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- Zoning trial regarding RedPeak delayed.
- Trial was to have begun Tuesday morning.
- City, landowner sued by West Highland residents.
A long awaited zoning trial on three buildings proposed to be developed by Denver-based RedPeak Properties, has been delayed.
Denver District Court Judge Robert L. McGahey Jr., who will rule on the issue whether the zoning can stand that allows five-story buildings in the heart of West Highland, on Friday signed an order to delay the trial that had been scheduled to begin at 8 a.m. on Tuesday.
“I think it was because of a medical emergency regarding the family of one of the attorneys,” in the case, an official from the judge’s office said.
The trial date has not yet been reset. She said McGahey needs to reschedule it within two weeks.
“That does not mean it will be rescheduled to start within in two weeks, only that he needs to set a new trial date within two weeks,” she said.
Although the case involves RedPeak’s plans for luxury five-story buildings on north of West 32nd Avenue on Meade Street and Lowell Boulevard and a four-story building on West Moncrieff Place, RedPeak is no longer part of the lawsuit filed by 10 neighbors.
RedPeak has the land under contract, but it is still owned by an investment group headed by Tom Wootten. The group, described a the HMM Defendants in court documents, paid $3.8 million for the three parcels in 2007, according to a court filing. The parcels are owned by three limited liability companies, Highland Square, Meade Partners and Moncrieff Placemaking.
The 10 residents who filed the lawsuit are being represented pro bono by Laurie J. Rust of Gordon and Rees, where she specializes in commercial litigation, employment law and health care, according to the firms web site. Documents show that Rust requested the postponement because of a family medical emergency that was going to require her to travel out of state.
Wootten’s group is being represented by Otten, Johnson, Robinson, Neff & Ragonetti, which agreed to the delay.
The parcels were rezoned U-MS-5 from R-4 in June 2010, during the city’s biggest overhaul of its zoning code in 50 years. The rezoning effort was the culmination of a five-year process.
In a court document filed earlier this month, the claims of both sides were laid out.
The plaintiffs said the rezoning of the parcels in question was “arbitrary, erroneous and not a proper exercise of the police power…because it was not intended to further a comprehensive general zoning plan and as a result created an impermissible spot zoning designed to benefit the owner of the parcels.”
It goes on to say that the area in question is defined as an “Area of Stability” and not an “Area of Change,” under Blueprint Denver, a land use and transportation plan approved by the Denver City Council in 2002.
“The U-MS-5 zoning of the Parcels is inconsistent with the purposes and guidances of the comprehensive plan: it disrupts the stability of the neighborhood, is not compatible with adjacent land use, and is not compatible with the character of the neighborhood,” plaintiffs contend.
The neighbors also contend that the U-MS-5 zoning was intended to benefit the owner and did so, while the new zoning was to the “detriment of surrounding property owners,” including the plaintiffs.”
The document also says that owners of similar properties in the nearby Highland Square retail strip at Lowell and 32nd were denied their requests for U-MS-5 zoning and other R-4 properties were rezoned to U-MS-3 or to U-SU-A (single-unit zoning.)
“No other property in West Highland was zoned U-MS-5,” according to the filing. “No other property in West Highland was zoned five stories.
The filing also contended the U-MS-5 zoning represents an increase in gross floor area for all of the properties. “Thus, all of the Parcels were upzoned.”
The defendants, which includes the Denver City Council, as well as Wootten’s group, presents a much different take.
“There were no improper dealings, bribes or motives,” involved with the rezoning of the parcels, the city said in the document.
“The evidence will show that the HMM Defendants were not given any preferential treatment in the rezoning process. Through the rezoning process, the Parcels were provided the same treatment as every other property in Denver. The HMM Defendants did not receive any improper benefit in the rezoning of the Parcels. Therefore, no spot zoning occurred.”
The city also said that the evidence will show that U-MS-5 “provides similar entitlements” to R-4 and is consistent with Blueprint Denver. The defendants also contend the plaintiff’s “lack standing to assert their claims.”
In another document, the city argues the court does not have the power to “re-zone or direct rezoning of the property.
“Simply put, the constitutional doctrine of separation of governmental powers prohibits a court from ordering the legislative branch either to adopt, or not adopt specific legislation,” according to the document.
The plaintiffs are calling on the judge to remand the zoning to the City Council and order it to rezone the properties to something that is consistent with Blueprint Denver.
However, that is not what will happen, if the zoning is over-turned, according to the city.
“If this Court declares the re-zoning to U-MS-5 invalid then the zoning on the property would revert to the previous, legal zoning. In this case R-4…The effect of declaring the re-zoning of the Parcels invalid would be as if the new zoning had never happened on the parcels.”
R-4 zoning would allow building heights of 75 feet, which would be an “up-zoning,” of the five-story height limit allowed under U-MS-5, according to the city.
The trial has been scheduled to last three days.
Witnesses the plaintiffs may call include City Councilwoman Susan Shepherd, who represents District 1, which includes the three parcels in question, as well as former City Councilman Rick Garcia. Garcia was approached by Wootten about rezoning the land to U-MS-5 and passed on the request to the city’s Community and Planning Department. Garcia also may be called as a witness for the defendants.
Garcia left office before the council voted on the zoning and Wootten didn’t approach any other council members regarding the zoning. Before the rezoning vote, the West Highland Neighborhood Association met with District 1 Councilwoman Paula to ask her to support designating the properties to U-SU-A or U-MS-2 to no avail.
Shepherd was elected after the zoning was in place. Shepherd, the West Highland Neighborhood Association, local retailers and neighbors had several meeting to try to work out a solution, before the lawsuit was filed. Judge McGahey recently ordered the parties to mediation, but the meeting behind closed doors to try to hammer out a compromise was not successful.
The defendants may also call Garcia as a witness. Garcia is now the Regional Administrator for Region VIII of the U.S. Department of Housing and Urban Development.
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