Opinion
No. 70-124
Decided June 29, 1971.
Action to review Board of County Commissioners' action in refusing to establish a county housing authority. From district court's holding that it lacked jurisdiction to review the Board's action, appeal was taken.
Affirmed
1. CERTIORARI — County Commissioners — Action — County Housing Authority — Legislative — Not Reviewable. Following petition for creation of County Housing Authority pursuant to C.R.S. 1963, 69-6-3, the action of Board of County Commissioners in finding that no shortage of decent, safe, and sanitary dwelling accommodations existed in county was the exercise of a legislative directive and was not a quasi-judicial proceeding reviewable under R.C.P. Colo. 106.
Error to the District Court of Adams County, Honorable Oyer G. Leary, Judge.
Peter H. Ney, for plaintiffs in error.
David Berger, for defendants in error.
Plaintiffs in error (petitioners) initiated this action under R.C.P. Colo. 106, by a complaint alleging: that pursuant to C.R.S. 1963, 69-6-3, more than the required number of residents of Adams County had filed petitions setting forth that there was a need for a county housing authority to function in that county; that on March 12, 1969, the County Commissioners of Adams County held a public hearing to determine if such a need for a housing authority existed in Adams County; and that at this hearing uncontroverted evidence and testimony was presented which uniformly supported the position set forth in the petitions.
The complaint was later amended to include an allegation that following the public hearing, the Board had passed an arbitrary and capricious resolution declaring that no shortage of decent, safe, and sanitary dwelling accommodations existed within the county and that therefore no county housing authority would be established.
Petitioners thereafter submitted a motion for leave to file a second amended complaint which, among other things, alleged that a second petition had been filed requesting identical relief, and that after a public hearing on October 20, 1969, the Board again adopted a resolution finding there was no such shortage. Petitioners allege that the findings in this resolution were arbitrary, capricious, and not supported by the evidence.
At a hearing upon petitioners' motion, the district court held that it lacked jurisdiction to proceed in the case under R.C.P. Colo. 106. It concluded that the actions of the County Commissioners and proceedings under the County Housing Authority Act, as amended, were a proper exercise of the Board's legislative function; that they were not in any manner a conduct of administrative proceeding or judicial or quasi-judicial function; and that they were therefore not reviewable by the court.
C.R.S. 1963, 69-6-3 sets forth the procedure by which county housing authorities may be created. It provides that upon the filing of a petition by 25 residents of the county, stating that there is a need for a housing authority to function in the county, a public hearing before the Board of County Commissioners shall be held. After such hearing, the Board must determine whether there is a shortage of decent, safe and sanitary dwellings available to low income families. If such a shortage is found to exist, a resolution to that effect must be adopted and the establishment of a county housing authority is required. If the shortage is not found to exist, the petition is to be denied by resolution.
[1] Reviewing the above statute and numerous authorities, we have concluded that the fact-finding function of the Board of County Commissioners under C.R.S. 1963, 69-6-3, was the exercise of a legislative directive and not a quasi-judicial proceeding reviewable under R.C.P. Colo. 106.
We cannot agree with the petitioners' contention that the function of the Board of County Commissioners under the Act was quasi-judicial. In Ferch v. Housing Authority, 59 N.W.2d 849 (N. Dak.), it was held that the function of such a Board under a similar statute was legislative in nature, and it was stated that:
"The legislature determined by section 23-1103 NDRC 1943 the method of activating the housing authority created by section 23-1102 NDRC 1943. It delegated to the governing body of a city or county the finding of the facts necessary for the activation of the housing authority. That body finds the facts but passes no judgment thereon. It is given no judicial power. Then by section 23-1104 NDRC 1943 the legislature declared that, on the proof of the adoption of the resolution containing the finding of the facts necessary under section 23-1102 NDRC 1943 for the activation of the authority, the authority shall be conclusively deemed to have been established and authorized to transact business. The legislature declared that the proof of the resolution conclusively presumed that the necessary facts were found by the governing body."
See Mumpower v. Housing Authority, 11 S.E.2d 732.
The propriety of our holding is further confirmed by a recent enactment of the Colorado legislature amending the County Housing Authority Act to provide for a referendum vote in the county if the Board of County Commissioners denies any petition for the creation of a housing authority. 1965 Perm. Supp., C.R.S. 1963, 69-6-3(5). It is generally held that when the people are given the right to accept or reject a police regulation it is a legislative rather than a quasi-judicial or administrative power that is involved. Housing Authority v. Superior Court, 219 P.2d 457; Bowman v. State Entomologist, 128 Va. 351, 105 S.E. 141.
For the reasons set forth above, we hold that the district court properly determined that the function of the Board of County Commissioners under C.R.S. 1963, 69-6-3 was legislative in nature, and that it had no jurisdiction to review the Board's determination under R.C.P. Colo. 106.
Judgment affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE DWYER concur.