This post was authored by Alexandra Haggarty.  Alex is a summer clerk at Otten Johnson, and a rising 3L at the University of Colorado Law School.

This post is an update on three earlier posts about a citizen initiative to limit residential growth in Lakewood, Colorado.

With a near 53 percent majority, voters in the City of Lakewood approved Ballot Question 200, capping growth of residential unit construction by one percent annually and requiring city council approval of projects with forty or more units.  The city joins Boulder and neighboring Golden in responding to Colorado’s population growth by capping development.

Proponents of the initiative argue that it will preserve Lakewood’s culture and environment.  Specifically, the initiative was pitched as a way to preserve open space, protect single-family development, ensure that infrastructure and services are not overburdened, and curb alleged problems of unmanaged growth, such as crime and urban decay.
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Resolute’s proposed self-storage facility is shown in the graphic above. Source: Resolute Investments.

In May, the Colorado Court of Appeals upheld the City of Thornton’s approval of a specific use permit for a self-storage facility against a challenge brought by a competitor self-storage facility.  While the court’s decision in Stor-N-Lock Partners #15, L.L.C. v. City of Thornton was a victory for the defendants, including the city and the developer, the court ruled that defendants in Rule 106(a)(4) actions may not recover delay-induced damages through the imposition of a bond.  Otten Johnson attorneys Brian Connolly and Bill Kyriagis represented the defendant landowner and developer, CenturyLink and Resolute Investments, Inc., respectively, throughout the proceedings.

In the case, Resolute obtained the city’s approval of a specific use permit for its project.  A neighboring self-storage facility challenged the approval under Colorado Rules of Civil Procedure Rule 106(a)(4), which allows for judicial review of quasi-judicial decisions by local government bodies.  The plaintiff alleged that the approval of the specific use permit did not improve the welfare of its property, which was one of the Thornton code’s criteria for the issuance of a specific use permit.  The district court affirmed the city’s decision but denied the defendant’s motion to require the plaintiff to post security in an amount that would cover the defendant’s losses incurred as a result of litigation-related delays. 
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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
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As Denver’s housing market continues to thrive, so, too, do the development-related concerns of existing residents.  The rapid pace of development in many City-close neighborhoods has at times pitted residents desiring attractive, pedestrian-oriented communities against developers responding to high demand for urban housing options.  On Monday, August 22, 2016, the Denver City Council passed a pair of City-wide development moratoria aimed at addressing parking and architectural issues.  CB16-0498 concerns use of the City’s small zone lot parking exemption.  CB-16-0541 places a one-year moratorium on use of the Zoning Code’s Garden Court Building Form.  Both bills passed with a unanimous vote of Councilmembers present and took effect August 25, 2016. 
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