Opinion
No. 77-937
Decided July 27, 1978. Rehearing denied August 17, 1978. Certiorari denied October 23, 1978.
District court affirmed the granting of a liquor license by city council, and individual residents of the city and "concerned citizens" group appealed. Reversed
1. INTOXICATING LIQUORS — Residents of Neighborhood — May Seek Judicial Review — Liquor Licensing Decisions. The residents of a neighborhood affected by a proposed liquor outlet, by virtue of that fact alone, have a strong interest in insuring that the liquor licensing procedure is fairly and properly administered, and are persons who may seek judicial review of liquor licensing decisions under C.R.C.P. 106(a)(4).
2. Statutory Requirement — File Plans and Specifications — Mandatory — May Not Be Waived — Local Licensing Authority. The statutory requirement that the applicant for a liquor license shall file plans and specifications for the interior of the existing building that is to be used as the licensed premises is a requirement that is mandatory in effect, and as such, this requirement may not be waived by the local licensing authority.
Appeal from the District Court of Otero County, Honorable George L. Strain, Judge.
Lee N. Sternal, for plaintiffs-appellants.
Wade Blackburn, Robert E. Blackburn, for defendants-appellees.
The appellants, C. F. Norris, Faye Tapio, and the Concerned Citizens of Rocky Ford, appeal from a decision of the district court in a C.R.C.P. 106(a)(4) proceeding which affirmed the granting of a liquor license to the appellee, Law Farms and Cattle Company, d/b/a Law Plaza Motel and Restaurant, by the defendant, Rocky Ford City Council. We reverse.
Preliminarily, we address Law Farms' contention that the appellants lack standing to pursue this appeal. In support of this contention, the appellees rely upon Kornfeld v. Perl Mack Liquors, Inc., 193 Colo. 442, 567 P.2d 383 (1977). In Kornfeld, supra, our Supreme Court held that an operator of a competing liquor store does not have standing to appeal a decision of a local licensing authority granting issuance of a liquor license, either under the Colorado Liquor Code, § 12-47-101, et seq., C.R.S. 1973, or as a person "substantially aggrieved" by the disposition of the case in the lower court, pursuant to C.R.C.P. 106 (a)(4). The Court reasoned that "economic injury from lawful competition does not confer standing to question the legality of a competitor's operations." Kornfeld, supra. See also Woda v. City of Colorado Springs, 40 Colo. App. 173, 570 P.2d 1318 (1977).
For purposes of evaluating Law Farms' application, the City Council included all of Rocky Ford as the affected neighborhood. See § 12-47-137(2)(a), C.R.S. 1973 (1976 Cum. Supp.). Norris and Tapio are both residents of Rocky Ford. Norris also operates a restaurant in Rocky Ford which is licensed to dispense alcoholic beverages with meals sold to its customers. Under the holding in Kornfeld, Norris, as a business competitor, would not have standing to appeal. However, we conclude that Norris, as well as Tapio, has standing as a resident of the neighborhood. Because these parties have standing, we need not address the status of the "Concerned Citizens of Rocky Ford." See Denver Ass'n for Retarded Children, Inc. v. School District No. 1, 188 Colo. 310, 535 P.2d 200 (1975).
[1] We have previously held that nearby landowners have standing to seek judicial review of the actions of zoning authorities. Bedford v. Board of County Commissioners, 41 Colo. App. 125, 585 P.2d 90 (1978); Snyder v. City Council of City County of Denver, 35 Colo. App. 32, 531 P.2d 643 (1974); see also Dillon Companies, Inc. v. City of Boulder, 183 Colo. 117, 515 P.2d 627 (1973). And, our Supreme Court has considered an appeal from the granting of a liquor license by fourteen objectors who were residents of the area surrounding the proposed outlet, and three objectors who were pastors of religious congregations in the affected city. See Hanna v. Henderson, 140 Colo. 481, 345 P.2d 384 (1959). As these decisions implicitly recognize, only by permitting the participation of local residents in actions such as these will their legitimate interests in, among other things, the character of their neighborhood, the safety of their children, and the value of their property, be adequately protected. See Dillon, supra; Zuckerman v. Board of Zoning Appeals, 144 Conn. 160, 128 A.2d 325 (1956). Thus, we conclude that residents of the affected neighborhood, by virtue of that fact alone, have a strong interest in insuring that the liquor licensing procedure is fairly and properly administered, see Palisades Citizens Ass'n v. Weakly, 166 F. Supp. 591 (D.D.C. 1958); Lofton v. Posey, 195 So.2d 764 (La.App. 1967); Brunson v. Rutherford Lodge No. 547, 128 N.J. Super. 66, 319 A.2d 80 (1974); cf. Zuckerman, supra, and are persons who may seek judicial review of liquor licensing decisions under C.R.C.P. 106(a)(4).
As one facet of its conclusion upholding issuance of the license, the trial court ruled that the City Council could waive the requirement that plans and specifications of the proposed liquor outlet be filed. We agree with appellants that this ruling was erroneous.
[2] Section 12-47-135(4), C.R.S. 1973 (1976 Cum. Supp.) provides in part:
"The applicant [for a liquor license] shall file at the time of application plans and specifications for the interior of the building if the building to be occupied is in existence at that time." (emphasis added) Use of the word "shall" in a statute is mandatory in effect. Board of County Commissioners v. Edwards, 171 Colo. 499, 468 P.2d 857 (1970); Appelgren v. Agri Chem, Inc., 39 Colo. App. 158, 562 P.2d 766 (1977). "More than a formal defect is evidenced by the lack of plans and specifications . . . . The lack of these items, mandatorily directed to be filed . . . is a substantial one." City of Aurora v. Morris, 160 Colo. 289, 417 P.2d 7 (1966); Spero v. Board of Trustees, 35 Colo. App. 64, 529 P.2d 327 (1974). Thus, the filing of plans and specifications is mandatory.
Nor can the local licensing authority waive this requirement. Prior to granting a liquor license the local authority must inspect the premises "to determine that the applicant has complied with the architect's drawing and plans and specifications submitted upon the application." Section 12-47-137(4), C.R.S. 1973 (1976 Cum. Supp.); Spero, supra. "Absent such plans and specifications there is no way in which an inspector could make such a determination, with the obvious result of frustrating the purpose of the law." Spero, supra.
In light of our conclusion, we do not reach the appellants' remaining contentions.
The judgment is reversed and the cause is remanded to the district court with directions to order the City Council to deny the liquor license application.
JUDGE STERNBERG concurs.
JUDGE COYTE dissents.