Opinion
No. 79CA0668
Decided December 20, 1979. Rehearing denied January 17, 1980. Certiorari granted March 17, 1980.
City appealed from a summary judgment determining that a rezoning ordinance and an amendment to the City's master plan were subject to a referendum election.
Reversed
1. REFERENDUM AND INITIATIVE — Adoption — Rezoning Ordinance — Amendment — Master Plan — Not Legislative Acts — Administrative in Character — Not Subject to Referendum. In contrast to the adoption of a comprehensive zoning plan, neither adoption of a rezoning ordinance nor approval of an amendment to the master plan constitutes a legislative act, but rather such acts are administrative in character; consequently, neither type of action is subject to the referendum power contained in the Colorado constitution.
Appeal from the District Court of Jefferson County, Honorable Winston W. Wolvington, Judge.
Skelton, Oviatt and O'Dell, Jeffrey J. Kahn, for plaintiffs-appellees.
Gorsuch, Kirgis, Campbell, Walker and Grover, John S. Pfeiffer, Robert E. Warren, Jr., Susan K. Griffiths, for defendants-appellants.
The City of Lakewood appeals from a summary judgment determining that a rezoning ordinance and an amendment to the City's master plan are subject to a referendum election. We reverse.
The relevant facts are not in dispute. Lakewood is a statutory non-home-rule city. In April of 1975, the City Planning Commission adopted a master plan which was approved by the City Council. In June of 1978, the Council both adopted an ordinance rezoning certain property in the City, and passed a resolution which amended the master plan.
Plaintiffs timely filed petitions seeking referendum relative to both the ordinance and resolution. The Council refused to accept the petitions, concluding that neither the ordinance nor the resolution were subject to a referendum. Plaintiffs then filed this action seeking a declaratory judgment.
The referendum power contained in the Colo. Const., Art. V., Sec. 1, applies only to acts by the City which are legislative in character. Aurora v. Zwerdlinger, 194 Colo. 192, 571 P.2d 1074 (1977). Conversely, actions by the City which are necessary to carry out existing legislative policies and purposes are deemed to be administrative only. Aurora v. Zwerdlinger, supra.
[1] In the context of zoning, adoption of a comprehensive zoning plan constitutes enactment of the legislative policy of a city. See Greeley v. Ells, 186 Colo. 352, 527 P.2d 538 (1974); Nopro v. Town of Cherry Hills, 180 Colo. 217, 504 P.2d 344 (1972). As to rezoning ordinances, in Snyder v. Lakewood, 189 Colo. 421, 542 P.2d 371 (1975), our Supreme Court stated:
"Although our early decisions viewed the enactment of rezoning ordinances as a legislative function, the more recent decisions have held such activity to be a quasi-judicial function and reviewable under Rule 106(a)(4). In so doing, we have distinguished between the adjudicative process involved in enacting a rezoning ordinance and the legislative process involved in passing the general zoning ordinance." (footnotes omitted)
Thus, it necessarily follows that neither adoption of a rezoning ordinance nor approval of an amendment to the master plan constitutes a legislative act which is subject to the referendum power contained in the Colorado Constitution.
Plaintiffs' reliance on Fort Collins v. Dooney, 178 Colo. 25, 496 P.2d 316 (1972), is misplaced. There, our Supreme Court was concerned only with interpretation of the referendum powers contained in the Fort Collins city charter.
The judgment is reversed and the cause remanded with directions to enter judgment for Lakewood.
JUDGE BERMAN concurs.
JUDGE PIERCE dissents.