Summary
noting that the BAA was not a party to the proceeding, but was only tasked with deciding the question presented to it
Summary of this case from Kelly v. Bd. of Cnty. Comm'rsOpinion
No. 17,682.
Decided September 26, 1955. January 3, 1956, on rehearing, original opinion adhered to.
The trial court reversed an order of the Board of Adjustment which affirmed a decision of the chief building inspector denying a building permit to the plaintiff. The Board and the Intervenor bring error.
Writ of Error Dismissed.
1. APPEAL AND ERROR — Administrative Boards — Right to Review. Unless expressly authorized by charter or statute, a judicial or quasi judicial tribunal cannot appeal or prosecute a writ of error from the determination of a court reviewing the decision of such tribunal.
2. Municipal Corporations — Right of Appeal. Where a municipal corporation was not a party in a proceeding before a zoning board of adjustment involving the issuing of a building permit, it could not become a party in proceedings to review the decision of the board in the district court, since the judgment of the district court was not against the city, but against the building inspector who is afforded full opportunity to seek a review.
3. MUNICIPAL CORPORATIONS — Appeal and Error — Right to Review. None but a party to the record in the trial court can prosecute a writ of error in the Supreme Court, and where a record subject to review was completed before the Board of Adjustment; the city having made no attempt to become a party to the record there, is in no position to prosecute a writ error.
Error to the District Court of the City and County of Denver, Hon. Albert T. Frantz, Judge.
Mr. JOHN C. BANKS, Mr. EARL T. THRASHER, for plaintiffs in error.
Messrs. DONALDSON, HOFFMAN GOLDSTEIN, for defendant in error.
THIS cause is before us on the motion to dismiss the writ of error filed by defendant in error, John Kuehn.
Kuehn applied to the Board of Adjustment of the City and County of Denver, plaintiff in error, to have the latter designate an area in which to obtain the affirmance of 80% of the owners so that a petition might be filed for the use within a residence "B" zone of three lots at 5090 Lincoln street, Denver, Colorado, as a small creamery and similar businesses. The area was designated by the Board, and consents, amounting to 83.6%, were duly obtained and filed with the Board; thereupon a permit was sought from the building inspector for such use. The building inspector denied the permit, and, pursuant to the charter of the City and County of Denver, an appeal from his determination was taken to the Board of Adjustment. The appropriate procedures were followed, and the appeal finally was heard before the Board of Adjustment May 18, 1954. Said Board denied the application and affirmed the action of the building inspector. Subsequent to the denial, a request for rehearing was filed with the Board, which also was denied.
Thereupon within the time set forth in the charter of the City and County of Denver, Kuehn filed his petition and complaint in the nature of certiorari in the district court in and for the City and County of Denver to review the action of the Board as being unreasonable arbitrary, capricious and in violation of the due process clauses of the Federal and State Constitutions zoning ordinance and the city charter. The Board of Adjustment filed its record of proceedings with the district court, and thereafter the City and County of Denver was permitted to intervene.
January 7, 1955, the district court heard the matter; took it under advisement; and on February 21, 1955, prepared and filed a memorandum opinion. Pursuant to the opinion the judgment was entered, which we quote in part as follows:
"* * * that the order and ruling of the Respondent Board of Adjustment, entered on May 18, 1954, in case No. 81-54-Z, is hereby reversed, set aside and vacated with directions to said Respondent to grant the application of the Petitioner in said case No. 81-54-Z for an exception from the provisions and terms of the zoning ordinances of the City and County of Denver relating to the premises of the petitioner. * * *."
The Board of Adjustment and its members, and the City and County of Denver, thereafter obtained this writ of error.
In support of the motion to dismiss, counsel argue: (1) That although an appeal may be taken to and from the Board of Adjustment there is no authority for the taking of an appeal by the Board: (2) that as a quasi judicial tribunal the Board cannot seek review by writ of error from a reversal of its own decisions; and (3) that the city was not a party to the record, was not aggrieved by the decision of the district court, and has no standing to prosecute a writ of error in this action.
Under the terms of the charter of the City and County of Denver — section 219 A (C) — the city council is authorized to adopt zoning ordinances in accordance with a comprehensive plan to relieve congestion in the streets secure safety, and promote the general health and welfare; it also is given the power, by section 219 A (G), to provide for the appointment of a Board of Adjustment and vests such Board with certain appellate jurisdiction as follows:
"Appeals to the Board of Adjustment may be taken by any person aggrieved by any officer, department, board or bureau of the municipality affected by any decision of an administrative officer. Such appeal shall be taken within a reasonable time as provided by the rules of the Board by filing with the officer from whom the appeal is taken and with the Board of Adjustment a notice of appeal specifying the grounds thereof. * * *
"In exercising the above mentioned powers, the Board may, in accordance with the provisions of the amendment reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made and they shall have all of the power of the official from whom the appeal is taken.
The charter then provides a procedure for reviewing the determinations of the Board of Adjustment, in the following language:
"Any person or persons, jointly severally, aggrieved by any decision of the Board of Adjustment or any tax-payer or any officer, department, board or bureau of the municipality may bring to the court of record a petition duly verified setting forth that such decision is illegal in whole or in part specifying the grounds of the illegality * * * Upon the presentation of such petition, the court may allow a writ of certiorari directed to the board of adjustment to review such decision of the Board of Adjustment. * * *
"The court may reverse or affirm wholly or partly or may modify a decision brought up for review."
In so far as this Court is advised, the charter contains no provisions by which a judgment of the district court, reversing an order of the Board of Adjustment, can be carried to the Supreme Court for review; nor does it set forth any method by which the municipal corporation, as such, or the Board of Adjustment, may obtain a review of the decisions of either the Board or the reviewing district court. However, the judgment of the district court is reviewable under pertinent provisions of the Rules of Civil Procedure.
Questions to be Determined.
First: Does the Board of Adjustment of the City and County of Denver, or the individual members thereof, have the power to prosecute a writ of error from the Supreme Court to review the judgment of the district court which reversed a decision of said Board?
This question is answered in the negative. Generally, we think it is well established that a judicial or quasi judicial tribunal cannot appeal or prosecute a writ of error from the determination of a reviewing court, unless express authorization by charter provision or legislative enactment directs to the contrary. The weight of authority seems to apply this general rule to cases which deal with zoning boards of adjustment, and we deem it sufficient to quote from State ex rel. Bringhurst v. Zoning Board of Appeal and Adjustment, 198 La. 758, 4 So.2d 820, in which case a Board of Adjustment appealed from an order of a district court reversing the Board's decision. The high court of Louisiana dismissed the appeal on motion. The statutory provisions applicable in that case are comparable to those of the Denver charter, as appears in the opinion from which we quote as follows:
"Section 7 of Act 240 of 1926 also provides that within thirty days after the filing of the decision of the Board in its office any person or persons jointly or severally aggrieved thereby may present to the district court of the parish or the municipality in which the property affected is situated a verified petition setting forth the illegality of the decision, in whole or in part, and specifying the grounds of the alleged illegality. Upon the presentation of the petition, the court may allow a writ of certiorari directed to the Zoning Board of Appeal and Adjustment to review its decision and prescribe a time within which the return must be made. Upon the hearing, the court may take additional evidence or appoint a referee to take such evidence and report his findings of fact and conclusions of law. After the hearing the court may reverse or affirm, wholly or in part, or may modify the decision brought before it for review.
"It will be observed that the enumerated powers do not include the right of Zoning Board of Appeal and Adjustment to appeal from a judgment of the district court reversing its own decision.
* * *
"In the exercise of its jurisdiction, the Zoning Board of Appeal and Adjustment acted as a quasi judicial body in hearing and deciding the appeal from the ruling made by the City Engineer refusing the application of the owner for a permit to convert a two-family dwelling into a four-family dwelling. In the exercise of its jurisdiction, the Civil District Court issued the writ of certiorari authorized by the statute, under which it reviewed and reversed the decision of the Zoning Board of Appeal and Adjustment.
"The Zoning Board of Appeal and Adjustment was not a party to the proceeding before it, nor did it have any interest in the proceeding other than to decide the question presented for determination according to the proven facts and applicable law. Obviously, the Zoning Boarding of Appeal and Adjustment has no more right to appeal from the decision of the Civil District Court reversing its own decision than one of the judges of the Civil District Court would have to appeal to this Court from a judgment of the Court of Appeal reversing one of his decisions."
To like effect are the conclusions reached in the following cases: State ex rel. Hurley v. Zoning Board of Appeal, 198 La. 766, 4 So.2d 822; Miles v. McKinney 174 Md. 551, 199 Atl. 540; Appeal of Landsowne Borough Board of Adjustment, 313 Pa. St. 523, 170 A. 867; DiCillio and Sons, Inc. v. Chester Zoning Board of Appeals, 158 Ohio St. 302, 109 N.E.2d 8; Corn v. Board of Liquor Control, 160 Ohio St. 9, 113 N.E.2d 360; Minnis v. Hamilton County Board of Zoning Appeals, 89 Ohio App. 289, 101 N.E.2d 388; Roeder v. Brown, 192 Md. 639, 65 A.2d 333.
Second: Can the City and County of Denver prosecute a writ of error in this cause, notwithstanding the fact that it was not a party to record before the Board of Adjustment?
This question is answered in the negative. The review before the district court was solely on the record made before the Board of Adjustment. Not being a party to that record the city could not become a party in the review proceedings before the district court. The judgment of the district court does not run against the city; it reburies the building inspector to issue the permit requested by Kuehn. If, in the opinion of the officials of the City and County of Denver, the public interest is adversely affected by that judgment, the city attorney as the legal representative of the building inspector is afforded full opportunity to seek review at the instance of a party to the record, namely, the building inspector upon whom the judgment acts directly.
This Court has frequently held that no one but a party to the record in the trial court can prosecute a writ of error. Fischer v. Hanna, 21 Colo. 9, 39 Pac. 420; Wilson v. Board of Regents, 46 Colo. 100, 102 Pac. 1088. In the instant case the record which was subject to review was made and completed before the Board of Adjustment. The City and County of Denver did not attempt to make itself a party to this record and intervention was sought only in certiorari proceedings in the district court.
The city is not in a position to prosecute a writ of error in this cause; accordingly the writ of error is dismissed.
MR. JUSTICE HOLLAND dissents.
MR. JUSTICE CLARK and MR. JUSTICE LINDSLEY not participating.
ON REHEARING.
The petition for rehearing filed by plaintiffs in error was granted October 24, 1955, and counsel on both sides have filed briefs. Upon reconsideration of all issues the Court now adheres to the opinion handed down September 26, 1955. We add thereto that under the zoning ordinance recently adopted by the City and County of Denver, broad powers have been conferred upon a Department of Zoning Administration, and express authority for protection of the public interest by an agency of the city seems to be covered. Thus the matter to which attention was directed by the dissenting opinion of Mr. Justice Holland have received legislative attention.