We’ll start in Boulder and with commercial development. In February, the Boulder City Council directed city staff to draft an ordinance that would raise the city’s affordable housing linkage fee on new commercial development from $12 per square foot to $25, $30, or $35 per square foot.  Boulder’s current $12 linkage fee is the highest such fee of any city in the country between the two coasts, with Palo Alto the highest in the country at $35.  Even so, City Council members expressed that the current fee is still low enough vis-a-vis fees on residential development to incentivize commercial development over residential development. And more commercial development without new housing only exacerbates the city’s acute jobs-housing disequilibrium.  City Council did indicate, however, that certain applicants such as small businesses and nonprofits would not have to pay the higher fee. The final linkage fee amount will be decided after the ordinance’s first scheduled reading on April 17.

Image result for olde town lafayette

Boulder wasn’t alone last month in moving towards doubling its affordable housing fees.  Looking to capitalize on the exploding construction in the city, the Lafayette City Council approved the first reading of a measure that would increase its affordable housing fee on new residential development from 30 cents per square foot to 60 cents per square foot.  This fee funds a trust that is used to supplement future affordable housing projects in the city.  The measure is expected to receive final approval in the coming months. Lafayette is also considering an ordinance to enact an affordable housing fee for new commercial development.

Welcome to the first installation of City Prism.  Law is what we do and a part of who we are, but our lives are fully immersed in the people, places and perspectives that create Denver’s identity.  Deeply entwined with our legal practice is our love of place.  This is our opportunity to share our personal insights.

The Golden Triangle neighborhood has officially welcomed a long-anticipated resident–the Kirkland Museum of Fine & Decorative Art.  With a sleek $22 million building that seamlessly integrates a century-old studio (the relocation process being its own story), the newly reopened museum now has the capacity to exhibit about 6,000 art objects (still only 1/5 of the entire collection).  The gallery rooms are similar to visiting the home of an eccentric and extremely rich aunt, with paintings hanging over the furniture from the same time period.  It would be downright impossible to focus on every single object.  Better to focus on the objects that capture your imagination–whether it is the intricate china sets, funky lamps, or highly impractical chairs–and ruminate on what you would pick out for your own living room.

Despite the vast collection of decorative art items, the artwork of the museum’s namesake, Vance Kirkland, stands its own ground.  Kirkland refused to limit himself to a single signature painting style–even when his own wife would not visit his studio (she didn’t understand abstraction).  Kirkland initially painted Rocky Mountain landscapes, then progressed into surrealist worlds of deadwoods and other biomorphic forms, and ultimately arrived at pure abstraction.  The Dot Paintings near the end of his career prove to be the most striking.  As a synaesthetic who perceived sound as color, he used dissonant classical music to inspire the color combinations of his abstract works.  He would then paint by suspending himself over the canvases with straps attached to the ceiling–a contraption that is displayed in Kirkland’s preserved workroom.  If only the museum would pipe in some of Kirkland’s favorite musical compositions to create a truly immersive experience.  In essence, the museum pays homage to a Colorado artist that quietly, yet persistently, changed the art world.

The Kirkland Museum of Fine & Decorative Art joins the Denver Art Museum, Clyfford Still Museum, History Colorado Center, Byers-Evans House Museum, the ART hotel, and numerous art galleries, further cementing the cultural significance of the Golden Triangle Creative District.

The Kirkland Museum of Fine & Decorative Art is located at 1201 Bannock Street.  For more information, visit kirklandmuseum.org.

The Knick property. Source: Pacific Legal Foundation.

Last week, the U.S. Supreme Court granted a petition for certiorari in the case of Knick v. Township of Scott.  In Knick, the Court is being asked to re-examine its 30-year-old doctrine requiring takings claimants to exhaust state court remedies before filing a claim for just compensation stemming from a regulatory taking in federal court.  The decision to grant the petition indicates that at least four justices agree that it’s time to consider eliminating procedural hurdles created by the Court’s 1985 decision in Williamson County Regional Planning Commission v. Hamilton Bank.

The Fifth Amendment to the U.S. Constitution prohibits the government from taking private property without justly compensating the property owner.  The Takings Clause has been expanded to allow owners to seek compensation in cases where government regulation becomes so onerous that it effectively takes property.

Knick addresses a township law requiring individual property owners to, without compensation, maintain their properties open for public access.  Rose Mary Knick’s 90-acre parcel in western Pennsylvania, which includes her personal residence, was identified by township officials as being the possible site of an ancient burial ground.  Although Knick attempted to convince the township that no documentation proved the existence of such a burial ground, the township passed an ordinance in 2012 allowing general public access to any private cemetery during daylight hours.  Knick attempted to block public access to her property, but was issued a notice of violation by the township’s code enforcement officer.

Knick first sued in the Pennsylvania Court of Common Pleas in 2013, claiming that the township’s ordinance had effectively taken her property.  Because the township had not yet filed any judicial action against Knick, the state court dismissed her claim.  She then filed suit in federal court, again seeking compensation for the alleged taking.  The federal district court dismissed her claims as being unripe, since Knick had not sought compensation through state courts.  The Third Circuit affirmed the district court, similarly finding that Knick’s facial and as-applied claims were unripe.  The Supreme Court granted certiorari last week.

At issue in the case is what is frequently termed the “state litigation rule.”  Understanding the rule requires a look back at Williamson County.  In that case, which involved the denial of a plat application by a county planning commission and subsequent regulatory taking claim, the Supreme Court held that a party bringing a regulatory taking claim must first exhaust all state judicial remedies before bringing such a claim in federal court.  The Supreme Court specifically found in Williamson County that a plaintiff wishing to seek compensation for an alleged regulatory taking must first exhaust all administrative remedies—in Williamson County, the plaintiff should have sought a variance—and must also avail itself of any state procedures for obtaining compensation.  In most cases, that second requirement would have plaintiffs seeking compensation through state courts.

The practical effect of Williamson County has been to require plaintiffs seeking compensation for alleged takings to proceed through lengthy and costly state court litigation, all the way to a point of finality, before even commencing federal litigation to vindicate their Fifth Amendment rights.  In Colorado, for example, a landowner whose land use application was denied and who wanted to bring a subsequent regulatory taking claim would be required to file an action under Colorado Rules of Civil Procedure Rule 106(a)(4), along with a regulatory taking claim.  The claim would need to be litigated through district court and then through the Colorado Court of Appeals.  Only after the Colorado Supreme Court either ruled in favor of the defendant or denied a petition for certiorari—which could be expected to take anywhere from three to five years after the denial, and impose significant cost—could the plaintiff then file a claim in federal district court.

Property rights advocates have long panned the Williamson County decision as imposing a serious and unnecessarily high burden on property owners who wish to seek compensation in the event their property has allegedly been taken as a result of an onerous regulation.  As Knick notes in her petition for certiorari, many problems have been observed with Williamson County.  First, because federal courts are required under the Constitution to afford full faith and credit to state court decisions, most state court takings decisions have been found to be unreviewable by federal courts.  Second, because many parties remove takings claims to federal court, and federal courts subsequently dismiss such claims as unripe, the removal of these claims makes them effectively unreviewable.

The plaintiff in Knick asks the Supreme Court to do one of two things.  It first asks the Court to reverse its Williamson County decision in order to allow takings claimants to bring their claims in federal court.  In the alternative, Knick asks the Court to at least recognize that facial takings claims (i.e. claims that a law effects a taking on its face) be allowed to proceed to federal court without a detour through state court.  Assuming the Supreme Court grants either request, it could be considered a significant win for property rights advocates.

There is no telling what the Court will do with Knick.  Early indications suggest that Justices Thomas and Kennedy are not fond of the state litigation rule, as they joined together in a dissent from a denial of certiorari in an earlier case that attempted to seek the Court’s reversal of Williamson County.  And given the pro-property rights position of Chief Justice Roberts and Justices Alito and Gorsuch, there is a strong initial indication that Williamson County’s days are numbered.  However, the Court has been known to surprise, and much remains to be seen.

For more than 15 years, Denver’s comprehensive plan, “Blueprint Denver,” has taken a binary view of neighborhood change—either a neighborhood should expect to change, or it shouldn’t—but it’s looking as though that practice might soon end.  The current system, under which every City lot lies within an “area of stability” or an “area of change,” now seems likely to disappear in favor of a four-tiered categorization developing as part of the “Denveright” long-range planning process.

A bit of background: under Blueprint Denver, the City aims to funnel development into “areas of change” that comprise roughly one fifth of Denver’s land area.  The plan’s complementary goal is in turn to limit growth in “areas of stability” that cover the balance.  Denver development pressure has to some extent followed that vision crafted in 2002, especially as new projects have advanced along Continue Reading Denver to Take More Nuanced Approach to Growth Planning

This post follows up on a post from August about a citizen initiative to limit residential growth in Lakewood, Colorado.

In Lakewood, Colorado’s fifth largest city, citizens associated with Lakewood Neighborhood Partnership submitted a petition for a “strategic growth” initiative last July. The initiative aims to limit the growth of residential housing units to 1% annually, and would require that the Lakewood City Council approve all projects with forty or more housing units. The unelected planning commission currently has final decision authority over multifamily site plans and subdivisions in Lakewood.

The proposed ordinance is very similar to ordinances that have been in effect in Boulder since 1978 and in Golden since 1995. The initiative contains a system of “allocation pools” to distribute housing unit permits to individual projects, and “banking plans” to accommodate projects with multi‑year build outs. At the beginning of every year, the city will estimate the number of dwelling units which exist on December 31 of the prior calendar year by dividing Lakewood’s population by average household size. Finally, divide that figure by 100 (1% growth), and that’s the “allocation” of permittable housing units for the year.

For example, the U.S. Census estimates Lakewood’s population (as of July 2015) to be 152,381 with average household size of 2.30 persons. If the initiative were in effect in 2016, the allocation would have been 663 housing units (152,381 ÷ 2.30 ÷ 100). Looking at Census figures for population growth, Lakewood gained 2,012 people in 2016, which would have required approximately 875 housing units. That’s a shortage of almost 25%. In 2017, the city actually issued building permits for a total of 924 residential units.

The Common Sense Policy Roundtable, a business‑sponsored think tank, released a report in October 2017 that warned the Lakewood initiative would result in the “displacement” of as many as 4,100 households over the next ten years.

Under the proposed ordinance, developers of projects with multi-year build outs would need to submit a “banking plan” that outlines how many units their project will contain, and over how many years those units will be rolled out. The planning commission must approve banking plans for projects of more than 40 units. However, the planning commission’s approval does not bind city council, which retains authority to approve any commitment of future allocations, and the approval of a banking plan does not create a vested property right to develop banked units.

Proponents submitted their petition to the City Clerk in July expecting that voters would decide on their initiative in the 2017 election. The clerk verified the signatures, but Steve Dorman, a conservative activist in Lakewood, challenged the signatures on the basis that the proponents did not adequately advise signatories about the contents of the initiative. Following two days of administrative hearing in August and September, the City Clerk found in favor of the petitioners, clearing the initiative for the November ballot. Then in October, Dorman challenged the clerk’s findings in Jefferson County District Court under Colorado Rule of Civil Procedure 106(a)(4). Based on the most recent filings in Dorman v. Lakewood, the trial court is probably a few months away from reaching the merits of case, but a Rule 106 review gives the government—in this case City Clerk—the benefit of a deferential standard of review. Even if Dorman prevails, the proponents of the Lakewood strategic growth initiative could re‑circulate petitions before the deadline in August.