Opinion
Nov. 16, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Delaney & Balcomb, Edward Mulhall, Jr., Robert C. Cutter, Glenwood Springs, for plaintiff-appellant.
Clark, Wendt, Oates & Austin, Ronald D. Austin, Aspen, for defendant-appellee.
SILVERSTEIN, Chief Judge.
This is an action to determine the validity of a building permit issued by the City of Aspen, Colorado. It was brought by appellant, Kiefer, who asked that the permit, issued to appellee, Luhnow, be declared to be invalid and that Luhnow be required to remove the structure built pursuant to the permit. After a trial to the court, a judgment was entered declaring the permit to be valid. Kiefer appeals from this judgment. We affirm.
The pertinent facts are undisputed. Luhnow planned to build a six unit apartment building on land he owned. He applied for a building permit which was denied because the building lot did not have adequate frontage on the street. Luhnow then applied for a variance, which was denied by the Planning and Zoning Commission. He appealed this ruling to the Aspen Board of Adjustment.
The matter was set for hearing before that board and notice was duly served and published. On the date set for the hearing a quorum of the board was lacking. The board announced that no decision could be made but that it would proceed with the hearing. Luhnow and Kiefer both were represented and presented their cases for and against the variance. The hearing was then continued for three days.
When the hearing was reconvened Luhnow presented a new plan for the building. This new plan showed the apartment building as an addition to an existing building on lots owned by Luhnow which were contiguous to the lots on which the proposed structure was to be built. Under this plan the building site included all the lots on which the existing building stood and gave adequate frontage to comply with the ordinance. Although there was still not a quorum of the board present at the second meeting, those present determined that a variance was not needed, and Luhnow thereupon withdrew his petition.
Two days later Luhnow submitted his amended plans to the Planning and Zoning Commission which reviewed the plans, found the ordinance requirements had been met, and recommended approval to the building inspector who then issued the permit. Luhnow promptly began construction, and two weeks later Kiefer commenced this action.
Kiefer claims that the permit is invalid because the Planning and Zoning Commission abused its discretion in approving the amended plan because approval was given before the plan had been on file for thirty days as required by the ordinance, and because approval of the plan was based on a 'determination' of the Board of Adjustment which was void because made without a quorum present. Further, he urges that the zoning ordinance requires rectangular lots and claims that any other configuration of a building site (as here) requires a variance. The trial court found these claims to be without merit and we concur.
The only factual dispute was whether the new building was an addition to the existing one. The record fully supports the trial court's finding that the 'new building is an addition physically attached to the (existing building) and as such is a part of the overall * * * development.' The record also supports the trial court's conclusion that the addition to the existing structure 'complies with all requirements of the zoning code of the City of Aspen.' This being true Luhnow was entitled to his building permit.
The requirement of the ordinance that plans be on file for thirty days before granting a permit is solely for the benefit of the building a inspector and the planning and zoning commission to enable them time to determine if all requirements of the ordinance are met. No notice to adjoining landowners is required unless a variance is sought. Here the inspector and commission had ample time to make a determination and had the right to waive the thirty day requirement where the amendment did not alter the original plans except as to delineation of the building lot area.
The zoning ordinance does not require rectangular building sites. Such a construction would be strained and would violate the rule of construction which requires that zoning ordinances be construed in favor of the right of a property owner to an unrestricted use of his property. Jones v. Board of Adjustment, 119 Colo. 420, 204 P.2d 560.
The trial court correctly followed the rule that, '(a) reviewing court should not lightly find an abuse of discretion where a zoning authority refuses to restrict an owner's use of his property upon the complaint of persons seeking to benefit their own property by imposing restrictions on another's use of his property.' Shumate v. Zimmerman, 166 Colo. 488, 444 P.2d 872.
Judgment affirmed.
COYTE and DWYER, JJ., concur.