dissenting in part.
I respectfully dissent to that portion of the opinion which upholds the ordinance requirement of perimeter fencing. Absent valid legislative restrictions, I believe the citizens of Colorado are entitled to enjoy maximum free and unrestricted use of their property. If a restriction upon the use of property is to be upheld as a valid exercise of the police power, that restriction must be “reasonable not arbitrary,” bearing a “rational relationship to a [permissible] state objective.” Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); see also San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Rademan v. City and County of Denver, 186 Colo. 250, 526 P.2d 1325 (1974).
The ordinance in issue states that the owners of multiple-family dwelling units
“shall be required to install within 180 days, on the side and rear lot lines of the building site, a solid fence of wood or masonry construction permitted by the Uniform Building Code or other ordinance of the Town and so constructed as to prevent trash, wastepaper, refuse and other waste from said multi-family dwelling units from being blown or otherwise carried off the property.”
A fair interpretation of this ordinance indicates that side fences must be constructed from the rear lot line to the front lot line. The owners are required to use wood or masonry building materials. The fact that a full enclosure is not required suggests a less than rational solution to the problem of “trash, wastepaper, and refuse . . . being blown or otherwise carried off the property.” As interpreted, this statute is not reasonably calculated to accomplish its purpose and produces an arbitrary and oppressive result. Trash receptacle fencing is not subject to constitutional attack, and that part of the ordinance is valid. However, to add the additional burden of perimeter fencing, under the circumstances of this case, dictates that we strike down that portion of the ordinance.