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- Neighbors who lost high-profile zoning case face almost $44K in costs.
- Neighbors say they shouldn’t have to pay.
- Decision is now in judge’s hands.
No invoice, no pay.
That is one of the arguments the 10 neighbors who lost a high-profile zoning case in Denver are making regarding why they should not pay more than $43,000 in fees to the winning side, which includes the City Council and a private landowner.
The pro bono attorneys representing the neighbors also made a Constitutional argument.
“An award of costs would have a chilling effect on citizens exercising their rights to challenge local governments’ exercise of police power…Moreover, an award of costs would not be equitable and would have a chilling effect on citizens exercising their First Amendment rights,” attorneys Laurie J. Rust and Ryan S. Coward argued in documents filed with the Denver District Court late Wednesday afternoon.
The city council and the owner of three properties zoned for five-story buildings in West Highland, are seeking to be reimbursed a total of $43,774.31 of costs they incurred for the three-day bench in Denver District Court that ended on Aug. 23.
District Court Judge Robert L. McGahey, Jr. on Sept. 18 overwhelmingly ruled in favor of the defendants and against the 10 neighbors, who are members of a grassroots group called No High Rises in West Highland. McGahey also will rule on whether the neighbors will have to pay. He could also reduce the amount the defendants are seeking.
Thomas Wootten, who heads an investment group that owns the parcels north of West 32nd Avenue on Lowell Boulevard, Meade Street and West Moncrieff Place, is seeking $42,301, while the city of Denver is seeking only $1,373. The council was party to the suite because as part of a massive overhaul of its zoning code, in June 2010, it rezoned the land to U-MS-5, from R-4. The new zoning allows five-story buildings, while the previous zoning allowed six-story buildings.
The single biggest expense Wootten is seeking is$28,176 for expert witness, Sarah Rockwell. Rockwell, a land-use expert lawyer, charged $475 per hour, while her researcher, Lala T. Wu, charged $275 per hour.
Legal fees can’t be collected
The law does not allow Wootten to be reimbursed for his attorney fees. If he could be reimbursed for the cost of hiring the law firm of Otten, Johnson, Robinson, Neff & Ragonetti, the potential tab to the neighbors would have been much more than the amount he is currently seeking.
In documents opposing the fees of costs filed by Wootten’s group, called HMM defendants, and the city council, Rust, of Gordon & Rees, and Coward, of Elkus, Sisson & Rosenstein, said that trial courts may award costs only if they are “reasonable, necessary and equitable.”
Also, they can not be reimbursed for costs are are “excessive or otherwise noncompensable,” they argued in documents.
As far as the 49.2 hours billed by Rockwell and the 18.4 hours billed by Lu, the defendants “offered no evidence” the hourly rates and the hours they billed were reasonable and necessary, according to the court document.
“Expert testimony on the law is not permitted in a bench trial because it invades the province of the court and is not helpful,” Rust and Coward argued. “It is the Court’s responsibility to determine what Colorado law is.”
Wootten’s group also is seeking to be reimbursed for a deposition of Alex Schatz, the expert witness hired by the neighbors.
In that instance, HMM “offered nothing other than a bald assertion” that the costs associated with deposing Schatz were necessary, according to the court document.
Also, several times in the documents, Rust and Coward said neither the city nor Wootten’s group provided the proper documentation for their expenses.
“City Council has simply listed the costs for which it seeks reimbursement. Counsel has not included an affidavit that the costs were actually incurred and were reasonable and necessary to the litigation. City Council has not provided any invoices,” they argued in the motion opposing the bill of costs.
They made similar arguments against Wootten’s group, known as the HMM defendants.
In addition to expert witness and deposition costs, HMM is seeking to be reimbursed for things such as recording and filing fees, computerized legal research, copying costs, courier charges, parking costs, exhibition enlargements, electronic imaging charges, miscellaneous fees and mediation fees.
Prior to the trial, the parties had agreed to split the mediation costs three ways, with the plaintiffs, City Council and HMM each agreeing to pay a third, according to Rust and Coward.
“No party reserved the right to later seek recovery of the mediation fees it had paid,” according to the motion.
HMM is seeking $1,032 for its mediation costs. The mediation failed and the case went to trial.
RedPeak no longer has the land under contract
Wootten’s group previously had the three parcels under contract to Denver-based RedPeak Properties, which planned to develop luxury and sustainably constructed apartment on the land.
Before the lawsuit, RedPeak had agreed to a number of changes to the proposed buildings, after meeting with neighbors and retailers along West 32nd Avenue.
However, RedPeak no longer has the land under contract, although renderings of its proposed buildings remain on its web site.
RedPeak is not expected to move forward on buying and constructing the buildings until they know whether the neighbors appeal the decision.
The plaintiffs have 49 days following the judge’s decision to appeal. That would mean that they would have to make a decision whether to appeal by early November.
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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.