Judicial Review, Referral and Initiation of Zoning Decisions
| Publication year | 1984 |
| Pages | 387 |
1984, March, Pg. 387. Judicial Review, Referral and Initiation of Zoning Decisions
In 1926 the United States Supreme Court upheld the constitutional authority of local governments to regulate the use of private property through zoning restrictions in the seminal case of Euclid v. Ambler Realty Co.(fn1) Notwithstanding that decision, the courts of this nation have been literally flooded with pleas to overturn zoning and other land use decisions.
In Colorado, as the population continues to grow, it can be expected that zoning and land use disputes will become more frequent. Landowners and developers will seek to put property to its most profitable use, while their neighbors will often want to limit growth or changes they perceive as threatening to their "quality of life" or property values. As a result, lawyers throughout Colorado will often be called upon by persons seeking legal advice on how to alter the present zoning scheme or how to overturn a zoning decision made by the local governing body.
Recently, in Margolis v. District Court,(fn2) the Colorado Supreme Court opened up a new and significant avenue of relief for persons wishing to challenge zoning decisions. The court held that zoning and rezoning decisions are subject to the constitutionally reserved powers of initiative and referendum, in addition to judicial review.(fn3) As a result, all municipal zoning actions may now be enacted or repealed by popular vote.
This article summarizes the various remedies available to Colorado lawyers in the zoning and land use arena. First, the traditional methods of judicial review of zoning decisions in Colorado are outlined. Second, the use of the initiative and referendum powers to enact or repeal zoning actions is discussed, including the effect of the Margolis decision. Finally, the various forms of review of zoning and other land use decisions currently available are identified.
Zoning is the classification of land by district, regulating the allowable buildings and uses. Zoning classification is an exercise of the police power delegated by the state to municipalities and counties.(fn4) The power can be utilized by municipalities within their boundaries and by counties in unincorporated areas. Typically, a municipality or county adopts a comprehensive or general zoning plan or map classifying large portions, if not all, of its territory by district. Newly annexed municipal lands are also initially classified. Rezonings, or changes in the zoning map, may be made either by the zoning authority acting upon its own initiative or upon application by a landowner or developer.
In analyzing judicial review of a zoning or rezoning classification, it is important to distinguish the "method of review" from the "scope of review." The method or form of review refers to the procedure used by the courts to undertake their inquiry. Typically, this is either a review of the record made before the zoning body pursuant to Colorado Rules of Civil Procedure ("C.R.C.P.") Rule 106(a)(4) (certiorari review) or by a trial de novo.
The scope of review refers to the standard under which the courts review judicial or legislative decisions or enactments. Local legislative decisions are upheld unless they are unconstitutional or are beyond the scope of the authority delegated by the state.(fn5) Judicial decisions are subject to additional scrutiny to determine if they constitute an abuse of discretion or are in excess of jurisdiction.(fn6) Therefore, the scope of review of action characterized as judicial or quasi-judicial is more comprehensive than review of a decision characterized as legislative.(fn7)
Originally, in Colorado all zoning actions, whether initial classifications or rezonings, were characterized by the courts as legislative enactments.(fn8) As legislation, the scope or standard of constitutional review was that zoning actions were upheld unless proven not to be substantially related to the public health, safety or welfare or unless they resulted in a deprivation of any reasonable use of the property.(fn9)
A variety of methods of judicial review were utilized, including declaratory relief,(fn10) certiorari review,(fn11) mandamus(fn12) and injunction.(fn13) Certiorari review was allowed over objection,(fn14) although earlier it had been restricted solely to review of adjudicative or judicial acts.(fn15)
On occasion, zoning decisions were judicially reviewed by both certiorari and declaratory relief in the same action.
In Snyder v. Lakewood,(fn17) the Colorado Supreme Court announced that certiorari review pursuant to C.R.C.P. Rule 106(a)(4) was the exclusive method to obtain judicial review of a rezoning decision. In Snyder, the plaintiff's failed to file their certiorari action challenging the rezoning within thirty days as required by C.R.C.P. Rule 106(b). The district court dismissed for failure to join an indispensable party, the applicant-landowner.(fn18) Thereafter, the plaintiff's filed an amended complaint, joining the applicant-landowner as a defendant, and included claims for declaratory and injunctive relief, as well as certiorari. The trial court dismissed the certiorari claim, but allowed a trial de novo on the injunctive and declaratory relief claims.
On appeal, the Supreme Court held that the rezoning decision was a quasi-judicial act. It based this holding on a test announced previously: a quasi-judicial decision is one made under a state or local statute requiring notice, hearing and the application of certain criteria to the facts of the specific case.(fn19) Since Lakewood was a statutory city, the court relied on the Colorado statute governing municipal zoning, CRS § 31-23-301 et seq., as meeting these requirements.
The court then announced that because rezoning was a quasi-judicial act, the exclusive method of judicial review was by a review of the record made before the zoning authority. In so ruling, the court distinguished between an enactment of a general zoning ordinance and a rezoning decision. A general or comprehensive zoning ordinance is "a general rule or policy which is applicable to an open class of individuals, interests, or situations" and is therefore legislation subject as such to declaratory review. However, a rezoning determination is made by applying a general rule or policy to specific individuals, interests or situations. Thus, a rezoning decision is quasi-judicial and is properly the subject of judicial review on the record pursuant to C.R.C.P. Rule 106(a)-(4).(fn20)
In categorizing certain rezoning actions as quasi-judicial rather than legislative, the court relied heavily on two cases which had made the same distinction: Fasano v. Board of County Commissioners(fn21) and Fleming v. Tacoma.(fn22) However, in these cases, the Oregon and Washington Supreme Courts, respectively, made the distinction in order to expand the scope of judicial review, not to restrict the method of judicial review.(fn23)
In making certiorari the exclusive method of judicial review of a rezoning determination, the Supreme Court in Snyder prevented a dilatory plaintiff from skirting the procedural time limit contained in C.R.C.P. Rule 106(b) simply by bringing an action for declaratory or injunctive relief pursuant to C.R.C.P. Rules 57 and 65.(fn24) The court reasoned that it was good public policy to require that all claims resulting from a rezoning, including those of a constitutional nature, be filed within thirty days of the decision and litigated in one action.(fn25) In Margolis,(fn26) the Snyder characterization of rezoning as quasi-judicial was held not to be applicable when determining the availability of initiative or referendum. However, the rules set out in Snyder remain good law when seeking judicial review of any zoning decision.
In 1910, the voters of Colorado adopted an amendment to the Colorado Constitution reserving to themselves the right to enact or repeal legislation by popular vote. These powers, called initiative and referendum respectively, are applicable to state legislation and to "all local, special and municipal legislation of every character."(fn27)
As reservations of power by the people, the right to initiative and referendum must be liberally interpreted in favor of the right of the people to exercise it. Conversely, limitations on the right to initiative and referendum must be strictly construed.(fn28)
The maximum number of signatures that may be required to order a referendum on municipal legislation is 10 percent of the registered electors. No more than 15 percent of the registered voters may be required to propose municipal legislation by initiative.(fn29)
The procedures by which the initiative and referendum powers are exercised in statutory cities and towns is set forth in CRS § 1-40-101 et seq. This statutory scheme is co-extensive with the...
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