Lowry lawsuit by neighbors dismissed

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Highlights:

  • Neighbors filed a Lowry zoning lawsuit last October.
  • Last Friday, a judge dismissed all  the complaints in the Lowry suit.
  • Neighbors plan to appeal.
A conceptual look at town homes at Boulevard One at Lowry.

A conceptual look at town homes at Boulevard One at Lowry.

A Denver District judge has dismissed a lawsuit against the City of Denver and its planning board regarding the process of rezoning a portion of a 70-acre development in Lowry.

The neighbors who filed the lawsuit however, are not giving up their legal fight.

“We will be back,” Christine O’Connor, one of the four plaintiffs, said on Monday.The other plaintiffs the Lowry complaint are David T. Mitzner, William H. O’Rourke and John Fischer.

The lawsuit, filed Oct. 24 by O’Connor and two other neighbors in the Lowry area, was dismissed last Friday by Judge Kandace C. Gerdes.

The lawsuit regarding the zoning of the Buckley Annex, now called Boulevard One, charged the planned development was the result of a “corrupt, consultant-dominated unlawful process.”

Boulevard One, at Quebec Street and Lowry Boulevard,  represents the last undeveloped parcel at the former Lowry Air Force Base. The redevelopment of Lowry is considered one of the most successful  redevelopments of a former military base in the U.S. Lowry, for example, is considered a very “hot” housing market by COhomefinder.com.

The judge, in her nine-page ruling, neither addressed nor alluded to that strong language.

In her ruling, Gerdes said that the plaintiffs sought relief on three issues:

  1. A review of the planning board’s Oct. 1 decision for a text amendment to the zoning code regarding the General Development Plan for the development. The Lowry Redevelopment Authority and the Community Planning and Development agency, proposed the amendment, but withdrew it in late October.
  2. Enjoin the city and the other defendants, which include the Community Planning and Development agency, from employing procedures that violate the Denver Revised Municipal Code;
  3. And enjoin the defendants from violating the U.S. and Colorado Constitutional rights of the plaintiffs.

As far as the text amendment, only the City Council can approve it, the judge noted. The council has neither held any hearings on it nor voted on it.

“The Court finds the Plaintiff has not presented a matter ripe for review,” the judge wrote, in dismissing that claim.

“If the Court was to adopt (the plaintiff’s) reading of the Denver Zoning Code, it would effectively circumvent the intent,” of the review process, according to the judge.

The plaintiffs argued that the city and its agencies refused to consider “substantial adverse effects of the proposed high-density development of the Buckley Annex parcel on traffic, parking and open space,” according to the judge’s nine-page ruling.

However, Gerdes ruled the plaintiffs lacked standing to bring those claims.

“A party seeking declaratory judgement must satisfy the threshold requirements of standing, establishing that it has alleged an injury in fact and that such injury is to a legally protected or cognizable interest,” the judge wrote.

She noted the plaintiffs do not live adjacent to the property in question.

Under the Denver Zoning Code, notices only need to be provided to city council members and registered neighborhood organizations, whose boundaries fall within 200 feet of the application area, the judge said.

“There is no specific right created for private individual living in non-adjacent area to be notified or participate” Gerdes said

The plaintiffs, the judge said, failed to establish that their “alleged injury” was to a legal right protected by constitutional provisions.

The plaintiffs plan to ask Gerdes to “correct” part of her ruling and will appeal the rest of it.

“This ruling will delay us, but will not divide us,” O’Connor said.

“Neighborhoods are going to take our city back from developers and the city officials who have been beholden to them,” O’Connor continued.

She said Denver residents “want sustainable, sensible neighborhoods, not multi-story, high-density apartment buildings that choke our streets. Our city’s residential neighborhoods have no way to accommodate this density.”

Boulevard One, when completed, would include:

  • About 120 single-family homes;
  • About 230 row-homes;
  • About 450 apartment units;
  • And neighborhood retail, offices and several parks and community plazas.

O’Connor said the judge’s dismissal did not address the heart of the neighbor’s concerns.

“The court ruling just addresses the procedure and timing for challenging the city’s zoning decisions concerning the Buckley Annex property,” according to O’Connor.

“The court did not rule on whether the city’s attempt to add a high-density, high-traffic area in the Lowry neighborhood is consistent with established plans and promotes the health, safety and welfare of neighborhood residents,” she continued.

Rather, the ruling only addressed procedural issues, she said.

“We will press forward with continuing to challenge zoning proposals that do not match surrounding neighborhoods, are not linked to transportation, and fail to require adequate off-street parking,” O’Connor said.

“Neighborhoods do care and don’t want don’t want developers running roughshod over established communities that have been thriving for decades,” she added.

The plaintiffs, she said, believe the ruling was incorrect in suggesting that only people living within 200 feet can challenge a major zoning change and that will be appealed.

“The court 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,” she said.

However, the LRA was not named in the lawsuit, noted the agency’s spokeswoman, Hilarie Portell.

“The Lowry Redevelopment Authority is not a party to this lawsuit, which was dismissed in full by the district court last Friday,” Portell said.

“There has been extensive public input into the plans for Boulevard One, starting in 2006,” Portell continued.

“We are proceeding with developing the site according to the approved General Development Plan,” Portell said.

O’Connor said the court’s decision goes beyond the Lowry development.

“The court’s decision highlights the fact that Denver residents currently have no ability to effectively challenge the land use and development process in Denver,” according to O’Connor.

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

“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 achieve their goals.”

She noted the initial complaint said the entire process needs to 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.”

Monday was Martin Luther King’s Day and city offices were closed, so no city officials could be reached for comment.

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 Co. and 8z Real Estate. To read more articles by John Rebchook, subscribe to the Colorado Real Estate Journal.

 

 

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John Rebchook

John Rebchook has more than 30 years of experience in writing and communications. As the Real Estate Editor for the Rocky Mountain News, he wrote about residential and commercial real estate for 26 years. He has won numerous awards for business stories and columns that he wrote, both as an individual and part of teams. In addition to real estate, he also covered economic development, banking and financing, the airlines, and cable TV for the Rocky. In addition, he was one of the original freelance writers for GlobeSt.com, covering commercial real estate for the Internet publication.

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