Board of Adjustment of Adams County v. Iwerks , 135 Colo. 578 ( 1957 )

Mr. Justice Day

delivered the opinion of the Court.

This action, instituted in the trial court by defendants in error who were the petitioners below, was in the nature of certiorari. The parties will be referred to as they appeared in the trial court or by name. Plaintiffs in error were the respondents.

Petitioners sought review in the trial court of the action of respondent Board of Adjustment of Adams County in granting a permit to the Inland Construction Company to operate an aggregate plant and commercial gravel pits in a district zoned as Agricultural Two. The complaint refers to a hearing before the Board on June 16, 1955, a denial of the permit at that time and the subsequent issuing of the permit on November 15, 1955. The complaint is devoted entirely to attacking the validity of the proceedings of the Board on those two dates. The court ordered the Board of Adjustment to certify a full transcript of the records, evidence, proceedings and orders of the respondent Board of Adjustment relative to said proceedings.

Inland Construction Company is one of the respondents. It answered the complaint and alleged as a second affirmative defense that the matters set forth in the complaint are moot “for the reason that all of the Priola and Tani (formerly Kash) properties lying East of the Union Pacific Railroad right-of-way, from which the respondent, Inland Construction Company, proposes to extract sand, gravel and aggregate in the County of Adams, State of Colorado, under a temporary permit granted by the Board of Adjustment of Adams County, is now located with other property to the North thereof, in an INDUSTRIAL ONE ZONING DISTRICT.”

Although the trial court limited its consideration to a review of the proceedings of the County Board of Adjustment in June and November of 1955, it received in evidence a certification by the county clerk and recorder of the passage of a rezoning resolution adopted by the Board of County Commissioners on January 9, 1956. By this resolution all of the property involved in the original application for permit was, on that date, rezoned from Agricultural Two to Industrial One. The complaint was filed on February 6, 1956, approximately one month after the property was rezoned by the Board of County Commissioners. Whether building permits or special permits were or were not issued by the Building Department, or whether authority to proceed should or should not be obtained under the rezoning presented new and different issues which were not before the court, and merely emphasize the mootness of the complaint in the nature of certiorari.

The trial court in its findings of fact and conclusions of law devoted both findings and conclusions to a review of the action of the Board of Adjustment prior to the rezoning. It paid no attention to the fact that the property had been rezoned, and set aside and held for naught the original action of the Board of Adjustment. Since the court limited the suit and its inquiry to a review of the action of the Board of Adjustment in granting a variance, there was no opportunity to present to the court the issue as to whether the Inland Construction Company was or was not conducting its operation in violation of the new zoning or whether it had or did not have building permits or special permits or other indicia of authority. No issue was framed by the pleadings on those points. Respondent Inland Construction Company seeks reversal of the judgment of the trial court on the grounds that the matters alleged in the complaint, upon which the trial court based its findings of fact and conclusions of law, are moot. They are.

Whether the Board of Adjustment in the original proceedings in June and November of 1955 exceeded its authority in granting the permit complained of, or whether a variance of the use granted by the Board of Adjustment for gravel operations in an agricultural zone is permissible, need not be determined in view of the conclusion we reach. The new enactments of the Board of County Commissioners reclassifying the property, renders the controversy presented by the complaint in this case moot. Consequently a determination by this court as to the validity of the acts of the Board of Adjustment in this case would serve no useful purpose. Almost a month prior to the filing of the complaint in this case the situation had so materially changed due to rezoning after the issuance of the original permit that the trial court had nothing before it for determination; it was wrestling with a legal problem that was still-born at the time the action was filed. If petitioners now contend that the County Commissioners — the law-making body of the county — have no right to rezone the property; or in that rezoning the procedure was not in accordance with the law; or that some other action must be taken by another department, to-wit, the County Building Department; all of these issues are entirely new and wholly outside of the issue in the action before the trial court. They cannot be raised in this court for the first time. An opinion on the propriety of the action of the Board of Adjustment at this time would be advisory only. -

In Cliff v. Bilett, 125 Colo. 138, 241 P. (2d) 437, this court had a similar situation under consideration. The facts differed, however, in that the new ordinance was passed by City Council in the City and County of Denver while the action was pending on error in this court. In holding that the new ordinance rendered the questions then before the court moot, the court said:

“The motion to dismiss is renewed by counsel for defendants in error in their briefs and urged as determinative of this proceeding, with the assertion that the questions presented in the instant case have become moot because the Board of Adjustment, under the amended ordinance, had full authority to grant variance, and no request for a writ in the nature of certiorari having been made after the second application was granted, and the structure and parking lot having been completed, the questions here involved have become abstract. This contention is sound and determinative of the case.” (Emphasis supplied.)

If an ordinance passed while an action is pending on error renders the question before this court moot, it is certain that a new zoning resolution adopted by the Board of County Commissioners even before the action is commenced renders the original action moot. Holding as we do that the action before the lower court and the proceedings on error before this court are on questions that are now moot, the judgment of the trial court is reversed and the cause is remanded with directions to dismiss the complaint.

On petition for rehearing, the original opinion, as modified herein, is adhered to and the petition for rehearing is denied.

- Mr. Justice Frantz dissents.