Judge Asked to Reconsider Grove Ruling

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Click to watch 3D Version of the Grove

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.

2017 Budget: City Council Spends Even More of Our Money

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City Council spent the better part of three nights this week discussing the city’s budget for 2017. The good news is that revenues are projected to track ahead of expenditures for the next five years according to staff. The bad news is the Capital Projects Fund will be spent down in the near future requiring new revenue sources.

The budgeting practice is to transfer 17% (this equals two months of operating expenses) of our General Fund budget to the Capital Projects Fund at the end of each year. That money is then used to fund capital projects. If the General Fund balance is not sufficient to transfer the 17% then the dollars for projects are diminished. In the near future the dollars to transfer from the General Fund to the Capital Projects Fund will not be sufficient to meet the needs. But is the problem really all about revenues or is there another possible answer?

If you correlate the city’s budget to your own budget it would look like this. Your income exceeds your expenditures but you know you will need a new roof in two years and you will need new tires for your car next year. You could continue to spend as always hoping that more income is earned or you could start saving for the new roof and tires. That may require giving up something – vacationing in Colorado instead of traveling Europe, more entertaining at home rather than going out – you get the picture. You start cutting expenditures to prepare for the future expenses that you know are coming.

But there was no talk of cutting expenditures in the three nights of discussion. Comments were made that the future “problem” is a revenue problem; more is needed. Littleton’s budget in 2014 was $52,578,078 and is projected to be 62,747,030 in 2017 – an increase of 10,168,952 or approximately 19% in 4 years! Do we really have a revenue problem? If so, how much is enough if 19% growth in 4 years isn’t enough to keep up with expenditures?

At the end of the meeting, acting city manager Mark Relph addressed the path forward saying they have time. Programs and services need to be evaluated and they (council) needed to look inward. We hope that means taking a good look at the expenditures before making a decision to increase taxes, add taxes, or ask for a bond issue. Making our community safe by providing for police, fire, and well-maintained infrastructure is exactly why we pay taxes. They are the necessities. Before the “frills” are budgeted the necessities have to be provided for – if the frills are desired then ask the voters if they want to fund them!

Should Government Give to Charities?

Do you have a favorite charity you enjoy giving to? There are many wonderful organizations to donate your money. According to Giving USA https://givingusa.org/giving-usa-2016/ in 2015 Americans donated about $373.25 billion, a record year for contributions. Private individuals and companies make the choice to spend their hard earned money to provide a helpful hand to a charity, but what about when a government entity does? The difference being, government uses tax dollars, not like private people spending their own money. During the budget process this last week, Littleton City Council  budgeted $88,000 for charities in 2017.  Throughout the budgeting process the city staff continuously noted that while Littleton’s revenues are growing, its expenditures are growing quicker. Within a couple of years, money for things like roads will be difficult to come by. Over the past few months there have been serious conversations on tax increases. While donating to charities is the backbone of private folks, is it fiscally responsible for government to force tax payers to do so especially with  looming budget constraints and talk of raising taxes? Is this fair to those struggling to make ends meet already?

For the Record–Urban Renewal Took $159,000 from Littleton Schools

A question still before City Council is whether or not to abolish urban renewal. Councilmember Doug Clark has been strong in his support of abolishment. He continues to raise concerns about the poorly written urban renewal plans. At the study session on August 23, 2016, he mentioned the “lie” that was disseminated in the city of Littleton about tax increment financing (TIF).

Going all the way back to the Urban Renewal vs Urban Legend meeting that city council sponsored at ACC on October 28, 2014, he read from the brochure:
Creating a TIF does not reduce property tax revenues available to schools, parks or county services.  TIF projects receive only taxes derived from future development that would not have occurred without creation of the TIF.”

This statement means that TIF would only be collected if and when a project happened in an urban renewal plan area.  To date, there are no projects in any of the four plan areas yet TIF is being collected.  In 2015 The TIF collected was just over $250,000!  So what happened?

The law was implemented as intended. How could council say that there would not be any taxes diverted from the schools, parks, and county? The answer is simple – they did not understand the way TIF works.

The bottom line is that of the approximately $250,000 taken, over $159,000 belonged to the school district. But it was instead given to urban renewal even though there are no urban renewal projects.  Unless city council repeals urban renewal, this giving money intended for schools to urban renewal will continue until the year 2039!  And again, urban renewal has no projects to spend the money on.  When and if a valid urban renewal project comes along, City Council can bring it back.

Take a moment and send emails to city council members to abolish urban renewal so that money stops being taken from Littleton Schools.

Where Does it go?

In the movie, Temple Grandin is depicted as observing a rendering plant and saw a cow being killed… her response was “Where did it go? It was there and now it’s not.” That may not be a totally accurate quote for what the director had the actress say but it stuck in my mind and often I think of how it applies to other things.

For instance: Early in the year a garden gang member was looking at my flower beds which had perennials coming up and had lots of mulch in the bed. She said, “Your are going to clean that up, aren’t you? When I said no she wanted to know why. So I pointed out the plants coming up and said that in about 30 days you won’t be able to see it and in the fall it will be gone. Her response was, “Where does it go?” When I explained that it decomposes and the worms eat it she said with some surprise, “so that is where my mulch goes”. Yep

Then I think about applying it to water… when it rains, where does it go? Is water a resource or a problem to be drained away. In Louisiana it has been a problem last week but here in Colorado it is a resource that we need to keep. We need to think more about where that rain water goes. So when it rains at your house where does it go? When you water your lawn with a sprinkler, where does it go?
Find out by going out and watching the water that comes off your house or comes out of your sprinklers. If the sprinklers are watering the side walk and the driveway it is not going to help grow any more concrete but it is water that you are paying for that is going to the gutter. If there is rain water coming off your roof and running down your driveway or side walk the same thing is happening.

Fix the sprinkler and control the rain water run off to spread it over your grass, collect in a rain barrel (2 fifty-five gal barrels per household), make a rain garden that collects and uses it, direct the water to another part of the yard to grow plants, flowers, bushes, etc. Improve your soil so that it will hold more water. Cover the soil with mulch or plants so that it doesn’t heat up or dry out. Remember that a roof that is 1000 sq ft in surface will collect 623 gals of water from a 1 inch rain. Think what you can do with that? It won’t fit in the two barrels so you need extra planning.

Think about this also…. 70% of water pollution is caused by run off. Where does it go? Into streams, sewer systems, water treatment systems and if it goes to the Platt River that pollution goes with it. Those people who are downstream of us will have that stuff in their water. Half of that pollution is caused by what we do on our lawns…..so when you spray herbicides or pesticides on your lawn where does it go? Maybe you might want to learn what happens at one city in California that is having their water contaminated by runoff from farms. Here’s the link below.
http://greenabilitymagazine.com/blog/2016/08/discover-8-easy-ways-conserve-clean-water/

Before you go please consider doing this.. Before pouring anything on the ground or down the toilet or down the sink ask yourself where it goes? Come up with an answer and figure out if what you were thinking about doing is part of the problem or part of the solution. Remember that water bill? Get a calculator or an engineer and figure out how much you are paying per gallon for your water. Now figure out what it costs to buy water in plastic bottles that end up in the oceans. Oh, and when someone tosses something out the car window because they are finished with it, where does it go?

Did You Know? What’s Going on with Mineral Station?

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You may have noticed that Littleton has hired a company, PUMA to do a study on our Mineral and Littleton Downtown Light Rail Stations. This is the outcome of an Intergovernmental Agreement between Littleton and the Regional Transit District (RTD).  The purpose is to create a Station Area Master Plan (STAMP).  A noble idea, why not create a development plan vision around the light rail stations that residents like and benefits the city?  So far there have been several community meetings, open houses and on-line surveys.  PUMA has been in conversation with Littleton’s Planning Board and a group of stakeholders.

What could go wrong seeing as a wide group of residents and stakeholder organizations have been involved in providing input for the Mineral Light Rail Station? Well, everything essentially. It all starts with reading the actual contract. That is where you learn that citizen input doesn’t really matter and that the development plan was preordained.

Let’s go to the contract so I can explain what I mean.  You can find the contract here (2014 0410 Littleton – RTD IGA – STAMP – Mineral and Littleton Downtown). While it is 175 pages, the first 35 pages covers what we need.

Ready? Here we go! We will start at the beginning:

The context for this Agreement is established in the Denver Regional Council of Governments (DRCOG) FY14-15 Station Area/Urban Center Studies Eligibility & Evaluation Criteria, attached hereto as Exhibit C, and the RTD TOD Policy dated September 21, 2010, attached hereto as Exhibit D.

 This Plan needs to be practical, feasible, and satisfy the following key objectives:

  • Providing planning guidance that enables and encourages transit-supportive development.
  • Complies with and addresses all of the relevant points articulated within the criteria described by the DRCOG Station Area/Urban Center Studies Eligibility Criteria and the RTD TOD Policy.

 Generally, the Parties wish to promote regional sustainability by contributing to transit oriented development sites that collectively will reduce regional per capita vehicle miles traveled, air pollution, greenhouse gas emissions, and water consumption. (p. 5, my emphasis)

Right away we learn that this contact is about making both Mineral and Littleton Downtown Light Rail Stations into transit oriented developments (TOD).  This is what I meant by a preordained outcome.

Next we learn what RTD and DRCOG expect from Littleton:

Plan Recommendations. The Parties acknowledge this Agreement is for the development of the Plans only. The Parties commit that they will make reasonable efforts to secure approvals from their respective governing bodies to implement needed infrastructure improvements within their capital improvements program; adopt appropriate zoning code, master plan and other regulatory changes; and incorporate Plan recommendations into local ordinances, regulations or requirements governing development of the Plan areas. Nothing herein commits either governing body to grant such approvals, and nothing herein commits either Party to fund any improvements identified in the Plans or any other adopted plans. (p. 9, my emphasis)

Not only does RTD and DRCOG want Littleton to rewrite our zoning code and master plan, but to also fund the needed infrastructure. Interesting, as we are a city already struggling to maintain our own roads.

You may be asking yourself – what exactly is transit oriented development (TOD)?

While TOD can have many physical forms, it generally includes the following design principles:

  • More compact and dense development within a 5- to 10-minute walk around transit facilities compared to existing development patterns in the same area;
  • A mix of uses—either horizontal or vertical—usually including residential, retail, and office employment;
  • High-quality, pedestrian-oriented urban design and streetscapes. (p. 23, my emphasis)

 Translation – high density development.  If you have seen the plans that PUMA presented at the last community meeting, you will realize that is exactly what they offered.  Having been to many of the meetings, that is not what the residents were suggesting.  In fact at that meeting, except for a small minority, the people there were quite upset at what they were seeing.

That’s the general gist of the contract, except for one more piece, parking. Most people believe that with this development there will be more parking, after all it is a parking lot for transit riders. But that is not true either. At the last open house I specifically asked how much more parking would be provided and it was admitted that there was no guarantee there would be any additional parking.

When you read the contract that admission isn’t surprising either:

Goal 3: RTD supports multimodal access to the transit system by all users.

Strategies to achieve this goal include:

  • Supporting a hierarchy of access to rapid transit which considers the following modes in order of priority: pedestrians, bus riders, bicyclists, vehicles (short-term parking), and vehicles (long-term parking) (p. 26, my emphasis)

Here we learn that the very last priority of RTD is parking.  No wonder there is no commitment to increasing parking in a lot that cannot support the present demand as it is.

In conclusion, the process seems quite nefarious because the residents are lolled into believing their comments mattered and that the end results with incorporate them. So the area plan can be touted as “what the citizens want.” This is very disingenuous because we were never informed that only transit oriented development (TOD) would be considered. The entire process seems to be a farce because as the contract shows, transit oriented developed is the solitary acceptable outcome and parking is not a priority.

Traffic in Littleton–A Conversation with our Acting City Manager

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Mark Relph began the evening by providing a brief history of his experience.  He is a Professional Engineer and has been in city administration for the past 20 years.   He was a Community Development Director in Delta, CO and that’s when he decided he preferred Public Works.  He has worked in California and Washington.  Coming to Littleton was coming home.

He talked about the state requirements for growth management in Washington and although it sounded like a bad idea when he first heard about it he has decided that it really was good.  Having the state mandate forced the conversation about growth in the community and they had to document how they were going to handle the projected growth.  The state reviewed the plans.

The biggest issue in the near term for Littleton is traffic and the long-term maintenance of our infrastructure.  This is not just a Littleton problem but also a problem across the nation.  Currently we have been moving the excess General Fund dollars to the Capital Fund at the end of each year.  In three or four years there will not be enough dollars in the Capital Fund to manage the pavement maintenance that will be needed.   He said they couldn’t talk about new funding options until they look internally for solutions.

Some examples of concerns expressed by Relph:

  • Signal Systems – cant’ get parts anymore for some – they are just old.
  • Broadway – can link through the signal progression but difficult to do with the traffic controllers we have.
  • Best Management Practices – the signal poles should be inspected every five years for failure (based on wind and load factors). This has never been done in Littleton and they can fail.
  • We are way behind on a signal system for Littleton
  • Transportation Master Plan – it has never been done
  • Complan – it is thin at best. We have never taken the plan and tested the transportation network – that should be a standard practice – it has never been modeled.  Within five years we should have a transportation master plan.  We are in a bad place to manage growth and development.
  • Level of Service (LOS) – A grading system for traffic flow with A being free moving and F being standing still. If we had a standard developers would have to meet the standard or mitigate the problems.
  • Santa Fe – that requires a conversation with CDOT and Arapahoe County
  • Sterling Ranch- a lot of traffic will be generated by Sterling Ranch
  • Ensor Property – there’s a developer pursuing the north thirty acres (they have an option on the property and they are looking at what they can do). They can’t do much unless the city takes on that intersection and CDOT won’t step up.  $120,000,000.00 will be needed.
  • Relph said he would be proposing to council that they begin the Federal process – the PEL – Preliminary Engineering and he forgot what the L stands for. This would be the environmental work that needs to be done first before a fix for that intersection is built.
  • Impact Fees – they are inadequate. He would like the code to state that the LOS can’t be degraded on Mineral and Santa Fe.
  • Need to partner with Arapahoe County and CDOT – they know that Santa Fe is a problem.
  • We need to put money into the Capital Fund for 2018.

Polo Ridge and Platte Canyon

Relph and the city traffic engineer (first one on staff in ten years) have come up with a few solutions to the traffic problems on Mineral between Santa Fe and Platte Canyon.  He admitted that there was some bad planning involved contributing to the problem.  They have offered a three-phase plan to help.

1st Phase – restripe the lanes making the three lanes into two lanes for movement and the outside lanes for turn lanes.  They will create a wider median in the middle of Mineral that will help those turning to enter traffic.  There will be deflector posts to visually protect the left turn lane.

2nd Phase – A double left hand turn on Platte Canyon – that will improve the LOS.

3rd Phase – move the bike trails away from Mineral and deeper into the neighborhood and provide a raised pedestrian crossing.

Relph told us that traffic signals could lead to higher traffic accidents.  There are a series of tests to determine if a traffic signal is warranted.  (The series of tests determine if a signal is “warranted” – the tests are called warrants.)

He thought you had to have the citizens help to define the problems.

At this point the audience asked questions and raised concerns.

  • The bike lane on Mineral just east of Jack Ass Hill is only about 300 feet long. Can it be extended in order to get those that want to go north on Jack Ass Hill out of the Mineral traffic?  He said he would look into.
  • Citizen mentioned that a “chunk” of concrete feel down from the RR overpass onto Mineral tying up traffic for over 90 minutes. This person was unable to get to the Mineral Station Plan meeting as a result.
  • South Park residents asked for speed bumps to discourage traffic on Mineral from cutting through their neighborhood. Many of those drivers are speeding.  Relph said there are several different ways to calm traffic.  You can do that by narrowing the street, speed bumps (which can be noisy and how many is too many).  In his previous experience they would put in speed bumps for 6 months after a petition demonstrated a 70% approval from the neighbors.  After the 6 months another petition was circulated and if 70% approval were still present the bumps would be come permanent.   He said the city has a brochure on different calming techniques and encourage the citizens to look into them.
  • It was suggested to reduce the bike lanes on the north side of Mineral – there are trails off the street that the bikes could use.
  • The traffic circle on Elati north of Runyon has a citizen concerned about the safety of the kids. She did not like the traffic circle there – Relph said he did not like the way they are done in Littleton.
  • Angelo’s Road – There will be a right in and right out of Angelo’s from Santa Fe Drive.
  • Broadway and Dry Creek – the lines on the road have been changed due to the construction and it is not clear which lines are the right ones as the old blends in with the new when it’s raining at night.
  • Bowles and Santa Fe – Relph said that is an easier problem to solve than Santa Fe and Mineral. But an environmental study was required.
  • Windermere Dead-End by the Highline Canal – Relph called it poor planning. A solution might require the purchase of property.  Could allow local traffic during the day and closed during rush hours.
  • Last mile of County Line near Phillips – Relph said it would take the city, county and Centennial to widen the remainder of County Line and there is no funding. There was a request for a traffic signal at Phillips and County Line and Relph said it does not “warrant” a traffic signal.
  • The flashing left turn light at County Line by the Harley Davidson – a request was made for a turn light instead of the flashing light. Someone else thought there was a dedicated turn light in addition to the flashing light.