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DISTRICT COURT, CITY AND COUNTY OF

DENVER, COLORADO
Court Address: 1437 Bannock St., Room 256
Denver, CO 80202
Plaintiffs: CHRISTINE OCONNOR, DAVID T.
MITZNER, WILLIAM H. OROURKE, and JOHN
FISCHER,

COURT USE ONLY

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 OF
COMMUNITY PLANNING AND DEVELOPMENT
(Brad Buchanan, in his official capacity), and THE CITY
AND COUNTY OF DENVER.

Case Number: __________


Ctrm:

Attorney for Plaintiffs


Gregory J. Kerwin
Gibson, Dunn & Crutcher LLP
1801 California Street, Suite 4200
Denver, CO 80202-2642
Telephone: 303.298.5700
Fax No.:
303.313.2829
E-mail:
GKerwin@gibsondunn.com
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:

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 Text
Amendment); 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 fivestory buildings and minimal or no street setbacks) that:
i.
does not meet the Zoning Codes criteria for a text amendment in
Section 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 Citys
adopted plans, namely the Comprehensive Plan along with the Lowry Reuse Plan
which is incorporated into it, and Blueprint Denver, or with the character of the
surrounding 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 highdensity buildings in this area that already has congested arterial streets and
intersections 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 that
harm Denver neighborhoods and residents.
3.
When Lowry Air Force Base was still open for airplane flights, this Buckley
Annex 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, stable
neighborhoods 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/Virginia
Vale (collectively, the Affected Neighborhoods). The existing commercial, mixed-use, and
residential developments in Lowry have been scaled to fit in with, complement, and be
compatible with surrounding residential neighborhoods with adequate parking (with some
exceptions 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, highdensity, 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 of
retail/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 and
neighborhoods. 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 quasigovernmental entity co-owned by the City of Denver and the City of Aurora called the Lowry
Redevelopment 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 to
maximize 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 it
believed 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, despite
widespread 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, ignoring
the 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 down
neighborhoods 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 and
building 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 Denver
has 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

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 buildings
along 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 of
the 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 adversely
affected 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.

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 whose
members 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 are
incompatible 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 who
stand 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 of
Boulder, 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.

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 changes
including 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 text
amendments. (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 of
an 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-judicial
decision-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 on
an application (i.e., No later than 15 days before . . . .). But longer notice can be required to
meet 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 Annex
parcel 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

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 Review
Criteria for approval of a text amendment:

C.

A.

Consistency with adopted plans: The Code explains: All text amendments shall
be consistent with the Citys adopted plans, or the proposed text amendment is
necessary 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 residents
from 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.

Due Process requirements for quasi-judicial proceedings including Planning Board


decisions on a zoning text amendment

24.
In Margolis 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 individual
landowners, 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 community
before 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 the
facts 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 an
opportunity 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 own
procedures 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

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 an
administrative 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 Area
Residents, 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 be
reached 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 registered
neighborhood organizations work cooperatively with any adjacent or overlapping neighborhood
organizations to determine positions on issues affecting the neighborhood and to conduct
business 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 before
City agencies that includes information on the results of a specific meeting when the
organization 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 meeting
convened 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 to
implement 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. See
Sections 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 the
Comprehensive 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 the
center of the Denver Zoning Code because the Code seeks to ensure that zoning changes are
consistent 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 in
2000. 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. 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. See
https://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 the
communitys 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

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 of
Denver 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 the
consideration 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 to
the 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 should
conduct 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 or
local 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 he
or 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 Air
Force Base/Lowry Field, and the open area immediately east of Monaco Parkway and south of
First 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 open
until 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 to
maintain, 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 Lowry
Reuse 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 Plan
and 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 Buckley
Annex 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 Space
Command 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 existing
facilities. 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 Finance
Center 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 residential
neighborhoods surrounding the base. Had the Buckley Annex parcel been developed along with
the 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 plan
formed 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-closing
initiative 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, and
the 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 height
limits 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 Plan
currently 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 Plan
was 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 Lowry
Design 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 at
public 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 the
Air 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 Annex
Community 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 existing
built environment in the surrounding neighborhoods:
1.0

Introduction and Background

13

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 standards
necessary 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 and
approve 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 statement
about 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) foot
wide 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 lawn
shall 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 the
way of the proposed roadways shall be evaluated and moved, if possible,
to another placement in the development.

14

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 of
law, 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 12stories), but backed off of those proposals. Yet even though the LRAs consultants who wrote
the 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 significant
public 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 City
Council 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 and
elsewhere 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. Neighbors
expressed 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 is
not 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 Annex
GDP. It was not adopted as a zoning change.
58.
Representatives of LRA and the City told residents who expressed concerns with
the 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 more
vehicle 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.

15

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, Monty
Force, 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 a
short time later.
THE OCTOBER 1, 2014 PLANNING BOARD HEARING
61.
On information and belief, during July and August 2014, CPD representatives
worked 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).
See Exhibit A. Neither CPD nor the LRA notified any representatives of surrounding Registered
Neighborhood 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 June
and 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 LRAs
own committees either.
62.
CPD first notified some representatives of RNOs by email on approximately
September 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 to
provide additional zoning standards for structures and signs that allow the redeveloping
portions of the Lowry neighborhood to adequately transition to and integrate with
existing surrounding neighborhoods.
Questions and comments on the text amendment may be directed to Theresa Lucero,
Senior City Planner at Theresa.Lucero@denvergov.org
That email notice did not state that CPD intended to present the proposed text amendment to the
Planning Board for approval at the Boards October 1, 2014 meeting.

16

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 feet
from 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-ofway; with taller buildings beginning 30 feet from First Avenue.
c.
Monaco Parkway: allowing 45-foot tall buildings (described as threestory, 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 Monaco
Parkway 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:

17

64.
In the presentation CPD planner Theresa Lucero gave to the Planning Board on
October 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 those
comments 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 even
though 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 individual
residents 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 the
Buckley Annex parcel.
b.
Density, traffic, and parking concerns: The new high-density
development 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 and
parking problems. Residents expressed concerns about the urban forms and intensities of

18

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 the
character 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 asked
Planning 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 and
others 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 Buckley
Annex 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 the
public 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 minimal
setbacks 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 September
22, 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
19

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 or
the 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 the
Lowry Text Amendment.
70.
Thus, the Board Members heard comments during their deliberations from, and
the 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 Text
Amendment 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 admitting
they could only skim the comments after receiving them 15 minutes before the hearing;
b.
lack of sufficient advance notice to neighborhoods about the zoning
proposal 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 those
comments). 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 Dalton
of 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 for
how 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

20

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 how
CPD 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 Planning
Board 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 the
city 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 zoning
process.
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 sent
approximately 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 is
attached 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 were
unwarranted.

21

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 or
officer 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 order
requiring 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 an
answer 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 to
place 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 defendant
to 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 advance
payment 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.

22

(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 the
clerk. 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 defendant
has 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 days
after service of the answer brief.
(VIII) The court may accelerate or continue any action which, in the
discretion 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 such
findings of fact or conclusions of law.
85.
An agency abuses its discretion under Colo. R. Civ. P. 106(a)(4) if its decision is
not 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 an
arbitrary 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 is
not 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 the
Planning 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 at
issue.
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 is
filed within 28 days of the Planning Boards October 1, 2014 decision approving the Lowry Text
Amendment.

23

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 Zoning
Permits with Special Exception Review. See Denver Zoning Code 12.2.6.1; see also Denver
Revised Municipal Code 3.2.9.J. The Planning Boards October 1, 2014 decision approving
the Lowry Text Amendment:
A.
12.4.7.

Does not constitute a Variance as defined in Denver Zoning Code

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 administrative
official 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 Denver
Revised 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 Decisionmaking 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 final
decision of the Denver Planning Board concerning that text amendment.
90.
In voting to approve the Lowry Text Amendment, the Board was supposed to be
acting 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 abused
its 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 hearing
process that comports with constitutional due process principles because:

24

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 to
submit comments in the manner contemplated by the Denver Revised Municipal
Code (see supra Paragraphs 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 to
participate 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 Monaco
Parkway 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 which
the Text Amendment is intended to provide a foundation. See supra Paragraphs
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 the
advice 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 in
the deliberations and voting on the Decision, and his failure to recuse himself,
violated Denver Municipal Code 12-44 and the ethics rules described in
Paragraphs 36-42 above. Mr. Bershofs participation despite his personal
financial interest in the outcome tainted the fairness of the Planning Boards
quasi-judicial proceeding.
iv.
The Planning Board failed to make sufficient specific findings on
the record to explain its approval necessary to allow judicial review. See Colo. 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 even
though that amendment does not satisfy the specific Review Criteria in Section
12.4.11.4 of the Denver Zoning Code.

25

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 and
dissenting Board Member recognized, that 2013 GDP does not constitute
an Adopted Plan. There is no adopted Small Area Plan for the part of East
Denver 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 and
Recommendation (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 facility
located 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 to
those 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 Force
adopted 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 representatives
written 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 minimal
or 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 neighborhood
where 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 Zoning
Code 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 proposed
minimal setbacks and tall building heights are more appropriate than the
large setbacks and low building heights consistent with surrounding

26

neighborhoods and advocated by the vast majority of those


neighborhoods residents.
e.
The Lowry Text Amendment is not consistent with the
character 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 including
a 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, 5story 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 zoning
application. 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 the
factors 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 the
Planning 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 pending
C-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 Annex
parcel 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 for
portions 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 of
Denver 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 a
declaratory 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 Code
governing 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 neighborhood
organizations 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 Municipal
Code empowering neighborhood organizations to gather and present the views of their
residents to City agencies and departments before decisions affecting their neighborhoods
are made.

28

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 though
the 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 an
arbitrary and capricious manner when they considered and approved minimal or no street
setbacks and tall building heights next to the streets surrounding the Buckley Annex
parcel 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 of
Paragraphs 1-96 of this Complaint.
98.
Plaintiffs are entitled to a declaratory judgment under Colo. R. Civ. P. 57 holding
that 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. and
Colorado Constitutions.

WHEREFORE, Plaintiffs respectfully request that this Court:


a.
conduct judicial review under Colo. R. Civ. P. 106(a)(4) and hold that in
approving 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;

29

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, and
City 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 proper
procedures;
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;

Dated:

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.
October 24, 2014
/s/ Gregory J. Kerwin
Gregory J. Kerwin, No. 14161
Gibson, Dunn & Crutcher LLP
1801 California Street, Suite 4200
Denver, CO 80202-2642
(303) 298-5700
Email: GKerwin@gibsondunn.com
Attorneys for Plaintiffs

30

Exhibits:
A.

Documents concerning proposed Lowry Text Amendment:


1.
Version sent to Registered Neighborhood Organizations on September 8, 2014
2.
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 GDP


1.
Breese comments
2.
OConnor comments
3.
Kerwin comments
4.
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

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