- Letter to Rick Garcia takes center stage.
- Zoning changed on West Highland after memo was sent to planning.
- Word-for-word memo in this blog.
Whether it turns out to be a game-changing “smoking gun” piece of evidence remains to be seen, but the email that landowner Tom Wootten sent to City Councilman Rick Garcia was cited frequently during a three-day zoning trial last month that some consider the biggest in Denver’s history.
Tuesday night, Laurie Rust and Ryan Coward, two pro bono attorneys for the neighbors that sued the Denver City Council and the owners of three parcels in the heart of West Highland, distributed copies of the email to about three dozen people who attended the West Highland Neighborhood Association meeting. Wootten sent the email to Garcia at 1:22 p.m. on July 20, 2009.
“For all intents and purposes, it was a done deal,” to rezone the parcels to its current zoning of U-MS-5 once Garcia received the email, Rust said at the WHNA meeting.
This is what Wootten wrote to Garcia, who left office before the land was rezoned during an overhaul of the city’s zoning code in June 2010. (Italicized for emphasis).
“At our meeting a couple of weeks ago, we discussed different zone districts for the old Redeemer Temple Property (3220 Meade Street, 3241 Lowell Blvd, and 3484 W. Moncrieff Pl) that would provide similar uses and density to he existing R-4 designation, compared to the preliminary map showing MS-2.
“We feel that MS-5 would be the appropriate zoning designation for R-4 in the Highland Square area, allowing the mix of residential and commercial uses to compliment existing structures nearby. This zone will provide similar building height to existing structure in the R-4 zone (the Redeemer Temple, the condo building on the SW corner of Lowell and 33rd, and the apartments at the NW corner of Julian and 32nd). and allows existing structures to be compliant with the new zoning code.
“We are supportive of the map change to MS-5, and look forward to contributing to the vibrancy of this neighborhood.”
During the trial, Wootten testified that it was not accurate to say that Garcia had endorsed changing the zoning to U-MS-5, which would allow five-story buildings, a story lower than the 75-foot maximum height allowed under R-4.
Rather, Garcia simply forwarded the email to Steve Gordon of Community Planning and Development, with no comment, Wootten said.
Wootten also testified that he had been happy with the R-4 zoning and felt that the U-MS-5 zoning did not increase the value of the land, which he and other investors purchased in 2007. Rather, an improving market for apartments resulted in the land rising in value, he said.
Gordon than reached his own decision that the land should be zoned U-MS-5, Wootten said. At the time, the WHNA had protested the zoning. It wanted single-family zoning on Moncrieff, two-story zoning on Meade and three story-zoning on Lowell.
Area of stability
The memo was frequently referenced as a crucial piece of evidence during the trial, in which the neighbors contended the U-MS-5 zoning in an error because the area is considered an “area of stability” and not an “area of change,” under Blueprint Denver, a land use and transportation guide for the city.
Rust noted that before zoning is changed, three criteria must be considered: existing conditions, current zoning and the plan recommendation.
She said matching the current zoning was the only criterion given any weight by the City Council, while it ignored the existing conditions of mostly single-family homes in the area.
On the other hand, an official with a planning background who has followed the case closely, said there is nothing in Blueprint Denver that says all three criteria must be weighed equally.
“Blueprint Denver purposely provides a lot of flexibility,” said the official, who spoke on the condition that he not be identified, as he wasn’t authorized to speak publicly.
“If they want, they can choose a zoning 100 percent based on any one of the three criteria,” he said.
For example, the city could have decided to solely look at the existing conditions of the neighborhood, he said, although he added in this case, since the existing conditions includes nearby tall buildings, as well as single-family homes, in his opinion it is not accurate to say existing conditions were ignored.
U-MS-5 closest zoning to R-4
Senior City Planner Steve Nalley planner testified during the trial that U-MS-5 was the closest match to R-4. The planner said that if R-4 is built to its maximum density with affordable housing, there is less than 1 percent difference in the maximum square footage between the two zonings.
Rust argued that for market-rate developments, such as the apartment proposed by RedPeak Properties on the sites, U-MS-5 provides about 10 percent more square footage.
(Before the lawsuit was filed, RedPeak officials said they planned to construct far less than the allowable square footage under U-MS-5. For example, it planned to build only four-stories on Moncrieff. Also, while RedPeak no longer has the parcels under contract, nothing has surfaced to indicate it no longer plans to develop the three parcels. )
Rust, however, said Nalley’s analysis did not account for open space requirements and the added parking required under R-4. U-MS-5 requires one parking space per unit, while R-4 requires 1.5 parking spaces per unit. Nalley testified he did not include open space in his analysis, because that requirement can easily be met with things such as balconies under both zoning designations.
District Court Judge Robert L. McGahey Jr., who presided during the three-day bench trial, had previously ruled that if the plaintiffs win, the land reverts to R-4.
Rust said while R-4 is not ideal, it is an improvement on U-MS-5 as R-4 doesn’t allow as many commercial uses as U-MS-5 and required 50 percent more parking spaces.
Gun Shops and Tattoo Parlors
U-MS-5 allows things such as gun shops, drive-through restaurants, tattoo parlors, and emission test facilities, none of which are anticipated to be built on the parcels.
However, U-MS-5 does allow restaurants and bars, while R-4 does not, Rust said.
Some neighbors have said they oppose more restaurants and bars, because of added traffic, while others say they appreciate the opportunity to frequent neighborhood establishments, such as retailers and restaurants.
Industrywide, not all apartment developers think retail space on the ground floor is a wise investment. At least one new apartment building under construction by Union Station, for example, will have no retail space.
While they can earn more per square foot on retail space, it also requires a lot of tenant improvement dollars and paying leasing commissions. Since retailers and restaurants often need to be replaced, the improvements typically need to be ripped out and the leasing process starts over again with new tenants.
The prime reason that developers typically provide retail or restaurant space is an amenity to renters and the surrounding neighborhood. In fact, they typically do not get a premium for retail space when they sell apartment buildings, as the new owners look at it as an inevitable expense when they replace the current non-apartment uses.
In any case, while R-4 would allow for taller buildings, they would have more setbacks from the curbs and stepbacks, which give a building a wedding cake layer appearance, Rust and Coward said.
“You could build a tall, skinny building,” on the sites, under R-4, Coward said.
Earlier, Laura Goode, founder of the grassroots group No High Rises in West Highland, said even if the neighbors win, they might file an appeal to have the land rezoned under the current zoning, code than rather than revert to R-4. However, if the parcels were zoned U-MS-3, allowing only three-story buildings, the land could include all of the commercial uses such as gun shops and tattoo parlors allowed under U-MS-5.
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