Lowry neighbors lose appeal



  • Colorado Court of Appeals rules against neighbors.
  • Neighbors and their attorney live near Lowry.
  • Decision wasn’t published, so it won’t set a precedent, neighbors say.
Shown is a community plan for Boulevard One in Lowry, which formerly was called the Buckley Annex. Neighbors lost another legal battle involving one aspect of the 70-acre site.

Shown is a community plan for Boulevard One in Lowry, which formerly was called the Buckley Annex. Neighbors lost another legal battle involving one aspect of the 70-acre site.

The Colorado Court of Appeals has ruled against neighbors who sued the City of Denver for what it described in court documents as “high-density, urban intensity, mixed-development,” at what was called the Buckley Annex at Lowry.

The 70-acre development, the last undeveloped part of Lowry, is now called Boulevard One.

The Court of Appeals confirmed an earlier ruling by the Denver District Court, which ruled against the plaintiffs and in favor of the defendants.

The plaintiffs in the case were Christine O’Connor, David T. Mitzner, William H. O’Rourke and John Fischer.

The defendants were the Denver Planning Board, Manager of Community Planning and Development and the City and County of Denver.

The plaintiffs , who own homes in the surrounding residential neighborhoods, opposed the Lowry Redevelopment Authority’s development plan for what was called Buckley Annex, according to the 21-page opinion by Court of Appeal Judges Henry E. Nieto, Robert D. Hawthorne and David Furman.

“They allege that this development will create traffic and parking problems and adversely affect the character of their neighborhoods,” according to the Court of Appeals ruling, issued on Nov. 25.

Neither city nor LRA officials could  be reached for comment over the weekend. The LRA was not party to the suit.

The plaintiffs specifically opposed a text amendment that would have created a “design overlay district” that would have established new buildings height and set requirements along the perimeter of a parcel.

The text amendment was submitted the Planning Board on Oct. 1, 2014.

Before the City Council took action on the amendment, the plaintiffs filed a complaint in District Court, challenging the Planning Board’s recommendation.

On the same day they filed the complaint, Community Planning and Development withdrew the text amendment and it never was considered by the council.

Shown is a lot plan for Boulevard One, formerly known as the Buckley Annex at Lowry.

Shown is a lot plan for Boulevard One, formerly known as the Buckley Annex at Lowry.

Among other things, the District Court dismissed the Rule 106 claim because the Planning Board’s decision was a recommendation and not a final agency action. It also ruled that the plaintiff’s lacked standing.

The Court of Appeal Judges agreed with the District Court’s decision.

“Plaintiffs’ alleged injuries related to building heights and setbacks are merely speculate because there has been no final decision to approve or deny the proposed text amendment,” the Court of Appeals ruling.

Also, the text amendment does not address “uses, density or other aspects of future development that plaintiffs discuss in their complaint,” according to the decision by the Court of Appeals.

The judges declared the ruling “Not Published.”

That means the ruling will not set a precedent for future cases, according to the plaintiffs and their attorney, Greg Kerwin.

And while 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, they said.

“The courts still have not addressed the substance of our arguments,” said plaintiff 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,” O’Connor said.

“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 added.

She said the City Attorney “admitted during the Nov. 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.”

Denver Michael B. Hancock 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.

A rendering of what part of the Buckley Annex could look like when. Neighbors who sued the city who fear the Lowry development will be too dense, have lost legal battles at the District Court and at the Colorado Court of Appeals.

A rendering of what part of the Buckley Annex, now called Boulevard One, could look like. Neighbors who fear the Lowry development will be too dense, have lost legal battles at the District Court and at the Colorado Court of Appeals.

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.

They include:

  • The ruling 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,” Kerwin said.

“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 time to rule on the underlying dispute,” Kerwin continued.

However, things may be changing, he 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,” Kerwin said.

“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.

Interested in buying a home in Lowry? Please visit COhomefinder.com.

 Have a story idea or real estate tip? Contact John Rebchook at JRCHOOK@gmail.com. DenverRealEstateWatch.com is sponsored by 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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