- Neighbors and landowner settle zoning dispute.
- Neighbors won’t have to pay court costs.
- Height of 2 buildings in so-called RedPeak case will drop to 4 stories.
The highly charged and high-profile zoning case that pitted 10 Northwest Denver neighbors against a landowner and a developer that initially hoped to build three, five-story apartments in the heart of trendy West Highland, has been settled.
“The parties have finalized the settlement agreement,” Laurie J. Rust, one of the pro bono attorneys who represented the neighbors, said late Monday afternoon.
In a nutshell, the plaintiffs will not have to pay about $40,000 in court costs and the height of two of the planned buildings was reduced to four stories from the five stories allowed under the current U-MS-5 zoning.
And as InsideRealEstateNews.com reported last week, the former Beth Eden Church on Lowell Boulevard could be razed.
Rust, of Gordon & Reese and attorney Ryan S. Coward, of Elkus, Sisson & Rosenstein, represented the neighbors in Denver District Court in an effort to convince the court that it should order the Denver City Council to change the zoning on the three properties. The council members also were defendants in the suit.
The neighbors also initially sued Denver-based RedPeak Properties, which at the time had three parcels of land under contract, just north of West 32nd Avenue at Lowell Boulevard and the landowner Tom Wootten. RedPeak later was dismissed from the suit and let its contract to buy the parcels on Lowell Boulevard, West Moncrieff Place and Meade Street lapse. It is believed that RedPeak would still like to develop the site.
The plaintiffs lost the lawsuit, but initially had appealed the decision by District Court Judge Robert L. McGahey, Jr.
Rust said there are two major components of the settlement.
“First, the plaintiffs agreed to dismiss the appeal in exchange for the defendants’ waiving their right to an award of costs,” Rust said. The judge had ordered the plaintiffs to pay $40,337.51— $35,476.85 in costs, plus a supplemental award of another $4,860.66.
It was a difficult decision to settle, Rust said.
For one thing, the neighbors couldn’t afford to pay the amount awarded to Wootten’s group, she said.
“The plaintiffs were in no position to pay this,” Rust said.
“In addition, the plaintiffs knew from the beginning that Ryan and I were not able to take the appeal,” she said. “We were not able to find another pro bono attorney to take over and the plaintiffs do not have the resources to pay attorneys’ fees or the additional costs of an appeal.”
Still, she and the neighbors thought they could have brought a strong case to the appellate court.
“While it would have been an uphill battle, we believe there were several grounds for appeal,” Rust said. “We would have liked the court of appeals to weigh in on several issues, but we simply did not have the resources to continue the fight.”
Meanwhile, the second aspect of the settlement involves the former Beth Eden Church at 3241 Lowell Boulevard.
Last week, Wootten submitted a Certificate of Non-Historic Status application for the church, which would allow it to be torn down with no further review from the Landmark Commission during the next five years.
“In the event that the certificate is granted, a covenant will be entered that limits building on the Meade Street and Moncrieff properties to four stories,” Rust explained. “The plaintiffs all agreed to this.”
While some of the 10 neighbors, “have a sentimental attachment to the church, the plaintiffs all agreed that limiting the height and density of development on Meade and Moncrieff is a priority,” Rust said.
“Meade and Moncrieff are small residential streets – reducing the height to four stories will have a significant impact on quality of life for the neighbors. However, it is not up to us to determine if the church is historic,” as the issue is now pending before the Denver Community Planning and Development department.
“Granting the certificate does not mean that the church must be torn down; it simply means that the church may be torn down,” Rust said. “That would be up to Mr. Wootten and/or the developer. In the event that the church is torn down, the developer would have to submit new plans for approval and would have to comply with current set back and step back requirements.”
Mike Zoellner, president of RedPeak, could not be reached on Monday.
Experts, however, say that from a development point of view, it would make more sense to tear down the church building and replace it with a new, sustainable and efficient building.
For example, it might be possible to incorporate a restaurant with a patio on the site, if the building were no longer there.
The genesis of the case stretches back several years. In the fall of 2011, many neighbors learned for the first time that RedPeak planned to build the five-story buildings on the three parcels, which was allowed under the U-MS-5 zoning that was approved during a massive, citywide rezoning approved by City Council in June 2006. The previous R-4 zoning allowed building up to 65-feet high, or about seven stories.
A grassroots group, No High Rises in West Highland, was formed to oppose the five-story buildings. At first, RedPeak negotiated with neighbors and nearby merchants, but those discussions stopped when the lawsuit was filed.
Rust and Coward argued the U-MS-5 zoning followed neither the spirit nor the letter of the Blueprint Denver transportation and land-use plan and was out-of-character in a neighborhood of primarily one- and two-story buildings. There is, however, 12-story building at West 32nd Avenue and Julian Street, about a block away from the proposed development.
In any case, the neighbors lost on every count.
While the neighbors didn’t get everything they wanted, Rust said overall, she and her clients are pleased with the settlement.
“Considering everything, we think that the settlement is a great result.”
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