Opinion
Rehearing Denied Jan. 9, 1973.
Page 1239
Henry, Cockrell, Quinn &Creighton, Thomas E. Creighton, Peter J. Wiebe, Jr., Denver, for plaintiffs-appellees.
Leland S. Huttner, P.C., Denver, for defendant-appellant.
DWYER, Judge.
In this action for breach of contract for construction of a house, the plaintiffs, owners, recovered a judgment against the defendant builder, Prime Homes, Inc. Defendant has appealed. We affirm.
The builder agreed to construct a house on the owners' lot located in the City of Denver in accordance with plans and specifications contained in a written contract. The builder was authorized by the contract to select the precise location of the house within the boundaries of plaintiffs' lot. The owners paid the down payment required by the contract, and the builder prepared the site, obtained a building permit, and started construction work. After the foundation was built, the builder was notified by the Zoning Department of the City that the building, if constructed on the foundation which had been laid, would be in violation of a provision of the municipal code restricting the bulk of structures. The builder asked the owners to apply to the Board of Adjustment for a 'variance' which would permit the completion of the house on the existing foundation. The owners refused to seek the variance. The builder refused to relocate the foundation and did no further construction work. The owners then brought this action and recovered judgment for the amount of their down payment and for other damages they had sustained as a result of the builder's failure to complete the contract.
On this appeal, the builder contends that the owners' refusal to seek a variance was a breach of contract which relieved the builder of its contractual obligation to erect the house.
A builder, in performing his contract, is required to construct the building in compliance with applicable zoning ordinances. Gutowski v. Crystal Homes, Inc., 26 Ill.App.2d 269, 167 N.E.2d 422. See also Carpenter v. Donohoe, 154 Colo. 78, 388 P.2d 399.
Construction of the house on the existing foundation would have resulted in a structure almost nine feet higher than the maximum height permitted by the ordinance. The builder, by moving the foundation at a cost of $3,000, could have built the house in compliance with the ordinance. Under these circumstances, the court properly found that the owners had no duty to seek a variance. Their refusal to seek the variance was not a breach of the contract and did not excuse the builder's failure to build the house in compliance with the contract.
Judgment affirmed.
COYTE and PIERCE, JJ., concur.