Opinion
No. 78-564
Decided November 30, 1978. Publication ordered December 21, 1978. Rehearing denied January 11, 1979. Certiorari granted April 2, 1979.
Contending that city council had exceeded its jurisdiction and abused its discretion in imposing an access limitation on property as a condition of its grant of a rezoning application, the rezoning applicant sought review of the rezoning. From judgment upholding council's action, applicant appealed.
Reversed
1. ZONING — Exclusively Concerned — Use Regulation. Zoning is exclusively concerned with use regulation.
2. Imposition of Conditions — Property Use — Permitted — Access Limitation — Condition of Rezoning — Not Related to Use — Abuse of Discretion. As part of the zoning process, a municipality may impose reasonable conditions on the use of property; however, a condition that access to property be limited to a certain street does not relate to use of the property; thus, city council abused its discretion in passing rezoning ordinance which included the condition that access to the rezoned property be limited to one adjacent street.
Appeal from the District Court of the County of El Paso, Honorable William M. Calvert, Judge.
George Alan Holley Associates, George Alan Holley, Scott D. Albertson, for plaintiff-appellant.
Gordon D. Hinds, City Attorney, James G. Colvin, II, Assistant City Attorney, for defendants-appellees.
Plaintiff, Wood Bros. Homes, Inc., (the applicant), applied to the City of Colorado Springs for a change of zoning classification for certain land owned by it, located at the intersection of Union Boulevard and Austin Bluffs Parkway and bounded on the north and west by Cragwood Drive. It sought a change from A-1 Garden Home zone to R-5 Residential Multi-Family zone with a conditional use for an office park. After hearings, the City Planning Commission denied the application. On appeal, the City Council, after a public hearing, passed an ordinance rezoning the property as requested by the applicant, subject to the condition that access be limited to Cragwood Drive only.
Contending that the Council exceeded its jurisdiction and abused its discretion in imposing this access condition to the rezoning, the applicant sought review in the district court pursuant to C.R.C.P. 106(a)(4). That court upheld the Council's action and dismissed the case. The applicant appeals, and we reverse.
When the rezoning application was being processed, Union Boulevard and Austin Bluffs Parkway were as yet uncompleted six lane major arterial roads. Cragwood had been designated as a collector street. The applicant does not contend that the City is without power to restrict access to the property. Rather, it contends that the City cannot do so as a condition of rezoning. We agree.
[1] Zoning is exclusively concerned with use regulation. 8 E. McQuillan, Municipal Corporations § 25.01 (3d Ed. 1976 Rev. Vol.). See §§ 31-23-301(1), 302, and 303(1), C.R.S. 1973 (1977 Repl. Vol.); Bird v. City of Colorado Springs, 176 Colo. 32, 489 P.2d 324 (1971); Westwood Meat Market, Inc. v. McLucas, 146 Colo. 435, 361 P.2d 776 (1961). And the City's basic zoning code relates only to use regulation.
[2] As part of the zoning process, a municipality may impose reasonable conditions on the use of property. King's Mill Homeowners Ass'n v. Westminster, 192 Colo. 305, 557 P.2d 1186 (1976) (upholding rezoning conditioned on the land being used only as a regional shopping center). However, in the instant case, the condition that access be limited to a certain street does not relate to use of the property. Instead, regulation of access is properly a part of the platting and subdivision process, see § 31-23-201, et seq., C.R.S. 1973 (1977 Repl. Vol.), which occurs subsequent to rezoning and serves separate and distinct purposes. Shoptaugh v. Board of County Commissioners, 37 Colo. App. 39, 543 P.2d 524 (1975).
We conclude, therefore, that the Council abused its discretion in including in the rezoning ordinance the condition that access to the property be limited to Cragwood Drive.
Because we are unable to determine how the Council would have acted upon the application had it known that this condition could not be included in the rezoning, the judgment is reversed and the cause is remanded to the district court with directions to return the matter to the Colorado Springs City Council for reconsideration in light of the views expressed herein. See State Farm Mutual Automobile Insurance Co. v. Barnes, 41 Colo. App. 380, 585 P.2d 929 (1978).
JUDGE PIERCE and JUDGE RULAND concur.