Opinion
Rehearing Denied July 16, 1974.
Page 1178
Edward B. Towey, Denver, for plaintiff-appellee.
Orrell A. Daniel, City Atty., Leonard H. McCain, Edward A. Brown, Asst. City Atty., Brighton, for defendants-appellants.
COYTE, Judge.
Defendants appeal a judgment in a C.R.C.P. 106 proceeding of the district court requiring that a liquor license be issued plaintiff.
Plaintiff filed an application for the issuance to her of a three-way liquor license for use in the improvements to be constructed on premises owned by plaintiff and her husband in Thornton, Colorado. At the time she filed her application she submitted a plot plan for the development of six acres of land, a plan for a preliminary development, and a plan for the main floor of the improvements to be constructed on said land. At the hearing before the city council, plaintiff presented a colored preliminary development plan of the six-acre tract and a preliminary development plan of the restaurant and lounge to be constructed, prepared by her architect. However, there were no specifications submitted either prior to the hearing nor during the hearing. At the conclusion of the hearing, the matter was taken under advisement.
When the council next met on the application, plaintiff's attorney requested that the council postpone its decision until the council could let plaintiff know the kind of plans it desired. Nevertheless, the council then issued its decision denying the application both on a lack of need and on the failure of plaintiff to file complete plans and specifications for the proposed structure.
C.R.S. 1963, 75--2--40(3), provides as follows:
'The applicant shall file at the time of the application complete plans and specifications for the interior of the building if the building to be occupied is in existence at the time. If the building is not in existence, the applicant shall, in addition to the plans and specifications for the interior, submit an architect's drawing of the building to be constructed.'
This statute has been interpreted twice by our Supreme Court. First, in City of Aurora v. Morris, 160 Colo. 289, 417 P.2d 7, the court held that where no plans and specifications of the interior or drawings of the contemplated structure had accompanied the application as required by the above statute that:
'The lack of these items, mandatorily directed to be filed with the application, is a substantial one.'
On that basis, it reversed the trial court which had directed that the application be granted. Next, in Goehring v. Board of County Commissioners, 172 Colo. 1, 469 P.2d 137, an application was submitted for a license to be granted in a presently existing structure. There the applicant failed to file with the board plans and specifications for the interior of the building. However, in Goehring the court held that:
'There is no statutory prohibition against amending an application or supplying a deficiency prior to the consideration of the application. In this case, the hearing proceeded with the necessary plans and specifications. The building proposed to be used was already in existence. An architect's drawing of the building is therefore not a requirement of C.R.S. 1963, 75--2--40.'
The determination as to the adequacy of the plans and specifications filed with the licensing authority presents a factual issue to be determined by the licensing authority. The plans and specifications required to be be filed with the board must be sufficiently detailed so that a building permit could be issued by the proper department of the governmental agency which is requested to grant the application.
In the instant case there were no specifications filed either at the time the application was filed or at any time up to and through the time of the hearing held before the town board. There was thus a fatal defect in the application. Hence, the board properly denied the license, and the district court erred in ordering that the license be granted.
The city also challenges the finding of the trial court as to the needs of the inhabitants who live in the vicinity of the proposed outlet. In view of our ruling on the failure to file specifications of the proposed outlet, we will not discuss this issue.
It should be pointed out that a controversy arose in the trial court as to whether a city official had improperly advised plaintiff's husband as to the adequacy of the drawings filed with the city. The court allowed evidence to be submitted to it on this issue. This was improper. The district court, as well as this court, is limited in its review to the record presented to it. Thus, if the court deemed it necessary to have evidence submitted, it should have remanded the case back to the city council for hearing and determination of that issue. Geer v. Hall, 138 Colo. 384, 333 P.2d 1040.
It should also be pointed out that counsel in their brief refer to sections of the Uniform Building Code of the City of Thornton. If a party relies on an ordinance, it must be made a part of the record. As stated in Rinn v. Boulder, 131 Colo. 243, 280 P.2d 1111:
'(We) cannot accept the recitation contained in the briefs of counsel concerning the nature of municipal ordinances as evidence of the existence thereof. We cannot take judicial notice of such ordinances, and, if material to a controversy, they must be made a part of the record, either by proof thereof or by stipulation of counsel.'
Judgment reversed and cause remanded with directions to dismiss plaintiff's complaint.
SILVERSTEIN, C.J., and ENOCH, J., concur.