For immediate release:
Friday, November 27, 2015
Christine O’Connor and Greg Kerwin:

Court of Appeals uses procedural basis to avoid addressing substance of lawsuit addressing Buckley Annex rezoning

DENVER — The Colorado Court of Appeals issued a ruling on November 25 that avoids deciding the substance of homeowners’ 2014 lawsuit challenging part of the rezoning of the Buckley Annex parcel on the old Lowry Air Force Base in east Denver.

The judges declared the ruling “unpublished,” a significant legal decision meaning that the ruling will not set any precedent for future cases. The three Court of Appeals judges accepted the City of Denver’s argument that because officials immediately withdrew the Lowry zoning plan challenged in the lawsuit, the court cannot decide the underlying dispute about whether the City’s proposed framework for rezoning of the parcel fails to comply with adopted City and neighborhood plans. The city had proposed minimal building setbacks and some tall buildings for the perimeter of the east Denver parcel.

“The courts still have not addressed the substance of our arguments,” said one of the plaintiffs, Christine O’Connor. “The City’s rezoning process is flawed and fails to honor commitments to low-density housing embedded in the consensus Lowry plans that followed years’ of neighborhood meetings.”

“Saying the Planning Board’s 2014 decision to approve the Lowry Text Amendment was not final and cannot be reviewed by a court, does not validate the Planning Board’s conflicted, haphazard decision-making process,” O’ Connor said. “The City Attorney admitted during the November 17 oral argument that the Planning Board’s decisions are effectively ‘irrelevant,’ arguing all that matters for a rezoning or text amendment is the City Council’s decision. And as a result, citizens are left with no way to challenge incompetent or illegal actions taken by the Planning Board.”

“Throughout Denver, residents are fighting back against a developer-dominated process,” O’Connor said. “Mayor Hancock and his planners are trying to jam high-density, high-rise buildings into every Denver neighborhood without regard for thriving existing communities and without adequate infrastructure.

“The entire process must be reformed. Until Denver has city leadership willing to stop the charade that currently passes for ‘land use planning,’ Denver’s neighbors and neighborhoods will continue to be the losers,” O’Connor said.

Hancock’s planners and City Council members have not won final approval for the last 18-acres of the Buckley Annex site yet. There are 18-acres of the parcel on the west side that face Crestmoor Park, Monaco Parkway, and the mountains that have not been rezoned yet.

O’Connor and Kerwin said the city’s proposal at Buckley Annex was flawed for a number of reasons that the Court of Appeals did not consider.

“Planning Board member Jim Bershof had a clear conflict of interest when he voted in favor of the Lowry text amendment in a way that benefited the proposed church rezoning across the street where he was the zoning applicant. The Court of Appeals’ decision does not approve of his conflicted vote,” O’Connor said.

The three judges ruled the following:

Residents cannot challenge the Denver Planning Board’s decisions on zoning changes until after the City Council approves the new zoning. Because the City withdrew the Lowry Text Amendment instead of letting it proceed to a City Council hearing, the court cannot ever review challenges to the Planning Board’s process and decision approving that amendment.
The court did not address the trial court’s basis for refusing to consider residents’ request for a court declaration about the Buckley Annex rezoning process. Instead, it decided that residents lack standing (“injury in fact”) to request a declaratory judgment concerning new zoning until there is a final administrative action concerning the zoning change (i.e., City Council action approving a map amendment or text amendment).
The judges also held that the trial court did not abuse its discretion in denying Plaintiffs’ request to sanction the City under First Amendment principles protecting the right to petition the government, when the City filed a request to award attorney’s fees against the Plaintiffs that the trial court also declined to approve.
Unlike the trial court, this ruling does not express any opinion on when residents live too far away from a proposed new rezoning to challenge it.
The Court of Appeals did not rule on the merits of the homeowners’ claims that the Lowry Redevelopment Authority’s proposed high-density zoning changes would violate the Denver Zoning Code and City plans.

“Denver residents still have no effective mechanism to challenge the land use and development process in Denver,” said Greg Kerwin, attorney for the plaintiffs. “By the time the City Council approves rezoning decisions, the developer is ready to move forward with construction and surrounding homeowners cannot post a bond to seek an injunction to freeze the process while the courts take a year or more to rule on the underlying dispute.

“The playing field is tilted in favor of developers throughout the planning process, despite the illusion of ‘outreach’ to residents and Registered Neighborhood Organizations,” Kerwin said.

“As anyone with experience trying to shape their neighborhood knows, the land use process is primarily a collaboration between planning staff and consultants for the developers, who cherry-pick language from Denver’s Plans and the Zoning Code to build whatever kind of new development they want,” Kerwin said.

“With help from several new Council members elected this past summer, neighborhoods are starting to take our city back from developers and the city officials who have been beholden to them. Denver residents want sustainable, sensible neighborhoods, not multi-story, high-density apartment buildings that choke our streets. Many of our city’s residential neighborhoods are far from mass-transit corridors and have no way to accommodate this density,” Kerwin said.

For comments on the ruling, please contact Christine O’Connor at 303-906-6627. For questions about legal issues, please contact the attorney in the case, Greg Kerwin at 303-888-0842.