Burkett is asking Arapahoe County District Court Judge Kurt Horton to take another look a lawsuit she'd filed against Zocalo and the City of Littleton, seeking a public hearing before the Board of Adjustment about the Grove’s site-development plan.
Burkett’s attorney, David Foster, says he filed a motion for post-trial relief because it’s unusual for district-court judges to review land-use issues; he thinks it may be beneficial to explain his client’s position in more detail.
Horton has until November 14 to review the case. “This isn’t an easy issue in terms of the code analysis,” Foster says.
Littleton’s staff had approved the project’s site-development plan after determining that it conformed to the city’s existing zoning code. When Burkett appealed that decision, she was denied a hearing before the Board of Adjustment because a part of the code states that if a site-development plan is under the purview of the city’s staff, the only entity that has a right to appeal the staff’s decision is the developer — and then only if the plan is rejected.
However, Foster says Burkett is entitled to a hearing under the city’s code, which states: “The Board shall hear and decide appeals where it is alleged that there is an error in any order, requirement, decision or determination made by the City in the administration of this Title.”
Foster argues that because a site-development plan outlines a land use specific to a project, it must meet a host of criteria, including whether adverse effects on adjacent property are mitigated or eliminated. It would be difficult for a city staff member to determine whether the property was adversely impacted without a public hearing, he notes.
“That is an example of a review criteria that you would naturally want to get input from the very people who potentially are being adversely impacted,” Foster says. “Those are the kinds of questions you have to ask at a public hearing. A board reviewing those kinds of questions will conclude whether those impacts are being mitigated after they take in information from all sides. We don’t know what the planning director used to determine that there was no adverse impact to the neighbors, and that’s what a public hearing would flesh out.”
Burkett and Foster also take issue with the city seemingly bestowing greater property rights on a developer who didn’t own property in Littleton over people who have lived around the property for years.
Foster acknowledges that it’s customary for developers to complete the entitlement process before closing on the purchase of a property, but he says it seems wrong for someone who doesn’t actually own property to have greater rights than people who have owned surrounding real estate for years.
“What we as lawyers felt was a challenge for Leah and her neighbors was that the city was telling her that an applicant seeking to develop property in Littleton had a greater property right than those people around a site that was being developed,” Foster says. “Why should the non-property owner have a greater property right?”
David Zucker, Zocalo’s chief executive (who was featured in our August 23 story "Developing Community") says that Burkett is part of a group known as Sunshine that has fought the redevelopment of the site that the Grove sits on since the previous developer tried to have it rezoned.
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“They simply want Littleton to be the sleepy little Mayberry of old,” Zucker says. “They don’t like the potential of change that comes from urban renewal or from a larger building than they like in their neighborhood.”
Foster disputes that claim, however, saying that Burkett’s constitutional right to due process has been violated.
“This is a due-process issue, which is very different than neighbors who don’t want a project developed,” he says. “They want the same rights that are afforded non-resident Littleton developers. They just want an opportunity to be heard. The city manager and city attorney didn’t afford them that opportunity.”