Lakewood Council Acknowledges Open Space Law Is Illegal Before Approval

On November 4, Lakewood City Council voted to pass an ordinance into law that most councilmembers agreed is illegal.

In September, a group of citizens gathered enough signatures to put forth an ordinance that would change Lakewood’s development laws by removing the city’s ability to accept a fee in lieu of parkland dedication for housing projects under fifteen acres.

The citizen-crafted proposal would make every project dedicate 10.5 acres of parkland for every 1,000 people expected to live at a development. Lakewood's current law requires 5.5 acres for every 1,000 prospective residents and gives local government the ability to accept a fee instead of a parkland dedication at city discretion.

Some citizens and city councilors believe the petition conflicts with a law passed this summer by the state legislature that requires cities to offer a developer fee-in-lieu option for housing in certain areas. There is no exception for those areas in the new Lakewood law, and the volume of land that would have to be turned over raised questions about whether the measure is a breach of a constitutional right that the government cannot take private property without due process.

But the councilors couldn’t amend the measure or vote it down.

Lakewood’s citizen petition rules dictate that a proposal with enough valid signatures must either be passed into law by city council or referred to voters for a special election, putting the councilmembers in a tough situation.

"It feels like the choice we have tonight is to either pass an illegal ordinance or send an illegal ordinance to the voters,” Councilwoman Rebekah Stewart said at the November 4 council meeting. “It feels incredibly irresponsible to spend money on a special election and send a matter with such really significant legal concerns to the voters.”

In the end, the council passed the rule into law, 8-3, with the expectation that a legal challenge will soon follow. Most of the council believes this will strike the rule down quickly, instead of going through the more lengthy process of holding a special election, then waiting for that legal challenge to emerge from a development firm or other entities. And since it's a city-approved law, the city attorney must defend the rule against whoever decides to challenge it.

The group Save Open Space Lakewood had pushed the petition after members of the group opposed a development that will add 400 units of housing next to Belmar Park. That development was directed by the city to pay a fee in lieu rather than dedicating land, causing some to question the fee-in-lieu policy.

The group needed to get 5,862 signatures and ended up obtaining 6,492 validated names. Another potential illegal part of the petition: It attempts to prevent the Belmar Park development by specifying that any unpaid permits would be subject to the new rule. However, Colorado law stipulates that only laws and regulations in effect at the time of submission can apply to development proposals.The Belmar Park development is still working through full approval, but the plan has already passed many city checkpoints and was submitted over a year ago.

Councilmembers and public commenters were also worried about the impact of the measure on the future construction of affordable housing, as no carveouts were made for those projects. They're concerned that the amount of required open-space land would stop developers from working in Lakewood altogether as well.

Over fifty people submitted comments online; there were also about ninety minutes of public comment during the November 4 hearing. One of the online commenters was Katie McKenna, who works for Archway Communities, an affordable housing developer that has worked in Lakewood.

“If it were to go into effect as written, this ordinance would undermine City Council’s notable accomplishments and future aspirations to solve Lakewood’s housing crisis,” McKenna wrote. “By increasing the amount of parkland developers must set aside and removing the fee in lieu, the ordinance threatens the financial feasibility of housing projects — both affordable and market rate.”

Metro West Housing, another active nonprofit developer in Lakewood, said it would not be able to consider many projects in the city under the new rules.

YIMBY Law, a housing policy legal group, submitted a letter through attorney Jack Farrell. According to Farrell, the measure creates an illegal change in zoning law because it would delay or impair the development of private property, which owners have the right to use reasonably.

Other environmental and housing groups opposing the measure include the Southwest Energy Efficiency Project, Conservation Colorado, the Colorado Sierra Club and Habitat for Humanity of Metro Denver.

“This proposal speaks to a lovely vision that many folks would like to see in Lakewood, but the reality is that it uses the flowery appeal of parks and green spaces to effectively freeze meaningful development,” resident Hunter Montoya wrote. “I don't believe this ordinance actually offers increased access to green spaces in any material way.”

Others expressed worries about the potential costs of a special election, which could run over $300,000, according to city estimates.

Supporters of the measure urged city council to adopt the measure, arguing that Lakewood's current development rate isn’t feasible.

“What happens when we run out of land to develop?” citizen Kelsey Krebsbach wrote. “We get one chance to preserve our beautiful, natural environment for the health and wellbeing of Lakewood residents for generations to come. ... Land is not a limitless resource, nor should it be viewed as a commodity. We cannot regrow mature trees that have been here long before us.”

Many discussed the mental health benefits of green spaces as a reason to support the proposal.

Cathy Kentner, a former mayoral candidate who successfully pushed a strategic growth initiative in Lakewood that limited new housing developments, helped organize this measure, too. The growth initiative was overturned last year after the state legislature passed a law prohibiting anti-growth policies.

Kentner wrote that she does not believe the measure is unlawful, as land dedication requirements have been allowed in the past. She added that organizers only adopted the citizen initiative strategy because elected officials have been unresponsive to their concerns.

“No longer will an administrator sitting behind closed doors be allowed to determine that accepting fees instead of providing parks and open space will ‘serve the public interest’ without any community input,” Kentner added.

Local lawmakers don't agree, however. Most of the councilmembers believe the measure will prevent development in Lakewood, particularly dense development, with some suggesting that is the real goal of those behind the petition.

Councilman Roger Low said he felt that those who gathered signatures either inadvertently or purposefully misled people who signed by asking if they wanted to save open space and then saying that’s what the ordinance would do — but Low expects that what it would actually do is stymie Lakewood's affordable housing goals while also getting the city sued. And because most developers would abandon the city, no parkland will be dedicated either, Low suggested.

Like the strategic growth initiative, the petition incorrectly pits affordable housing and the environmental values many in Lakewood hold against each other, according to councilmember Sophia Mayott-Guerrero.

“This idea that preventing density and preventing affordability and preventing, therefore, economic diversity in our city is the only way to achieve or protect those environmental values has never sat right with me,” Mayott-Guerrero said.

Even if a lawsuit isn't filed, Councilmember Jacob LaBure said he believes the state legislature will once again pass a law declaring Lakewood’s position illegal, rolling the measure back anyway. Fellow councilor David Rein said that referring such a measure to voters would break their trust by giving the implication of a council endorsement.

“If we send this to the voters, they're going to trust that we believe that this is something that they should really consider, that this is not an illegal ordinance, that this is not going to be bad policy,” Rein said. “You don't need to be a lawyer to know that if you have to turn over a third of your property, or two-thirds of your property, it’s unconstitutional. It goes too far. We can't send an illegal ordinance to voters.”

Rich Olver, another councilmember, was fully in support of the ordinance. He voted no on the proposal to adopt the law so voters would have a chance to weigh in. Councilwoman Paula Nystrom was also sympathetic to the petitioners, saying she sees the law as “a red flag being waved by citizens of this community.”

Nystrom called on council to look at Lakewood's development rules and zoning codes for ways to incorporate more green and open spaces in development to avoid the need for a citizen initiative in the future, and to give residents more routes to weigh in on development projects.

Mayott-Guerrero voted no with the goal of sending the measure to a vote. She said she believed that would actually save the city the most time and money because the measure would lose without need of a lawsuit. Councilor Isabel Cruz agreed.

“I have full faith that the voters of Ward 2 would see this for what it is, but I think that that should be their choice, and that is why I plan on voting to send this to a vote of people,” Cruz said at the meeting.

While the city now awaits a lawsuit, Olver pointed out that the council is allowed to revise the rule in six months, so he hopes it will be able to keep some elements of the law while reworking it...and avoid a court case.