Whitelaw, III v. Denver City Council , 405 P.3d 433 ( 2017 )

COLORADO COURT OF APPEALS 2017COA47
Court of Appeals No. 16CA0920
City and County of Denver District Court No. 15CV32427
Honorable Shelley I. Gilman, Judge
Arthur Keith Whitelaw, III; John DeRungs; Katherine K. McCrimmon; Laura
Pitmon; Denise Sigon, f/k/a Denise L. Sager; Alan Singer; and Rita Singer,
Plaintiffs-Appellants,
v.
Denver City Council, including the individual Council members in their official
capacity, Albus Brooks, Charlie Brown, Jeanne Faatz, Christopher Herndon,
Robin Kniech, Peggy Lehmann, Paul López, Judy H. Montero, Chris Nevitt,
Debbie Ortega, Jeanne Robb, Susan Shepherd, and Mary Beth Susman;
Manager of Community Planning and Development, Brad Buchanan, in his
official capacity; Denver Planning Board, including the individual Board
members in their official capacity, Andy Baldyga, Jim Bershof, Shannon
Gifford, Renee Martinez-Stone, Brittney Morris Saunders, Joel Noble, Susan
Pearce, Arleen Taniwaki, Julie Underdahl, Frank Schultz, and Chris Smith;
City and County of Denver; and Cedar Metropolitan LLC,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE TAUBMAN
Navarro and Plank*, JJ., concur
Announced April 6, 2017
Gibson, Dunn & Crutcher LLP, Gregory J. Kerwin, Denver, Colorado, for
Plaintiffs-Appellants
Kristin M. Bronson, Denver City Attorney, Nathan J. Lucero, Assistant City
Attorney, Tracy A. Davis, Assistant City Attorney, Denver, Colorado, for
Defendants-Appellees Denver City Council, including the individual Council
members in their official capacity, Albus Brooks, Charlie Brown, Jeanne Faatz,
Christopher Herndon, Robin Kniech, Peggy Lehmann, Paul López, Judy H.
Montero, Chris Nevitt, Debbie Ortega, Jeanne Robb, Susan Shepherd, and
Mary Beth Susman; Manager of Community Planning and Development, Brad
Buchanan, in his official capacity; Denver Planning Board, including the
individual Board members in their official capacity, Andy Baldyga, Jim Bershof,
Shannon Gifford, Renee Martinez-Stone, Brittney Morris Saunders, Joel Noble,
Susan Pearce, Arleen Taniwaki, Julie Underdahl, Frank Schultz, and Chris
Smith; and City and County of Denver
Foster Graham Milstein & Calisher, LLP, Chip G. Schoneberger, Katherine
Roush, Denver, Colorado, for Defendant-Appellee Cedar Metropolitan LLC
*Sitting by assignment of the Chief Justice under provisions of Colo.
Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 In this C.R.C.P. 106(a)(4) action, plaintiffs, Arthur Keith
Whitelaw, III; John DeRungs; Katherine K. McCrimmon; Laura
Pitmon; Denise Sigon, formerly known as Denise L. Sager; Alan
Singer; and Rita Singer (the neighbors), seek judicial review of the
rezoning decision of defendant Denver City Council.1 We affirm.
I. Background
¶2 Defendant Cedar Metropolitan LLC (Cedar) applied to rezone
the 2.3-acre “Mt. Gilead Parcel” located at 195 S. Monaco Parkway,
on the southeast corner of Crestmoor Park in east Denver (the
parcel). To build an age-targeted2 apartment complex on the site,
Cedar sought to tear down a blighted church on the site and rezone
1 The neighbors’ notice of appeal also names as defendants the
individual Council members in their official capacity, Albus Brooks,
Charlie Brown, Jeanne Faatz, Christopher Herndon, Robin Kniech,
Peggy Lehmann, Paul López, Judy H. Montero, Chris Nevitt, Debbie
Ortega, Jeanne Robb, Susan Shepherd, and Mary Beth Susman;
the Manager of Community Planning and Development (Brad
Buchanan, in his official capacity); the Denver Planning Board
(including the individual members in their official capacity,
Andy Baldyga, Jim Bershof, Shannon Gifford, Renee Martinez-
Stone, Brittney Morris Saunders, Joel Noble, Susan Pearce, Arleen
Taniwaki, Julie Underdahl, Frank Schultz, and Chris Smith); and
the City and County of Denver.
2 According to the June 2015 hearing record, Cedar applied to
rezone the site in October 2014 to build this “age-targeted” housing.
“Age-targeted” is a marketing term developers use to describe
residents who are empty nesters or aged forty-five and older.
1
the parcel from E-SU-DX (single-family home) to S-MU-3 (allowing
three-story apartment buildings).
¶3 The neighbors are property owners who live in the Crestmoor
Park neighborhood located near the parcel. They challenged efforts
by Cedar to rezone the parcel. They asserted that rezoning would
harm their property values, create traffic and parking problems,
cause hazards to pedestrians, and degrade the character of the
surrounding neighborhood. In June 2015, after an eight-hour
hearing where the City Council heard comments from the public
both in support of and against the rezoning, the City Council
changed the zoning designation to S-MU-3.
¶4 The neighbors then challenged the rezoning in district court.
Their complaint asserted a claim for judicial review under C.R.C.P.
106(a)(4) of the decisions of the City Council, the Denver Planning
Board, and the Community Planning and Development Department
(CPD) relating to the rezoning of the parcel. The neighbors also
asserted a claim for declaratory relief concerning (a) the City’s policy
and practice of not considering traffic and parking impacts in the
rezoning process; (b) the City’s implementation of the Protest
Procedure in the Denver City Charter and Denver Zoning Code
2
(DZC); (c) the conflicts created by campaign contributions to
Council members from Cedar’s lobbyist seeking Council approval of
Cedar’s proposed zoning change; and (d) whether the rezoning
constituted unlawful spot zoning. The district court rejected all of
the neighbors’ claims.
¶5 On appeal, the neighbors challenge the City Council’s approval
of Cedar’s requested rezoning under C.R.C.P. 106(a)(4). They assert
various claims, including violation of their right to due process.
While the neighbors mention in their briefs an appeal of the court’s
denial of their claim for declaratory relief, we do not address it,
since the neighbors have only raised such a claim in a cursory
manner; indeed they did not cite C.R.C.P. 57 in their appellate
briefs. See People v. Gingles, 2014 COA 163, ¶ 29, 350 P.3d 968,
973 (citing People v. Wallin, 167 P.3d 183, 187 (Colo. App. 2007))
(declining to address arguments presented in a perfunctory or
conclusory manner).
II. Due Process Violation
¶6 The neighbors contend that the City Council violated their
rights to due process in five ways. We disagree and address each
contention in turn.
3
A. Standard of Review and Preservation
¶7 In a Rule 106(a)(4) proceeding, our review is limited to whether
the governmental body’s decision was an abuse of discretion or was
made in excess of its jurisdiction, based on the evidence in the
record before that body. C.R.C.P. 106(a)(4)(I); Verrier v. Colo. Dep’t
of Corr., 77 P.3d 875, 879 (Colo. App. 2003); see also Alpenhof, LLC
v. City of Ouray, 2013 COA 9, ¶ 9, 297 P.3d 1052, 1055. An
agency’s misinterpretation or misapplication of governing law may
constitute an alternative ground for finding an abuse of discretion
under C.R.C.P. 106(a)(4). See Roalstad v. City of Lafayette, 2015
COA ¶ 13, 363 P.3d 790, 793.
¶8 Because an appellate court sits in the same position as the
district court when reviewing an agency’s decision under C.R.C.P.
106(a)(4), appellate review of the district court’s decision is de novo.
Alward v. Golder, 148 P.3d 424, 428 (Colo. App. 2006) (citing
Thomas v. Colo. Dep’t of Corr., 117 P.3d 7 (Colo. App. 2004)). The
rezoning of an individual parcel is a quasi-judicial decision by the
City Council. Cherry Hills Resort Dev. Co. v. City of Cherry Hills
Village, 757 P.2d 622, 625-26 (Colo. 1988). Quasi-judicial decision-
making requires notice and an opportunity to be heard as a matter
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of “fundamental fairness to those persons whose protected interests
are likely to be affected by the governmental decision.” Id. at 626.
We affirm a rezoning decision unless the governmental entity
exceeded its jurisdiction or abused its discretion, which occurs if
the body misapplied the law or no competent evidence supports its
decision. Alpenhof, ¶ 9, 297 P.3d at 1055. “No competent
evidence” means that the decision is “so devoid of evidentiary
support that it can only be explained as an arbitrary and capricious
exercise of authority.” Canyon Area Residents v. Bd. of Cty.
Comm’rs, 172 P.3d 905, 907 (Colo. App. 2006) (quoting Bd. of Cty.
Comm’rs v. O’Dell, 920 P.2d 48, 50 (Colo. 1996)). While
interpretation of a city code is reviewed de novo, interpretations of
the code by the governmental entity charged with administering it
deserve deference if they are consistent with the drafters’ overall
intent. Alpenhof, ¶ 10, 297 P.3d at 1055.
¶9 The neighbors preserved all of the issues below by raising
them in their Rule 106 petition.
B. Ex Parte Communications
¶ 10 The neighbors assert that Sean Maley, a lobbyist for Cedar,
communicated with Council member Mary Beth Susman, the
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Council member in whose district the parcel lies, through her
private e-mail account and by phone prior to the public hearing.
They also suggest that Maley had similar communications with
other Council members. The neighbors contend that the failure to
disclose these communications to the public prior to the hearing
deprived them of their due process rights since they did not receive
notice and opportunity to rebut the information on which the
Council may have impermissibly relied in making its
determination.3
¶ 11 Acting as quasi-judicial decision-makers, city council
members are entitled to a “presumption of integrity, honesty, and
impartiality.” Soon Yee Scott v. City of Englewood, 672 P.2d 225,
3 The neighbors assert that if we do not vacate the rezoning on the
basis of the ex parte communications, we should reverse and
remand because of the district court’s erroneous discovery rulings,
which blocked the neighbors from obtaining documents and
deposition testimony about the alleged prejudicial effect of these
communications. However, “[r]eview of a governmental body’s
decision pursuant to Rule 106(a)(4) requires an appellate court to
review the decision of the governmental body itself rather than the
district court’s determination regarding the governmental body’s
decision.” IBC Denver II, LLC v. City of Wheat Ridge, 183 P.3d 714,
717 (Colo. App. 2008) (citation omitted). Accordingly, our review is
based solely on the record that was before the City Council. A
remand for further discovery is not permitted under a C.R.C.P. 106
claim if that evidence was not a part of the record in the first place.
6
227 (Colo. App. 1983). Thus, while it is true that parties to an
administrative hearing should have the opportunity to be
confronted with all facts that influence the disposition of a case,
there must be substantial prejudice that is shown to invalidate an
agency action in order to rebut this presumption. L.G. Everist, Inc.
v. Water Quality Control Comm’n of Colo. Dep’t of Health, 714 P.2d
1349, 1352 (Colo. App. 1986) (citing Mobile Pre-Mix Transit, Inc. v.
Pub. Utils. Comm’n, 618 P.2d 663 (Colo. 1980)).
¶ 12 Here, despite extensive evidence consisting of approximately
fifty pages of e-mails that form the basis of their allegation of
prejudice, the neighbors pointed to no evidence of e-mails or
telephone conversations that had a substantial prejudicial impact
on the outcome of the proceeding. In fact, Council member Susman
ultimately voted against the rezoning. Nothing in the record
suggests that she disclosed any prejudicial communications to
other Council members who voted in favor of rezoning, either.
Further, the district court, in its detailed and thorough order, noted
that the record established that Council member Susman reiterated
in her e-mails to several people, including one to former Council
member Susan Barnes-Gelt, that she had a duty to remain
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impartial. Thus, the record shows that, despite the neighbors’
claims that Susman encouraged others to vote in favor of the
rezoning while she voted against it,4 the neighbors have not
rebutted the presumption that Susman acted impartially. The
neighbors’ claims, based solely on the hearsay e-mail from Barnes-
Gelt, are insufficient to rebut the presumption.
¶ 13 Therefore, we conclude that because the neighbors have not
overcome the presumption of integrity, honesty, and impartiality,
and have shown no prejudice from the communications, the City
Council did not violate their due process rights. See Soon Yee Scott,
672 P.2d at 227.
C. The Planning Board Conflict of Interest
¶ 14 The neighbors also assert that their due process rights were
violated due to the involvement of Jim Bershof, Cedar’s architect
and a member of the City’s Planning Board, in the application
process. The City’s Planning Board recommended that the City
4 The neighbors cite to an e-mail from Barnes-Gelt that said she
heard that Council member Susman was not supporting the
rezoning, but had been letting others know that she would be
comfortable if it was approved. Besides the fact that this
information is hearsay within hearsay, in her response, Council
member Susman clearly dismissed such gossip and recognized her
duty to be impartial.
8
Council approve the rezoning application. Bershof submitted the
application to the Board, but he did not attend or vote on the
rezoning. The neighbors claim that their due process rights were
violated because Bershof’s connection to the Board imbued every
member with an inherent conflict of interest when they voted, as
quasi-judges, on their own colleague’s rezoning request. For the
reasons discussed below, we do not address this claim.
¶ 15 Denver Revised Municipal Code (D.R.M.C.) section 12-44
specifically provides:
Any planning board member having a financial
interest in any measure before the board shall
not participate in the consideration of such
measure as a board member nor vote on such
measure, but the board shall have authority to
grant a hearing to such member in the
capacity of or as an applicant, subject to the
board’s bylaws and rules and regulations
governing such hearings.
Bershof complied with this requirement by not attending the
Planning Board meeting or otherwise participating in the decision.
Regardless, whether section 12-44 creates or allows an
impermissible conflict of interest among the Planning Board
members is not subject to judicial review under Rule 106, which
9
limits our review to decisions of governmental bodies or officers
“exercising judicial or quasi-judicial functions.” C.R.C.P. 106(a)(4).
¶ 16 According to the zoning code, Planning Board members only
make recommendations to the City Council on rezoning
applications. See DZC § 12.4.10.4(E). A division of this court
considered a similar issue under the Cherry Hills Municipal Code in
Buck v. Park, 839 P.2d 498, 500 (Colo. App. 1992). The plaintiffs in
that case sought judicial review under C.R.C.P. 106(a)(4) of a
recommendation by the Cherry Hills Planning and Zoning
Commission to deny their rezoning application. Id. at 499. The
division held their claim unreviewable because the Cherry Hills
Municipal Code permitted the Commission only to make a
recommendation, while the final decision was reserved for the City
Council. Id. at 500.
¶ 17 Likewise, we conclude that the Planning Board’s
recommendation on a proposed rezoning application is not
appealable because it is not a “final decision” reviewable under
C.R.C.P. 106(a)(4). According to the DZC, a decision by the City
Council on a rezoning decision may be appealed to the district
court. § 12.4.11.5. Nowhere does the DZC refer to the Planning
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Board’s recommendation on a proposed rezoning amendment as a
“decision.” Rather, the code refers to a “recommendation” by the
Planning Board and a “[f]inal [d]ecision” by the City Council.
§ 12.4.11.3. The Planning Board’s recommendation is only an
intermediate step in the review process, which concludes with the
City Council’s decision to approve or deny the proposed rezoning
amendment. The DZC explicitly states that only the City Council is
responsible for “final action” on a proposed rezoning amendment.
§ 12.2.1.2. Therefore, Rule 106(a)(4) affords no jurisdictional basis
to review Planning Board recommendations.
¶ 18 The neighbors contend that, regardless, the Planning Board’s
recommendation is an essential step of the process warranting
review under Rule 106(a)(4). However, our review is still limited to
decisions of governmental bodies or officers “exercising judicial or
quasi-judicial functions.” C.R.C.P. 106(a)(4). While the neighbors
argue that the Planning Board could not function as a neutral
decision-maker due to Bershof’s participation, we conclude, by
language of the DZC, that the Planning Board does not sit as a
quasi-judicial decision-maker, nor are its recommendations an
exercise of a quasi-judicial function. Its recommendation is only
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that, while the City Council holds the power to make a final
decision on the recommendation of the Planning Board.
¶ 19 Accordingly, we do not review this claim.
D. Irrelevant Political Factors
¶ 20 The neighbors next argue that their due process rights were
violated because certain City Council members’ comments at the
public hearing reflected “flawed quasi-judicial decision making” and
showed that they “relied on irrelevant factors and information
outside of the hearing record” in arriving at their decisions.
¶ 21 Quasi-judicial decision-makers are required to base their
decisions on relevant review criteria and the evidence in the
administrative record. See, e.g., Snyder v. City of Lakewood, 189
Colo. 421, 425, 542 P.2d 371, 374 (1975), overruled on other
grounds by Margolis v. Dist. Court, 638 P.2d 297, 299 (Colo. 1981).
Again, the City Council’s decision must be upheld unless no
competent evidence in the record supports it. City & Cty. of Denver
v. Bd. of Adjustment, 55 P.3d 252, 254 (Colo. App. 2002).
¶ 22 As we discuss in Part III below, the neighbors fail to
demonstrate a lack of competent evidence supporting the City
Council’s ultimate decision or that any individual Council member
12
relied on factual information outside the hearing record or ignored
the record evidence in casting his or her vote. Rather, the record
shows that the City Council’s approval of the proposed rezoning was
consistent with the City’s adopted plans, as required by the DZC,
and the Council considered the public health, safety, and general
welfare.
¶ 23 The neighbors even acknowledge that, in explaining their votes
in favor of rezoning, City Council members relied on the provisions
of the adopted plans. For example, Council member Chris Nevitt
said that the adopted plans encouraged preservation of old
neighborhoods and struck a balance between preservation and
prevention of sprawl. He also noted that, consistent with the
adopted plans, the proposed new housing complex was along a
transit route. Council member Albus Brooks also discussed
whether the “existing site” reflected “the context.”
¶ 24 We therefore conclude that competent evidence in the record
supports the City Council’s rezoning decision such that the
neighbors have failed to rebut the presumption of integrity, honesty,
and impartiality in favor of the City Council’s decision.
13
E. The Protest Petition Procedure
¶ 25 The neighbors next assert that their due process rights were
violated because the City Council stepped outside of its neutral,
quasi-judicial role and supported Cedar by improperly applying the
protest petition procedure of the Denver City Charter.
¶ 26 Section 3.2.9(E) of the Denver Charter outlines the protest
petition procedure. If opponents of a City Council action gather
signatures from property owners representing twenty percent or
more of the land area within 200 feet of the perimeter of a proposed
rezoning, then the rezoning must pass the City Council by a super-
majority (ten members). In calculating the land area, the City
included City-owned land, including the portion of Crestmoor Park
within the 200-foot protest petition area.
¶ 27 Opponents gathered only enough signatures to represent
seventeen percent of the perimeter zone and thus failed to trigger
the requirement of a super-majority. The rezoning passed by an
eight to four vote. The neighbors argue that the City improperly
applied the protest procedure by including the park land but not
allowing any procedure for residents to obtain petition signatures
from the City. The neighbors request that we hold that the City
14
must either (a) exclude City-owned park land from the protest
petition area or (b) create a procedure to allow citizens to obtain
protest petition signatures from City representatives for City-owned
park land.
¶ 28 Cedar and the City Council respond that the City Council
properly followed the holding in Burns v. City Council, 759 P.2d 748
(Colo. App. 1988), in which a division of this court interpreted
charter section 3.2.9(E) to require inclusion of all City-owned land
in the calculation of the 200-foot protest petition area.
¶ 29 We agree with Cedar and the City Council and conclude that
Burns properly interpreted this ordinance to include all land in the
200-foot area irrespective of ownership.
¶ 30 In Burns, a division of this court held that “[t]he charter and
ordinance provisions that the protest area be defined as ‘the area to
a distance of 200 feet from the perimeter of the area proposed for
change’ are clear, plain, and unambiguous; accordingly, they must
be applied as written.” 759 P.2d at 750. The division further held
that, as a result, the City’s inclusion of City-owned streets in its
computation of the protest area was neither arbitrary nor
15
capricious; consequently, it was not erroneous. Id. (citing Pfaff v.
City of Lakewood, 712 P.2d 1041 (Colo. App. 1985)).
¶ 31 In calculating the land area here, the City Council likewise
included all City-owned land within the 200-foot protest petition
area. Because this calculation was in accordance with the plain
language of charter section 3.2.9(E), as interpreted in Burns, this
method of computation was not arbitrary or capricious.
¶ 32 As for the neighbors’ second claim requesting that we either
create a procedure to allow citizens to obtain signatures from City
representatives or compel the City to create such a procedure, we
have no authority to do so. Further, the record reflects that the
neighbors contacted the director of the City’s Parks Department and
requested that she sign the petition but that she had “refused to
take sides on the matter.” Her refusal to sign did not effectively
foreclose the neighbors’ opportunity to meet the requirements of the
protest petition procedure.
¶ 33 In conclusion, the City did not err in its calculation of the
protest petition area.
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F. Campaign Contributions
¶ 34 The neighbors next contend that their due process rights were
violated because some Council members received “substantial”
political contributions from lobbyists and, therefore, were biased in
the rezoning vote. They assert that, based on City of Manassa v.
Ruff, 235 P.3d 1051 (Colo. 2010), and Caperton v. A.T. Massey Coal
Co., 556 U.S. 868 (2009), “[t]hese fundamental protections of
neutrality and fairness also apply to non-judicial decision-makers
acting in a quasi-judicial capacity,” Manassa, 235 P.3d at 1057,
and therefore, quasi-judicial decision-makers should be held to the
same judicial canons as judges.
¶ 35 However, we conclude, as did the district court, that our
review of this proceeding under Rule 106(a)(4) is limited to the
record that was before the City Council. Because evidence of the
contributions was not in the record before the Council and the
neighbors first raised this issue in the district court, we may not
review it. Further, the neighbors did not address this issue on
appeal in connection with their declaratory relief claim. We thus do
not review this challenge to the Council members’ roles as neutral,
17
quasi-judicial decision-makers because it is based on facts outside
the record of the Rule 106 proceeding.
III. Compliance With the Zoning Code
¶ 36 The neighbors next contend that we must vacate the rezoning
decision because, as a matter of law, the rezoning does not comply
with the City’s zoning ordinance; specifically, the rezoning is not
consistent with the City’s adopted plans, no specific circumstances
justified the rezoning, and the rezoning fails to further the public
health, safety, and general welfare. We disagree.
¶ 37 In this case, the City Council must abide by the DZC, which
requires that a proposed rezoning be consistent with the City’s
adopted plans and further the public health, safety, and general
welfare. § 12.4.10.7. There must also be specific “[j]ustifying
[c]ircumstances” warranting the rezoning. § 12.4.10.8.
¶ 38 The City Council approved rezoning of the parcel as S-MU-3.
The parcel is bounded on the east by South Monaco Parkway.
There are multi-family apartments situated across the street from
the parcel. The parcel is bounded on the south by a day-care
establishment and one single-family home, on the north by
rowhomes, a City-owned parks maintenance facility and portions of
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Crestmoor Park, and on the west by rowhomes and other portions
of Crestmoor Park. The Crestmoor Park neighborhood lies to the
west and south of Crestmoor Park and is zoned as single family.
South Monaco Parkway is a “residential arterial street.”
¶ 39 In its February 2015 Staff Report and Recommendation
submitted to the City Council, the CPD found that the rezoning was
consistent with many of the strategies of the Denver Comprehensive
Plan 2000. Specifically, it found that the rezoning met the
“Environmental Sustainability Strategy . . . by promoting infill
development within walking distance of a mixed use area (Lowry
Town Center) and commercial arterial (Alameda).” The CPD also
noted that the proposed “three-story multi-unit residential
development” was “consistent with similar multi-unit residential
development across South Monaco Parkway while providing a
height limit of three stories, compatible with nearby zone districts
for single-unit residential development.”
¶ 40 The CPD, moreover, found that the proposed rezoning met the
“Neighborhood Strategy . . . by providing the opportunity for a range
of housing types in this neighborhood.” Finally, the CPD found that
the parcel was a reinvestment area within an area of stability
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because it “currently has a deteriorating and poorly maintained
church.” It indicated that the proposed rezoning would “encourage
reinvestment into the neighborhood, and provide[] a buffer between
single-unit residential development within the Crestmoor
neighborhood to the east and the additional development and
activity along South Monaco Parkway.” The CPD added that the
proposed rezoning would further the public health, safety, and
general welfare of the City and encourage reinvestment in the area
by “removing a structure on site that has been poorly maintained
for many years.” The CPD reiterated its findings at the June 2015
hearing before the City Council.
A. Standard of Review
¶ 41 The same standard of review outlined in Part II.A applies to
this claim.
B. Applicable Law
¶ 42 Under the DZC, the City Council may approve a rezoning
proposal that the City Attorney has determined is not a legislative
rezoning if the proposed rezoning complies with the following
criteria: (1) the proposed rezoning is consistent with the City’s
adopted plans; (2) the proposed rezoning results in uniformity of
20
district regulations and restrictions; (3) the proposed rezoning
furthers the public health, safety, and general welfare; (4)
circumstances justify the proposed rezoning; and (5) the proposed
rezoning is consistent with the description of the applicable
neighborhood context and the stated purpose and intent of the
proposed Zone District. §§ 12.4.10.7-.8. A justifying circumstance
exists when “[t]he land or its surrounding environs has changed or
is changing to such a degree that it is in the public interest to
encourage a redevelopment of the area or to recognize the changed
character of the area.” § 12.4.10.8(A)(4). Only two planning
guidelines apply to the parcel in this case: the Denver
Comprehensive Plan 2000 (2000), https://perma.cc/QUU7-VGUL
(Plan), and Blueprint Denver (2002), https://perma.cc/SE82-M676.
¶ 43 The DZC also notes, “The Suburban Neighborhood Context is
characterized by single-unit and multi-unit residential, commercial
strips and centers, and office parks. . . . Multi-unit residential and
commercial uses are primarily located along arterial and collector
streets.” § 3.1.1.
¶ 44 Enacted in 2000, the guiding principles and policies
established in the Plan (as well as those in Blueprint Denver) form
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the basis for the goals and recommendations of subsequent City
plans. The Plan identifies numerous goals, including environmental
sustainability, adopting effective land use policies, preserving
Denver’s legacies such as tree-lined streets, and improving Denver’s
neighborhoods. The Plan identifies several strategies to meet these
goals, including the following:
• Environmental Sustainability Strategy 2-F: “Promoting infill
development within Denver at sites where services and
infrastructure are already in place”;
• Land Use Strategy 3-B: Managing growth and change
through effective land use policies, including “encourag[ing] quality
infill development that is consistent with the character of the
surrounding neighborhood; [and] that offers opportunities for
increased density”;
• Neighborhood Strategy 1-E: “Modify[ing] land-use regulations
to ensure flexibility to accommodate changing demographics and
lifestyles,” and “[a]llow . . . a diverse mix of housing types and
affordable units”; and
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• Neighborhood Strategy 1-F: Investing in neighborhoods “to
help meet citywide goals and objectives for a range of housing types
and prices, community facilities, human services and mobility.”
¶ 45 The City Council also adopted Blueprint Denver “to implement
and achieve the vision outlined in Plan 2000.” Blueprint Denver, at
3.
¶ 46 According to Blueprint Denver, which is considered a
“supplement” to the Plan, “Arterials are designed to provide a high
degree of mobility and generally serve longer vehicle trips to, from,
and within urban areas.” Id. at 51. “Denver’s arterial system
interconnects major urban elements such as the central business
district, employment centers, large urban and suburban
commercial centers and residential neighborhoods.” Id. “Arterial
streets serve a city-wide function and are, therefore, designated
using a broader city-wide perspective.” Id.
¶ 47 Blueprint Denver also identifies “Areas of Change” and “Areas
of Stability.” Id. at 120, 127. The parcel here is located in an Area
of Stability directly adjacent to an Area of Change. An Area of
Stability aims to “maintain the character of these areas yet
accommodate some new development and redevelopment to prevent
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stagnation.” Id. at 5. Like the Plan, Blueprint Denver identifies
numerous strategies to meet this goal. These include: (1)
“[a]ddress[ing] incompatible zoning and land use issues”; (2)
“[a]ddress[ing] edges between Areas of Stability and Areas of
Change”; and (3) encouraging “[d]iversity of housing type, size, and
cost.” Id. at 25. Blueprint Denver explicitly identifies a “regulatory
toolbox” to help implement these strategies in an Area of Stability.
See id. at 123. One such “tool” is the use of zoning amendments to
“create a better match between existing land uses [in an area] and
the zoning.” Id. at 124.
¶ 48 Blueprint Denver divides Areas of Stability into “committed
areas” and “reinvestment areas,” although it does not identify these
areas on a map. Id. at 123. It defines reinvestment areas as
“neighborhoods with a character that is desirable to maintain but
that would benefit from reinvestment through modest infill and
redevelopment or major projects in a small area.” Id. at 122.
Indicators of reinvestment areas within an Area of Stability include
“deteriorated and poorly maintained housing stock,” “inappropriate
land uses or inadequate buffering between uses,” “lack of curbs,”
and a need to maintain affordable housing. Id. at 122-23.
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C. Analysis
¶ 49 The district court found that the record supported the City
Council’s determination that Cedar’s proposed rezoning was
consistent with both the Plan and Blueprint Denver. We agree with
its analysis.
¶ 50 First, the rezoning is consistent with the objectives and
strategies of the Plan and Blueprint Denver. As the CPD found and
some City Council members noted during the June 2015 hearing,
the proposed rezoning allows for infill development along a
residential arterial and near a commercial arterial, which ensures
the availability of transit and other services. Other members also
noted that the proposed Cedar rezoning was not too far outside the
character of the neighborhood and it created diversity of housing
stock in the area — which, as Council member Nevitt noted, is
needed as Denver continues to grow, bearing in mind that the
preservation of old neighborhoods is still valuable while preventing
sprawl.
¶ 51 Further, the rezoning would revitalize the parcel, which
contained a “deteriorating and poorly maintained church” and thus
could be characterized as a reinvestment area in an Area of
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Stability, despite the absence of a specific map designation.5
Moreover, because the parcel is on the edge of an Area of Stability,
with multi-family buildings across South Monaco Parkway in an
Area of Change, the rezoning would, as some City Council members
noted, “address the edge” to the west and create a “buffer” between
South Monaco Parkway and the Crestmoor neighborhood.
¶ 52 Second, we agree with the district court that competent
evidence in the record supports the City Council’s determination
that the rezoning furthers the public health, safety, and general
welfare. As noted by the district court, the CPD presented evidence
to the City Council showing that the “redevelopment of the site
removes a poorly maintained structure, improves character along
Monaco, and residents have access to recreation, jobs and
commercial activities.” The evidence also indicated that the
rezoning would increase public safety because of the addition of
new sidewalks.
¶ 53 The neighbors argue, however, that the City Council refused to
consider the adverse traffic and parking consequences of the
5 At oral argument, counsel for the neighbors stated that building
has now commenced on the site pursuant to the plan approved by
the City Council.
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rezoning when it considered whether rezoning would further the
public health, safety, and welfare. The City responds that adverse
traffic and parking consequences are not a mandatory aspect of its
calculus when considering a rezoning.
¶ 54 We agree with the district court that the consideration of the
public health, safety, and welfare criterion may, in certain
instances, include a review of issues relating to traffic and parking.
See Town of Grand Lake v. Lanzi, 937 P.2d 785, 789 (Colo. App.
1996). Further, section 12.4.10.4(G)(2) of the DZC mandates that
the City Council shall consider “any other comments received” at a
public hearing on a proposed zoning amendment, which, in this
case, would include comments related to traffic and parking. We
conclude that the City Council considered comments concerning
the traffic and parking consequences of the rezoning.
¶ 55 As the district court recognized, the record shows that several
City Council members stated that the “major issue” was traffic and
transportation and that they “need[ed] to address it.” The City
Council members acknowledged that Cedar had altered its original
plans to address parking and traffic concerns by reducing the
number of units built, increasing the number of parking spaces,
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and altering the entrances to the complex to avoid disrupting
quieter streets. Therefore, we conclude that the City Council
sufficiently considered the traffic and transportation consequences
of the proposed rezoning.
¶ 56 Finally, competent evidence exists in the record to support the
City Council’s conclusion that justifying circumstances existed for
the rezoning. As noted above, the DZC provides that a justifying
circumstance exists when either the land or its surrounding
environs have changed or are changing. § 12.4.10.8(A)(4). The
neighbors assert that “land” refers to the overall neighborhood
itself, rather than the parcel subject to rezoning. The City argues
that “land” refers to the parcel.
¶ 57 Like the district court, we defer to the City’s interpretation for
two reasons. First, we may defer to a government body’s
construction of the code, as long as it is reasonable; however, we
are not bound by it, since our review of such code provisions is de
novo. See City of Commerce City v. Enclave West, Inc., 185 P.3d
174, 178 (Colo. 2008). Further, in reviewing the agency’s
construction, we apply the basic rules of statutory construction.
28
See McCarville v. City of Colorado Springs, 2013 COA 169, ¶ 15, 338
P.3d 1033, 1037.
¶ 58 We conclude the City Council’s interpretation is persuasive,
because if “land” referred to both the parcel subject to rezoning and
the surrounding neighborhood, then the term “surrounding
environs” would be superfluous. See Doubleday v. People, 2016 CO
3, ¶¶ 19, 20, 364 P.3d 193, 196 (When interpreting a statute, the
court “read[s] statutory words and phrases in context” and
“construe[s] them according to the rules of grammar and common
usage.” It “must avoid constructions that would render any words
or phrases superfluous or lead to illogical or absurd results.”).
¶ 59 Here, both the parcel and its surrounding environs have
changed. Since Blueprint Denver was adopted, the church on the
parcel deteriorated. At the June 2015 hearing, commentators
observed that the church was blighted. Additionally, the area
around Monaco Parkway has developed significantly. These
changed circumstances were raised at the hearing before the City
Council. We thus conclude that the City Council relied on
competent evidence to determine that rezoning was in compliance
with justifying circumstances.
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¶ 60 Based on the evidence in the record, we conclude that the
neighbors have failed to demonstrate that the determination of the
City Council was an abuse of discretion. The lengthy deliberations
show that Council members discussed the criteria and evidence in
the record, including testimony presented by both opponents and
proponents at the hearing. Therefore, the neighbors have failed to
demonstrate that the City Council’s approval of the proposed
rezoning was arbitrary and capricious, see Puckett v. City & Cty. of
Denver, 12 P.3d 313, 314 (Colo. App. 2000), and they have not
overcome the presumption that the City Council’s decision was
proper. Lieb v. Trimble, 183 P.3d 702, 704 (Colo. App. 2008).
IV. Unlawful Spot Zoning
¶ 61 The neighbors’ final contention is that the rezoning constitutes
impermissible spot zoning because it did not further Denver’s
comprehensive plans and thus was an abuse of discretion. We
disagree.
A. Standard of Review
¶ 62 The same standard of review outlined in Part II.A applies to
this claim.
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B. Applicable Law
¶ 63 Spot zoning examines “whether the change in question was
made with the purpose of furthering a comprehensive zoning plan
or [was] designed merely to relieve a particular property from the
restrictions of the zoning regulations.” Clark v. City of Boulder, 146
Colo. 526, 531, 362 P.2d 160, 162 (1961) (rezoning of part of a
planned residential area to allow a gas station was arbitrary). In
other words, spot zoning “creates a small island of property with
restrictions on its use different from those imposed on the
surrounding property.” Little v. Winborn, 518 N.W.2d 384, 387
(Iowa 1994) (citation omitted). If the rezoning is for the purpose of
furthering a comprehensive zoning plan or based on changed
conditions, the rezoning is not spot zoning. See King’s Mill
Homeowners Ass’n v. City of Westminster, 192 Colo. 305, 312, 557
P.2d 1186, 1191 (1976); see also 3 Arden H. Rathkopf & Daren A.
Rathkopf, Rathkopf’s The Law of Zoning and Planning § 41:8 (4th
ed. 2016). Likewise, reclassifications when the “new use is
consistent with others in the surrounding area” or where a rezoning
will “allow multifamily residences within a single family zone” are
also generally permissible. 3 Rathkopf & Rathkopf, § 41:8.
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C. Analysis
¶ 64 Here, as discussed above and shown on various maps
considered by the City Council, the rezoning is not out of character
with the adjacent area. Instead, it furthers the goals of both the
Plan and Blueprint Denver. It “address[es] the edge” of an Area of
Stability where hundreds of multifamily units are located directly
across the street in an Area of Change. The approved rezoning also
creates a “buffer” between South Monaco Parkway and the
Crestmoor neighborhood. In addition, it will increase the “diversity
of housing” choices. Finally, Blueprint Denver expressly recognizes
rezoning as one “tool” for use in Areas of Stability like the
Crestmoor neighborhood. Blueprint Denver, at 124. Rezoning is
consistent with and contemplated by the adopted plans.
¶ 65 Despite the neighbors’ assertion that the parcel is in the
middle of a single-family neighborhood, the parcel’s surrounding
properties, including immediately adjacent properties, contain a
variety of different zoning designations, including the same S-MU-3
zoning. In fact, the property directly to the parcel’s south has the
same S-MU-3 zoning. The properties across South Monaco
Parkway are zoned R-2-A, a classification that permits multi-unit
32
homes. The property directly east of the parcel is home to a
number of apartments. Only the property immediately to the
southwest is zoned for single-family houses. Thus, rezoning the
parcel to S-MU-3 is in line with the zoning restrictions of the
surrounding properties.
¶ 66 We conclude that the new zone designation is consistent with
the surrounding areas and does not constitute spot zoning. See 3
Rathkopf & Rathkopf, § 41:8.
V. Conclusion
¶ 67 Accordingly, the judgment is affirmed.
JUDGE NAVARRO and JUDGE PLANK concur.
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