Members of the West Highland Neighborhood Association on Tuesday night overwhelmingly voted to join a lawsuit against RedPeak Properties.
The WHNA, however, has been assured that it will assume no legal liability or costs as plaintiffs in the lawsuit.
Ten neighbors in the West Highland neighborhood on April 27 filed a lawsuit in Denver District Court to try to stop Denver-based RedPeak’s plan to develop three buildings in the heart of the Highland Square area at Lowell Boulevard and West 32nd Avenue. Buildings on Meade Street and Lowell would have five stories and one on West Moncrieff Place would have four stories.
The lawsuit also names an investment group headed by Tom Wootten, which owns the three parcels that RedPeak has under contract and the Denver City Council as defendants.
The defendants have asked to have the lawsuit dismissed. The plaintiffs responded to why it believes their lawsuit should not be dismissed and the defendants responded to that motion. Now, it is in the hands of Denver District Court Judge Kenneth Laff, who has been on the bench for almost three years and is a former deputy attorney for Denver.
Marilyn Quinn, a neighbor who helped spearhead the WHNA’s involvement, but is not a plaintiff, said she has seen language from the plaintiff’s lawyers assuring that they will not seek any payments from the WHNA. Last week, Quinn addressed members of the grassroots group, No High Rises in West Highland, which was formed about a year ago to fight RedPeak’s current plan. The group has raised “tens of thousands” in non-deductible donated dollars, according to its founder, Laura Goode, to fight RedPeak. Last February, No High Rises held a protest at Lowell and 32nd against RedPeak. Many members of No High Rises also are members of the WHNA.
However, perhaps the biggest potential financial liability to the WHNA is not legal fees to the plaintiff’s lawyers, but if Laff dismisses the lawsuit and the defendants seek to be reimbursed for their legal fees by the losing side.
Conor F. Farley, a lawyer who lives in the neighborhood, said he thinks it is extremely unlikely the judge will dismiss the lawsuit.
Farley, who is “of counsel” with Holland & Hart and emphasized he is acting as a concerned citizen and not legally representing the WHNA, said if there is a “bad outcome,” and the lawsuit is dismissed, the defendants could seek to recoup all or part of their expenses. But he said that would only likely happen if the judge believes the case is totally without merit, and he thinks there is little risk of that happening.
“Personally, I have reviewed this at a fairly high level and I have no concerns,” the WHNA would be at risk, said Farley, who, according to Holland & Hart’s web page is an intellectual property lawyer and a litigator, but who also has “handled numerous real estate litigation cases involving disputes over construction contracts, purchase/sale agreements, landlord/tenant disputes, partition actions, quiet title actions, and private condemnations, and rights-of-way.”
The plaintiffs’ lawyers, the law firms of Reutzel & Associates and Miller & Law, both of Littleton, have not sought any kind of injunction or temporary restraining order, so Farley said there is nothing at this time legally that would prevent RedPeak from moving forward on the three buildings. Goode said that RedPeak has submitted its second round of applications to the city for building permits. Once the city issues the permits, she said it could file for demolition permits and start construction.
Quinn said it is expensive to seek an injunction, with the cost starting in the neighborhood of $80,000 and could quickly rise from there. Richard Montoya, one of the plaintiffs, said they decided not to pursue an injunction because if the court found in favor of the defendants, the plaintiffs could be responsible for the construction downtown, an amount that could be in the $2 million to $3 million range.
Although 59 of the 62 people who voted were in favor of joining the lawsuit, one member questioned Farley on a number of issues. One of the potential concerns he raised is that if the parcels were downzoned, could it be ruled a “takings” with potentially millions of dollars in liabilities?
Farley explained that a “takings” is a Constitutional right that comes into play when property rights are taken away. However, although he said he had not researched the issue, he believes that only governmental agencies can be charged with “takings” and not plaintiffs. The lawsuit does not seek any specific new zoning, but wants the parcels to be sent back to the City Council for rezoning.
Kevin Neimond, president of the WHNA, said he reached out to RedPeak several times and he said the developer has made it clear that it no longer wants to deal with the WHNA. While RedPeak declined to comment, it is not unusual for groups that have the potential of being sued to cut off contact outside of court.
Neither Denver City Councilwoman Susan Shepherd nor anyone from her office, attended the meeting, although Neimond said she had been invited. Shepherd represents District 1, which includes West Highland. Of course, the Denver City Council is a defendant in the lawsuit, so it was unlikely that Shepherd would appear in front of a group that likely would be suing her.
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