ELR Citation: ELR 20365
No(s). 25737 (Colo. Apr 23, 1973)

The Colorado Supreme Court vacates a permanent injunction against further quarrying activity on property zoned for such use and reverses a lower court's ruling that such activity constitutes a public and private nuisance. The court holds that a use by right which is permitted under legislative zoning authority may not be declared a public nuisance, and that the proper method for prohibiting such activities is to amend the zoning regulations. The court also rules that there is insufficient evidence to support the finding of private nuisance since the actual quarrying operation has not yet begun. The court notes that if these activities, once undertaken, should prove a substantial invasion of plaintiffs' rights as homeowners approximately one mile from the quarry, a new action seeking injunctive relief on the basis of private nuisance would not be barred by this decision. Two injustices concur in the result but do not join in the holding that under no circumstances can courts enjoin a legislatively permitted public nuisance.

A dissent argues that the public's health, welfare, and right to a decent environment transcend the right to engage in a zone permitted business, and that where such a business is conducted so as to injure those public rights, it becomes a public nuisance subject to control by the courts. For the lower court's opinion, see 2 ELR 20347.

Counsel for Plaintiffs
Howard Morrison
Bennett, Heinicke, Morrison & Holloway
Lawyers' Building
231 E. Vermijo Avenue
Colorado Springs, CO 80903

Counsel for Defendant
Paul V. Evans
Evans, Peterson, Torbet & Briggs
Mining Exchange Building
Colorado Springs, CO 80902

Don H. Sherwood
Paul J. Schlauch
Dawson, Nagel, Sherman & Howard
1900 First National Bank Building
Denver, CO 80202

Counsel for Amicus Curiae Sierra Club
Phillip A. Kendall
430 North Tejon Street
Colorado Springs, CO 80902

Counsel for Amicus Curiae Springs Area Beautiful Association
Daniel P. Edwards
Cole, Hecox, Tolley, Edwards & Hero
3 South Tejon Street
Colorado Springs, CO 80901