Denver’s Department of Housing Stability (“HOST”) and Denver Housing Authority (“DHA”) are partnering to pilot a program aimed at spurring development of middle-income housing.  As reported in the Denver Post, Denver Mayor Mike Johnston has described the pilot program as a way for the city to promote the development of housing units for people with annual incomes between $60,000 to $100,000.

The program will offer property tax rebates and exemptions for developers who commit to building deed restricted apartment units affordable to households earning less than 100% of the area median income (“AMI”).  As a part of the program, DHA will enter into the ownership structure of each project as a special limited partner.  The program, a sort of parallel to an existing DHA program that involves projects for people making no more than 60% of AMI, aims to include about five projects or approximately 500 units in the first phase, according to Dr. James Rife with HOST.

Note that these projects will also be subject to the City’s new Expanding Housing Affordability policy (“EHA”), meaning that the projects will be eligible for the related incentives and that the units within the project subject to the EHA policy must be deed restricted for 99 years.  The deed restrictions on all other units must have a term of at least 30 years.

To be eligible, projects must be new construction that would not be financially feasible without a property tax exemption for at least the first five years as demonstrated by a projected debt service coverage ratio of less than 1.2 without the exemption.  The proposed length of the tax exemption must be less than 15 years (with the intended term being 10 years).  Additionally, financial closing must be achieved by the end of 2026.

HOST will give preference to projects that are:

•           Transit-Oriented Communities, as defined by C.R.S. § 29-35-202(11);

•           located in Neighborhood Equity and Stabilization (“NEST”) neighborhoods; and

•           aligned with Denver’s affordable housing priorities.

Additional requirements apply. Go to HOST’s website for more information, including a complete list of eligibility requirements, a timeline for the program, and the required documentation to include with a letter of intent.

Denver will accept letters of intent between July 15, 2025, and August 15, 2025.  Following the letter of intent deadline, HOST enters a “quiet period” to ensure awards are based on the merits of the project. Then, in September, HOST and the DHA will announce projects invited to submit applications and enter underwriting. 

Following this solicitation cycle, the city will assess whether an additional winter solicitation cycle is necessary to meet program goals.

Read more about the launch of the program from CBS News and the Denver Post.

Several Colorado municipalities have sued the state challenging the constitutionality of landmark zoning reforms enacted in 2024.  The lawsuit specifically concerns two new laws passed by the legislature and one executive order issued by Governor Polis related to those measures.  The first law, HB 24-1313, is aimed at increasing housing density around transit.  Under the law, certain cities and counties that meet the definition of a “transit-oriented community” based on their population and proximity to transit (commuter rail, light rail, and high frequency bus lines, or “bus-rapid transit”) must ensure that their zoning laws allow for a certain minimum housing density near transit.  The other law, HB 24-1304, prohibits municipalities or counties that fall within one of Colorado’s five Metropolitan Planning Organizations from enacting or enforcing parking requirements at multifamily residential developments and adaptive re-use residential developments that are within one-quarter mile of certain transit stops.  Lastly, in May of this year, Governor Polis signed Executive Order D 2025 005, which prioritizes the awarding of discretionary grant funding towards localities that comply with the state’s housing reforms.

The lawsuit, filed in Denver District Court, was brought by Greenwood Village, Arvada, Aurora, Glendale, Lafayette, and Westminster, all home-rule cities under Article XX, § 6 of the Colorado Constitution.  Under that provision, cities of at least two thousand people may enact a home-rule charter that supersedes state law on all “local and municipal matters.”  The plaintiff cities allege that land use and zoning are matters of exclusive local concern and that, accordingly, HB 24-1313 and HB 24-1304 are unconstitutional and void within their boundaries.  (For further discussion of this issue and HB 24-1313 generally, see our alert from April.) Furthermore, the cities argue that both HB 24-1313 and HB 24-1304 violate Article II, § 11 of the Colorado Constitution.  That provision prohibits laws that impair the obligations of contracts or that are retrospective in their application.  The suit maintains that the laws are constitutionally problematic in this regard because they invalidate existing development agreements between certain cities and developers.

The suit also alleges that HB 24-1313 specifically is unconstitutional for two other reasons.  First, it argues that the law violates due process by limiting the plaintiff cities’ abilities to allow for public hearing on new developments.  Next, it contends that the law violates the plaintiff cities’ duty to provide for referendum and initiative pursuant to Article V, §1(9) of the Colorado Constitution because it contains no allowance for deviation from its requirements in the event a referendum or initiative voids local legislation designed to implement HB 24-1313.

Lastly, the suit alleges that the governor’s executive order exceeds his authority because it imposes criteria in the award of grant funding beyond what is contemplated under state and federal law.

On May 16, 2025, Governor Jared Polis signed Executive Order D 2025 005 (“Order 005”) to address implementation of recently-passed strategic growth legislation.  As discussed below, Governor Polis has ordered certain state agencies to consider whether municipalities are compliant with the requirements of seven laws when awarding millions of dollars of discretionary funding.  Three days after Order 005 was signed, seven Colorado cities filed a lawsuit challenging the order, arguing it exceeds the Governor’s authority.  

Order 005 sets forth guidance to State agencies and local governments in furtherance of the following laws, enacted to address the statewide housing shortage: HB24-1007 (prohibiting residential occupancy limits), HB24-1152 (accessory dwelling units), HB24-1304 (minimum parking regulations), HB24-1313 (housing in transit-oriented communities), SB24-174 (sustainable affordable housing assistance), HB25-1273 (residential building stair modernization), and SB25-002 (regional building codes for factory-built structures) (collectively, the “Strategic Growth Legislation”).  Summaries of the 2024 bills can be found in our February 21, 2025 Alert, our November 25, 2024 Alert, and our July 29, 2024 Alert.  Governor Polis reiterated that the availability and cost of housing is a statewide issue and that compliance by Colorado’s home rule, territorial charter, and statutory cities; city and counties; and towns (each a “Local Government”) with the Strategic Growth Legislation is critical to addressing the statewide housing shortage and declared that Local Governments’ receipt of certain state funding will be tied to compliance with Strategic Growth Legislation. 

Order 005 is directed to the executive directors of the Colorado Energy Office, the Department of Local Affairs (“DOLA”), the Office of Economic Development and International Trade, and the Colorado Department of Transportation (collectively, the “Relevant Agencies”).  It orders them to identify certain grants, contracts, loans, incentive programs, and discretionary tax credits administered by the Relevant Agencies that provide support to Local Governments relating to housing development, land use, transportation, infrastructure, historic preservation, mixed-use incentives, conservation, energy, or climate (collectively, the “Funding Opportunities”).  The list of Funding Opportunities must be submitted to the Governor’s office within 30 days.  In the same time period, DOLA must publish a summary of the criteria set forth in the Strategic Growth Legislation that can be used to determine the Local Government’s compliance with such laws (the “Compliance Criteria”).  Using the Compliance Criteria, DOLA must publish a list by October 6, 2025, and quarterly thereafter, that identifies every Local Government and states whether it is compliant, non-compliant, or non-compliant but making progress with the Compliance Criteria.  Order 005 directs the Relevant Agencies to review Local Governments’ compliance and use their compliance status to establish priority for the Funding Opportunities. 

On May 19, 2025, the cities of Aurora, Arvada, Glendale, Greenwood Village, Lafayette, and Westminster filed suit claiming that Order 005’s directive to the Relevant Agencies to withhold funding is unlawful and not authorized by HB24-1304 and HB24-1313.  The lawsuit also challenges HB24-1304 and HB24-1313, arguing that these laws violate Article XX to the Colorado Constitution, which guarantees local control over matters of local and municipal concern.  The plaintiffs have requested, among other relief, a declaratory judgment holding that (i) HB24-1304 and HB24-1313 are unconstitutional, (ii) such laws unlawfully infringe on Local Governments’ power, and (iii) Order 005 exceeds the Governor’s powers.  Publication of the Funding Opportunities and the Compliance Criteria will occur in the near future.  We will continue to monitor the implementation of Order 005 and the legal challenges to the same.

The City of Denver (“Denver”) released the first draft of its proposed amendment to the Denver Zoning Code (“Zoning Code”) known as Modernizing Parking Requirements Text Amendment (“Text Amendment”), in which it proposes removing minimum vehicle parking requirements for all land uses throughout Denver.  This Text Amendment comes as the June 30, 2025 deadline to comply with House Bill 24‑1304 quickly approaches.  

House Bill 24‑1304 prohibits certain municipalities (like Denver) from enacting or enforcing minimum vehicle parking requirements for certain developments (like multifamily residential developments and adaptive re‑use developments with 50 percent or greater residential use) within an applicable transit service area.  Notably, Denver’s proposed Text Amendment goes much further than House Bill 24‑1304’s requirements by extending the elimination of minimum vehicle parking requirements and enforcement to all existing and future land uses in Denver. 

The Text Amendment maintains the Zoning Code’s existing maximum vehicle parking standards and seeks to simplify the Zoning Code’s use tables by removing all minimum vehicle parking space requirements and consolidating bicycle parking requirements into a separate article of the Zoning Code.  The Text Amendment will also extend to properties still zoned under Former Chapter 59.

Denver hopes the Text Amendment will promote the development of more housing, lower the cost of housing, provide greater flexibility for redevelopment and infill development, and result in more efficient and quicker staff review times for development applications.  With the Text Amendment, Denver will join the likes of other municipalities like Austin, Minneapolis, and Portland – all of which have reported success in eliminating minimum vehicle parking requirements – and will become the second municipality in Colorado to eliminate vehicle parking minimums, as the City of Longmont previously eliminated all vehicle parking minimums in 2024.

The Text Amendment is currently undergoing public outreach and review.  It will go before the Planning Board, the Land Use, Transportation & Infrastructure Committee (“LUTI”), and City Council over the next two months for consideration and may be further modified.  The anticipated schedule is below.

  • April 2025: Community Engagement and Public Review Draft
  • May 7, 2025: Planning Board Public Hearing
  • May 13, 2025: LUTI Public Hearing
  • June 2, 2025: City Council First Reading
  • June 30, 2025: City Council Public Hearing and Adoption
  • July 2025: Implementation

You can read more about the Text Amendment here.

When a buyer in a Merger and Acquisition (M&A) transaction seeks to obtain representations and warranties insurance (RWI), one of the key steps is the underwriting call. This call is a critical part of the insurer’s diligence process, where the underwriters assess the risks involved in the deal before issuing the policy. Preparation for this call can significantly impact the coverage obtained and the efficiency of the underwriting process. Below are insights and tips to help navigate this stage effectively.

Understanding the Underwriting Call

The underwriting call typically takes place after the insurer has reviewed the buyer’s due diligence materials and before finalizing the insurance policy. The call involves representatives from the insurer, the insured party (usually the buyer), their legal counsel, and sometimes financial and tax advisors. The primary objective is to ensure that the buyer has conducted thorough due diligence and to identify any areas of heightened risk. Since RWI covers breaches of representations and warranties in the acquisition agreement, the focus is strictly on the target’s historical operations, not post-close plans or improvements.

Key Areas of Focus

Underwriters tend to concentrate on specific aspects of the deal, including:

  • Financial Due Diligence – Reviewing quality of earnings, working capital adjustments, and debt obligations.
  • Legal Due Diligence – Examining material contracts, regulatory compliance, employment matters, and litigation risks.
  • Tax Diligence – Identifying potential tax liabilities and structuring risks.
  • Operational Risks – Understanding supply chain dependencies, customer concentration, and cybersecurity vulnerabilities.
  • Underlying Insurance – Evaluating historical Errors & Omissions, cyber, and other coverage, loss history, and prior acts coverage on claims-made policies.

How to Prepare for the Call

Effective preparation can streamline the process and help secure broader coverage. Key steps include:

  • Ensuring Robust Due Diligence – Underwriters will scrutinize the depth and quality of diligence performed. A well-documented diligence process with clear issue tracking will instill confidence in the insurer. Be prepared to explain how specific risks were assessed through independent diligence efforts rather than relying on the seller’s warranties.
  • Understanding the Transaction – Participants should be able to articulate the strategic rationale for the acquisition, key financial and operational drivers, and any identified risks. Since the insurer has spent less time on diligence, patience and collaboration are essential.
  • Coordinating with Advisors and Assigning Roles – Aside from the lead legal counsel, third-party advisors should be scheduled for specific time blocks for their respective sections. Designating a lead for each topic helps avoid multiple (or different) responses to the same question.
  • Addressing Known Risks Proactively – If there are red flags (e.g., pending litigation, regulatory matters), having clear explanations for risk mitigation can be beneficial.
  • Ensuring the Latest Purchase Agreement and Disclosure Schedules Are Available – The insurer may ask specific questions about these documents, so all parties should work from the most recent versions.
  • Being Prepared to Discuss Materiality – Since RWI policies often include a materiality scrape, underwriters may ask whether the seller disclosed items without regard to materiality. Certain areas may not have been reviewed because, given the deal size and retention level, the risk was deemed immaterial.
  • Identifying the Buyer’s Deal Team – Insurers always ask for the two to three buyer representatives most involved in the transaction, as breaches known to these individuals are excluded from coverage. The insurer assumes those answering underwriting questions are the designated deal team members.
  • Providing Written Follow-Ups When Necessary – If a question cannot be answered during the call, it is best to state that a response will be provided in writing post-call rather than speculating.
  • Understanding That Open Items Will Be Tracked – The underwriter and broker will keep notes and circulate an open items list after the call.

Common Pitfalls to Avoid

  • Inconsistent Responses – If different advisors provide conflicting answers, it raises red flags for the insurer.
  • Lack of Preparation – An unorganized or vague discussion can lead to narrower coverage or higher premiums.
  • Over-Sharing Information – While transparency is key, responses to agenda topics and questions from the insurer should be short, sweet and accurate.
  • Relying on Seller Warranties – The insurer is looking for independent diligence, not reliance on seller representations.

Final Thoughts

A well-handled underwriting call can mean the difference between robust coverage and limited protections. By preparing thoroughly, aligning with advisors, and anticipating underwriters’ concerns, deal participants can help ensure a smooth and successful process.