From Casetext: Smarter Legal Research

E & G Inc. v. San Miguel County Bd. of Com'rs

Court of Appeals of Colorado, Second Division
Sep 23, 1975
541 P.2d 86 (Colo. App. 1975)

Opinion

         Sept. 23, 1975.

         Editorial Note:

         This case has been marked 'not for publication' by the court.

Page 87

         Cashen, Chency, Johnston & Adamson, Richard W. Adamson, II, Montrose, for plaintiff-appellant.


         Fairlamb & Fairlamb, Millard S. Fairlamb, Delta, for defendants-appellees.

         KELLY, Judge.

         Plaintiff, E & G Incorporated, appeals from the judgment of the trial court dismissing its complaint under C.R.C.P. 106 in which it sought relief against the San Miguel County Board of Adjustment, Board of County Commissioners, Building Inspector, and Planning Department. We reverse.

         Plaintiff's claim for certiorari relief arose out of the following facts. In July 1973, Mr. and Mrs. Reginald Garner, now doing business as E & G Incorporated, bought property in San Miguel County, together with the existing buildings, which they intended to expand and improve. Shortly afterwards, E & G had site and floor plans drawn by a local architect, and applied for a building permit. The building inspector, based on the floor and site plans, physical inspection of the property and personal inspection of the county records, informed E & G that a building permit could not be issued unless a one-foot easement was obtained. E & G applied to the board of commissioners for the easement, which was granted on November 2, and a building permit was issued on November 7.

         Construction on the existing improvements, which had commenced prior to issuance of the building permit, continued until March 1974, when the San Miguel County Board of Commissioners and Planning Department issued a 'stop work order' directed to E & G for alleged violations of the zoning regulations. E & G then applied for a hearing before the San Miguel County Board of Adjustment for the purpose of requesting variances for the zoning violations specified in the 'stop work order.'

         After publication of a notice of public hearing, the Board of Adjustment held a hearing on April 26, during which E & G presented to the Board of Adjustment an 'Application to Rescind Stop Work Order.' Testimony was presented by E & G for the purpose of showing its reliance on the building permit through the expenditure of large sums of money in the construction of additions and alterations to the existing improvements. At the conclusion of this testimony, counsel for E & G argued to the Board that the county was estopped from rescinding the building permit.

         After the hearing, the Board of Adjustment denied all but one of the requested variances, but the record does not disclose that it took any action whatever on the 'Application to Rescind Stop Work Order.' E & G thereafter filed its complaint under C.R.C.P. 106 alleging the foregoing facts, among others, and asking that the trial court issue an order requiring the Board of Adjustment to 'rescind' the 'stop work order,' or to return the matter to the Board of Adjustment for further proceedings. Writ of certiorari was issued and the record was certified to the district court, which, after review of the record, pleadings, and memoranda submitted by the parties, entered a judgment finding 'that the actions of the Defendants were not arbitrary and capricious in view of the conflicting survey questions, and that any expenditures made by Plaintiff in reliance on the building permit were not made in good faith reliance upon the propriety of the permit.' The complaint was thereupon dismissed.

         E & G appeals, again contending that the county is estopped from denying the validity of the building permit on which E & G asserts it detrimentally relied in good faith, and that, therefore, the 'stop work order' was invalid. We do not reach this issue.

          The scope of review in a C.R.C.P. 106(a)(4) action is limited to the questions whether the lower tribunal has exceeded its jurisdiction or abused its discretion. See Board of Adjustment v. Handley, 105 Colo. 180, 95 P.2d 823. Although determination of these issues depends upon the factual situation, and the ordinance or resolution involved, as well as the applicable case law, Cf. Marker v. City of Colorado Springs, 138 Colo. 485, 336 P.2d 305, judicial review in a certiorari action is restricted to the record of the proceedings before the lower tribunal. See Board of Adjustment v. Handley, supra.

          Here, neither the zoning resolution of San Miguel County nor any rules and regulations which may have been adopted pursuant thereto have been made a part of the record, and courts are not empowered to take judicial notice of such matters. Rinn v. City of Boulder, 131 Colo. 243, 280 P.2d 1111. Moreover, the record does not reveal that the Board of Adjustment made any decision on the 'Application to Rescind Stop Work Order.'

          Since the record is incomplete, there is nothing from which either the trial court or this court can determine the propriety of the 'stop work order.' The judgment of the trial court is therefore reversed and the cause is remanded with directions to the trial court to remand the matter to the Board of Adjustment for further proceedings to determine whether the 'stop work order' should be rescinded.

         SMITH and RULAND, JJ., concur.


Summaries of

E & G Inc. v. San Miguel County Bd. of Com'rs

Court of Appeals of Colorado, Second Division
Sep 23, 1975
541 P.2d 86 (Colo. App. 1975)
Case details for

E & G Inc. v. San Miguel County Bd. of Com'rs

Case Details

Full title:E & G Inc. v. San Miguel County Bd. of Com'rs

Court:Court of Appeals of Colorado, Second Division

Date published: Sep 23, 1975

Citations

541 P.2d 86 (Colo. App. 1975)

Citing Cases

National Advertising v. Bd. of Adjustment

Owners are entitled to present evidence regarding this factual dispute to the Board for a determination. See…