- West Highland zoning trial continues today.
- Judge denies motion to dismiss it.
- RedPeak no longer has land under contract.
A closely watched zoning trial that could set a precedent for neighbors fighting developers in Denver, will continue today, after a District Court judge refused to dismiss it on Thursday.
The attorney for the owner of three parcels in West Highland that is zoned for five-story building and Kerry Buckey, an assistant city attorney for Denver, asked Judge Robert Lewis McGahey Jr. to dismiss the case after the plaintiff’s put their last witness on the stand Thursday morning.
“I’m going to deny the motion for dismissal,” McGahey said. “I’m going to hear this one out to the end.”
Attorney Thomas MacDonald, who is representing the landowner, said the plaintiffs had not presented evidence that bolstered their claim that when the City Council zoned the land U-MS-5 in 2010 that it constituted illegal spot zoning.
He noted that the city speaheaded the city-wide zoning change, which included the parcels north of West 32nd Avenue on Lowell Boulevard, Meade Street and West Moncrieff Place, and not his client.
When limited liability companies headed by Tom Wootten purchased the parcels in 2007, they were zoned R-4. Later, Wootten sought U-MS-5 because that was the zoning most comparable to R-4.
MacDonald said he could only find one case in the nation that alleged spot zoning during a larger rezoning and that was in the Detroit area.
He also argued that the new zoning is within the guidelines set by Denver’s comprehensive zoning plan, as well as Blueprint Denver, the guide for land-use and transportation.
MacDonald also cited a Colorado Supreme Court ruling that said judges are not to assume the role of the legislative branch and planning departments in zoning. A city’s zoning decision is “presumed to be valid,” according to the Supreme Court, he said.
“Clearly, the City Council had a basis for making its decision,” MacDonald said about the West Highland properties. “The plaintiffs have not made a case.”
Laurie J. Rust, one of the two pro bono attorneys for the plaintiffs responded that under Blueprint Denver the parcels area in an “area of stability,” and if five-story buildings were constructed it would “destabilize an area of stability.”
She said such density as five-story buildings belong in “areas of change.”
She also argued that Wootten’s parcels were “treated differently” than other former R-4 parcels that were not given U-MS-5, even though some nearby landowners wanted it.
Later, city planner Caryn Champine, under questioning, said that the change to U-MS-5 “was not upzoning, but was a right zoning,” because U-MS-5 is the closest zoning to R-4, which would allow 75-foot tall buildings on the sites.
Wootten testified that he first learned of the properties as a consultant for the non-profit Mercy Housing, which wanted to build affordable housing on the parcels.
When that deal didn’t go though, he put together a group of investors to buy the land in 2007.
Wootten said he loved the neighborhood and its character the size of the parcels and that R-4 allowed the density to bring high-quality buildings to the neighborhood, which he said would be an asset to nearby retailers and restaurants along West 32nd Avenue.
Gun shops, tattoo parlors not planned
On Wednesday, when the trial began, the plaintiff’s attorneys made much out of the fact that U-MS-5 would allow uses such as gun stores and tattoo parlors, Wootten said that it was not his intention to sell the land for those type of uses.
He said he would need to check with his attorneys, but he said he believes it is possible to write into a sales contract that would prohibit such undesirable uses as gun shops, drive-through restaurants, auto-emission centers and “body piercing” parlors.
McGahey also addressed that issue.
He said he had heard a lot about undesirable uses such as liquor stores, gun shops and tattoo parlors that potentially could happen, but nothing that said they were being proposed.
Rust answered that in a zoning case, they don’t have to address what would is contemplated, but the potential under the zoning.
“I’m just trying to talk you off the ledge,” McGahey said, perhaps hinting he would not give much weight to that line of reasoning when making his decision on whether the U-MS-5 zoning should stand, or if it should revert to R-4.
Wootten also testified that he had approached then City Councilman Rick Garcia, first to see if he would support development of the parcels and later after an initial zoning map showed it as being U-MS-2, which would only allow two-story buildings.
Garcia asked Wootten for an email to address his concerns, which Garcia forwarded to the Community Planning and Development department.
After that, the planning department changed the zoning map to show U-MS-5 on those parcels. While it changed all of the other zoning in the area, too, no other parcels were given U-MS-5, except an adjacent parcel owned by Robert Sechler at 3220 Lowell, which is just south of the West Moncrieff parcel owned by Wootten’s group
Wootten testified that he never received a response from Garcia on his email and only learned during the trial that he had forwarded it to planning. Wootten also said he learned that the zoning had been changed to U-MS-5 with everyone else at a public hearing.
He also testified that he had never done a deal business deal with Garcia, gave him any gifts or a political donation. Wootten did not know Garcia before he approached him about the parcels.
It’s the economy, not the zoning
Wootten, under cross-examination by Ryan Coward, the other plaintiff’s attorney, said he did not think the land was more valuable under U-MS-5, even though appraisals with the new zoning are higher.
First, Wootten noted they have invested $1 million into the properties, which included tearing down a portion of the Highland Church building.
More importantly, the improvement of the economy in the aftermath of the global recession has made the land more valuable, not the new zoning, he said.
Also revealed at the trial is that in 2007 Wootten’s group had made an offer of $387,500 for a building across from the church on Lowell that belongs to Sechler. That land has been in his family since 1915.
In 2012, Sechler said that RedPeak Properties had offered him $1 million for the land. He rejected them both and said he does not ask for the U-MS-5 zoning and is not a fan of RedPeak’s plans, as he thinks the buildings are too big and don’t architecturally fit into the neighborhood.
Wootten said Sechler never responded to his offer, which he compared to “asking a girl to the dance,” as opposed to “asking a girl to marry you.”
Wootten placed the parcels under contract twice.
The first was to a luxury housing developer who couldn’t get financing during the great recession.
The second time it was under contract was to RedPeak, although Wootten did not identify it by name.
But Wootten said that he liked that prospective buyer because it was a long-term owner that cared deeply about the neighborhood and had numerous meeting with residents and nearby retailers about the design of the buildings.
Wootten said he would rather sell it to a buyer like that than a “fix and flipper” which would construct buildings, lease them up and sell them as quickly as possible.
“They failed to close on it in the fall of last year due to the lawsuit,” Wootten said.
Following his testimony, Wootten confirmed that RedPeak no longer is under contract to buy the properties. RedPeak, however, still lists the parcels on its website and has given no indication it is no longer pursuing developing the three, luxury buildings.
Wootten declined to comment on any other details, such as whether RedPeak has an option to still buy the parcels or if he is free to sell the land to someone else.
The trial resumes today at 8:30 a.m., when plaintiff lawyers will begin the cross-examination of the defense’s expert witness, Sarah Rockwell.
Rockwell, a Denver attorney, testified on Thursday that the U-MS-5 zoning is consistent with the comprehensive zoning plan and Blueprint Denver.
“It makes sense,” she said.
On the first day of the trial, an expert witness for the plaintiffs came to the exact opposite conclusion.
Many in the real estate community are watching the trial closely. They fear that if the neighbors prevail that zoning will become meaningless if all it takes is a pro bono attorney to tie up a case in court.
Some neighbors in other parts of the city, however, see that as a good thing, as they think the city has been too accommodating to developers at the expense of neighborhoods, which are left dealing with added congestion, noise, traffic and buildings that they don’t believe fit in with the character of the area.
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