Denver District Court Judge Robert McGahey has ruled that the U-MS-5 zoning of the four parcels of land in the West Highlands neighborhood was part of a valid legislative action and did not constitute impermissible spot zoning.
The four parcels, located adjacent to the commercial corridor on 32nd Avenue and Lowell Boulevard, were rezoned U-MS-5 during the 2010 citywide legislative rezoning process. In the case, ten neighbors in the West Highlands neighborhood contended that the Denver City Council’s zoning of the parcels was an ultra vires act, or beyond the powers granted to Denver City Council, and that Denver City Council engaged in impermissible spot zoning. An impermissible spot zoning occurs when it appears that a rezoning was designed to relieve a particular property from applicable zoning restrictions.
The court held that Denver City Council has the power and authority to make zoning decisions so long as they are made in accordance with a comprehensive plan. Therefore, zoning determinations are presumed to be valid. Because there was not clear and convincing evidence that City Council acted in an arbitrary or capricious manner, the court held that Denver City Council’s U‑MS‑5 zoning of the parcels was not an ultra vires act.
The court further held that spot zoning did not occur on these parcels because they were subject to the same treatment as other Denver properties during the citywide rezoning process. The court found that the treatment of these parcels was not unique and there was no indication that the City intended to target the parcels to relieve them of zoning restrictions.
This case is particularly notable because it is a spot zoning challenge to a legislative rezoning scheme. All previous Colorado spot zoning cases have involved situations in which a property owner seeks and is granted a rezoning for their specific property. As shown in this case, it appears that a court is less likely to find that a particular property was singled out for special treatment when the rezoning was part of a larger rezoning process. This case also demonstrates the broad discretion and authority granted to Denver City Council in making zoning decisions for the City and County of Denver.
Otten Johnson attorneys Tom Macdonald and Heather Park represented the property owners in this case.