Hearing on Grove/Vita lawsuit leaves plaintiff feeling dubious

Questions by judges appear to lean toward city's authority to set rules

Posted 3/3/18

Judges from the Colorado Court of Appeals heard arguments Feb. 27 in an appeal to a rejected lawsuit against the City of Littleton and the developer of Vita, the controversial apartment complex now …

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Hearing on Grove/Vita lawsuit leaves plaintiff feeling dubious

Questions by judges appear to lean toward city's authority to set rules

Posted

Judges from the Colorado Court of Appeals heard arguments Feb. 27 in an appeal to a rejected lawsuit against the City of Littleton and the developer of Vita, the controversial apartment complex now nearing completion on Littleton Boulevard and Bemis Street.

The initial suit was brought by Leah Burkett, who formerly lived across the street from where Vita now stands. Burkett argued that the city's code unfairly does not allow neighbors to appeal decisions regarding site development plans by city staff, with only permit applicants allowed to appeal to the city's Board of Adjustment.

A judge issued a summary judgment in favor of the city and the developer, Zocalo Community Development, in summer 2016, the day before the case was to go to trial. Burkett filed an appeal of the judgement, and a final decision on the appeal is expected in coming months.

Burkett filed the suit on behalf of Advocates for Littleton, a citizens' group that alleged Vita — then called The Grove — was improperly approved by city staff, citing what they called numerous zoning and code violations.

The city code at issue is 10-7-4, which spells out the process for appealing decisions on site development plans, or SDPs, by city staff. The code reads in part: “The decision of city staff on the SDP shall be final unless the applicant files a written appeal to the decision… The planning commission will conduct a public hearing to receive evidence and testimony from the applicant, city staff and interested parties.”

At the hearing before the Court of Appeals, Burkett's lawyer, Chip Schoneberger, argued before a tribunal of judges that the city's appeal process was unfairly slanted.

“Littleton municipal code requires that all site development plans must mitigate or eliminate adverse effects on adjacent properties,” Schoneberger said. “Yet the owners of those properties can't participate or voice an opposition to that plan in the city staff's approval process. Where and when does the code afford that opportunity? Due process requires the opportunity to be heard.”

The judges, Jerry Jones, Robert Hawthorne and Henry Nieto, questioned whether the city was required to grant such an appeal at all.

“The question for us is not whether that's the best way to go, but whether the ordinances compel that result,” Jones said. “It seems to me that if the ordinances say the applicant gets to appeal and nobody else does, that's up to the city to decide. You might think that's a bad idea, but that's what it says.”

The city's argument hinged on a similar viewpoint, that while the process could be viewed as troublesome, that's the way the law was written.

“Attempting to pass judgment on whether that's the best way to go about things… is not in the realm of issues before this court,” said Vikrama Chandrashekar, an attorney representing the city.

Burkett had other opportunities to voice her concerns over the development's legitimacy, Chandrashekar said. He characterized Burkett's complaints as primarily regarding the initial zoning determination rather than the final site development plan, and said city code would have allowed her to appeal that decision to the city but that she did not do so.

Chandrashekar also said that neighbors who wish to appeal SDP approvals can do so through the court system.

Burkett admitted feeling somewhat dismayed by the hearing.

"I walked away from the hearing feeling a little disappointed about how short it was after we/I have been waiting so long," Burkett said in an email statement after the hearing. "I felt like Judge Jones already had his mind made up and was not really hearing Chip's (my attorney) argument. I also really hoped the judges understand that the Rule 106 Civil Proceeding [the court appeal process] was not legally an option in this instance. The City continues to make argument that I missed other avenues for legal recourse, but under my attorneys' advice, the path we followed was the only possible course. I also can't stop thinking about how ironic it is how the code's language around the BOA [Board of Adjustment] has been dissected and picked apart to the bone, yet the underlying issues around the zoning and what the code actually allows still remain unexamined by any independent party."

Zocalo CEO David Zucker and Littleton City Attorney Steve Kemp declined to comment following the hearing. A ruling in the appeal is not expected for several months.

Apartments at Vita are expected to start opening for occupancy in May. The complex is limited to residents 55 and older, with rents starting at just under $2,000 a month. The complex also incorporates several retail storefronts, including a restaurant space currently slated to be occupied by Bacon Social House.

Opponents argued that the city improperly approved the project for the site, which is zoned B2, which stipulates that at least half the site must be commercial. In order to meet the requirement, Zocalo said the complex's parking garage constituted commercial space, although no spaces in the garage will be leased to non-residents and the parking spaces are required as part of the residential zoning code.

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