Opinion
Max P. Zall, Earl T. Thrasher, Robert M. Kelly, Denver, for defendants-appellees A. H. Jansen, John O'Fallon and W. H. McNichols, Jr.
Howard I. Rosenberg, Legal Aid Society of Metropolitan Denver, Stapleton-Globeville Legal Services, James H. Seckinger, Thomas Frank, David R. Lass, Denver, for plaintiffs-appellants.
Quiat & Quiat, P.C., Gerald M. Quiat, George Louis Creamer, Denver, for defendant-appellee
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Pepcol Manufacturing Co., a Colorado corp.
COYTE, Judge.
In March of 1970 defendant Pepcol Manufacturing Co. bought a 4-acre tract of land out of a large area of land owned by the Denver Stockyards Company, which land had been zoned I--2 and had been used for stockyards and related purposes since 1861. Under this zoning a rendering plant could be constructed. On May 12, 1970, plaintiff Zapien filed an application to rezone the Pepcol property to I--0, which would place a restriction on industrial use. The rezoning application filed by Zapien was set for hearing before the zoning committee of the City Council on July 8, 1970, but was continued to July 20th.
On May 18, 1970, Pepcol filed an application for building permit for foundation only, which application was granted but later rescinded. On June 26, 1970, defendant Pepcol filed an application for a permit for the construction of a rendering plant, which permit was granted on July 7, 1970.
On Monday afternoon of July 6, 1970, Pepcol's counsel and the City were notified by telephone by counsel for plaintiffs that at 9:30 the following morning plaintiffs would file a complaint and apply for a temporary restraining order to enjoin defendant Pepcol from constructing a by-products rendering plant and to enjoin the Building Department from issuing a building permit, if the same had not already been done. Attorneys for all parties appeared at the hearing on July 7, 1970. After two days of testimony, extensive arguments, and receiving written briefs, the court entered a temporary order restraining Pepcol from constructing its rendering plant until such time as the City Council or zoning committee of the City Council, whichever had the final authority, could act on plaintiff's application for a zone map amendment. The temporary order however allowed Pepcol to commence work on the foundation of its proposed rendering plant and was limited to a period of time not to exceed ten days, as provided in C.R.C.P. 65, unless an extension of time was granted. It was further ordered that the plaintiffs post a bond in the amount of $6000.
Thereafter, plaintiffs filed an amended complaint, the first claim of which requested that the Zoning Administration and the Building Department of the City of Denver be ordered to revoke or to stay the legal effect of permission previously granted and that defendant Pepcol be restrained from building its plant until the zoning committee of the Denver City Council had acted upon plaintiffs' request to rezone Pepcol's property. The second claim requested a stay until the City Council acted on Councilmen's Bill No. 349, which proposal would have eliminated the operation of a rendering plant as a permissible use under I--2 zoning. The third claim alleged that the building permit was improper, illegal, and void in that (1) the information and material submitted to the Building Department did not comply with the requirements of the building code and (2) there was not sufficient information submitted to the Building Department to authorize it to issue a permit. The fourth claim for relief stated that the operation of the plant would constitute a statutory and common-law nuisance and requested that the defendant Pepcol be restrained from further construction.
All defendants filed answers and alleged as an affirmative defense that plaintiffs had not exhausted their administrative remedies.
On July 21, 1970, one of the attorneys for Pepcol filed an affidavit stating that the zoning committee of the City Council had denied the application for a zoning map amendment and that the restraining order had expired by its express terms at 2:00 P.M. on July 20, 1970.
The matter came on for trial to the court on August 18, 1970. Plaintiffs introduced the building code of the City and County of Denver and attempted to interrogate the director of the Building Department of the City and County of Denver. Defendant pointed out that no administrative appeals had been taken. The parties agreed that the legal issue concerning exhaustion of administrative remedies should be resolved.
After extensive arguments covering only the question of administrative remedies, the court ruled that it did not have jurisdiction in that plaintiffs had failed to exhaust their administrative remedies. It then dismissed plaintiffs' complaint with prejudice. Plaintiffs appeal that ruling.
We agree that before plaintiffs would have standing in the district court, they would have to exhaust their administrative remedies on all matters of which they complain except for the allegations of nuisance contained in the fourth claim. Neither the court nor the parties mentioned the resolution of this nuisance claim and the case must be returned to the trial court for a determination of this issue.
I.
Plaintiffs in their argument allude to constitutional questions being involved in the determination of the issues before the court. Their original and amended complaints disclose no basis for their contention.
In their first and second claims for relief plaintiffs state that the actions of defendants Jansen and O'Fallon were in violation of the zoning ordinance and the building code and that, therefore, unless Pepcol and the City were kept in the status quo until after the resolution of the zoning issue, the defendants' actions would violate due process and equal protection in depriving plaintiffs of their right to a full, fair and equitable hearing. Their complaint alleged that improper action under the code and ordinance could cause unconstitutional results; it did not challenge the constitutionality of the building code and zoning ordinance. The City and County of Denver and the Attorney General were not made parties as is required by C.R.C.P. 57(j) for a direct attack on the ordinance.
Baum v. Denver, 147 Colo. 104, 363 P.2d 688, relied upon by plaintiffs, is not authority for plaintiffs' right to by-pass administrative remedies because plaintiffs do not challenge the constitutionality of the zoning ordinance or the building code of the City and County of Denver.
II.
The first three claims for relief seek to enjoin Pepcol from building its rendering plant under permits issued or yet to be issued in order to preserve plaintiffs' rights under the zoning ordinance and building code. Administrative remedies and procedures are provided in the Charter of the City and County of Denver, Section B1.19 through B1.21, and in Denver Revised Municipal Code, 611.5--4, and Denver Building Code, ss 201 through 203. Zoning appeals must be taken to the Board of Adjustment within a reasonable time as set by the rules of the Board, Denver Revised Municipal Code 611.5--4, and from there to the district court within thirty days, Denver Revised Municipal Code 611.6--6. Pursuant to the building code of the City and County of Denver, one aggrieved by a decision of the Building Department is provided a right to appeal within thirty days to the Board of Appeals, Section 201(h), and from there to the district court within thirty days, Section 203.
The Supreme Court of Colorado has consistently adhered to the requirement of exhaustion of administrative remedies. Heron v. Denver, 131 Colo. 501, 283 P.2d 647; People ex rel. Dunbar v. District Court, 129 Colo. 203, 268 P.2d 1098.
In Denver-Laramie-Walden Truck Line, Inc. v. Denver-Fort Collins Freight Service, Inc., 156 Colo. 366, 399 P.2d 242, it is stated:
'Our court has adhered rather strictly to the requirement of exhaustion of remedies. Where administrative remedies are provided by statute, the statutory procedure must be followed when the matter complained of is within the jurisdiction of the administrative authority. Unless the administrative remedies are exhausted, it can never be known but that a correction would ensue if the administrative authority were given full opportunity to pass upon the matter.'
Plaintiffs set out the general principle that jurisdiction, once acquired, is not defeated by subsequent events and then argue that they should not be required to pursue their administrative remedies as to subsequent events. Plaintiffs' original complaint and motion sought to restrain administrative action pending resolution of their zoning amendment application. The application had been acted upon and this question was moot at the time the amended complaint was filed. Invocation of the court's jurisdiction in this respect did not obligate the court to accept all other issues subsequently arising between the parties nor did it relieve the plaintiffs from pursuing the provided administrative remedies as to actions taken by the zoning administrator and the building department. Plaintiffs cannot circumvent the necessity of exhausting their administrative remedies by filing a suit in anticipation of the issuance of a building permit.
III.
The fourth claim for relief alleged that the erection and operation of the rendering plant would constitute a public and private nuisance. There was no argument relative to the merits of this cause of action. It was dismissed without apparent consideration by the trial court. However, it was called to the trial court's attention in the motion for new trial.
In Hobbs v. Smith, 29 Colo.App. 301, 484 P.2d 804, affirmed, Colo., 493 P.2d 1352, this court stated:
'The issue on appeal is whether a court has the authority to enjoin a private nuisance or nuisance in fact where the acts constituting the nuisance are in themselves lawful. Even though zoning regulations permit an act to be done, and the act is being done with due care, the courts may grant relief where they find that the acts complained of constitute a nuisance. To hold otherwise would be to state that the legislative body may license a nuisance. 39 Am.Jur. Nuisances s 205. See also Weltshe v. Graf, 323 Mass. 498, 82 N.E.2d 795; Sweet v. Campbell, 282 N.Y. 146, 25 N.E.2d 963.'
It was error to dismiss the fourth claim for relief without an evidentiary hearing.
IV.
On July 25, 1970, defendant Pepcol filed a motion requesting the court to forfeit plaintiffs' bond and to take testimony and determine its damages under the bond. On September 16, 1970, plaintiffs filed a motion requesting that their bond be released contending that the bond had not been filed until after the temporary restraining order had expired, that the bond never came into existence, and that Pepcol suffered no damage.
When the matter came on for hearing the court determined that since plaintiff had already filed notice of appeal, it had no jurisdiction and took no action on the bond.
The dismissal by the court of the first, second, and third claims for relief is affirmed. The dismissal by the court of the fourth claim for relief is reversed with directions to the trial court to reinstate the same and for further proceedings not inconsistent with this opinion. The trial court is further directed to hold a hearing and determine whether the $6000 bond filed by plaintiffs was effective and, if effective, whether defendant Pepcol has been damaged and, if damaged, the amount of its damage.
DWYER and PIERCE, JJ., concur.