or in the- size of the construction allowed to develop with little more plan, thereon, followed by the decades of inade- ltgislation or restraint than were the quate ordinances and the deadly blows downtown areas east and south from the some of the decisions of this court struck river to Broadway, it doesn't tax the at attempts to legislate in the field, has imagination to picture the catastrophic con- Jett the city with many scars. judicial sequences. 847 P.2d--40%