Grove Lawsuit Update

grove-12-16

By Leah Burkett

This is just a quick note to let you know that appeal proceedings are underway in the legal case against the City of Littleton and the Grove Project.  We still believe that Judge Horton (Arapahoe County 18th Judicial) got it wrong when he decided the case in Littleton’s favor in September 2016.

To recap, in October 2015, a legal complaint was filed seeking judicial determination of whether Littleton’s code allows neighboring property owners the right to challenge a staff zoning decision (through a hearing at the city’s Board of Adjustment).  After nearly a year of litigation, Judge Horton ruled in September a neighbor did not have that right. We immediately asked the judge to reconsider his ruling with a formal motion for reconsideration, but in November 2016 Judge Horton again ruled against us again (this time without any further explanation).

A notice of appeal was filed on December 29, and is just the beginning stage of the appeal process.  Once the court creates an appeal record, briefs will be filed and ultimately the case will come before a panel of 3 judges who will either uphold Judge Horton’s original ruling or overrule it.

The entire appeal process is likely to drag on for at least another year, so unfortunately Zocalo’s project will be nearing completion by the time a decision is reached, one way or another.  Even if we win the appeal, most likely the Grove will be here to stay.  Still… we must follow through and win this battle to make sure a story like this cannot happen again, here in Littleton or elsewhere.  It is the principle of the matter and it is an important cause to keep fighting for.

We will continue to keep you posted as this next stage of litigation unfolds.  Thank you again for your interest and ongoing support –  we could never have made it this far if it weren’t for all of you.  Thank you so very much!

PS – We plan to organize a large garage sale this Spring to raise funds toward legal costs of appealing this matter.  Please consider hanging onto any items that could be donated to Advocates for Littleton for sale at our event. Details to follow once the event is fully planned!

In the meantime, we are still happily accepting donations toward legal costs through our online fundraiser at www.gofundme.com/fightthegrove or by mail to PO Box 620253, Littleton CO 80162

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Judge Asked to Reconsider Grove Ruling

grove-3d
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.

Building Permit Issued for the Grove Despite Lawsuit; Citizens Protest

Grove protestBy Leah Burkett

Littleton residents were shocked to see construction beginning on the Grove Site at 2100 W Littleton Blvd earlier this month.  Despite an ongoing lawsuit to appeal the projects approval, the City of Littleton issued a building permit to Zocalo, who wasted no time beginning to build.

Frustrated citizens took to the streets for a good old-fashioned picket line in front of the Grove site.   Undeterred by the cold and wet weather, protesters gathered for the morning and afternoon rush hours on both Monday May 16th and Tuesday the 17th.  Tuesday afternoon’s protest ended with a march down to city council chambers for their May 17th meeting.

The City Council meeting was much longer than usual due to a public hearing on retail marijuana, but the troupers who stayed finally got the chance to talk to Council about the Grove around 11:30 pm.  The time investment was well worth the effort as the City Council finally agreed to have a discussion about The Grove and it’s approval. 

Councilman Doug Clark moved to withdraw the City’s approval of its development plan and related building permits.  Jerry Valdes seconded the motion, but before a vote was called, Mayor Beckman asked about the legal implications.  In response, the City attorney asked the council to table their vote on the motion to June 7th so that she could advise them on the risks of doing so prior to the vote.  Council then voted unanimously to revisit the issue on June 7th.

Until Advocates for Littleton know for sure what the Council will or will not do, the lawsuit will continue.

A trial is currently scheduled for September 1; however, a Motion for Summary Judgment (MSJ) was recently filed by the plaintiff, meaning the Judge has been asked to make a decision without the unnecessary time and expense of a trial. All replies to the MSJ must be wrapped up by June 1, at which time the motion and related documents will be forwarded to the Judge for review.  Attorneys at Foster Graham expect that a decision would be made on the MSJ no later than mid-July.  By that time, the matter may be decided or it will be definite that a trial will occur on September 1.  

The best possible outcome for citizens involved in the lawsuit would be for the City to either order a hearing at the Board of Adjustment or revoke their approval of the Grove. If the Council orders an appeal hearing or revokes approval of the Grove, the lawsuit could be dropped.

The City of Littleton is in quite a predicament.  Based on their approval, the developer has already made significant investment toward building The Grove.  Each day that Zocalo continues construction, the City’s potential liability increases.  The majority of council must become convinced to get on the right side of the issue.  There is little doubt that City would incur a huge liability to the developer, Zocalo.  However, it is the right thing to do.

It’s clear to anyone who familarizes themselves with City Code and the Grove Site Plan that its approval was made improperly and in violation of multiple zoning ordinances. The Council should hold the City Management accountable.

——-

By the way, the protest was covered by the media both days. Check out the reports by Fox news on Monday and CBS news on Tuesday:

Fox:  http://kdvr.com/2016/05/16/neighbors-sue-to-try-to-halt-development-project-in-littleton/

CBS: http://denver.cbslocal.com/2016/05/17/the-grove-lawsuit-historic-littleton/

Building Permit Issued for The Grove Despite Lawsuit

Last week, the City of Littleton issued a building permit to Zocalo to construct the Grove. Despite the fact that the lawsuit against the City and Zocalo is still pending, Zocalo has already begun to proceed with construction. The site has been staked out and dirt is being moved for foundation work. This arrogant advancement by Zocalo is at their own risk. If our lawsuit succeeds, Zocalo’s work may go to waste.
The Arapahoe County Court docket is very long; this lawsuit will take some time to be finalized. A trial date has yet to be established, and we may still try to fast-forward the decision with a motion for summary judgment. Should you wish to look it up, the case number is 2015CV32363.

Did You Know? The Grove Subdivision Exemption: The only place where divide really means combine…

Exempt Survey Grove 1

Background for new readers:  The Grove, a large, high density project approved for the old Sheriff’s site (across Ltn Blvd from the Courthouse) was approved without a public hearing.  City staff, namely Jocelyn Mills, approved the project under the Subdivision Exemption that allowed it to be approved administratively and without public hearing.  The Subdivision Exemption has requirements with the first being: A division of land must not exceed two (2) lots.  Everyone familiar with the project knows that there was no subdivision but actually a combination of parcels (lots).  We have been asking how a division of property could be interpreted to be a combination of property and that should bring you up to date enough to understand the next stage in the (lack of) discussion.

Citizens have been addressing city council on the use of the Subdivision Exemption (SE) for the approval of The Grove since last summer.   To date there has not been much in the way of satisfaction with the response from the city staff and/or council.  The question being asked is important because the use of the SE allowed the owner, Zocalo, to be granted a “use by right” to avoid a public hearing on the proposed project.  A project very similar to the Broadstone project planned for the same property was turned down 6/1 by the city council prior to the submission of the plans for The Grove.   It is highly likely The Grove would have been turned down if the decision wasn’t made administratively but through a zoning change, which is a very public process allowing citizens to chime in.

The SE is intended to “allow the owner or purchaser of land, or agent thereof, to divide such land into not more than two (2) parcels, which meet the requirements of the governing zone district classification, without requiring submission of a subdivision plat.”  The Grove is clearly a project that combined parcels; there was not a subdivision of a parcel into “not more than two (2) parcels” as the code provides exemption from the public process.  The question asked several times is how “divide” could be interpreted to mean “combine”?

The answer(s) about possible code violations on the approval of The Grove have yet to be offered however the city manager, Michael Penny, did provide a response.  He wrote, “The Grove project was a combining of parcels and did not result in a division of land into more than two lots. ”

If you are like us, you have to ask why the SE was used to approve the plans for The Grove.  The city manager has acknowledged that there was no division but a combination of parcels.  Why hasn’t council asked the same question?  Don’t you think we all deserve a comprehensive response to the many perceived code violations that involve the avoidance of a public process for The Grove?  A public process that would, no doubt, involve a large number of citizens in opposition.  Maybe that is why the SE was used as a reason to approve this project administratively?  We will never know unless our council demands answers from the staff to the questions raised by the citizens.

Michael Penny also wrote that the “subdivision exemption code language (adopted in 1979) is not as clear as it could be.  To this, staff will be proposing an ordinance with updates to the Subdivision Code (Title 11), including this section, before Planning Board and City Council in the coming weeks.”  The suggested revisions will be presented to the Planning Board at their May 9th meeting.  We have heard from a citizen that has tried to discuss the upcoming agenda item on the Subdivision Exemption with Planning Board members only to be told that the staff has advised them not to discuss the matter with the public because of the on-going litigation.  However, the litigation has nothing to do with the Subdivision Exemption but is a matter of due process.

At the council meeting 4 May 2016 Carol Brzeczek raised the issue once again asking the council to please intervene to at least explain the interpretation of the SE used by staff to approve The Grove project.  The earth movers were working and if the citizens prevail in the court and go on to win an appeal both Zocalo and the City could be in jeopardy.

At the end of the council meeting Bruce Beckman, mayor, made a statement that the Subdivision Exemption is problematic and there should be amendments brought forward as the current language is very difficult to read now.  He suggested that it be rewritten and presented to the planning board (will happen May 9th).  He expressed “great sympathy” for the people who have expressed concern over the use of the Subdivision Exemption to approve The Grove project.

You decide – is this really difficult to understand? The actual language in question reads:

It is the purpose and intent of this chapter to allow the owner or purchaser of land, or agent thereof, to divide such land into not more than two (2) parcels, which meet the requirements of the governing zone district classification, without requiring submission of a subdivision plat.

 A division of land must not exceed two (2) lots.”

Pray tell, what is so difficult to understand about the two sentences above?  The code was written to provide an exception and not the rule as I have been told.  (For instance, you live on a large parcel of land and want to scrap the house and subdivide into two lots.  As long as you meet the requirements of the SE you can do so without a public process.) Why haven’t the citizens requesting an explanation been provided one if there is one?

FYI – Citizens have contributed funds to challenge the lack of due process in their ability to appeal the administrative decision to approve The Grove.  (Jocelyn Mills, who approved The Grove, is the same staff person that denied the citizens the right to appeal her decision.)  Citizens believe she should not be the person to determine whether or not her decision is appealed.    If you would like to contribute to the fund, please contact Leah Burkett / Advocates for Littleton

https://sites.google.com/site/advocates4littleton/

The Grove Legal Battle Continues On

 

Grove 4By Leah Burkett

The legal battle to stop the Grove project in Downtown Littleton is slowly but surely moving forward.  After surviving Zocalo’s attempt to have our attorney removed from the case, in early March the same judge denied both the City of Littleton and Zocalo’s efforts to have the case dismissed.  In mid-March, both defendants were finally required to answer the original legal complaint from October 2015.  Not surprisingly, both defendants denied all zoning violations and any wrong-doing.

The legal case is now slated to go to trial, although a decision will likely be made sooner if a motion for summary judgment is granted.   Although there are numerous (and obviously important) zoning violations cited in the case, the overarching issue in this challenge is whether or not the neighbors should have been entitled to the appeal hearing that they sought from the City’s Board of Adjustment.  This one decision, which boils down to an interpretation of City code, is not exactly appropriate for a trial.  A motion for summary judgment fast forwards the case and asks for a quicker decision in our favor.

To say the least, by falsely declaring the Grove a ‘use by right’ project and claiming it meets existing zoning provisions, the City of Littleton made it a very hard case to fight.  According to the attorneys at Foster Graham, the only sure-fire way to stop a ‘use by right’ project is to seek an injunction.  Unfortunately, injunctions aren’t exactly attainable for your average Joe Citizen: to obtain one requires a bond deposit which can easily amount to multi-millions of dollars.  Do any of you readers have a millionaire friend that would be willing to do this for us?  We didn’t think so!

Plan B was to challenge the case internally within the City of Littleton, through the Board of Adjustment (BoA).  If the neighborhoods’ appeal application would have been accepted, a hearing would either have killed the Grove plan all together or made it a much simpler legal challenge.   However, since the City interpreted that the BoA hearing was not allowed, Plan B became to challenge the City’s BoA interpretation.  The defendant’s motions to disqualify and dismiss the case were unexpected hurdles in the legal challenge, but now that those hurdles have been cleared, we march forward with our heads held high.

Whether we win the case or not, there are some troubling questions that neither the City Council nor Staff have yet been willing to discuss: When it comes to land-use, where are the checks and balances to staff decisions when the Council and Boards are cut out of the process? (There are none).  Who investigates complaints of abuse of power? (Nobody – except perhaps the abusers of power themselves).  What is to stop the Staff from abusing the ‘use-by-right’ approach again? (Who knows?!)

 The case will likely drag on for at least a few more months before we have a final decision.  For now, the site remains quietly fenced off; apparently abandoned while we await a decision. Stay tuned!

 The legal challenge against the Grove is being financed by Colorado non-profit Advocates for Littleton.  Contributions to this important litigation are gratefully accepted at:

 www.gofundme.com/fightthegrove

Note that Advocates for Littleton is a registered Colorado Charity, but is not an IRS 501c3, as such contributions are not tax deductible.

 For more information and to stay tuned, visit Advocates for Littleton’s website:

 https://sites.google.com/site/advocates4littleton/

The Grove Project: Zoning Laws no longer protect neighborhoods

Grove LU

By Leah Burkett

Imagine learning that your neighbor across the street has plans to redevelop his lot into a 5-story, 160 unit apartment building. The proposed new building will be 50 feet tall and will be built right up to the edge of the sidewalk with no landscaping buffer. The property isn’t zoned for high-density, so surely this neighbor’s plans are unrealistic, right? Wrong. This nightmare scenario is happening right now near downtown Littleton, but a community lawsuit could stop what will otherwise be a done deal.

The project, known as the Grove, is by Zocalo Community Development and is at the corner of Littleton Blvd and Bemis Street. The Grove is strikingly similar to the failed Broadstone proposal of 2013, which was voted down 6-1 by the City Council after over 7 hours of outcry at the public hearing. This time around, the project avoided controversy with a quiet approval from city staff, who declared that no zoning change was necessary. In September 2015, city staff approved what is essentially a new version of Broadstone, but this time without public scrutiny or a vote by City Council.

This shady approval was hotly contested by neighbors and citizens alike, but City Council refused to step in. With the City unwilling to negotiate, neighbors had little choice but to seek legal assistance. Attorney David Foster of law firm Foster, Graham, Milstein and Calisher (FGMC) took the case and confirmed our belief that the Grove is not zoning compliant. This illegal project should never have been given administrative approval.

FGMC advised neighbors to appeal the Grove decision to the City’s Board of Adjustment. This board exists to “hear and decide appeals where it is alleged that there is an error in any decision or determination made by the City in the administration of the zoning code.” As a board that is meant to provide checks and balances to city decisions, it would have been the ideal platform to appeal the Grove decision. Nevertheless, city staff denied the neighborhood’s appeal application, and did so unilaterally without any involvement from the board.

Enter the lawsuit. Attorneys at FGMC believe that Littleton’s denial of the neighborhood’s appeal application is a denial of due process. While there is only one plaintiff in the suit, it is very much a community lawsuit. Non-profit group Advocates for Littleton reports that more than 80 individual contributors have donated nearly $19k toward the legal battle. The controversy has received its fair share of media attention with articles published in the Colorado Independent, the Denver Post, the Littleton Independent, and even a TV interview by 7 News.

Zocalo’s first response to the suit was an attempt to strip the plaintiff of her excellent attorney by claiming a conflict of interest. Zocalo filed a motion to disqualify FGMC, resulting in a delayed decision on the case by at least 2 months. Judge Horton of the 18th district judicial court of Arapahoe County held an evidentiary hearing in January, but the matter remained unresolved because of Zocalo’s claims that the evidence of said conflict was confidential and could not be shared publicly in the courtroom. Judge Horton therefore allowed extra time for ‘sealed’ evidence to be shared and responded to between attorneys only. On February 17th, Zocalo’s motion to disqualify was denied. FGMC will remain the attorney on this case. This small victory will keep us going while we wait out the next steps in this lawsuit.

In addition to the failed motion to disqualify, both the developer and City of Littleton filed motions to dismiss the case. Now that the disqualification motion has been decided, the Court will begin to consider both of the motions to dismiss. There is no deadline for a ruling on this, but we hope to have an answer within 6 weeks or sooner.

Despite the unresolved legal proceedings, demolition of the historic buildings on the site has recently been completed. For now, the site remains quietly fenced off, and only time will whether or not Zocalo will press forward with their project in spite of the lawsuit. For more information and to stay tuned, visit Advocates for Littleton’s website: https://sites.google.com/site/advocates4littleton/