lowry division complaint filing in denver district court

7/27/2019 Lowry Division complaint filing in Denver District Court

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DISTRICT COURT, CITY AND COUNTY OF

DENVER, COLORADO

Court Address: 1437 Bannock St., Room 256Denver, CO 80202

Plaintiffs: CHRISTINE OCONNOR, DAVID T.MITZNER, WILLIAM H. OROURKE, and JOHN

FISCHER,

Defendants: THE DENVER PLANNING BOARD

(including the individual Board members in their official

capacity, Andy Baldyga, Jim Bershof, Shannon Gifford,Renee Martinez-Stone, Brittany Morris Saunders, Joel

Noble, Susan Pearce, Arleen Taniwaki, Julie Underdahl,Frank Schultz, and Chris Smith), THE MANAGER OFCOMMUNITY PLANNING AND DEVELOPMENT

(Brad Buchanan, in his official capacity), and THE CITY

AND COUNTY OF DENVER.

COURT USE ONLY

Case Number: __________

Ctrm:

Attorney for Plaintiffs

Gregory J. Kerwin

Gibson, Dunn & Crutcher LLP

1801 California Street, Suite 4200

Denver, CO 80202-2642

Telephone: 303.298.5700Fax No.: 303.313.2829

E-mail: [email protected]

COMPLAINT

Plaintiffs, by and through their attorneys, complain and allege as follows:

INTRODUCTION

1. This is an action by residents of East Denver neighborhoods to challenge and

reform a corrupt, consultant-dominated, unlawful process for the rezoning of a 70-acre block of

land in east Denver, which is part of the old Lowry Air Force Base and the site of the now-closed

Air Force Finance Center or Buckley Annex.

2. As detailed below in this Complaint, Plaintiffs challenge here both:


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a) the procedures the Denver Community Planning and Development

Department (CPD) and Denver Planning Board used to consider on October 1, 2014

the rezoning text amendment for the Buckley Annex parcel, which CPD labeled the

Lowry Design Overlay District (DO-4) (referred to below as the Lowry TextAmendment); and

b) the substance of CPDs and the Planning Boards decisions on the Lowry

Text Amendment, including their decision to adopt a high-density framework (with five-

story buildings and minimal or no street setbacks) that:

i. does not meet the Zoning Codes criteria for a text amendment inSection 12.4.11.1;

ii. does not meet the Zoning Codes review criteria for a text

amendment in Section 12.4.11.4 because it is not consistent with the Citysadopted plans, namely the Comprehensive Plan along with the Lowry Reuse Plan

which is incorporated into it, and Blueprint Denver, or with the character of thesurrounding neighborhoods (contrary to CPDs and the Lowry Redevelopment

Authoritys contention, the Buckley Annex GDP is not an adopted plan); and

iii. fails to consider as part of the zoning decision the substantial

negative traffic impacts to surrounding neighborhoods from placing new high-

density buildings in this area that already has congested arterial streets andintersections and lacks effective mass transit options.

In addition, through this lawsuit, Plaintiffs seek to reform the process CPD and the Planning

Board will be using for consideration of additional zoning changes for the Buckley Annex parcel

and throughout the City and County of Denver, to prevent future flawed zoning decisions thatharm Denver neighborhoods and residents.

3. When Lowry Air Force Base was still open for airplane flights, this BuckleyAnnex acreage formed part of the east-west runway for Air Force airplanes. The Buckley Annex

site now is surrounded by thriving east Denver residential communities with cohesive, stableneighborhoods and strong property values. Most of those communities consist of single family

homes and some townhouses and a few apartment buildings in the neighborhoods called:

Lowry, Park Heights, Mayfair Park, Montclair, Crestmoor, Hilltop, George Washington/VirginiaVale (collectively, the Affected Neighborhoods). The existing commercial, mixed-use, and

residential developments in Lowry have been scaled to fit in with, complement, and becompatible with surrounding residential neighborhoods with adequate parking (with someexceptions including East Park) and appropriate scale that limits the adverse traffic effects of the

developments.

4. The vast majority of the residents of the surrounding stable residential

neighborhoods do not want to see the Buckley Annex parcel become an island of new, high-

density, urban-intensity, mixed-use buildings that create a traffic and parking nightmare for


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surrounding residents because of the lack of effective mass-transit. They have described their

concerns with the phrase: Infill not Overfill. Traffic jams already occur for much of each day

on the surrounding streets and intersections including: Monaco Parkway, Quebec, and Alameda.

The proposed additional 800+ residential units and additional 150,000-200,000 square feet ofretail/commercial development the developer seeks to jam into the Buckley Annex parcel are

projected to add nearly 10,000 new car trips per day to the surrounding streets andneighborhoods. Yet CPD and the Planning Board believe they cannot consider adverse traffic

and parking impacts to surrounding neighborhoods when deciding whether to approve zoning

changes.

5. The Air Force agreed to convey the Buckley Annex parcel to a quasi-

governmental entity co-owned by the City of Denver and the City of Aurora called the LowryRedevelopment Authority or LRA. LRA decision-making has been dominated by developers

and their lawyers and other contractors, who share a common interest in using the site to earn as

much money as possible. The LRA and its consultants have been determined for years tomaximize the density of this redevelopment of the Buckley Annex site without regard to the

harm that it will inflict on surrounding neighborhoods and existing residents. The LRA has

purported to obtain public comments at various informational meetings, but then has ignored

nearly all of the public comments it received. The LRA hand-picked a group of people itbelieved shares its agenda for a high-density development and labeled the group its Community

Advisory Committee, contending these hand-picked supporters could speak for the interests of

residents in surrounding neighborhoods. The LRA pushed through the Planning Board, despitewidespread opposition from surrounding neighborhoods, a controversial General Development

Plan or GDP in April 2013, purporting to show general concepts for development, but

promising that final decisions on how the property would be used would be decided in concert

with neighborhood representatives when the LRA presented specific rezoning proposals.

6. In 2014, the LRA is now pursuing its agenda for final zoning changes, ignoringthe approved Small Area Plan (the Lowry Reuse Plan), ignoring neighborhood concerns about

too much density and traffic, and insufficient parking. The LRA decided to wear downneighborhoods and busy residents by presenting zoning changes for this 70 acre parcel in

piecemeal fashion. The first phase of LRA's Buckley Annex rezoning covered 34 acres of

proposed single family and townhomes/row houses in three sections of the Buckley Annex site,namely the northwest corner by First Avenue and Monaco Parkway, the southeast corner by

Quebec and Park Heights Single Family homes, and the large central section targeted for single

family attached townhomes and row houses. But the LRA and CPD sought to exceed standards

available to LRA under the new 2010 Zoning Code, and to increase heights, intensities andbuilding forms in this area, while decreasing or eliminating setbacks and lot coverage limits. To

customize new zone districts, LRA and CPD used special "waivers and conditions" that Denverhas not adopted for any development since enacting the 2010 Denver Zoning Code (except in a

few PUDs that already had waivers/conditions).

7. The LRA launched its second and third phases of its proposed piecemeal zoning

changes for the Buckley Annex site in September 2014 with the proposed Lowry Text


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Amendment covering the entire site. That text amendment would establish minimal or no

setbacks from the rights-of-way along the major streets adjoining the site: Monaco Parkway,

Quebec, and First Avenue, and shows five story tall buildings next to Monaco Parkway and

Quebec, allowing future developers to create a canyon wall of nearly 100-foot tall buildingsalong the east side of Monaco Parkway towering above the east side of Crestmoor Park and

similar canyon wall with no setback from the street along the west side of Quebec.

8. Through this lawsuit, a group of residents of the neighborhoods surrounding the

Buckley Annex parcel, on behalf of the thousands of their neighbors who share their concerns,seek to: a) overturn under Colo. R. Civ. P. 106(a)(4) the Planning Boards approval on October

1, 2014 of the proposed Lowry Text Amendment; and b) obtain declaratory and injunctive relief

from this Court to reform and correct the planning process and the zoning process for the rest ofthe Buckley Annex parcel so that new zoning for that parcel and other parcels in Denver will be

evaluated in the future using a fair process and correct standards.

JURISDICTION AND VENUE

9. Jurisdiction is proper in this Court under Colo. R. Civ. P. 106, Colo. R. Civ. P. 57,

and under the Courts general jurisdiction to resolve disputes like this.

10 Venue is proper in this Court under Colo. R. Civ. P. 98(a) because this is an

action affecting real property located in the City and County of Denver.

11, Section 12.4.11.5 of the Denver Zoning Code provides that: A decision on a text

amendment may be appealed to District Court.

PARTIES

12. Plaintiffs are residents of the City and County of Denver who own homes in the

East Denver neighborhoods surrounding the Buckley Annex parcel. They will be adverselyaffected by a high-density development in the Buckley Annex parcel that creates traffic and

parking problems in their neighborhoods and degrades the character of the Affected

Neighborhoods.

The Plaintiffs are:

a. Christine OConnor, 144 S. Ulster Street, Denver, CO 80230, in the

Westerly Creek Section of Lowry; member of Lowry United Neighborhoods RNO;

b. David T. Mitzner, 144 S. Ulster Street, Denver, CO 80230, in the

Westerly Creek Section of Lowry; member of Lowry United Neighborhoods RNO;

c. William H. ORourke, 221 South Olive Street, Denver, CO 80230 in Park

Heights; member of Lowry United Neighborhoods RNO.


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d. John Fischer, 333 Ivy Street, Denver, CO 80220 in the Crestmoor

neighborhood; member of Crestmoor Park Home Owners, Inc. First Filing RNO.

13. Defendant the Denver Planning Board (Planning Board) is an entity whosemembers are appointed by the Mayor of Denver that exercises the powers described in the

Denver Revised Municipal Code Section 12-45 and Section 12.2.2 of the Denver Zoning Code.The Planning Board made the zoning decision on October 1, 2014 approving the text amendment

that Plaintiffs challenge in this action. The Planning Boards individual members as of

October 1, 2014 are: Andy Baldyga, Jim Bershof, Shannon Gifford, Renee Martinez-Stone,Brittany Morris Saunders, Joel Noble, Susan Pearce, Arleen Taniwaki, Julie Underdahl (Chair),

Frank Schultz, and Chris Smith. They are sued only in their official capacity.

14. Defendant the Manager of Community Planning and Development, Brad

Buchanan (who also uses the title Executive Director), exercises the powers described in the

Denver Revised Municipal Code 12-17 and Section 12.2.3 of the Denver Zoning Code. Mr.Buchanan is sued only in his official capacity.

15. Defendant the City and County of Denver is a home rule municipal corporation of

the State of Colorado organized under Article XX, Section 6 of the Colorado Constitution (the

home rule amendment).

LEGAL PRINCIPLES GOVERNING PLANNING BOARD AND CPD DECISIONS ON

ZONING CHANGES INCLUDING TEXT AMENDMENTS

A. Role of zoning protections in protecting neighborhoods and their residents and

preserving property values

16. Zoning laws protect residents and neighborhoods from new developments that areincompatible with existing uses. Zoning preserves property values for residents who have

invested much of their life savings in a home.

17 Zoning changes can undermine the vitality of an entire neighborhood. They

should be based on necessity and strong public support, not merely the whims of developers whostand to make money on a new development and have hired lobbyists and made political

contributions to city officials.

18. Zoning ordinances must impose reasonable conditions to ensure that the zoned

property will be compatible with the surrounding neighborhood. See, e.g., Moore v. City ofBoulder, 484 P.2d 134, 136 (Colo. App. 1971). While it is permissible to permit diversification

of uses, these uses must be in harmony with the surrounding neighborhood. Id.at 135.


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B. The Denver Zoning Codes requirements governing the Planning Boards

consideration of a zoning text amendment

19. The Planning Board does not have absolute discretion to adopt zoning changesincluding text amendments to the Zoning Code. Instead, Section 12.4.11 of the Denver Zoning

Code protects Denver residents and their property values by placing specific limitations on textamendments. (Section 12.4.10 places comparable limits on map amendments for rezoning.)

20. First, Section 12.4.11.1 of the Zoning Code limits the circumstances when the text

of the Code can be amended. It allows text amendments in only four circumstances:

1. to correct a manifest error in the Zoning Code;

2. because of changed or changing conditions in a particular area of in the city

generally;

3. to implement adopted plans; or

4. as reasonably necessary to the promotion of the public health, safety or general

welfare.

The full text of Section 12.4.11.1 states:

For the purpose of establishing and maintaining sound, stable and desirable development

within the territorial limits of the City, the text of this Code shall not be amended except to

correct a manifest error in the chapter, or because of changed or changing conditions in a

particular area or in the city generally, including any change to the regulations and restrictions ofan area thereof, or to implement adopted plans, or as otherwise reasonably necessary to the

promotion of the public health, safety or general welfare.

21. The Zoning Code includes procedural protections, reflecting quasi-judicialdecision-making requirements for administrative action. Section 12.4.11.3 sets forth a Review

Process that includes the requirement for a public hearing by the Planning Board after public

notice. The Planning Board is required in such a public hearing to consider any comments

received, in addition to the review criteria below [in Section 12.4.11.4].

22. Section 12.3.4 contains the Public Notice Requirements and Section

12.3.4.4.A.1 sets a minimum of 15 days advance notice for a Planning Board public hearing onan application (i.e., No later than 15 days before . . . .). But longer notice can be required tomeet due process requirements. While 15 days might be sufficient for an individual homeowner

to post a sign notifying his neighbors of a change to his fence or his wall, such notice is not

sufficient for notifying the thousands of homeowners whose homes surround the Buckley Annexparcel about changes that will affect their entire neighborhood and property values. Section

12.3.4 recognizes that: Public notice is intended to provide an [sic] the opportunity for public


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participation or public information regarding land use and development applications under this

Code.

23. The Zoning Code also spells out in Section 12.4.11.4 three specific ReviewCriteria for approval of a text amendment:

A. Consistency with adopted plans: The Code explains: All text amendments shall

be consistent with the Citys adopted plans, or the proposed text amendment isnecessary to provide for a community need that was not anticipated at the time of

the adoption of the Comprehensive Plan. The reason for this requirement is that

adopted plans have the force of a City ordinance and therefore protect residentsfrom harmful, arbitrary zoning changes that ignore or undermine the community

vision expressed in an adopted plan.

B. Public health, safety and general welfare; and

C. Uniformity of District regulations and restrictions.

C. Due Process requirements for quasi-judicial proceedings including Planning Board

decisions on a zoning text amendment

24. InMargolis v. District Court, 638 P.2d 297, 305 (Colo. 1981), the Colorado

Supreme Court confirmed that rezoning is quasi-judicial for the purposes of judicial review.

The Court described some of the attributes of quasi-judicial proceedings: notice to individuallandowners, hearings, and decision-making by the application of facts to specified criteria

established by law. Id.at 303. Judicial review of such quasi-judicial proceedings is under Colo.

R. Civ. P. 106(a)(4). Id.

25. The action of an agency will be deemed quasi-judicial for C.R.C.P. 106(a)(4)

purposes if: (1) a state or local law requires that the body give adequate notice to the communitybefore acting; (2) a state or local law requires that the body conduct a public hearing, pursuant to

notice, at which time concerned citizens must be given an opportunity to be heard and present

evidence; and (3) a state or local law requires the body to make a determination by applying thefacts of a specific case to certain criteria established by law. Widder v. Durango School District

No. 9-R, 85 P.3d 518, 527 (Colo. 2004).

26. Under common law principles for quasi-judicial decision-making, which apply to

the Planning Boards public hearing, a government entity must provide adequate notice and anopportunity for a meaningful hearing. See Canyon Area Residents v. Board of County Commrs,

172 P.3d 905, 907 (Colo. App. 2006);Native American Rights Fund, Inc. v. City of Boulder, 97

P.3d 283, 288 (Colo. App. 2004), cert. denied, Aug. 16, 2004. A city also must follow its ownprocedures and standards in its municipal code as part of the quasi-judicial process. Id.

27. The principle of fundamental fairness must be observed in zoning proceedings.

Canyon Area Residents, 172 P.3d at 908. The hearing process must be conducted in an


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atmosphere evidencing fairness in the adjudication of matters before a board. Id. A showing

that the decision-maker in a quasi-judicial, adjudicative hearing has a conflict of interest will

overcome the presumption of integrity and honesty that normally applies to such a hearing.

Meyerstein v. City of Aspen, 282 P.3d 456, 468 (Colo. App. 2011).

28. Although express factual findings are not a prerequisite to a valid decision by anadministrative board, the necessary findings must be evident from the action taken. When a

board fails to make express factual findings on the core issue it is considering, the reviewing

court may remand the matter to the board for it to expressly determine that issue. Canyon AreaResidents, 172 P.3d at 909-10.

29. An ordinance is invalid under constitutional due process requirements that allows

a city to bypass quasi-judicial requirements for zoning changes. See, e.g., Native American

Rights Fund, Inc. v. City of Boulder, 97 P.3d 283, 288 (Colo. App. 2004), cert. denied, Aug. 16,

2004.

D. Important role for neighborhood organizations to provide comments before major

decisions by City agencies affecting their neighborhoods

30. The Denver Revised Municipal Code specifically recognizes the importance of

access to City agencies and departments for neighborhood organizations including: to improve

the flow of information between these groups and agencies of the city; and to enable such

organizations to present their positions before certain decisions affecting their

neighborhoods are made by agencies and departments of the city. D.R.M.C. 12-91

(emphasis added).

31. The Municipal Code requires advance notice to registered neighborhood

organizations to notify such organizations in advance of occasions when decisions are to bereached on certain matters affecting their neighborhoods; and to afford representatives of such

organizations the opportunity to present the positions of the organizations at such times.

D.R.M.C. 12-91 (emphasis added). The Municipal Code also contemplates that registeredneighborhood organizations work cooperatively with any adjacent or overlapping neighborhood

organizations to determine positions on issues affecting the neighborhood and to conductbusiness in an organized, representative and fair manner, which is designed to obtain informed

participation from as many neighborhood citizens as possible. Id.

32. The Municipal Code specifically contemplates that representatives of registered

neighborhood organizations should be allowed to present information at public hearings beforeCity agencies that includes information on the results of a specific meeting when theorganization decided on its position including meetings of an organizations board, membership

subcommittee, or general membership. The ordinance contemplates allowing the neighborhood

organization to be able to report on [t]he number of members present at a special meetingconvened to decide on the groups position, and a description of the process for reaching the

decision, including if and how neighborhood citizens were informed and if and how they were

invited to participate; and [t]he votes cast for and against the proposed position. D.R.M.C.


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12-97. Indeed, if the registered neighborhood organizations representative at a public hearing

does not disclose this specific information about the position of members, the person presiding at

the public hearing may require the person testifying to provide the information. Id. These rules

concerning public hearings specifically apply to hearings before the Denver Planning Board.D.R.M.C. 12-96.

E. Role of Denvers Comprehensive Plan and Small Area Plans in community planning

and zoning decisions

33. Denver as a whole is guided by its Comprehensive Plan, which the City

Council adopted in 2000. Article 1 of the Denver Zoning Code states that it is enacted toimplement Denvers Comprehensive Plan and guide orderly development of the City that

preserves and promotes the public health, safety, prosperity, and welfare of its inhabitants. In

addition, there is an adopted plan called Blueprint Denver that was adopted in 2002 as a

supplement to the Comprehensive Plan. Some neighborhoods have Small Area Plans in place,that were the result of an intense community planning effort that sought to develop a consensus

vision for the small area. Those plans are incorporated into the Comprehensive Plan by

ordinance.

34. The Denver Zoning Code refers in several sections to adopted plans. SeeSections 9.6.1.1.B.3 (PUD); 12.4.10.1 & 12.4.10.7.A (map amendments); 12.4.11.1 &

12.4.11.4.A (text amendments); 12.4.12.2.A.1 (mandatory GDP). The Code does not

specifically define this term, but the reference to an adopted plan is to a specific plan that has

been approved by the Denver City Council and incorporated by ordinance into theComprehensive Plan after a comprehensive planning process to incorporate the communitys

vision for the city and for particular neighborhoods. The concept of adopted plans is at thecenter of the Denver Zoning Code because the Code seeks to ensure that zoning changes areconsistent with adopted plans that were formed after a comprehensive community planning

process. Denver as a whole has its Comprehensive Plan, which the City Council adopted in2000. In addition, there is an adopted plan called Blueprint Denver that was adopted in 2002

as a supplement to the Comprehensive Plan. Some neighborhoods have Small Area Plans in

place, that were the result of an intense community planning effort that sought to develop aconsensus vision for the small area. Examples of the Small Area Plans currently listed on CPDs

website are: Central Park Station Area Plan, Baker Neighborhood Plan, Northeast Downtown

Neighborhoods Plan, and the Lowry Reuse Plan. Seehttps://www.denvergov.org/cpd/CommunityPlanningandDevelopment/PlanningandDesign/Comp

letedPlans/tabid/431913/Default.aspx (link under Search Small Area Plans). Unfortunately,many parts of Denver do not have any small area plan, and therefore lack an important tool for

zoning because those neighborhoods do not have any consensus document expressing thecommunitys vision for the area.

35. To try to remedy the fact that large parts of the City of Denver do not have any

small area plan in place, or have outdated plans, the CPD recently announced that it will allocate

money in 2015 for neighborhood planners. Meanwhile, the Comprehensive Plan, Blueprint


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Denver and the Lowry Reuse Plan (incorporated by ordinance into the Comprehensive Plan) are

the only adopted plans that the Planning Board and City Council can to look to in decision

making on zoning for the Buckley Annex site. The 2013 Buckley Annex General Development

Plan cannot be relied upon by the Planning Board as an adopted plan (within the meaning ofDenver Zoning Code 12.4.11.1 & 12.4.11.4.A) that justifies the Planning Boards decision

approving the Lowry Text Amendment.

F. Conflict of interest rules for Planning Board members

Denver Ordinance

36. Under Section 12-44 of the Denver Revised Municipal Code, a member of the

Planning Board may not participate in the consideration of a measure or vote on the measure

when he/she has a financial interest in the measure. The Code provides: Any planning board

member having a financial interest in any measure before the board shall not participate in theconsideration of such measure as a board member nor vote on such measure, but the board shall

have authority to grant a hearing to such member in the capacity of or as an applicant, subject tothe board's bylaws and rules and regulations governing such hearings.

Colorado Constitution and Statutes

37. Article XXIX of the Colorado Constitution addresses Ethics in Government.Article XXIX, Section 1(1)(c) direct that public employees should avoid conduct that is in

violation of their public trust or that creates a justifiable impression among members of the

public that such trust is being violated.

38. The Colorado Ethics Handbook for 2013-15 (published by the Colorado

Independent Ethics Commission) directs (on page 9) that public employees and officials shouldconduct themselves for the benefit of the state or local government in which they work, and

should avoid making decisions which benefit themselves or members of their family either

personally or financially.

39. Colo. Rev. Stat. 24-18-105(2) (part of the state Code of Ethics) provides:

A public officer, a local government official, or an employee should not acquire

or hold an interest in any business or undertaking which he has reason to believe may be

directly and substantially affected to its economic benefit by official action to be taken by

an agency over which he has substantive authority.

40. Colo. Rev. Stat. 24-18-109(4)(b) provides that a local government official orlocal government employee shall not: [a]ccept or receive a benefit as an indirect consequence

of transacting local government business.


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41. Colo. Rev. Stat. 24-18-201(1) provides that public officers, local government

officials, or employees, shall not be interested in any contract made by them in their official

capacity or by any body, agency, or board of which they are members or employees.

Denver Ethics Code

42. The Denver Ethics Code, Denver Revised Municipal Code 2-61(a) forbids an

officer, official, or employee from taking direct official action on a matter before the city if heor she . . . . has any substantial employment, contractual, or financial interest in that matter. An

employee who is conflicted is forbidden from attempting to influence the decisions of others in

acting or voting on the matter. Id. 2-61(f).

HISTORY OF THE BUCKLEY ANNEX SITE AND PLANNING FOR THAT SITE

43. Until approximately 1966, Air Force planes were flying in and out of Lowry AirForce Base/Lowry Field, and the open area immediately east of Monaco Parkway and south ofFirst Avenue, where the Buckley Annex site is located now, was the end of the east-west runway

where large B-52 bombers and other military planes touched down.

44. In 1976, the Air Force Accounting and Finance Center moved its offices to a new

building at the end of the former Lowry runway. This was called the Buckley Annex site

because it was tied to Buckley Air Force Base. The Air Force Finance Center remained openuntil March 31, 2010, continuing to use the building on the Buckley Annex site (that the LRA

has recently torn down) as well as part of the old runway as a large parking lot.

45. The Lowry Redevelopment Authority is a quasi-public entity created in 1994

through an Intergovernmental Agreement (IGA) between the City of Denver and City of

Aurora. Under that agreement, the LRA was responsible for providing the services necessary tomaintain, manage, promote, and implement economic redevelopment on all or a portion of

Lowry after closure of the Air Force Base.

46. The Lowry Reuse Plan was developed in the 1990s, adopted by the City

Council in April 1995, and served as the Small Area Plan for Lowry. A copy of the LowryReuse Plan can be found currently on the CPDs website for Small Area Plans at:

http://www.denvergov.org/Portals/646/documents/planning/Plans/plans_pre_2013/Lowry_Reuse_Plan.pdf The City has not designated an area planner to run a planning process on Lowry

that would have provided a Small Area Plan update to the Lowry Reuse Plan.

a. Section 1.7 of the IGA recognizes that Lowry redevelopment was to be

consistent with the Lowry Reuse Plan: It is the expressed intent of the Parties hereto

that future redevelopment at Lowry be consistent with the approved Lowry Reuse Planand Recommended Lowry Disposition Plan, as incorporated into each of the Parties

municipal comprehensive plans.


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b. The Lowry Reuse Plan, and the Recommended Lowry Disposition Plan it

incorporates, contemplated far lower densities than the LRA seeks to place in the

Buckley Annex parcel. All development on Lowry is supposed to be examined according

to the following criteria:

Conformance with the Reuse Plan and sound planning principles;

Compatible with other uses at Lowry;

Input from Lowry residents and surrounding communities;

Traffic and access impacts;

Effect of the development on Lowrys economic goals and property

values;

Benefits and challenges of the proposed development;

Effect on the density bank; and

Pedestrian and vehicular connections.

See, e.g.,Lowry Redevelopment Authority, Function and Process of the

Planning/Disposition Subcommittee (March 19, 2002).

c. Section 3 of the Lowry Reuse Plan and Exhibits 1 and 2 (pages 3 and 5) to

the Recommended Lowry Disposition Plan clearly envision no uses other than

employment for the entire Buckley Annex parcel. Section 3 designates the BuckleyAnnex site as: DFAS/ARPC and states on page 3-1: The Defense Finance

Accounting Service and Air Reserve Personnel Center (DFAS/ARPC) and the 21st SpaceCommand Squadron will continue to operate in cantonment facilities at Lowry after

closure of the base. Exhibit 2 to the Recommended Lowry Disposition Plan describes

the use for the Buckley Annex parcel under DFAS/ARPC as: Current use in existingfacilities. The Lowry Reuse Plan has never been amended through the IGA process, and

no subsequent Small Area Plan has been created and incorporated into the Lowry Reuse

Plan.

47. The Lowry Reuse Plan did not envision development of the approximately 70

acres comprising the Buckley Annex parcel because the Air Force planned to have its FinanceCenter remain on this site. The Reuse Plan, however, did specify that the entire edge of the

Air Force Base would be lower intensity housing to reflect the low intensity residentialneighborhoods surrounding the base. Had the Buckley Annex parcel been developed along withthe remainder of the edges of the old Lowry Air Force Base, it would have been included in such

edge treatment to respect the neighbors to the west and north of the old Base. Only residential

development was envisioned around Lowrys entire perimeter in the Lowry Reuse Plan, a planformed with participation of 23 surrounding communities, and a plan that remains binding until

Amended pursuant to the provisions of the IGA between the Cities of Denver and Aurora.


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48. The first new homes on the old Lowry Air Force Base were completed in

approximately 1998.

49. After the Air Force decided to close the Finance Center as part of a base-closinginitiative in 2005, the LRA was chosen as the master planner for the Buckley Annex site prior

to taking ownership of it. The LRA was charged with developing a plan for the Air Force, andthe decision would then be made by the Air Force regarding how to make use of the parcel. The

LRA designed and oversaw a contentious public process which created widespread sentiment

that whatever came out of the process should reflect Lowrys Design Guidelines and heightlimits and setbacks.

50. The result of that Air Force process was a plan called the Buckley Annex

Redevelopment Plan (hereafter the Air Force Plan) that is over 1,000 pages long that was

written by consultants that the LRA hired. The LRA chooses not to make a copy of the Air

Force Plan available on its website. But a copy of the Buckley Annex Redevelopment Plancurrently is available at: www.lowrynews.com (link found at bottom of webpage). The Air

Force Plan was completed in February 2008, and a revised version of it was presented in May

2010. No CPD process to update the Lowry Reuse Plan or develop an East Denver Area Planwas undertaken to update the Lowry Reuse Plan.

51. The LRA consultants who wrote the Air Force Plan declined to adopt the ideas of

the surrounding neighborhoods and residents. Nevertheless, the vision and concerns of the

surrounding communities come through loud and clear in the appendix to the Air Force Plan.

The mandate expressed by the public in the Air Force Plan was to carry forward the LowryDesign Guidelines limiting height to three stories except in the town center area, where it could

go to four stories.

52. The LRA consultants ran every step of the process for developing the Air Force

Plan. They did not allow community members to make alternative PowerPoint presentations atpublic meetings, and avoided tallying the input from the community. A straw poll conducted by

Lowry United Neighborhood (LUN) members indicated 90% of those commenting during theAir Force planning process wanted the plan to reflect the character of the surrounding Lowry

residential development. To attempt to quiet the discontent with the Plan that emerged, then

District Five Denver Councilwoman Marcia Johnson appointed her own Buckley AnnexCommunity Advisory Committee (BACAC) (not related to the LRAs current CAC) to

develop guidelines in an attempt to involve the community in ensuring minimal impacts.

a. The BACACs draft Design Guidelines stated in the Introduction on page

6 the communitys intent that the Buckley Annex redevelopment would [p]rotect the

positive character of the natural environment and the attractive features of the existingbuilt environment in the surrounding neighborhoods:

1.0 Introduction and Background


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These Design Guidelines have been prepared by the Buckley Annex

Community Advisory Committee (BACAC) which is a committee of concerned

neighbors and Denver citizens initiated by Denver City Council District 5

representative Marcia Johnson in 2008. In accordance with the BACAC bylaws,formulating and administrating the Guidelines are the principle tasks of the

committee. The Buckley Annex Design Guidelines consist of minimum standardsnecessary to encourage a beautiful, functional, and sustainable community which

enhances the institutions, businesses, and residences of the adjacent

neighborhoods and of the fabric of greater Denver.

The BACAC anticipates that a Design Review Committee (DRC) will

subsequently be established to administer these design guidelines, review andapprove all items requiring submittal, and to make such changes as might be

necessary to keep the guidelines current.

The guiding principles for these guidelines are:

A. Ensure that the spirit, intent and specific designs and limitations

contained within the Buckley Annex Redevelopment Plan (BARP) and

subsequently approved development plan(s) are followed and supported.

B. Protect the positive character of the natural environment and the

attractive features of the existing built environment in the surrounding

neighborhoods.

C. Establish a consistent level of quality and character in the Buckley

Annex relative to the Buckley Annex Community.

D. Assist planners, designers, review boards, and users/owners to make

consistent choices that reinforce an overall vision.

(Emphasis added).

b. The BACACs draft Design Guidelines included the following statementabout the setbacks on Monaco Parkway and Quebec:

The streetscape treatment along Monaco Boulevard and Quebec Street

will include a thirty-five (35) foot setback within which a twelve (12) footwide tree lawn shall be established with a single row of trees down the

center of the median and the tree lawn. A twelve (12) foot wide tree lawnshall separate twelve (12) foot sidewalks/bikeway from the edge of the

roadway. The existing berms along Monaco Boulevard may be

maintained and enhanced wherever feasible. Existing trees that are in theway of the proposed roadways shall be evaluated and moved, if possible,

to another placement in the development.


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53. Additional surveys done in 2012 before the LRA pushed through in 2013 its

GDP for Buckley Annex reflected the same community concerns with height and density, and

identified provision of sufficient parking as an additional concern.

54. The Denver Planning Board and Denver City Council were not asked to review

and approve the Air Force Plan, and did not do so. The Air Force Plan does not have the force oflaw, and the Lowry Reuse Plan was never amended through the IGA process. The LRA as

developer, and its consultants, initially proposed tall buildings for the site (some as high as 12-

stories), but backed off of those proposals. Yet even though the LRAs consultants who wrotethe Air Force Plan eventually backed down from their initial desired height and density, the Air

Force Plan did not reflect the rest of the residential and commercial redevelopment of the old

Lowry Air Force Base in legacy Lowry.

55. Under Section 12.4.12 of the new Denver Zoning Code adopted in 2010, a

General Development Plan or GDP can be used to determine a new developments significantpublic infrastructure needs, such as major multi-modal facilities and connections, major public

utility connections and publicly accessible parks and open space. A GDP is not a substitute for

new zoning and is not the same as a Small Area Plan, which is adopted by the Denver CityCouncil after an intensive, inclusive planning process with a CPD planner and is supposed to

reflect the communitys vision for the area.

56. In May 2014, the Manager of CPD announced a task force to review and improve

the use of GDPs under the Denver Zoning Code because of widespread public concern about

how that tool had been used in places like South Sloans Lake/St. Anthony Hospital andelsewhere in the City. See Exhibit E [Buchanan May 14, 2014 letter].

57. In 2013, the LRA asked the Planning Board to approve a proposed GDP for the

Buckley Annex parcel prepared by an LRA consultant (Matrix Design Group) who rejected most

of the community input it received at neighborhood meetings in 2012 and 2013. Neighborsexpressed strong opposition at the April 2013 Planning Board hearing to the high-density,

building heights, small setbacks, and limited parking that are reflected in this GDP. This GDP isnot a Small Area Plan and does not reflect a consensus community vision for the neighborhood.

It is just the LRAs and CPDs outline for possible development. A copy of this GDP is attached

as Exhibit C to this Complaint. The City Council did not review or approve this Buckley AnnexGDP. It was not adopted as a zoning change.

58. Representatives of LRA and the City told residents who expressed concerns withthe proposed GDP at neighborhood and community meetings in 2012 and 2013 that the GDP

would not determine the zoning for the Buckley Annex parcel. The LRA and CPD refused to

address neighborhood concerns with substantial increased traffic (approximately 10,000 morevehicle trips per day) on the streets surrounding Buckley Annex including Monaco Parkway,

Quebec, and First Avenue, resulting from the LRAs proposed high-density development, saying

traffic issues would have to be addressed by the Citys Public Works Department after rezoning.


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59. Residents sought to explain to the Planning Board the flaws with the GDPs

concepts including its anticipated density and resulting traffic problems, and its failure to comply

with the adopted plans covering a much broader area including Blueprint Denver and the

Lowry Reuse Plan. See Exhibits D-1 to D-4.

60. The GDP process was managed by the LRAs new Executive Director, MontyForce, who had his own personal conflict of interest, with an LRA employment agreement that

rewarded him financially for high-density development on the Buckley Annex site. See

Exhibit D.3. Community representatives raised this concern at the Planning Boards April 3,2013 hearing on that GDP and the Denver City Attorneys office representative (Kerry Buckey)

announced that he did not believe the Planning Board should be concerned with that conflict of

interest. On information and belief, the LRA changed Mr. Forces employment agreement ashort time later.

THE OCTOBER 1, 2014 PLANNING BOARD HEARING

61. On information and belief, during July and August 2014, CPD representativesworked with the LRA and its lawyer and consultants to develop the language of a proposed text

amendment to the Denver Zoning Code (referred to above as the Lowry Text Amendment).

SeeExhibit A. Neither CPD nor the LRA notified any representatives of surrounding RegisteredNeighborhood Organizations (RNOs) of those discussions or that proposal, or invited RNO

representatives to participate. To the best of Plaintiffs knowledge, these matters were not

addressed in LRA Committee Meetings. There were no LRA Community Advisory

Committee meetings in June, July, or August 2014, and no LRA Board meetings between Juneand September 30, 2014, and minutes are unavailable to both the June meeting (although

approved) and the September meeting. Therefore, this matter was not discussed within LRAsown committees either.

62. CPD first notified some representatives of RNOs by email on approximatelySeptember 8, 2014. The CPD notice stated:

Text Amendment Creating the Lowry Design Overlay District (DO-4)

A text amendment to the Denver Zoning Code, Division 9.4, creates a design overlay

district to implement height and setback limits adopted in the Buckley Annex General

Development Plan approved in May, 2013. The design overlay district is intended toprovide additional zoning standards for structures and signs that allow the redeveloping

portions of the Lowry neighborhood to adequately transition to and integrate withexisting surrounding neighborhoods.

Questions and comments on the text amendment may be directed to Theresa Lucero,

Senior City Planner at [email protected]

That email notice did not state that CPD intended to present the proposed text amendment to thePlanning Board for approval at the Boards October 1, 2014 meeting.


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63. The Lowry Text Amendment (attached as Exhibit A) proposed the following

building setbacks, as follows:

a. Quebec Street: allowing 45-foot tall buildings (described as three-story,which would allow 15-foot tall stories) south of Lowry Blvd. immediately adjacent to

Quebec right-of-way; with a drawing showing five-story buildings beginning 30 feetfrom the Quebec right-of-way. [The east facing side of buildings between Lowry Blvd.

and First Avenue (on Block 7) will be permitted to go immediately to five stories after

the Quebec right-of-way.]

b. First Avenue: allowing 45-foot tall buildings (described as three-story,which would allow 15-foot tall stories) immediately adjacent to First Avenue right-of-

way; with taller buildings beginning 30 feet from First Avenue.

c. Monaco Parkway: allowing 45-foot tall buildings (described as three-story, which would allow 15-foot tall stories) within 35 feet of the Monaco Parkway

right-of-way; with a drawing showing five-story buildings within 105 feet of the MonacoParkway right-of-way.

The words of the Lowry Text Amendment language do not specifically authorize five-story

buildings but the Amendment (using a revised document that CPD made available on September

30, 2014one day before the October 1, 2014 Planning Board Hearing) includes two drawings

that show five-story buildings, thus purporting to authorize such buildings:


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64. In the presentation CPD planner Theresa Lucero gave to the Planning Board onOctober 1, 2014, she stated that CPD provided notice to RNO representatives of the October 1,2014 Planning Board hearing on September 16, 2014.

65. Plaintiffs are in the process of obtaining from CPD the recording of the October 1,

2014 Planning Board meeting so it can be transcribed. Plaintiffs will provide that to the Court

once it is available.

66. CPD and the Planning Board received public comments before the October 1,

2014 hearing see attached Exhibit B. Contrary to its normal practice, CPD did not make thosecomments available for public review on its website before the October 1, 2014 hearing.

Plaintiffs counsel obtained them on October 7, 2014 during the brief time that CPD posted them

on its website. Those comments were removed from the CPD website almost immediately eventhough most of the comments also relate to the LRAs proposed C-MX-5 zoning of the eastern

part of the Buckley Annex parcel, that was set for a hearing on October 15, 2014 (that hearing

date has since been changed to November 19, 2014).

67. At the October 1, 2014 Planning Board hearing, several residents of surrounding

neighborhoods spoke in opposition to the Lowry Text Amendments, and both individualresidents and RNO representatives submitted written comments. The concerns they expressed

included:

a. Piecemeal zoning: The text amendments proposed setbacks and building

heights should not be considered before the LRAs remaining zoning proposals for theBuckley Annex parcel.

b. Density, traffic, and parking concerns: The new high-densitydevelopment would harm surrounding neighborhoods with traffic and parking problems;

yet the Planning Board believes it cannot consider those issues and instead must approve

the zoning proposal and let the Public Works department solve any resulting traffic andparking problems. Residents expressed concerns about the urban forms and intensities of


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the proposed new zone district as well as the upcoming C-MX-5 districts, and the lack of

viable transit, the lack of adequate parking for the residential, retail and commercial uses,

and transportation studies that project huge increases of traffic on Monaco and Quebec.

c. New tall buildings along east side of Crestmoor Park: The new

development and small setbacks along the east side of Crestmoor Park would change thecharacter of that public park.

d. Tall buildings along Quebec Street: The new development with zero

setbacks along Quebec would change the character of the surrounding residential areas.

e. Lack of sufficient notice to neighborhood groups: The short notice period

did not allow neighborhood groups sufficient time to analyze the proposal, notify

residents about the analysis, and then obtain comments from residents or call a

neighborhood meeting to discuss the proposal.

f. Adopted plans and surrounding neighborhoods: The proposal is not

consistent with any adopted plan (Blueprint Denver, Comprehensive Plan, or Lowry

Reuse Plan) and not compatible with development in surrounding neighborhoods.

g. 2013 GDP: The LRA and CPD staff rely on the 2013 GDP, but that GDP

does not reflect a community consensus and does not constitute an adopted plan.

68. In addition, as the Board was beginning to deliberate, Greg Kerwin askedPlanning Board member, Jim Bershof of OZ Architecture, to recuse himself because of his

personal interest in the outcome of the Lowry Text Amendment when it was apparent Mr.

Bershof was attending and participating in the meeting (Mr. Bershof did not place his name-plate

in front of him for most of the hearing, so his presence was not apparent to Mr. Kerwin andothers who do not know his appearance). Mr. Bershof is currently representing a developer

Metropolitan Homes/Peter Kudla that is seeking to have CPD and the Planning Board approve a

zoning change for the Mt. Gilead Church parcel across Monaco Parkway from the BuckleyAnnex parcel that would allow zoning for five-story apartment buildings to be constructed next

to the west side of Monaco Parkway. CPD has not released that new zoning application to thepublic yet, but on information and belief, Mr. Bershof and his client are seeking approval of

high-density zoning that will allow up to five-story apartment buildings with approximately 120

apartments, minimal parking places (less than one parking place per apartment), and minimalsetbacks from Monaco Parkway on a two-acre site where a church is currently located. Mr.

Bershofs firm, OZ Architecture, designed the exterior plan for a new apartment for the Mt.Gilead site and Mr. Bershof met with representatives of the Crestmoor Park RNO on September22, 2014 at the Schlessman Family Library building as the developers representative, seeking to

persuade them to support his clients zoning change application.

69. Mr. Bershof admitted during the October 1, 2014 Planning Board hearing that he

is working on a project across the street from the Buckley Annex parcel but refused to recuse

himself, and then offered comments in support of the Lowry Text Amendment, seeking to


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persuade fellow Board members to approve it. Apparently Mr. Bershof then discussed his

conflict of interest privately (off the public record) with a representative of the City Attorneys

office during a break before the Planning Board voted. The Planning Board did not include in its

meeting record specific information on Mr. Bershofs project for the Mt. Gilead Church parcel orthe basis for the City Attorneys advice that Mr. Bershofs work on that project did not create a

conflict of interest for him requiring him to recuse himself from the deliberation and vote on theLowry Text Amendment.

70. Thus, the Board Members heard comments during their deliberations from, andthe votes of Board members who voted in favor of the Lowry Text Amendment may have been

influenced by, a Member (Jim Bershof) with a financial interest in the decision on the Lowry

Text Amendment. The Planning Board allowed Mr. Bershof to vote in favor of that TextAmendment instead of requiring him to recuse himself, and failed to create a complete record

about the full extent of that Board Member's financial interest in the matter and the legal advice

from the City Attorneys office that authorized Mr. Bershof not to recuse himself.

71. During the Planning Boards public deliberations during the October 1, 2014

hearing, Board members expressed concerns on the record with:

a. Board Members lack of time to review public comments, some admittingthey could only skim the comments after receiving them 15 minutes before the hearing;

b. lack of sufficient advance notice to neighborhoods about the zoningproposal and lack of time for neighborhood representatives to inform residents and obtain

feedback.

They also explained how they believe the Buckley Annex parcel presents some unique issues

because of its size and location.

72. Board members asked CPD planner Theresa Lucero how many RNO

representatives had submitted comments (thus revealing they had not seen or read thosecomments). Ms. Lucero responded indicating some uncertainty but estimated 10-12

neighborhood groups had submitted comments.

73. When Board members sought clarification during the meeting from Kyle Daltonof CPD about the standard the Board should apply, he repeated the three criteria from Section

12.4.11.4 of the Zoning Code including consistency with adopted plans, but did not address

whether the Buckley Annex GDP qualifies as an adopted plan.

74. CPD Manager Buchanan also expressed concerns with the process including the

advance notification. He commented during the hearing: We need to fix that and will.

75. Mr. Buchanan invited Monty Force of the LRA to explain the LRAs view forhow the Lowry Text Amendment is based on an adopted plan. Mr. Force referred to the process

leading to the Air Force Plan (see Paragraphs 50-52 above) even though neither the CPD nor


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LRA had relied on that plan in the slides and documents they presented to support the Lowry

Text Amendment. See, e.g., Exhibit A.3 (September 24, 2014 CPD Staff Report and

Recommendation). Mr. Force did not address its consistency with Blueprint Denver, the

Comprehensive Plan or the Lowry Reuse Plan.

76. Mr. Buchanan also asked CPD employee/Manager, Steve Gordon, to explain howCPD had handled rezoning decisions when there was no adopted plan to provide guidance. Mr.

Gordons response suggested that because the Buckley Annex area is designated as an area of

change in Blueprint Denver, that in the absence of an adopted small area plan, the PlanningBoard can decide what zoning is in the best interest of the neighborhood. There was no

clarification by attorneys advising the Planning Board regarding the existence of the Lowry

Reuse Plan, an adopted Small Area Plan.

77. Several Board members asked what the impact would be of postponing a decision

on the Lowry Text Amendment. They were told by CPD representative that it is just timing.

78. One Board member noted the need for an update to Blueprint Denver because thecity is not the same now as it was in 1998.

79. Board Member Noble announced he would not vote in favor of the Lowry Text

Amendment. He explained his reasoning including his view that the GDP is not an adopted plan,

the Planning Board is supposed to approve zoning that is consistent with an adopted plan, not a

GDP, and he recognized public concern that the GDP process should not supplant the zoningprocess.

80. As the deliberations were coming to a close, CPD planner, Theresa Lucero, noted

that the text amendment had been further revised with a new graphic and a change to the text,

different than what had been disclosed in the notices to neighborhood representatives sentapproximately 15 days before the meeting.

81. When the Board members voted, two of them (Mr. Noble and Ms. Taniwaki)voted against approving the Lowry Text Amendment. One member asked about abstentions but

it was not clear whether she intended to abstain. CPDs Meeting Record for the meeting isattached as Exhibit F.

82. The Board did not make any specific findings on the record to explain why it

believed the Lowry Text Amendment meets the Zoning Codes required criteria, and to explain

why objections presented by residents and representatives of surrounding RNOs wereunwarranted.


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FIRST CLAIM FOR RELIEF

(Review of Boards October 1, 2014 Decision Approving Text Amendment Declaration Under

Colo. R. Civ. P. 106(a)(4))

83. Plaintiffs hereby incorporate by reference and re-allege the allegations of

Paragraphs 1 through 82 of this Complaint.

84. Under Colo. R. Civ. P. 106(a)(4):

Where any governmental body or officer or any lower judicial body exercising

judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion,

and there is no plain, speedy and adequate remedy otherwise provided by law:

(I) Review shall be limited to a determination of whether the body orofficer has exceeded its jurisdiction or abused its discretion, based on the

evidence in the record before the defendant body or officer.

(II) Review pursuant to this subsection (4) shall be commenced by the

filing of a complaint. An answer or other responsive pleading shall then be filed

in accordance with the Colorado Rules of Civil Procedure.

(III) If the complaint is accompanied by a motion and proposed orderrequiring certification of a record, the court shall order the defendant body or

officer to file with the clerk on a specified date, the record or such portion or

transcript thereof as is identified in the order, together with a certificate of

authenticity. The date for filing the record shall be after the date upon which ananswer to the complaint must be filed.

(IV) Within 21 days after the date of receipt of an order requiring

certification of a record, a defendant may file with the clerk a statement

designating portions of the record not set forth in the order which it desires toplace before the court. The cost of preparing the record shall be advanced by the

plaintiff, except that the court may, on objection by the plaintiff, order a defendantto advance payment for the costs of preparing such portion of the record

designated by the defendant as the court shall determine is unessential to a

complete understanding of the controversy; and upon a failure to comply with

such order, the portions for which the defendant has been ordered to advancepayment shall be omitted from the record. Any party may move to correct the

record at any time.

(V) The proceedings before or decision of the body or officer may be

stayed, pursuant to Rule 65 of the Colorado Rules of Civil Procedure.


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(VI) Where claims other than claims under this Rule are properly joined in

the action, the court shall determine the manner and timing of proceeding with

respect to all claims.

(VII) A defendant required to certify a record shall give written notice to

all parties, simultaneously with filing, of the date of filing the record with theclerk. The plaintiff shall file, and serve on all parties, an opening brief within 42

days after the date on which the record was filed. If no record is requested by the

plaintiff, the plaintiff shall file an opening brief within 42 days after the defendanthas served its answer upon the plaintiff. The defendant may file and serve an

answer brief within 35 days after service of the plaintiff's brief, and the plaintiff

may file and serve a reply brief to the defendant's answer brief within 14 daysafter service of the answer brief.

(VIII) The court may accelerate or continue any action which, in thediscretion of the court, requires acceleration or continuance.

(IX) In the event the court determines that the governmental body, officer

or judicial body has failed to make findings of fact or conclusions of law

necessary for a review of its action, the court may remand for the making of suchfindings of fact or conclusions of law.

85. An agency abuses its discretion under Colo. R. Civ. P. 106(a)(4) if its decision isnot reasonably supported by any competent evidence in the record or if the agency has

misconstrued or misapplied applicable law. Lack of competent evidence occurs when the

administrative decision is so devoid of evidentiary support that it can only be explained as anarbitrary and capricious exercise of authority. Freedom Colo. Info., Inc. v. El Paso Cnty.

Sheriff's Dep't, 196 P.3d 892, 899-900 (Colo.2008).

86. Section 12.4.11.5 of the Denver Zoning Code provides that: A decision on a text

amendment may be appealed to District Court. This provision allowing district court review isnot limited to a final decision on a text amendment by the City Council. Because the Zoning

Code directs the City Council in Section 12.4.11.3.G to consider the recommendations of thePlanning Board and Manager, it is essential to the City Councils role as a quasi-judicial

decision-maker that it receive a recommendation from the Planning Board that is not tainted by

procedural or substantive unfairness. Therefore the Court should allow judicial review of the

Planning Boards decision before the City Council has made a decision on the text amendment atissue.

87. Section 12.4.11.5 of the Denver Zoning Code does not include a time limitation

for seeking District Court review. Therefore, the 28-day time period in Colo. R. Civ. P. 106(b)

governs review of the Planning Boards approval of the Lowry Text Amendment. This action isfiled within 28 days of the Planning Boards October 1, 2014 decision approving the Lowry Text

Amendment.


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88. Plaintiffs do not believe an administrative appeal to the Denver Board of

Adjustment is required before the District Court can review the Planning Boards October 1,

2014 decision approving the Lowry Text Amendment. The Board of Adjustment is responsible

for final action regarding Variances, Appeals from Administrative Decisions, and ZoningPermits with Special Exception Review. SeeDenver Zoning Code 12.2.6.1;see alsoDenver

Revised Municipal Code 3.2.9.J. The Planning Boards October 1, 2014 decision approvingthe Lowry Text Amendment:

A. Does not constitute a Variance as defined in Denver Zoning Code 12.4.7.

B. Does not constitute an appeal from an Administrative Decision as defined

in Denver Zoning Code 12.4.8. Section 12.4.8.1.A describes the Administrative

Decisions to which it applies as: any administrative order, requirement, or any decision

or determination made by a Community Planning and Development administrativeofficial in the enforcement of this Code. The Planning Board action to approve a

proposed text amendment does not constitute a CPD administrative official enforcing the

Code. The Planning Board exists under Section 12.2.2 of the Zoning Code and DenverRevised Municipal Code 12-45 as a separate entity from CPD.

C. Does not constitute a Zoning Permit with Special Exception Review as

defined in Denver Zoning Code 12.4.9.

The table in Section 12.2.7 of the Denver Zoning Code concerning Review and Decision-

making Authority does not show any role for the Board of Adjustment concerning a Text

Amendment.

89. The Boards approval of the Lowry Text Amendment constitutes the finaldecision of the Denver Planning Board concerning that text amendment.

90. In voting to approve the Lowry Text Amendment, the Board was supposed to beacting in a quasi-judicial capacity.

91. Plaintiffs have no plain, speedy and adequate remedy otherwise provided by law.

92. Plaintiffs request that this Court conduct judicial review under Colo. R. Civ. P.

106(a)(4) of the Planning Boards October 1, 2014 decision approving the Lowry Text

Amendment (Decision) and hold that the Planning Board exceeded its jurisdiction and abusedits discretion, based on the evidence in the record of the October 1, 2014 quasi-judicial hearing.

The Planning Board exceeded its jurisdiction, abused its discretion, and lacks competent

evidence to support the Decision because, among other things:

A. The Planning Board failed to conduct a proper quasi-judicial hearingprocess that comports with constitutional due process principles because:


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i. The Planning Board Members admitted, on the record, that they

lacked time to read and consider the public comments submitted in writing before

the October 1, 2014 hearing, and recognized that the Boards process was flawed

and did not allow sufficient time for Denver neighborhoods and their RNOs tosubmit comments in the manner contemplated by the Denver Revised Municipal

Code (see supraParagraphs 30-32).

ii. The CPD Manager admitted on the record that the procedure was

flawed and did not allow enough time for neighborhood input.

iii. The Planning Board allowed Board Member Jim Bershof toparticipate in the deliberations, influence the votes of other Board Members, and

vote on the Decision even though he has a financial interest in the Lowry Text

Amendment because he and his company OZ Architecture currently are

advocating a zoning change for the Mt. Gilead Church property across MonacoParkway from the Buckley Annex parcel, which change is based in part on the

limited setbacks, tall building heights, and high-density reflected in the Lowry

Text Amendment and the LRAs pending C-MX-5 zoning application for whichthe Text Amendment is intended to provide a foundation. See supraParagraphs

68-70. Mr. Bershof failed to disclose on the record to the Planning Board the

details about his role with the Mt. Gilead Church zoning application, and theadvice from, and rationale, of the representative of the City Attorneys office

telling the Planning Board Mr. Bershof did not need to recuse himself were not

disclosed to the public at the hearing. As a result Mr. Bershofs participation inthe deliberations and voting on the Decision, and his failure to recuse himself,

violated Denver Municipal Code 12-44 and the ethics rules described inParagraphs 36-42 above. Mr. Bershofs participation despite his personal

financial interest in the outcome tainted the fairness of the Planning Boardsquasi-judicial proceeding.

iv. The Planning Board failed to make sufficient specific findings on

the record to explain its approval necessary to allow judicial review. SeeColo. R.Civ. P. 106(a)(4)(IX).

B. To the extent the Court believes it can conduct effective judicial review of

the Planning Boards decision, the Board exceeded its jurisdiction, abused its discretion,

and lacked competent evidence in the record because:

i. The Lowry Text Amendment does not meet the Zoning Codes

criteria for a text amendment in Section 12.4.11.1.

ii. The Planning Board approved the Lowry Text Amendment eventhough that amendment does not satisfy the specific Review Criteria in Section

12.4.11.4 of the Denver Zoning Code.


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a. In recommending that the Planning Board approve the

Lowry Text Amendment, CPD and the LRA relied on the 2013 GDP,

contending that constitutes an Adopted Plan for purposes of Section

12.4.11.4.A. But as the objecting residents explained to the Board anddissenting Board Member recognized, that 2013 GDP does not constitute

an Adopted Plan. There is no adopted Small Area Plan for the part of EastDenver covered by the Buckley Annex parcel other than the Lowry Reuse

Plan, and CPD and the Planning Board dismissed that Plan without inquiry

as not applicable to the Buckley Annex parcel.

b. CPD and the LRA did not demonstrate that the Lowry Text

Amendment is consistent with the plans cited in CPDs Staff Report andRecommendation (Exhibit A.3 here to): the Denver Comprehensive Plan

(2000), Blueprint Denver (2002), or the Lowry Reuse Plan (1993, 2000).

The Air Force did not even decide to close its old Finance Center facilitylocated on the Buckley Annex site until 2005, after those plans were

adopted. Those plans do not reflect a shared community vision calling for

limited or no street setbacks along Quebec, Monaco Parkway, and First

Avenue, with 45 feet/3-story and 5-story buildings being placed next tothose streets. The LRAs Executive Director, Monty Force, tried to

contend at the October 1, 2014 hearing that the Lowry Text Amendment is

consistent with the Buckley Annex Redevelopment Plan that the Air Forceadopted in 2008 (see supra description of Air Force Plan), but he

provided no details on that plan from which the Planning Board could

have reached such a conclusion, and neither the Lowry Reuse Plan nor the

Air Force Plan support such a conclusion, as the RNO representativeswritten comments explained.

c. There is no competent evidence in the record that the public

health, safety and general welfare of the City of Denver requires minimalor no street setbacks and tall buildings in the Buckley Annex parcel,

reflecting density and an intensity of use that is not consistent with the

surrounding residential neighborhoods. The East Denver neighborhoodwhere the Buckley Annex parcel is located is thriving with strong property

values and demand for single family homes and townhomesit is not

blighted.

d. The Lowry Text Amendment is not required for

Uniformity of District Regulations and Restrictions. See Denver ZoningCode 12.4.11.4.C. While some kind of uniform street setback and

building height limitation may be appropriate for redevelopment of the

Buckley Annex parcel, there is no evidence that the LRAs proposedminimal setbacks and tall building heights are more appropriate than the

large setbacks and low building heights consistent with surrounding


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neighborhoods and advocated by the vast majority of those

neighborhoods residents.

e. The Lowry Text Amendment is not consistent with thecharacter of the developments in the surrounding neighborhoods.

iii. In approving the Lowry Text Amendment, the Planning Board

made a decision that violates the Lowry Reuse Plan for the Buckley Annex parcel.Thus, the Planning Board erred in failing to review the only applicable Small

Area Plan in existencethe Lowry Reuse Plan.

iv. The Planning Board refused to consider in the October 1, 2014

hearing the substantial adverse effects of the LRAs proposed high-density

development of the Buckley Annex parcel (with minimal street set-backs and tall

building heights to facilitate density) on traffic, parking, and open space includinga city park (Crestmoor Park) in the surrounding neighborhoods, including:

aggravating existing traffic congestion on surrounding streets including

Quebec, Monaco Parkway, and Alameda;

parking problems resulting from residents parking in surrounding

neighborhoods because they lack enough parking within the new high-density

development; and

harm to the existing character of Crestmoor Park by adding urban-center, 5-

story buildings to an area along the east side of the park where there was

previously a large berm and tall trees.

Based on flawed legal advice from the City of Denver, the Planning Board

believes it should not consider these factors as part of its analysis of a zoningapplication. Instead, CPD and Planning Board contend these factors can only be

addressed by the Department of Public Works, and should be addressed after a

zoning application is approved. This reflects a mistaken understanding of thefactors that the Planning Board should consider as part of its evaluation of the

public health, safety and general welfare of the City under Section 12.4.11.4.B,

and also fails a common sense standard.

v. It is an abuse of discretion and arbitrary and capricious for thePlanning Board to approve minimal street setbacks and tall building heights next

to those streets before the Planning Board has reviewed the specific zoning

proposed for the rest of the Buckley Annex parcel including the LRAs pendingC-MX-5 zoning application. This approach reflects piecemeal zoning that is not

in the public interest. CPDs argument that the Lowry Text Amendment was

necessary to provide the foundation for the specific zoning in the Buckley Annexparcel is disproved by CPDs and the Planning Boards own previous decision to


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approve, and obtain City Council approval on August 25, 2014 for, three areas of

single-family and townhouse development on the northwest part of the Buckley

Annex parcel comprising more than 34 acres (nearly 50% of the 70-acre site):

USUA and Row House zoning with conditions approved by City Council forportions of Buckley Annex: Application #2013I-000051, CB14-0522 (14.61

acres); .Application #2013I-000052, CB14-0523 (4.04 acres); Application#2014I-00012, CB14-0524 (15.6 acres).

SECOND CLAIM FOR RELIEF

(Request for Declaratory Judgment That Planning Board, CPD Manager, and City and County ofDenver Are Following Procedures That Violate the Denver Revised Municipal Code and Denver

Zoning Code and Injunction To Enforce Those Procedures)

93. Plaintiffs hereby incorporate by reference and re-allege the allegations of

Paragraphs 1 through 92 of this Complaint.

94. Even in the context of a quasi-judicial proceeding, review under Colo. R. Civ. P.

57 (the rule authorizing courts to issue declaratory judgments) may be proper where adeclaratory judgment is requested and Colo. R. Civ. P. 106(a)(4) does not provide an adequate

remedy. For instance, constitutional questions and challenges to the overall validity of a statute

or ordinance are more properly reviewed under Colo. R. Civ. P. 57. See Native American Rights

Fund, Inc. v. City of Boulder, 97 P.3d 283, 287 (Colo. App. 2004), cert. denied, Aug. 16, 2004.

Review under C.R.C.P. 106(a)(4) is limited to review of the record to determine whether the

governmental tribunal has abused its discretion or exceeded its jurisdiction. Id.

95. Plaintiffs are entitled to a declaratory judgment under Colo. R. Civ. P. 57

construing the provisions of the Denver Revised Municipal Code and Denver Zoning Codegoverning the Planning Boards consideration of a proposed text amendment including, without

limitation, the Lowry Text Amendment.

96. For the reasons explained above, the CPD Manager and the Planning Board:

A. Failed to give adequate notice to Denver residents and Registered

Neighborhood Organizations of the Lowry Text Amendment. CPDs and the Planning

Boards practice of allowing only 15 days notice to registered neighborhoodorganizations and members of the public before the Planning Board votes on a text

amendment to the Denver Zoning Code subverts the provisions of the Denver MunicipalCode empowering neighborhood organizations to gather and present the views of their

residents to City agencies and departments before decisions affecting their neighborhoods

are made.


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B. Approved the Lowry Text Amendment even though that amendment does

not satisfy the requirements of Section 12.4.11.1 and the specific Review Criteria in

Section 12.4.11.4 of the Denver Zoning Code.

C. Refused to consider in the October 1, 2014 hearing the substantial adverse

effects of the LRAs proposed high-density development of the Buckley Annex parcel(with minimal street set-backs and tall building heights to facilitate density) on traffic,

parking, and open space including a city park (Crestmoor Park) in the surrounding

neighborhoods.

D. Approved the Lowry Text Amendment as a zoning change even thoughthe amendment is not compatible with the surrounding neighborhoods and there is no

documented necessity for such a change.

E. The CPD and Planning Board abused their discretion and acted in anarbitrary and capricious manner when they considered and approved minimal or no street

setbacks and tall building heights next to the streets surrounding the Buckley Annexparcel before the Planning Board has reviewed the specific zoning proposed for the rest

of the Buckley Annex parcel including the LRAs pending C-MX-5 zoning application.

THIRD CLAIM FOR RELIEF

(Request for Declaratory Judgment That Planning Board, CPD Manager, and

City and County of Denver Are Following Procedures That Violate

The Due Process Clause of the U.S. and Colorado Constitutions)

97. Plaintiffs hereby incorporate by reference and re-allege the allegations ofParagraphs 1-96 of this Complaint.

98. Plaintiffs are entitled to a declaratory judgment under Colo. R. Civ. P. 57 holdingthat the Planning Boards and CPDs procedures used in connection with the October 1, 2014

hearing concerning the Lowry Text Amendment violate the Due Process Clause of the U.S. andColorado Constitutions.

WHEREFORE, Plaintiffs respectfully request that this Court:

a. conduct judicial review under Colo. R. Civ. P. 106(a)(4) and hold that inapproving the Lowry Text Amendment at the October 1, 2014 hearing, the Board exceeded its

jurisdiction, abused its discretion, and lacks competent evidence for that decision based on the

evidence in the record of the October 1, 2014 quasi-judicial hearing;


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b. vacate the Planning Boards October 1, 2014 decision approving the Lowry Text

Amendment;

c. grant a declaratory judgment that the Denver Planning Board, CPD Manager, andCity and County of Denver are following procedures that violate the Denver Revised Municipal

Code and Denver Zoning Code, and an injunction requiring those entities to comply with properprocedures;

d. grant a declaratory judgment that the Denver Planning Board, CPD Manager, and

City and County of Denver are following procedures that violate the Due Process Clause of the

U.S. Constitution and Colorado Constitution;

e. award costs and attorneys' fees as provided by law; and

f. grant such other and further relief as the Court deems just and proper.

Dated: October 24, 2014

/s/ Gregory J. Kerwin

Gregory J. Kerwin, No. 14161Gibson, Dunn & Crutcher LLP

1801 California Street, Suite 4200

Denver, CO 80202-2642(303) 298-5700

Email: [email protected]

Attorneys for Plaintiffs


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Exhibits:

A. Documents concerning proposed Lowry Text Amendment:

1. Version sent to Registered Neighborhood Organizations on September 8, 20142. Revised version CPD prepared dated September 30, 2014

3. CPD Staff Report dated September 24, 2014

B. Written comments on Lowry Text Amendment submitted to Planning Board by RNO

representatives and others

C. Buckley Annex GDP (2013)

D. Written comments on proposed Buckley Annex GDP1. Breese comments

2. OConnor comments3. Kerwin comments4. Survey results March-April 2013: gathered by Lowry United Neighborhoods

E. Buchanan May 14, 2014 letter re GDP public task force

F. CPD Meeting Record for October 1, 2014 Planning Board meeting.

101821985.1