Opponents of RedPeak Properties’ proposed development are calling a Denver District Court judge’s decision an important victory in its ongoing battle to stop what it considers irresponsible development in West Highland.
The lawsuit was filed last April by 10 nearby residents to the proposed development north of West 32nd Avenue and Lowell Boulevard in the Highland Square area.
District Court Judge Robert L. McGahey Jr. last Wednesday refused a motion by the defendants to dismiss the lawsuit filed by the neighbors. The case initially had been assigned to Judge Kenneth M. Laff, a former Denver Deputy City attorney. It was not immediately clear why McGahey ruled on the motion and not Laff.
Bill Menezes, who lives near the proposed development and has been an outspoken opponent since neighbors learned about the RedPeak plan about a year ago, compared the judge’s decision to a key Civil War battle.
“The war is not over but this is like the victory at Gettysburg… big turning point that helps fundraising momentum and other support,” Menezes wrote on his Facebook page.
“This is a significant victory for the residents of West Highland,” wrote Laura Goode, founder of No High Rises, on a website. “This ruling enables us to continue in our goal of ensuring responsible, sustainable development at the heart of Historic Highland Square.”
Added Christine Manesis, one of the plaintiffs: “Our hope is that our city will do the right thing and fix the serious zoning flaw. We strive to see a responsible and appropriate project in our neighborhood.”
Conor Farley, a lawyer in the neighborhood who is not representing the plaintiffs, told members of the West Highland Neighborhood Association last Tuesday night that he had reviewed the lawsuit and was confident that the judge would not dismiss it.
That is important because theoretically, if the judge found the lawsuit without merit and dismissed it, the defendants could seek reimbursements of all or part of their legal fees from the plaintiffs, he said.
Following the meeting, the WHNA voted overwhelmingly to join the neighbors as plaintiffs, although they will not be responsible for any legal fees or costs.
The WHNA was not listed as a plaintiff in McGahey’s decision.
The decision by McGahey denies a motion filed on behalf of three defendants: RedPeak; the Denver City Council; and landowner groups headed by Tom Wootten. RedPeak plans to build five-story buildings on Meade Street and Lowell Boulevard and a four-story building on West Moncrieff Place. RedPeak has the properties under contract. The trio of energy-efficient buildings would have a total of 147 units.
“Judgement on the pleadings is appropriate only if the moving party is entitled to judgement as a matter of law,” McGahey wrote in his decision. “In order to grant judgment as a matter of law, there can be no genuine issues to any material fact relating to the adequacy of the complaint.”
In June 2010, the City Council approved an overhaul of the zoning code for the entire city. As part of the massive rezoning, the largest in 50 years, the parcels in questions were zoned to U-MS-5, which allows five-story buildings. The previous R-4 zoning allowed 75-foot tall buildings, the equivalent of about six stories.
Opponents claim that West Highland, and specifically the properties central to this dispute are designated as an “Area of Stability,” under the city’s Blueprint Denver roadmap for development. An area of stability is one in which stable residential areas and associated commercial areas should expect limited change over the next 20 years.
“This case arises from Plaintiff’s claim that the change in zoning constituted (impermissible) spot zoning and negatively impacts Plaintiff’s properties,” McGahey wrote in part of his 1,100-word decision.
McGahey also noted that the plaintiffs claim the spot zoning was to the benefit of the defendant’s properties and to the detriment to their properties. The defendants deny that allegation and said they will “vigorously dispute the suggestion” that the property benefitted from the change in zoning,” the judge noted.
“The standard for determining whether spot zoning has occurred is whether a change in zoning was made with the purpose of furthering a comprehensive zoning plan or was designed merely to relieve a particular property from the restrictions of zoning regulations,” McGahey said in his decision.
Daniel Markofsky, a Denver real estate attorney who is not involved in the case, but who has been following it closely, thinks the neighbors will have a hard time fighting city hall and winning.
“Even if the city changed the designation of these parcels at the last minute – and the facts should all come out in the case – I think it is going to be a tough case to prevail on spot zoning since it was part of the larger rezoning and U-MS-5 covers a fairly large contiguous area,” said, who previously had opposed the city’s decision to downzone much of the area around Sloan’s Lake.
“There are and will also be many examples of single properties being zoned different than adjacent areas because the planners sought to minimize creation of non-conforming parcels.” he said.
McGahey wrote that while the “interpretation of the (zoning) Code is a legal question, there are genuine issues of material fact as to whether or not the change in zoning was made with the purpose of furthering Blueprint Denver and whether Defendants’ property benefitted,” from the zoning change. He noted “all parties shall be given reasonable opportunity to present all materials,” pertinent to the case.
McGahey cited court cases in Arvada and Boulder from the 1970s and Colorado Rules of Civil Procedure backing up the plaintiff’s rights to contest the new zoning.
“Persons who own property in a rezoned area have standing to obtain judicial review of a rezoning decision. Standing also exists for those who own property adjacent to or near the rezoned property and who will be adversely affected by the rezoning…Plaintiffs meet these criteria,” McGahey said in his decision. “Accordingly, I find they have standing.” McGahey also wrote that he has the authority to review the matter.
Markofsky said he expected the judge to rule the way he did.
“I understand the neighbors celebrating it, as they would have been done if they lost it,” Markofsky said. “I would have been surprised if the judge threw the case out at such an early stage. The standard to prevail on a motion for judgement on the pleadings is very high.There is no loss to the defendant in this ruling; it’s just not a victory.”
From a legal perspective, it will be interesting to watch the case unfold, he said.
“I expect to see this case have its day in court. Denver has not seen a major zoning case that I am aware of in years.”
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