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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The proposed regulations spearheaded by Councilwoman Mary Beth Susman and recommended by Denver’s Planning Commission last month may not have a clear path to approval by City Council. As discussed in a prior post, the proposed zoning regulations for short-term rentals, drafted after much consideration in public presentations and town hall meetings earlier this year, would permit properly licensed short-term rentals city-wide, subject to certain limitations. One of those limitations, which require the short-term rental unit to be the host’s primary residence, received significant push-back from several Denver residents who currently rent homes other than their primary residence on hosting websites such as Airbnb and VRBO.
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In Ave. 6E Invs., LLC v. City of Yuma, decided last week, the Ninth Circuit considered whether a local government’s refusal to grant a rezoning request that would have allowed higher-density residential development violated the Fair Housing Act (FHA).  This case is one of the most significant cases since last summer’s Supreme Court decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project to address issues of disparate impact and discriminatory intent under the FHA.
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