Landmark Land Co. v. Denver, City & County of
Citation: 17 ELR 20640
No. Nos. 84SA400 et al., 728 P.2d 1281/(Colo., 12/02/1986)
The court holds that an amendment to a city ordinance extending the protection of mountain views does not violate a developer's procedural or substantive due process rights and does not constitute a taking of private property without just compensation. The amendment extended the coverage of the original ordinance, which protected the mountain view from several city parks, and provided for a maximum height of 42 feet for any structure in an area zoned for business, effectively prohibiting plaintiff from constructing a building of 21 stories. The court first holds that the city council was engaging in legislative, not quasi-judicial, activity when it enacted the amendment. The amendment is prospective, of general application, and requires the balancing of questions of judgment and discretion. The fact that the city voluntarily held a hearing does not transform the action into a quasi-judicial activity requiring certain protective procedures, since the city was not required by state or local law to hold a hearing. The court next holds that the amendment is not special legislation prohibited by the Colorado constitution. The amendment does not have the effect, as plaintiff claims, of turning control over plaintiff's property to a neighborhood association that opposed the high-rise development. Although the association lobbied for theamendment, the city council, not the association, was responsible for its enactment. The exception for existing structures does not invalidate the amendment, since it merely represents a valid legislative determination that current heights are acceptable. The court holds that the amendment is rationally and reasonably related to a legitimate public purpose. Protection of aesthetics has long been held to be within the scope of a legislature's police power, and the amendment is clearly designed to protect the mountain views. The court holds that the amendment is rationally related to the purpose of protecting these views and rejects plaintiffs' argument that a formal rezoning is necessary. Both the city and the state have enacted laws regulating activities usually covered by zoning ordinances, and there is precedent in other states for protecting aesthetics by the use of nonzoning height restrictions. The fact that the city's goal might have been accomplished by other means does not invalidate the action taken. Finally, the court holds that the amendment does not constitute a taking of private property without just compensation, since plaintiffs have not shown that all reasonable use of their property is prohibited by the amendment.
Counsel for Plaintiff-Appellant
Susan E. Burch, Charles E. Norton
Calkins, Kramer, Grimshaw & Harring
Suite 3800, 1700 Lincoln St., Denver CO 80203
Counsel for Defendants-Appellees
Stephen H. Kaplan, City Attorney
353 City & County Bldg., 1437 Bannock, Denver CO 80202
DUBOFSKY, J., does not participate.