Opinion
Oct. 6, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 410
Edward W. Nottingham, Denver, for petitioner-appellant.
Robert M. Kelly, Denver, for respondents-appellees.
KELLY, Judge.
C M I Corporation appeals from a judgment dismissing its amended petition under C.R.C.P. 106(a)(4) seeking review of a decision of the Denver Board of Adjustment. We reverse.
C M I alleged in its amended petition that it was the lessee of a tract of land in Denver on which it operated a test pad for hydraulic hammers. It was notified by the Denver Department of Zoning Administration that this activity was in violation of a city ordinance and was ordered to cease the operation. C M I appealed this order to the Denver Board of Zoning Adjustment and the appeal was denied. Copies of the notice, the cease and desist order, the zoning appeal application and a document reflecting the action of the Board of Zoning Adjustment were attached to the amended petition as exhibits.
Respondents-appellees moved to dismiss the amended petition on the grounds that the petitioner was without standing to bring the action and that the petition failed to state a claim on which relief could be granted. Respondents submitted a memorandum brief in support of the motion to dismiss, the thrust of which was that petitioner was not a party to the proceedings before the Board of Adjustment and was therefore without standing to petition for review of the Board's action. Petitioner filed a memorandum brief in opposition to the motion relying on certain quoted sections of the Denver Revised Municipal Code to give it standing to seek judicial review. The trial court granted the motion without specification of its reasons for doing so.
While the record shows that the trial court heard the arguments of counsel concerning this motion, a transcript of those arguments has not been included in the record, and there is no indication that the relevant sections of the Denver Revised Municipal Code or the rules of the Board of Adjustment were properly before the trial court for its consideration. When ruling on such a motion, the trial court was required to consider the allegations of the amended petition as true, and was not at liberty to go beyond the confines of the pleading. McDonald v. Lakewood Country Club, 170 Colo. 355, 161 P.2d 437.
In reviewing the trial court's dismissal of this petition, we are bound by the same rule. McDonald v. Lakewood Country Club, Supra. They only question to be decided is whether the allegations of the amended petition are sufficient to withstand respondents' motion to dismiss.
The amended petition alleged that C M I Corporation, an aggrieved party, prosecuted an appeal from the order of the Department of Zoning Administration to the Board of Zoning Adjustment, that its appeal was denied and that the Board had acted arbitrarily and capriciously. The copies of the documents of these administrative bodies attached to the petition clearly showed C M I's participation in the administrative proceedings. The zoning appeal application listed C M I as the applicant and the documentation of the appeal before the Board of Zoning Adjustment showed the appearance of an attorney for appellant, pursuant to a power of attorney to act for C M I Corporation. The allegations were sufficient to withstand respondents' motion to dismiss.
The judgment is reversed and the cause is remanded with directions to reinstate the amended petition.
ENOCH and BERMAN, JJ., concur.