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Zoning lawsuit hits on guns, tattoos, density



  • First day of so-called RedPeak case ends.
  • Zoning trial on tap for today and Friday.
  • Many issues raised during plodding proceeding.
West Highland neighbors packed the courtroom during the first hours of a zoning trial on Wednesday.

West Highland neighbors packed the courtroom during the first hours of a zoning trial on Wednesday.

With apologies to Warren Zevon, lawyers, guns and…tattoo parlors played a role in the opening day of Denver’s biggest zoning court case in memory.

On Wednesday, the first day of a three-day bench trial in which 10 neighbors in West Highland sued the City Council and the landowner of a trio of properties that are zoned for five-story apartment buildings, the plaintiffs’ lawyers not only attacked the proposed development for its height and density, but for uses the current U-MS-5 zoning allows, but are not  being proposed by RedPeak Properties.

Rather, RedPeak, which is no longer party to the lawsuit because it doesn’t yet own the land, plans two five-story and a four-story apartment building on Meade Street, West Moncrieff Place and Lowell Boulevard, just north of West 32nd Avenue and Lowell.

Gun shops and tattoo parlors

The U-MS-5 zoning, in addition to five-story height limits, also allows a variety of uses including gun shops, tattoo parlors, liquor stores, nightclubs and auto-emission operations.

Initially, Denver Community and Planning and Development had proposed zoning the parcels U-MS-2, which would not allow gun stores or tattoo parlors, but would allow some of the other commercial uses, sometimes with restrictions. U-MS-2 allows only two-story buildings.

The zoning was changed to U-MS-5 after Tom Wootten, who heads the partnership that owns the land, told then-City Councilman Rick Garcia that U-MS-5 was closer to the existing zoning of R-4, which allows 75-foot tall buildings on the site. The zoning was changed to U-MS-5 as part of the city’s massive overhaul of the zoning code in June 2010. Garcia, who may be called as a witness today, had already left office by then.

However, gun shops and body piercing establishments could be opened nearby in properties zoned U-MS-3, city planner Theresa Lucero testified under questioning by assistant city attorney Kerry Buckey.

Zoning not stopping home from appreciating

One of the contentions of the plaintiffs is that the luxury, five-story building would lower property values in the neighborhood.

One of the plaintiffs testified under questioning that she bought her home  five years ago for $325,000 and it recently has been appraised for $450,000.

However, Christine Manesis, said that given how much she has invested in her home on Meade Street, it would be worth far more if a five-story building wasn’t planned next door.

“This is a gem of a neighborhood,” Manesis said.

Alex Schatz, a landscape architect and a lawyer, testified as a plaintiff’s expert witness that U-MS-5 is totally inappropriate for the area, which is designed as an “area of stability,” and not an  “area of change,” under Blueprint Denver, a land and transit guide.

Even before the lawsuit, neighbors have charged that U-MS-5 was a zoning error that needs to be corrected because Blueprint Denver classifies it as an area of stability.

Witnesses called by the plaintiff’s pro bono attorneys, Laurie J. Rust and Ryan Coward, spent much of the time rifling through big, black binders filled with documents from  Blueprint Denver and the city’s comprehensive zoning plan, to find specific sections and passages.

Senior City Planner Steve Nalley testified that by his calculations, the three parcels could have about 2,200 square feet more space under U-MS-5 than R-4, if the maximum amount of space, including credit for affordable housing, was constructed. Overall, that would be about a 0.8 percent increase in square footage.

“The take away, is that U-MS-5 is about as closes as you can get,” to R-4, he said after he testified.

Rust, however, noted that the purpose of the rezoning was not to duplicate the previous zoning, but to better match the zoning to the neighborhoods.

However, what wasn’t addressed during the trial was that before the lawsuit was filed, RedPeak had said the mass of the three buildings would be far less than the maximum amount allowed, although many of the neighbors who are now part of the lawsuit, were extremely skeptical of RedPeak’s claims.

At times, District Court Judge Robert Lewis McGahey Jr. appeared to try to move the plodding proceeding faster, asking once whether every witness was going to read into the record information that already had been stipulated by both sides.

When Coward was asking  witness Steve Kite, chairman of zoning for the West Highland Neighborhood Association, about the history of the R-4 zoning, McGahey called all of the lawyers to the bench for a sidebar.

Afterward, the judge said the history of the land was interesting, but he didn’t think it was helpful to him as far as making a legal decision. He also said he isn’t sure how much weight he is going to give expert witnesses called by both sides, as he is the one who is going to make the legal ruling.

See Spot (Zoning)

At the heart of the matter, is whether the U-MS-5 designation constitutes illegal spot zoning.

Coward said it clearly is spot zoning because U-MS-5 does not further the goals of the comprehensive zoning plan and benefits Wootten, the land owner.

“It just didn’t fit into the character of the neighborhood,” said Coward.

At one point, J. Thomas Macdonald, the attorney for Wootten, tried to get witness Schatz to say that there has never been a case anywhere in the country where spot zoning has occurred during a massive rewriting of the zoning code, but McGahey did not allow that line of questioning.

Buckey, however, said the U-MS-5 designation wasn’t spot zoning because it was neither “arbitrary nor capricious,” but rather a “disagreement with the neighbors, or a disagreement with some neighbors…Zoning is not a popularity contest.”

Although the West Highland Neighborhood Association fought the U-MS-5 zoning from the get go, many neighbors did not learn about it until RedPeak was planning the development, which included the razing of part of the Highlands Church on Lowell Boulevard. The church itself is about 60-feet tall and there is a 12-story apartment building about a block away at Julian Street and West 32nd Avenue. There also is a tall building at West 33rd Avenue and Lowell Boulevard.

During the first couple of hours of the trial, about three dozen neighbors packed the courtroom to show the plaintiffs. Many of them put on No High Rises buttons.  Many left as the trial dragged on.

“This is not  like on TV,” McGahey, who punctuated the proceeding with jokes, said near the end of the trial.

He admonished the lawyers and the witnesses to speak up, noting that courtroom is a beautiful room, but has terrible acoustics.

Also, McGahey said that he has bad hearing, given his age and that he listened to “too much rock n’ roll,” when he was young.

He didn’t say whether he was a fan of Warren Zevon.

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.