Jones v. Board of Adjustment

Mr. Justice Hays

dissenting.

Sometime prior to January 6, 1947, plaintiffs in error made application to the chief building inspector of the City and County of Denver for a permit to remodel a masonry private garage at 1011 Pennsylvania street for the purpose of conducting therein his real-estate business. On January 6, 1947, said permit was denied and the applicant gave notice of appeal to the Board of *432Adjustment from the decision of the inspector reciting therein that he was appealing from the action of said inspector in denying the permit “to alter and convert present private garage in Residence ‘D’ District into a Real Estate Office Building.”

On the same day the plaintiffs in error filed an “Application for Variation from the Requirements of the Zoning Ordinance” and therein petitioned the board “under the discretionary power vested in your Board by Section 24-B to permit alteration-conversion of a private garage in Residence ‘D’ Zone into a Real Estate Office Building.”

It, therefore, conclusively appears from the ordinance, “notice of appeal,” and “application for variation from the requirements of the zoning ordinance” that the use contemplated by the applicant was not one permitted under the provisions of the ordinance. The sole question to be determined by the board on appeal, and application for variance, was whether or not said applicant was entitled to relief under the terms of section 24-B of the ordinance, which provides: “When in its judgment the public convenience and welfare will be substantially served or the appropriate use of neighboring property will not be substantially or permanently injured, the board of adjustment may, in a specific case, after public notice and hearing and subject to appropriate conditions and safeguards, determine and vary the application of the regulations herein established in harmony with their general purposes and intent. * * *” Denver Municipal Code, p. 1065, §2190B.

The whole controversy was tried before the Board of Adjustment, which is the tribunal created by the charter and ordinances of the city and vested with the exclusive power to determine the issues here presented, and after full and complete hearing thereof the action of the building inspector was affirmed, the application for variance was denied, and the following resolution was adopted:

*433“Whereas: The applicant, A. D. Jones, filed on January 6th, 1947, an application for a permit to remodel and convert the present 1% story garage and former stable located at the rear of the premises known as #1011 Pennsylvania Street into an office building to be used by said applicant as a real estate office, and

“Whereas: Said application having been filed by the said A. D. Jones, a public notice having been given and public hearings having been held, at which hearings all interested persons desiring to be heard were heard, and

“Whereas: Applicant proposes to maintain in said building a real estate office, and proposes to employ several persons in the conduct of the real estate business, and

“Whereas: It is the opinion of the Board after hearing statements made by applicant concerning the proposed use of the premises, and after making an examination of applicant’s proposed floor plans for said building, that said use would be a business use in Section 4, Business District Uses, of the Zoning Ordinance and the building would be an office building as provided in par. (2) of Section 4, and

“Whereas: Said use would not be a use authorized under paragraph (3) Office, of Section 3 D, Residence ‘D’ and Residence. E’ Districts, and would not be an accessory use to a residence as provided in Section 7 of the Zoning Ordinance which provides in part as follows —‘A store, trade or business shall not be permitted as an accessory use, except that the office of a physician, dentist, surgeon or other professional person located in a dwelling or apartment occupied as a private residence by such physician, dentist, surgeon or other professional person may be authorized, and except a customary home occupation located in a dwelling or apartment used as a private residence if it is incidental to such residential use, may be permitted provided there are no employed *434assistants in any way connected with the operation of such home occupation’, and

“Whereas: Applicant’s proposed use would be a business and not a customary home use, within the meaning and intent of Section 7 of Article II Use District Regulations of the Zoning Ordinance, as applicant proposes to remodel the building into an office building and also proposes to employ salesmen and office help for the conduct of such business, and

“Whereas: Applicant’s proposed business use, viz: Real Estate Office, would be located in a Residence ‘D’ Zone and not in a Business Zone, and in the judgment of the Board the intrusion of such use into said Residence ‘D’ District would be detrimental and injurious to adjacent and neighboring residential properties, and the granting of a permit to applicant to maintain a real estate office as is proposed in the instant case would be contrary to the intent and.purposes of the Use District Regulations of the Zoning Ordinance and a violation of such regulations, and

“Whereas: It is the opinion of the Board, after due consideration of the facts, that no reason exists to grant a variance to applicant by reason of unnecessary hardship within the meaning and intent of Section 7 of Section 219-A of the Charter of the City and County of Denver, now

“Therefore be it Resolved: That the application be and the same is hereby denied and that the action of the Chief Building Inspector be and the same is hereby sustained.”

In this court’s opinion reversing the findings of the Board of Adjustment and' the trial court, it is said that the questions to be determined here are “First: Was the petitioners’ contemplated use of the premises in question as a real-estate office, in which a stenographer and several salesmen were to be employed, a use permitted under the provisions of section D (3) of the zone ordinance?” and, “Second: Did the remodeling *435contemplated by petitioners, considered with, the proposed use of the entire building by them for office purposes, amount to the erection or structural alteration of a building arranged, intended or designed for an office building within the meaning of section 4 of the zoning ordinance?”

With all due respect to the author of the majority opinion and concurring justices, the above questions do not present the issue before this court. As I view it, the sole and only issue before us is whether or not the Board of Adjustment in the first instance, and the trial court in the second, had any evidence before them which justified their findings and conclusions. It is not a question as to whether we agree with the trial court or the board, but purely one as to whether there was any basis for their decisions.

The trial court, while not obliged to do so, tried the case de novo, and reached the same conclusion as did the Board of Adjustment. Its findings are as follows:

“It is the duty of the Board of Adjustment, under our form of government and various ordinances, to administer the Zoning Ordinances of Denver as a whole in the most reasonable manner possible. The ordinances lay out certain boundaries of districts and provide specifically what may be done with property within these various districts, and the Zoning Board, except in certain instances, where it may exercise its discretion and grant exceptions, has no right, power or authority to change the boundaries, or change the classifications as fixed by the ordinance. That authority lies with the council. So, in the main, the Board of Adjustment must take the ordinance as it finds it. One of the most definite points of cleavage between uses of property is the classification of residence property, on the one side, and business property on the other. The particular ordinance involved in this case is the residence district ordinance, and involved in it is a permissive use of property as an office.

*436“The Board has held that the use to which the petitioner wishes to devote his property is a business use, and therefore not permitted under the ordinances. The Board has also held as a fact that the petitioner’s application is for the construction of an office building, a use and activity not permitted by the ordinance.

“The question this court must now determine is whether or not the Board, in its finding and in its action in denying the permit for those reasons, was within its power and authority, or was not. It seems to me that, in construing the ordinance, especially the use of the word ‘office’ in that ordinance, the Board was confronted with this situation: that if, in their opinion, the applicant was going to use the building as a business office, and if it were permitted, then the Board, in effect, would be eliminating the boundary line between Residence ‘D’ and ‘E’ Zones and Business Zones, and the Board would be immediately flooded with applications for offices of all kinds, some business and some not, and having permitted one building to be used as a business office, it would be difficult for it, on the next application, to deny a similar use.

“In my judgment, the activity of the petitioner here is a business activity. He said he is not in business; he claims he is engaged in an activity serving the people, and that that is not business. One of his counsel said it is, the other said it is not. In my judgment his activity is strictly a business activity; he is in the business of real estate, selling, renting, and so forth. He regards it as a business undoubtedly, and he probably makes a very good living at it. It certainly is a business, and the use to which he intends to devote this property, if permitted to do what he wants to do, is in my judgment a business use. A hotel is a business, of course; and even these other permitted uses in this particular district, as mentioned by the ordinance, such as boarding houses and rooming houses, can be designated as businesses. But the point is, they are definitely and specifi*437cally permitted by the ordinance, and the unqualified use of the word office in the ordinance does not necessarily mean that any office should be permitted.

“It seems to me, in this case, that where the evidence before the Board, by way of application, testimony and statements, showed that the use to which the applicant wished to devote his property, while permitted on the face of it, was also certain to result in a use which was not permitted, then the Board had the right to construe that ordinance as it did here.

“Counsel says that an office building is one that is divided into various suites of offices, and that this is simply one building to be used by one company; therefore, it is not an office building in the true sense of the word. If that argument is carried to a logical conclusion, then a large corporation, having two or three hundred people in its office, could construct a building with enough offices to house its entire office force, and because it was not divided into various suites for rental to the general public, it would not be an office building. I think that particular argument, as to that feature' of the case, is not tenable.

“In my judgment the action of the Board in this case must be approved and affirmed in all respects. The net result of granting this permit, as I see the evidence which was before the Board at the time it acted on this application, would have been the granting of a permit to conduct a business from an office building in a Residence ‘D’ zone, which clearly was not authorized by the ordinance. The action of the Board in denying the application for variation was clearly within the discretion of the Board, and whether it is in the issues here or not, whether petitioner claims an abuse of discretion or not, the Board’s conduct and action in denying that application was, in my judgment, justified and should be and is affirmed.

“The rule to show cause why the permit should not issue is discharged. The petition for writ of mandamus *438directed to the Building Inspector, requiring him to issue the permit, is denied and the petition dismissed. The action of the Board of Adjustment generally, in connection with the application of the petitioner here, is approved and affirmed in all respects.”'

I am firmly of the opinion that the judgment of the trial court should be in all respects affirmed.

Mr. Justice Jackson and Mr. Justice Alter concur in this dissent.