The ordinance was passed five years ago by the city council after Washington Park residents complained bitterly about huge second-story additions to area homes that dwarfed neighboring houses and blocked sunshine. The ordinance imposed height limits on the additions--commonly known as "pop tops"--and required that any new construction not screen natural light from adjacent homes.
However, a city zoning board has been routinely granting variances to the law, and some say its actions have rendered the pop-top regulations a farce.
"People are under the illusion this law is enforced," says Francoise Gude, a Washington Park resident who has been fighting a pop top next door to her home. "They're just blatantly ignoring the law."
Gude and her husband have spent months trying to prevent their next-door neighbor from putting up a second-story addition that exceeds the legal limit on the "bulk plane" by ten feet. (The bulk plane is a required 45-degree angle on additions that's supposed to allow sunlight to reach a neighboring house.)
But Gude says that when she protested her neighbor's planned addition, the Board of Adjustment for Zoning Appeals never seriously considered her objections. Instead the board granted her neighbor, Alvin Cohen, the variance he requested, and the addition is now under construction. Gude fears her Mediterranean-style home on South High Street, which includes skylights above the dining and living rooms, will now lose as much as three months of direct sunlight a year. And she holds the board directly responsible for refusing to follow the law.
"This creates a terrible animosity between neighbors," says Gude. "Now we're going to have to move."
Under Denver zoning law, anyone can ask the Board of Adjustment for a variance to city zoning rules. The five-member board is appointed by Mayor Wellington Webb and reviews everything from the height of fences to the size of garages. And while Gude has lost her battle to stop her neighbor's addition, she has won the attention of Denver officials, who now say the Board of Adjustment may indeed have become too permissive in granting variances for pop tops.
"Francoise has done a good job of causing all of us to take a look at this," says Denver planning director Jennifer Moulton.
Moulton asked her staff to review the pop-top variances granted by the board, and she says they found that the board was approving the large majority of variances requested. Moulton met recently with the Board of Adjustment to discuss the issue; at that meeting, she asked boardmembers to explain their process for assessing requests for variances.
Moulton says she expects zoning fights to become more common, since once-sleepy central Denver is now in the midst of a housing boom. "This is a city that's growing that has a lot of small houses that people want to make bigger," adds Moulton.
The pop-top law was crafted to allow Denverites to expand their homes without affecting their neighbors, says Denver urban design director Tyler Gibbs. The bulk-plane rule was intended to prevent homes on the north side of pop tops from being enveloped in shadows and requires second-story additions to be built at 45-degree angles that allow a certain amount of direct sunlight to reach the house next door. The ordinance also restricts heights to thirty feet and requires that 50 percent of every house lot be reserved for open space.
Gibbs says exemptions to the law should be granted only after careful review. "I think the evaluation of any variance to this should be very rigorous," he says. "The fact that the majority of variances are being approved by the Board of Adjustment is a concern to us."
Westword's calls to several members of the Board of Adjustment were not returned.
Gude says she believes that city officials are quietly pressuring the board to grant more variances in the belief that bigger houses will boost the city's tax base. "They want to encourage more density," she says.
The neighbor with whom Gude's been battling, Alvin Cohen, says there's nothing wrong with encouraging additions to existing urban properties. He insists his expanded home won't harm Gude's, and he says allowing larger houses in central Denver will help to keep middle-class families in the city.
"The standards of 1910 are not the same as today," says Cohen. "I don't want to see a stop to the improvement of the housing stock in the city."
Cohen lives in a small brick bungalow with his wife and children. He says he worked hard to come up with a plan that would allow them to expand their home without disrupting Gude's life or the neighborhood. The expansion will be in character with the other houses in the area, he says, adding that he had to ask for a variance to the pop-top ordinance to build separate bedrooms for his two children.
"We wanted to be reasonable with respect to the neighbors and the neighborhood," he says. "There's a fair amount of sacrifice on our part, because we won't get eight-foot ceilings." The amount of direct sunlight Gude's home will lose will not be as devastating as she believes, adds Cohen.
Cohen says he was troubled by the huge additions that went up in the neighborhood before the ordinance was passed. The pop tops that have been allowed in Washington Park the past few years are much more reasonable than those that came before the city council changed the law, he adds, and he believes the Board of Adjustment has recognized that.
"You have to look at what's being approved," says Cohen. "If people are coming to the board with reasonable designs, why shouldn't they be approved?"
The Cohens and the Gudes were once on friendly terms, but the pop-top debate has brought that to an end. Gude says having natural light is so important to her that she and her husband will probably place their home on the market and find a place where the sun will always shine.
"I really love to have the sun," she says. "It's not until you have a house being built next to you that this becomes real.