- Three-day zoning case ended Aug. 23.
- Judge to make a decision after he gets written reports.
- No decision until next month, at the earliest.
It’s now in the hands of the judge.
Denver District Court Judge Robert Lewis McGahey Jr., after hearing closing arguments on a high-profile zoning case on Friday afternoon, gave attorneys until 5 p.m on Sept. 6 to submit written summaries on the battle over a proposed development in West Highland where concerns of neighbors collided with the city process.
Ten neighbors, who belong to a grassroots group called No High Rises in West Highland, sued the Denver City Council and the landowner of three properties in the heart of one of the most popular neighborhoods in the city.
The plaintiffs are seeking to have the judge “set aside” the U-MS-5 zoning on four parcels north of West 32nd Avenue near Lowell Boulevard, where Denver-based RedPeak Properties wants to build two five-story and one four-story luxury apartment buildings. RedPeak does not own the land, which is still retained by a partnership headed by Tom Wootten.
The neighbors claim the zoning is illegal spot zoning and is inconsistent with Blueprint Denver, the transit and land use guide for Denver’s comprehensive zoning plan.
In this case, spot zoning would be if the U-MS-5 designation did not further the goals of the city’s comprehensive plan and benefitted Wooten’s group.
The parcels on Lowell Boulevard, which includes a portion of the Highlands Church building and Meade Street and West Moncrieff Place, are in what is known as an “area of stability” under Blueprint Denver. Most of the growth, especially high-intensity growth such as allowed under U-MS-5 is supposed to be in “areas of change,” the plaintiff’s lawyers argued.
75-foot buildings possible
Previously, the judge has ruled if he overturns the U-MS-5 zoning, it will revert to its previous zoning of R-4, which allows 75-foot height limits, which is five feet taller than what is allowed under U-MS-5.
However, R-4 also requires more parking and has different setback requirements. Earlier, Steve Nalley, a senior planner calculated that U-MS-5 would allow 2,200 square feet more space than R-4, if R-4 was built out to its maximum density, including affordable housing. That equates to a 0.8 percent increase in square footage.
Nalley’s calculation does not account for open space requirements or parking. He said parking does not fit into the floor-area-ratio and the open space requirement is easily met through things such as balconies.
Laurie J. Rust, one of the two pro bono attorneys representing the neighbors, recapped much of the previous two days testimony in her closing argument. About 50 people, many of them neighbors opposed to the zoning, attended the closing statements. Many of the neighbors in the past have attended numerous meeting, planted No High Rise signs in their yards, raised money for their cause, and even carried placards during a protest march at Lowell and 32nd last February. A number of city planners and others who testified during the trial, also attended.
Rust noted that Wootten’s parcels initially has been proposed to be rezoned as U-MS-2, but after he approached then City Councilman Rick Garcia, it was changed to U-MS-5.
Rust said other former R-4 parcels, which also had initially been proposed to be U-MS-2, all had been downzoned.
For example, the 12-story senior housing tower at West 32nd Avenue and Julian Street’s zoning was lowered to G-MU-8, which allows only eight stories and no commercial uses. Other churches along the 32nd corridor also were downzoned, she said. Wootten’s parcels were treated differently than other properties that were rezoned based on their “on-the-ground” settings, she said.
The Highland Square retail center was zoned for three-story buildings, even though it is next to the 12-story tower and the most appropriate place for more height and higher density.
The current zoning pattern would call for a maximum of three-story buildings on 32nd, the hub of the stretch of boutiques and restaurants, then jump to five stories on Wootten’s properties, and then dropping to primarily one- and two-story homes.
The City Council zoned those parcels U-MS-5 “arbitrarily and capriciously” and “there was not a rational basis to justify their decision,” Rust said.
She went on to say that the zoning of the parcels “runs directly contrary to and frustrated the purpose of Blueprint Denver.”
She also said the U-MS-5 also allows commercial uses such as an unlimited number of gun shops, tattoo parlors, emission stations and drive-through restaurants.
U-MS-3, the zoning along much of West 32nd, also would allow those uses, pointed out Thomas MacDonald, the attorney for Wootten, during the trial and during his closing remarks.
Supreme Court: Judges must be careful not to act as planning departments
In his closing remarks, MacDonald cited a number of Colorado Supreme Court case, that said courts must give a high-degree of preference to cities on zoning matters.
One decision noted that one court ruled that judges are not qualified to substitute their zoning decisions for those of planning departments.
He indicated it would be just about unprecedented to declare spot zoning during an overhaul of an entire zoning system, such as the one where Wootten’s parcels were rezoned in June 2010 under what is called Ordinance 333.
He said there was nothing “arbitrary and unreasonable” regarding the replacement of the zoning system. Even if you isolated the four parcels in question, it still was anything but arbitrary and unreasonable.
Also Wootten did not seek the overhaul of the zoning code and was happy with the R-4 zoning, MacDonald said. He said the three criteria for rezoning ― the existing conditions, existing zoning and planning recommendations ― all were carefully considered by the council before it rezoned the land
He noted that expert witness Sarah Rockwell had testified that the comprehensive plan and Blueprint Denver, area “aspirational” guidelines and there will be conflicts.
He also noted that 8,000 housing units are planned to be built in areas of stability.
“The plaintiffs would prefer all 8,000 units were built in areas besides their West Highland neighborhood,” MacDonald said.
Disagreement is not spot zoning
Assistant City Attorney Kerry Buckey also argued that it is not the court’s role to change the zoning.
He said the plaintiff’s case is a “mere disagreement” with the council’s decision to rezone the land as U-MS-5 and that is not sufficient grounds to have a court over-rule the City Council.
“The court may not submit its zoning philosophy, much less the neighbor’s zoning philosophy,” even if a judge does not believe it is the best zoning for the parcels, Buckey said.
Even before the lawsuit was filed in April 2012, many of the members of the No High Rise group knew they had an uphill battle.
After all, it is not easy to fight city hall.
But some neighbors see benefits no matter how the judge rules.
Todd Lilienthal, one of the plaintiffs, who also testified during the trial, had this to say on the No High Rises in Highlands Facebook page: “Regardless of how this comes out, we’ve all met some really great neighbors and grown closer as a community. So, even if the Judge does not find spot zoning in this case, nobody can take away the fact that our community is tighter and better because of all of this. For that alone, it’s a win.”
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.