Don't Be Dense

All of Denver's neighborhoods have character.

Few have clout.

Not the clout of Hilltop, certainly, which ten days ago wrested from Denver City Council a moratorium that temporarily bans lot-splitting in the pricey neighborhood, where the stuff inside the residents' wallets is as green as those big, broad lawns that developers covet.

Just northwest of downtown, at the start of the Highland neighborhood, the lots aren't nearly as big. Neither are the wallets.

"This is not Cherry Creek North," Assistant City Attorney Patrick Wheeler pointed out the very next day, at an April 11 hearing before the Denver Board of Adjustment for Zoning Appeals. "This is not Hilltop."

But it's a neighborhood just the same -- my neighborhood, one of the 151 neighborhoods whose individual characters give Denver its overall character. Every Tuesday, the Board of Adjustment hears tales from the front -- skirmishes over city permits that neighbors think infringe on their rights, fights over zoning interpretations. As building booms in Denver, battles both large and small break out all over town.

This week, for example, the five-member board considered an offensive shed in Councilman Dennis Gallagher's district, a porch addition in Councilwoman Sue Casey's, an unsightly RV in Joyce Foster's, a garage addition in Ted Hackworth's. The week before, the board had debated a fence in Councilwoman Polly Flobeck's district (not far from Hilltop), a disputed office/study in Elbra Wedgeworth's, a carport in Ramona Martinez's and, in Debbie Ortega's district, a permit issued by the city's zoning administrator to erect a condo project at 2835 Umatilla Street.

That address falls within the odd patch of earth covered by the Platte River Valley zoning district, a code created over a decade ago when city planners looked out over that vast, dusty stretch of vacant land between lower downtown and northwest Denver and envisioned the future. Not completely clearly, of course. Back in the late '80s, no one contemplated the developments now springing up along the Platte, including a thirteen-story tower whose "loft" units will start at half a million dollars. In fact, since June 1999, a group of citizens, business owners and developers has been working wtih the city to rezone the area west of I-25, the start of Highland, that now falls within the PRV.

One of the first questions residents asked city planners was whether the Highland neighborhood needed a moratorium while the rezoning was in process. No, no, the city assured them. They would be notified of any projects in the area, and definitely warned of any that might run afoul of current zoning, which calls for nothing larger than two-story townhomes in the area surrounding Stoneman's Row, a historic block within the PRV and just down the block from 2835 Umatilla.

But neighbors did not learn that the city had issued a permit for that condominium project until one day in mid-February, when construction trucks landed on the lot. And on February 16 -- perhaps not coincidentally, the same day that the city-sanctioned Highland PRV rezoning group held its last meeting -- the city's zoning administrator received a letter from attorney David Schlachter on behalf of neighbor David Spencer. The condo project fell within the Stoneman's Row sub-area of the PRV, Schlachter pointed out, where the code requires that any new development "match" existing residential heights. Neither the zoning nor planning departments had measured the height of existing buildings before signing off on the Umatilla project -- but Spencer had, and the project was too tall. As a result, he was requesting that the city review its decision to issue a construction permit.

Request denied. On February 17, Kent Strapko, the zoning administrator who had approved the permit, told Schlachter he was wrong: The zoning code did not set a maximum height of 35 feet for the neighborhood, and the permit issued on November 5, 1999, would not be rescinded.

So Schlachter filed an appeal with the Board of Adjustment, which set a hearing for April 11.

By last week, Spencer was not alone in his fight: Two dozen neighbors had signed on. The neighbors had been in this room before -- four years ago, when the Denver Public Schools proposed putting an alternative high school in a vacant building just a block away. (The DPS won.) But this time, the opponent was not just the city but a former neighbor, who had owned houses at both ends of the historic block. Back in 1995, when he still lived on Stonemason's Row, Brian Volkman had bought the lot where he now wanted to put an eight-unit condo project. "At the time, I was concerned about what would be built there," he told the board.

Several years later, when he started talking with the city about what kind of project he could put there himself, the issue of height was never raised, he said. And Tyler Gibbs, the city's director of urban design, had checked the architectural plans before Strapko issued the permit.

"At what point did you start talking to the neighbors about it?" asked boardmember Sharon Klein.

Good question. Volkman, it turned out, didn't talk with his former neighbors until long after Strapko had approved the permit and he was ready to break ground.

Although the area is covered by a neighborhood plan, that plan is only a general guideline, Strapko told the board. Besides, the city doesn't require that neighbors be notified of a project unless it violates code -- and Strapko had determined that Volkman's was within code.

That code can be confusing, Strapko added. So he considered how city zoning encourages development of vacant land in the PRV at the same time he reviewed whether the project fit the historic character of Stoneman's Row. It was tough to "match" the project to already existing houses, he said; for example, how would you "match" the height of the people in the hearing room?

"I'm not going to get someone 6' 4," huffed Klein, a five-footer.

At one point, board chairwoman Mary Ewing summed up the action not just at this meeting, but at so many before: "I keep hearing that the city is the driving force behind maximizing density."

Five hours into the hearing, the lawyers finally delivered their closing arguments. Wheeler was arguing for the city -- and against the specter of a lawsuit being filed by a developer who's already put $450,000 into a project the city had approved. Since Strapko had read the code correctly, the permit should not be rescinded, he said. And the neighbors "were not denied the right to participate, because there has been no right to participate." Besides, Wheeler concluded, "What were the prospects of getting something better in the neighborhood? I cannot imagine any project they would not have appealed."

The neighbors didn't want to participate, Schlachter replied. If the city had followed its own PRV zoning code, the neighborhood wouldn't have gotten involved at all. "The code is understandable," he said. "We just want the code enforced."

And so, it turned out, did the Board of Adjustment.

The next morning, the board issued its order: The neighbors were right, the zoning administrator was wrong, and the permit was rescinded. That day, the clang of construction that's background noise in so many neighborhoods was suddenly stilled.

But the fight is just beginning. The city can appeal, says Strapko. The developer can appeal.

And everyone can sue.

In the meantime, a neighborhood group savors a rare victory. "It was a good week for the neighborhoods," says Dick Bjurstrom, the chair of the Inter-Neighborhood Council, who testified at the hearing. "It was a pretty airtight case, really forcing the Board of Adjustment to make a choice between supporting the administration and supporting the zoning code."

The battles aren't always that easy. In fact, neighborhoods often don't fight at all.

"They don't have the wherewithal for the battles," Bjurstrom says. "The developers understand that, and the city understands it...When the chair said the city was the one that was pushing for density, and pushing neighborhoods into this situation, she got it exactly right."

Yes, she did.

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