Opinion
No. 75-512
Decided May 20, 1976. Rehearing denied June 17, 1976.
In action to review county board of adjustment's refusal to grant plaintiffs a variance to permit construction of residence on land that had no public access, trial court ordered the variance granted, and board of adjustment appealed.
Reversed
1. ZONING — Variance — Certiorari — Exclusive Remedy — Review Concluded — Proceedings Terminate. Where landowners brought action only to challenge board of adjustment's denial of their requested variance from building code, but did not contend that the applicable portion of the county building code was invalid, a proceeding under C.R.C.P. 106(a)(4) was the exclusive remedy, and thus once the trial court concluded that certiorari review, the proceedings should have been terminated.
Appeal from the District Court of the County of Adams, Honorable Oyer G. Leary, Judge.
Robert W. Hutchinson, for plaintiffs-appellees.
S. Morris Lubow, County Attorney, Larry W. Berkowitz, Assistant County Attorney, for defendant-appellant.
The Board of Adjustment of Adams County appeals a judgment of the district court which ordered the Board to grant a variance to plaintiffs (landowners) for construction of residences on their properties free of the requirement of the county building code that "buildings shall adjoin or have access to a public space, yard, or street on not less than one side." We reverse.
Each of the 12 landowners purchased from the same seller contiguous 40-acre tracts of land zoned for agricultural use. None of these tracts adjoins or has access to a public street or road. The roads which run along the interior boundaries of the tracts do not meet county specifications, and the county has refused to accept a dedication of said roads. Each landowner's application to the county building department for a permit to build a home on his tract was denied because of noncompliance with the above quoted provision in the building code. Their subsequent applications to the Board for variances from the access road requirement were heard and also denied.
The landowners then initiated this action in the district court, and asserted in separate claims: (1) That the denial of the variance was an abuse of discretion, and (2) that the Board's action was unconstitutional as applied to their property in that it denied them equal protection and due process. The record of the proceedings before the Board was certified to the court.
The trial was held in two phases, the first being a C.R.C.P. 106(a)(4) review of the record of the Board proceedings. On this review, the court upheld the Board, finding that there was evidence supporting the ruling and that the Board had not acted arbitrarily or capriciously and had not abused its discretion in denying the application. That ruling has not been appealed.
The second phase consisted of an evidentiary hearing on the constitutional issues. After taking testimony not contained in the record of the Board proceedings, and based on that testimony, the court made detailed findings of fact, concluded that application of the building code provision to the landowners precluded them from any reasonable use of their property without due process of law, and ordered the Board to grant the variance. The Board appeals that decision.
Subsequent to the above described proceedings, Snyder v. City of Lakewood, 189 Colo. 421, 542 P.2d 371, was announced by our Supreme Court. Snyder was an action for review under C.R.C.P. 106(a)(4) and included claims for declaratory and injunctive relief as to the rezoning of certain property. The Supreme Court ruled that if, in contrast to a general zoning ordinance, a rezoning determination is challenged, then a C.R.C.P. 106(a)(4) proceeding is the exclusive remedy. And, on that basis, it reversed the trial court's finding of unconstitutionality arrived at in the hearing on the application for declaratory relief. See also Lorenz v. City of Littleton, 38 Colo. App. 16, 550 P.2d 884.
[1] Although Snyder is a rezoning case, and the instant case involves the denial of a variance from a county building code requirement, the rationale of Snyder applies with equal force here and is dispositive of this appeal. Here, the landowners challenge only the denial of the variance, and do not contend that the applicable portion of the county building code is invalid. Hence, once the trial court concluded C.R.C.P. 106(a)(4) review, the proceedings should have been terminated.
The instant case is to be distinguished from the situation in Regennitter v. Fowler, 132 Colo. 489, 290 P.2d 223, where a variance was granted without any notice or public hearing, contrary to city ordinance requirements. The court there held that an interested party who had not been afforded his day in court to protect his interest was not restricted solely to a C.R.C.P. 106(a)(4) proceeding.
The judgment is reversed and the cause is remanded with directions to dismiss the landowners' action.
JUDGE COYTE and JUDGE KELLY concur.