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Zoning called police power abuse



  • Zoning trial begins Wednesday.
  • RedPeak wants to build luxury apartments in NW Denver.
  • U-MS-5 called abuse of police power and spot zoning.
Almost a year ago, opponents of RedPeak's plan took to the streets. The protest has since moved to the courts.

Almost a year ago, opponents of RedPeak’s plan took to the streets. The protest has since moved to the courts.

The controversial rezoning of three parcels in trendy West Highland represents an “abuse of police power” by the Denver City Council, according to neighbors suing the city and the landowner.


The zoning of the parcels will be the subject of the most high-profile court case involving a neighborhood zoning dispute in recent memory, when it kicks off in Denver District Court on Wednesday.

In a 16-page trial brief filed last week, the pro bono lawyers for the plaintiffs — 10 neighbors near where Denver-based RedPeak Properties wants to build a trio of building as tall as five stories — laid out their game plan.

The crux of the lawsuit is that the neighbors claim the change in zoning to U-MS-5 from R-4 is illegal spot zoning.

The neighbors, is the most recent trial brief, as well as in previous court documents, said the city did not follow Blueprint Denver, because the city’s 11-year-old land and transportation use guideline document designated the land as an “area of stability,” and not an “area of change.”

The trial brief does not mince words in denouncing the zoning, which now has been in place for more than three years.

“Rather than follow Blueprint Denver’s mandate, City Council did the exact opposite: it designated the Parcels for the tallest and most dense commercial development possible. This is not a close-call. City Council’s designation of the Parcels as U-MS-5 could not be any further from Blueprint Denver’s guidance.

“Thus, the City Council spot-zoned the Parcels.”

The neighbors, members of a grassroots opposition group called No High Rises in West Highland, sued the property owner, a group headed by Tom Wootten, and the Denver City Council. RedPeak initially was a defendant, but was removed from the suit because it does not yet own the land. It merely has the parcels under contract.

The U-MS-5 zoning is “arbitrary, capricious, and an abuse of police power,” attorneys Laurie J. Rust and Ryan S. Coward, the pro bono attorneys for the plaintiffs, wrote in the strongly worded court document. Both Rust and Coward, who recently joined the plaintiff’s team, live near the three sites north of the West 32nd and Lowell Boulevard intersection.

The document says that the impact of the potential of four five-story buildings must be looked at individually and cumulatively.

A rendering of RedPeak's plan for an apartment where a portion of the church has been razed.

A rendering of RedPeak’s plan for an apartment where a portion of the church has been razed.

It contends the U-MS-5 zoning wold “radically transform the neighborhood, dwarf existing structures, change the predominant development pattern away from single family residential, eliminated traditional landscaping and building siting and introduce incompatible design.

“The result would destabilize an Area of Stability.”

Litany of complaints

The plaintiffs in the case, will testify during the bench trial that “they will be harmed by decreased quality of life, decreased solar access, increased traffic, increased density, increased parking issues, decreased views, decrease to the charm and unique character of the neighborhood, and the decreased property values inherent in living next door to, across from, and directly in front of a five story wall of concrete.”

However, property values do not appear to be dropping in the area, despite the possibility of five-story buildings.

Records show that a 916-square-foot home at 3259 Lowell Boulevard, adjacent to the former Highlands Church, sold for $360,000. in June. The sales price was $21,000 more than the asking price of $339,000 and 72 percent more than the $209,000 it previously sold for in 2004, according to records. The home was listed by Jennifer Apel of Nostalgic Homes, who has been one of the more high-profile opponents of RedPeak’s plans.

The city, as part of its biggest overhaul of the zoning code in 50 years, in June 2010 changed the zoning on the parcels to Urban-Main Street-5, or U-MS-5, from R-4. U-MS-5 allows five-story buildings as well as a variety of retail uses, although RedPeak, prior to the lawsuit, said it would only construct a four-story building on the parcel at 3844 W. Moncrieff Place, but planned five stories on the other two sites at 3220 Lowell Boulevard and 3220 Meade St.

The land had been zoned R-4 since 1961 to allow the Beth Eden Baptist Church to build a 12-story building for low-income seniors at West 32nd Avenue and Julian Street.

Wootten’s group purchased the properties in 2007, when they were zoned R-4.

Initially, the city Community Planning and Development agency recommended zoning the land U-MS-2, which would have a maximum of two-story buildings.

After the draft map recommending U-MS-2 was unveiled, Wootten met privately with then City Councilman Rick Garcia, asking it could be zoned to U-MS-5.

Wootten followed up the meeting with an email to Garcia, who in turned forwarded it to the management at the planning department; Garcia endorsed the change to U-MS-5, according to the trial brief.

However, Garcia had left office before the rezoning took place. It was rezoned when Paula Sandoval was the Councilwoman for District One, which includes the parcels. The current councilwoman, Susan Shepherd, played no role in the rezoning, although she is named as a defendant. Prior to the lawsuit, Shepherd looked into downzoning the land against the wishes of the land owners, but said she found absolutely no support from fellow council members.

Both Shepherd and Garcia may be called to testify at the trial.

Other nearby property owners who also wanted U-MS-5 zoning were denied, according to the brief.

“All of the other former R-4 properties were downzoned,” according to the brief, which also noted that the properties in question represent the only U-MS-5 zoning in West Highland.

According to the brief, other property owners opposed U-MS-5 “on the grounds that 32nd and Lowell is the commercial center of the neighborhood and should have the most intense development.” Instead, that intersection is zoned for three-story buildings.

The U-MS-5 zoning allows “massive five-story building on interior blocks before dropping back down to one and two story residences,” according to the document.

Also, Wootten’s parcels were “treated more favorably,” than other properties, including those that had been zoned R-4, according to the plaintiffs.

The judge in the case, Robert Lewis McGahey Jr., has ruled that if the plaintiffs win, the land will revert to its original R-4 zoning.

Elevation of RedPeak's West Moncrieff Place apartment building. It also plans luxury apartment buildings on Lowell Boulevard and Meade Street.

Elevation of RedPeak’s West Moncrieff Place apartment building. It also plans luxury apartment buildings on Lowell Boulevard and Meade Street.

There has been some debate whether R-4 is a downzoning or upzoning from U-MS-5.

R-4 allows 75-foot tall buildings

The plaintiffs, in the most recent brief did admit that R-4 would allow up to 75-foot tall buildings on the parcels.

That is equivalent to about six stories, taller than what is allowed under U-MS-5.

U-MS-5 also allows up to 28 feet for mechanical uses, bringing it up to 98 feet. However, RedPeak officials, before the lawsuit was filed, said the mechanical systems wouldn’t come close to being 28-feet tall and would not be visible from pedestrians walking on nearby sidewalks.

R-4 also requires “significant” front and rear setbacks and bulk plain restrictions and requires 1.5 parking space for each dwelling unit, while U-MS-5 only requires one parking space per unit.

U-MS-5 also permits drive-through restaurants, liquor stores, and eating and drinking establishments, according to the brief, whileR-4 allows more limited commercial uses such as “an art gallery, health club, or pharmacy.”

The document said that “Alex Schultz, a land use and zoning expert, will testify that U-MS-5 constitutes an upzoning.”

Separately, Curtis R. Henry, an original attorney in the lawsuit, withdrew as a lawyer for the plaintiffs.

Joining Rust, an attorney with Gordon & Rees, is Ryan S. Coward, an attorney with the law firm of Elkus, Sisson & Rosenstein P.C.

Interested in buying a home in West Highland? Please visit COhomefinder.com.

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. To read more articles by John Rebchook, subscribe to the Colorado Real Estate Journal.