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When will judge decide zoning case?


  • West Highland zoning case in judge’s hands.
  • No one know when he will rule, but that doesn’t stop speculation.
  • Biggest zoning decision in Denver’s history at stake.
West Highland neighbors packed the courtroom during the first hours of a zoning trial that ended last month.

West Highland neighbors packed the courtroom during the first hours of a zoning trial that ended last month.

When will District Court Judge Robert L. McGahey Jr. rule on what arguably was the biggest zoning trial in Denver’s history?

Three different people this week provided three different scenarios of when the judge might decide whether the city and a landowner,  or 10 neighbors will prevail in the zoning dispute revolving around a trio of parcels in the heart of West Highland, where the current zoning allows five-story apartment buildings.

On the city side, one person intimately involved with the case, said no decision was expected this week, because McGahey and other judges were away on a retreat.

The official predicted a decision likely will come at the end of next week, but cautioned: “I’ve been wrong before.”

InsideRealEstateNews contacted McGahey’s office, and a woman who answered the phone said her best guess, based on how long McGahey has taken to write opinions in the past, is that he might have something at the beginning of October.

McGahey presided over the three-day bench trial that ended on Aug. 23. The case centered on a trio of parcels north of West 32nd Avenue at Lowell Boulevard that in June 2010 were rezoned to U-MS-5, as part of the largest overhaul ever of Denver’s zoning code. Ten neighbors sued the Denver City Council and the owner of the three parcels in question in Denver District Court, charging illegal spot zoning and a violation of Blueprint Denver.

At a West Highland Neighborhood Association Tuesday night, the two pro bono attorneys that represented the neighbors in the trial, were asked when they expected a decision.

One of the attorneys, Ryan Coward, said “it could be months.”

He said in a case like this, which has a “high probability of being appealed,” no matter which side wins, the judge will be very careful in his decision to try to assure that it would withstand any challenges by a higher court.

McGahey has a lot of information to consider.

In addition to the three days of testimony, hundreds of pages of exhibits and documents, the plaintiff’s written closing argument, delivered to the judge “five seconds” before his 5 p.m. Sept. 6 deadline, was 27-pages of single-spaced type, noted Laurie Rust, the other pro bono attorney representing the neighbors.

Rust told about three dozen people attending the WHNA meeting that the judge’s ruling  “cuts both ways.”

She said that there is a constitutional separation between the legislative and the judicial branch, so judges are very reluctant to overturn zoning decisions. In this case, it was such an egregious mistake that it warrants being overturned, she said, as the proposed buildings would “destabilize an area of stability.”

Indeed, the city and Wootten’s attorney made the constitutional separation  argument, although they believe U-MS-5 is the appropriate zoning and is not illegal spot zoning, Assistant City Attorney Kerry Buckey said during the trial that this is nothing more than a disagreement between “some” neighbors and the city, which is not something a court can or should weigh in on. Thomas MacDonald, the attorney representing Wootten, said that the rezoning of the parcels was not instigated by his client, but by the city, so it cannot be spot zoning.

Rust also said that the “development community” is watching the case closely and is very concerned that if zoning is changed by a court it could undermine zoning on other parcels facing neighborhood opposition.

However, not every other situation will have the same circumstances as in West Highland, she said.

While residents of other neighborhoods, such as people opposing a proposed development in Lowry, have contacted her, Rust said Lowry is in an area of change and not an area of stability.

Also, “I’m not a pro bono attorney,” who can represent other neighborhoods for free, she said.

Finally, there is little case law relating to such zoning battles, she said.

She said they were only able to find two cases nationwide. One was in Wisconsin.

The other was from a 1925 case, when zoning laws were first created in Denver, she said.

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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.