- Court documents fly in RedPeak zoning battle.
- Zoning, constitutionality issues.
- Trial set for Aug. 21.
Legal arguments on two key issues are being argued in court documents regarding the pending rezoning court battle over parcels in the heart of West Highland, where RedPeak Properties wants to develop three luxury apartment buildings.
Earlier, the Denver City Attorney’s office filed a motion for a ruling on question of law, contending that the court lacks the constitutional authority to remand the zoning matter to City Council.
However, if District Court Judge Robert L. McGahey Jr. rules in favor of the 10 neighbors suing the Denver City Council and the landowner over the zoning, the city argues the parcels in dispute must revert to their previous zoning of R-4. The plaintiffs are members of a grass roots group called No High Rises in West Highland, which has been fighting the RedPeak plan since the fall of 2011.
R-4 zoning would allow 75-foot tall buildings on the sites along Lowell Boulevard, Meade Street and West Moncrieff Place, just north of West 32nd Avenue. That is taller than the five-story buildings allowed under the current zoning of U-MS-5.
RedPeak not part of lawsuit
RedPeak, which is not part of the lawsuit because it does not own the land, hopes to develop five-story building on Lowell and Meade and a four-story building on Moncrieff.
According to public records, three limited liability companies headed by Tom Wootten paid a total of $3.75 million for the three parcels in October 2007, when they were zoned R-4.
Together, the parcels have 62,150 square feet, including part of the former Highlands Church building, which would be incorporated into RedPeak’s proposed apartment community.
Separation of powers issue
“Plaintiffs have conspicuously ignored the constitutional separation of powers issues raised by their request that this Court remand the matter to City Council for reconsideration of the Parcels’ zoning,” Assistant City Attorney Kerry Buckey, wrote on July 9 in his latest filing.
He went on to write that the plaintiffs have “misconstrued the role of the Court, as the Court has no ability to remand this matter to City Council to rezone the Parcels as Plaintiffs request.”
McGahey is scheduled to preside at a bench trial on the high-profile zoning case that is scheduled to begin on Aug. 21. It is expected to last three days.
Meanwhile, Laurie J. Rust, the pro bono attorney for 10 neighbors suing to change the current zoning, in a motion filed at 11:04 p.m. on Tuesday, said that the court has the power to remand the matter to city council.
“Unsupported and inaccurate claim” alleged
“In its Opposition, City Council repeats its unsupported and inaccurate claim that this Court is powerless to remand the matter to City Council,” according to her “cross-motion” reply to the city’s motion for a ruling on a question of law.
Rust, an attorney with Gordon & Rees LLP, said the council is seeking to “read exceptions that do not exist,” to Ordinance 333, which changed the zoning across Denver in June 2010, including the three parcels in question.
“City Council has its backwards: the Court should follow the plain language of the law and has the power to remand to make sure this happens,” Rust wrote in the latest filing.
She also argued that under the council’s own rules, if the plaintiffs win, the zoning cannot revert to R-4, a zoning classification that no longer exists.
Buckey, in his motion, said that is the “first time in this litigation” that the plaintiffs have argued that the R-4 zoning is invalid.
In her response, Rust also accused the city of “disregarding the facts and suspending reality,” in classifying the land as not rezoned should the plaintiffs prevail, under which case the city argues it must revert to its previous zoning of R-4.
The plaintiffs are not seeking any specific zoning to replace U-MS-5, which it has argued is illegal spot zoning and is not in accordance with Blueprint Denver, a planning document that classified the area as one of stability, and not an area of change.
Judge won’t rezone parcels
“Plaintiffs do not argue that this Court’s involvement of the U-MS-5 designation will result in the Court rezoning the Parcels,” Buckey wrote in the motion.
“Rather, this Court’s invalidation of the U-MS-5 designation will require City Council to affect a rezoning of the Parcels to a zone district in the New Code and using the procedure of the New Code…City Council’s argument in favor of going back to the outdated, unwieldy, and difficult to use Old Code for the Parcel runs counter to the clearly stated legislative intent in enacting the New Code.”
She said the court should enter an order invalidating the U-MS-5 zoning that will not result in it returning to the R-4 designation. After the U-MS-5 zoning has been declared invalid, the parcels must be rezoned under the new code, according to her filing.
Rather buy than rent? Please visit COhomefinder.com to learn what homes are available in West Highland.
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.