Neighbors file suit against RedPeak, City Council

Some opponents of the proposed RedPeak development in West Highland have filed a lawsuit to try to stop it.

Ten neighbors of the proposed trio of buildings in the heart of the trendy West Highland neighborhood have filed a lawsuit against the Denver City Council, the owners of the properties and RedPeak Properties. The $30 million to $35 million, energy-efficient development will have 147 units.

“The Highland group wants to prevent these high-rises – high-rises being five-story buildings –  from being built in West Highland,” one of the group’s lawyers, Curtis R. Henry, of Littleton, told InsideRealEstateNews late Friday.

“They believe it is contrary to the character of the neighborhood.”

Most industry standards do not consider five-story buildings high-rises.

The suit, filed in Denver District Court, also said that the U-MS-5 zoning approved by the council in June 2010 will reduce property values of nearby homes.

RedPeak is proposing five-story apartment buildings on Lowell Boulevard and Meade Street, just north of West 32nd Avenue and a four-story building on West Moncrieff Place.

The lawsuit does not ask for a specific reduction in the number of stories on the respective buildings.

“It would be difficult to say what would be acceptable,” Henry said. “It is a diverse group. It would be difficult for me to summarize the group’s feelings as a whole. There are a lot of different opinions. There are differences of opinions on what the parameters should be.”

Hard to fight City Hall

He did say it is an uphill battle fighting city hall, so to speak.

“If you are asking me the possibility of success, it is probably 49 percent or less,” Henry said. “It is less likely, rather than more likely that it will succeed. But who knows? I would call it a battle.”

Neither the Denver City Attorney’s office nor RedPeak officials immediately returned calls to InsideRealEstateNews. Other defendants in the lawsuit included the limited liability companies that own the properties and are headed by Thomas Wootten, as well as Robert E. Sechler, who owns a building along Lowell Boulevard, adjacent to the Moncrieff parcel that RedPeak plans to buy.

Michael Zoellner, president of RedPeak, has 20 days to respond to the summons, which was filed on April 27.

A hearing likely would be set about three months after the response, “and the court will decide who is right,” Henry said.

Asked what happens if RedPeak starts demolition and construction before a hearing is set, Henry said: “That is putting the cart before the horse. We would cross that bridge if it comes to that.”

Construction is slated to begin this summer. RedPeak plans to preserve the main part of the church on Lowell.

Lawsuit costly

The No High Rises in West Highland, a grassroots group that opposes the development said on its website that it was important to “keep a low profile,” on the suit that is “requesting judicial review of the flawed zoning near Highland Square. After months of preparation and consulting some of the biggest names in land use law, we are confident of the merits of our case. But fighting City Hall won’t be cheap,” and is asking opponents of the apartment development to donate money. On Thursday, it held a meeting to discuss the fund-raising campaign.

This marks the biggest development in its fight against RedPeak since neighbors held a protest march at West 32nd Avenue and Lowell Boulevard about three months ago.

Such a legal fight can “cost $100,000, easily” said Daniel Markofsky, a Denver attorney. Markofsky is not involved in the suit, and does not support the No High Rise group. Indeed, he was an opponent to an earlier City Council decision to down-zone much of the Sloan’s Lake area and explored the possibility of suing the city, but decided it was too expensive to pursue.

“Good for them,” Markofsky said about the neighbors who filed the suit. “Denver hasn’t had a big land-use lawsuit for a long time. I expect I will be following this one closely.”

The suit raises a lot of the arguments that opponents have been making for months.

It said the Main Street 5 zoning is defined as applying primarily to “collector or arterial street corridors, or may be embedded within a larger commercial shopping center or mixed-use area, where a building scale of 1 to 5 stories is desired.”

The suit goes on to say the U-MS-5 zoning does not conform with the Blueprint Denver plan adopted by the City Council in 2002. Blueprint Denver, it notes, designates the West Highland neighborhood as an “area of stability,” where limited change is expected during the next 20 years.

It said the parcels in question should provide a transition from the single-family residential homes to the north to the businesses along West 32nd Avenue to the south. The suit  notes that West 32nd Avenue that is near the proposed RedPeak parcels has been rezoned to U-MS-3, permitting three-story buildings.

”Therefore, properties which lie along 32nd Avenue a more heavily travelled business-oriented collector street – were zoned with a lower height limit and lower density than the Property, which is served primarily by local streets and is adjacent to a single family residential neighborhood,” according to the suit.

The suit said that the zoning to U-MS-5 was “intended to benefit, and does in fact benefit,” Wootten’s ownership groups and RedPeak.

“City Council’s decision to rezone the Property to U-MS-5 was not made with the purpose of furthering a comprehensive zoning plan and was designed to relieve the Property from generally applicable, more restrictive zoning regulations,” the suit goes on to say. “The U-MS-5 zoning for the Property negatively impacts Plaintiffs’ properties and other properties in the area, by, among other matters, reducing property values.”

Spot zoning alleged

The suit contends the ordinance approved by the council to change the zoning was “arbitrary, erroneous and not a proper exercise of the police power as applied to the Property because it was not intended to further a comprehensive general zoning plan and as a result created an impermissible spot zoning.”

The suit said the ordinance should be reversed and “remand the matter to City Council for rezoning of the Property consistent with the provisions of Blueprint Denver and in conformity with surrounding properties.”

Earlier, Susan Shepherd, the city councilwoman who represents the district, decided not to seek a downzoning of the properties, saying she had no support from other council members and it would be a waste of scarce city dollars to pursue a cause that had no chance of succeeding. Also, seeking a downzoning would jeopardize concessions that RedPeak has voluntarily agreed to, such as lowering the number of floors on the Moncrieff property to four from the five floors allowed under the zoning,  she said.

Opponents, however, insist that RedPeak is not truly providing any concessions, but is acting in its own financial interest by reducing the size of the Moncrieff building. Some opponents have said that Zoellner has said RedPeak can get higher rents by having better views of downtown from the Lowell building. RedPeak officials, however, said they might be able to get $25 extra a month for a handful of units on Lowell, which pales compared to getting $1,000 to $2,000 a month on units on an additional floor on Moncrieff.

Many of the neighbors who filed the lawsuit have been active in the No High Rise group. Four of them live on Meade Street, three on West Moncrieff Place and one on Lowell Boulevard.

The plaintiffs who filed the lawsuit are Peter Brey, Don Fowler, Dennis and Lynn Keane, Todd Lilienthal, Bea Lopez, Christine Manesis, Gail and Richard Montoya, and Victoria Rozales.

Have a story idea or real estate tip? Contact John Rebchook at JRCHOOK@gmail.com. InsideRealEstateNews.com is sponsored by Universal Lending, Land Title Guarantee and 8z Real Estate.

< class="related_post_title">Related Posts:

• Shepherd: Warrior for civility
• Support letter for Shepherd
• Post editorial supports RedPeak
• Building height doubled at church site
• Shepherd likely to seek downzoning