by Leah Burkett
It was disappointing that the Court decided in Littleton’s favor last month in the litigation against the Grove approval, but we’re not giving up just yet. On September 12, a motion to reconsider the case was filed. This will give Judge Horton time to take a second look at parts of the case that were misconstrued and law that seems to have been misapplied.
The decision to continue litigation was not made lightly and has nothing to do Grove opponents being sore losers. There is a much bigger picture than just one project at stake, and if the current decision stands it could affect a great many property owners in Littleton and beyond.
To recap, last September Littleton denied the Plaintiff and her neighbors an appeal hearing sought with the Board of Adjustment to challenge the staff’s approval of the Grove. Municipal code section 10-11 states that “The Board [of Adjustment] shall hear and decide appeals where it is alleged that there is an error in any order, requirement, decision or determination made by the City in the administration of [the zoning code]”. The denial of the appeal hearing thus turned into a legal complaint. Outside of the Board of Adjustment, the only option to challenge a staff zoning decision would have been with an injunction (which requires putting up a bond often in the millions of dollars – not attainable for ordinary citizens!).
Now, zoning code might not be much fun to think about — but unless you live in a covenant protected neighborhood, it is the only tool to regulate development. Boards of Adjustment exist in most (if not all) municipalities and serve as an important safeguard to ensure that land use decisions are made fairly. Asking for the right to appeal is not unusual in the slightest. In cases like Monument, Colorado where a staff decision to allow a downtown methadone clinic was recently overturned, it becomes exceedingly clear just how important this board really is!
When zoning code is arbitrarily applied AND neighbors are blocked from having a zoning decision reviewed, it adds an extra layer of uncertainty and risk to property ownership. That’s not good! Without a system of checks and balances, too much power is left in the hands of a few individuals to make decisions that are hugely impactful to other property owners. Ultimately, if we win this litigation it should ensure the right to appeal.
Here is an excerpt from the motion to reconsider that gets to the heart of the matter of what we feel the judge overlooked in our case:
“… [Site Development Plan] determinations are a quasi-judicial act to which constitutional due process protections automatically attach. The City cannot simply insulate its quasi-judicial actions from meaningful notice, hearing, and review. Therefore, if the [Littleton Municipal Code] does not afford Plaintiff notice and a hearing (e.g., through the Board’s appeal process), it would be unconstitutional and the City will have violated Plaintiff’s constitutional due process rights. Because the Court must presume the is constitutional and choose a constitutional interpretation over an unconstitutional one where possible, the Court erred in choosing the latter.”
Although Littleton characterized the Grove approval as an administrative decision because it was made by staff, technically, the decision was quasi judicial. In fact, the City acknowledged that the decision was quasi judicial in its motion to dismiss the case. The distinction between administrative and quasi-judicial decisions is important because the latter cannot be made without proper notice and public hearing. As we all know, there has never been a public hearing for the Grove approval.
Legal terms like ‘quasi-judicial’ can make ones eyes glaze over, but generally speaking, any governmental act that allows room for judgment or discretion is considered quasi-judicial. Approval of a site development plan (code section 10-7) includes a number of elements that are subject to staff discretion such as whether the project mitigates or eliminates adverse impacts on adjacent properties.
If the judge’s ruling stands and adjacent neighbors are not allowed to appeal zoning decisions to the Board of Adjustment (or any other board), it means that due process has been eliminated from a quasi-judicial decision. This sets an alarming legal precedent. Other municipalities could easily decide to do away with appeal rights as well – after all, due process is a pain-in-the-you-know-what.
Given the break-neck pace of development in Colorado right now, checks and balances in the land-use process are more important than ever. If the law truly does shield municipalities from any scrutiny of ‘administrative’ land-use decisions, what is to stop a municipality from brazenly negotiating development approvals under the pretense of merely interpreting code?
It’s hard to say what could happen to the Grove if we ever do get that appeal hearing and win. But one thing is for sure: the inability to appeal a land use decision leaves Littleton way too open for business. Let’s all hope that the Court’s decision is reversed.