Opinion
June 24, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Perry S. Nissler, Philip G. Gregg, Littleton, for defendant-appellee City Council of the City of Littleton, Coloraddo.
Calkins, Kramer, Grimshaw & Harring, James S. Bailey, Jr., Denver, for plaintiffs-appellants.
Aldo G. Notarianni, Denver, for defendant-appellee Richardson Homes, Inc.
COYTE, Judge.
Plaintiffs, owners of property adjoining certain rezoned property in and adjacent to the City of Littleton, filed an amended complaint against the City Council of the City of Littleton, Colorado, and Richardson Homes, Inc., the owner of certain building lots in the City of Littleton. They sought a declaratory judgment declaring that a certain rezoning ordinance passed approximately four years prior to the instigation of this suit constituted a taking of plaintiffs' property without due process of law, a permanent injunction enjoining Richardson Homes, Inc., from constructing improvements on said lots, and a mandatory injunction requiring that any improvements located on said lots in accordance with the rezoning be removed. Both defendants filed an answer alleging failure to state a cause of action. Defendant Richardson's answer also contained the affirmative defense that plaintiffs had failed to exhaust their administrative remedies, and that they were barred from bringing the action by the doctrine of laches. Richardson then filed a motion for summary judgment.
The court ruled that the rezoning constituted a quasi-judicial procedure, that the only available remedy for plaintiffs was by an action under C.R.C.P. 106(a) (4), 'and that plaintiffs, not having commenced such proceeding within thirty days from the final action taken by said city council, thereby lost their rights (if any they had) to seek review.' Plaintiffs appeal contending that the court erred in holding that the only remedy available to plaintiffs was by a proceeding in the nature of certiorari. We agree and reverse. While a C.R.C.P. 106(a)(4) review may have been an exclusive remedy to determine whether the city council acted in an arbitrary or capricious manner or abused its discretion in passing this particular ordinance, See Kizer v. Beck, 30 Colo.App. 569, 496 P.2d 1062, a review on this issue might not resolve the question of whether the challenged ordinance would operate as a taking of plaintiffs' property without due process of law.
A declaratory judgment action is available to review matters not reviewable by certiorari. Sundance Hills Homeowners Association v. County Commissioners, Colo., 534 P.2d 1212; Morris v. County Commissioners, 150 Colo. 33, 370 P.2d 438; Regennitter v. Fowler, 132 Colo. 489, 290 P.2d 223; and See Ford Leasing Development Co. v. County Commissioners, Colo., 528 P.2d 237. Plaintiffs' claims were properly within the scope of their action for declaratory judgment and for injunction. See Corper v. City and County of Denver, Colo.App., 536 P.2d 874, (announced May 6, 1975).
The court neither considered the basis of plaintiffs' complaint as applied to the scope of review nor the affirmative defense of laches as contained in defendants' answer. As stated in McKinley Construction Co. v. Dozier, 175 Colo. 397, 487 P.2d 1335:
'A summary judgment denies a litigant the right to a trial of his case, and should therefore not be granted where there appears to be any controversy concerning the material facts. . . . It may or may not develop under the evidence that the defendant in error is entititled to prevail as a matter of law; but such a determination cannot be made at this juncture.'
Judgment reversed and cause remanded with instructions to reinstate plaintiffs' complaint and for further proceedings not inconsistent with this opinion.
SILVERSTEIN, C.J., and PIERCE, J., concur.