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Susan Shepherd hints at her next step in battle over proposed development in West Highland

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Neighbors surrounding the proposed site of three, five-story apartment towers just north of 32nd Avenue and Lowell Boulevard have made their opposition to the project clear. RedPeak Properties, the developer planning to build the structures, and Tom Wootten, the head of a group that owns the property, have been equally defiant about their plans to move forward with the project. What is less clear is Susan Shepherd's next step. The councilwoman for the district where the complexes are planned to be built has yet to reveal what is the next major development in this saga.

RedPeak, a Denver-based luxury apartment developer, is already under contract to build the towers, originally planned to hold 160 apartments. Once neighbors heard of this project, however, they started a grass roots campaign called No High Rises in West Highland to change the scope of the proposed buildings and possibly re-zone the three parcels in question so that they couldn't be higher than two or three stories.

At a December 6 West Highland Neighborhood Association Meeting, Shepherd promised to announce a plan of action by December 16, but she still hasn't done so.

"In the last week I've met, or talked with, Red Peak, No High Rises, some of the stakeholders, the current property owner and Mayor Hancock on this issue," Shepherd says in an email. "I've gotten a lot of feedback from my constituents and it is clear that the majority of them think that five story buildings are too much and would like for me to take some kind of action to encourage less height and density. I've strongly encouraged all involved to seek a resolution that is a win for the neighbors as well as the developer. This issue is really important to my community so I want to be very thoughtful and not rush to action until I feel comfortable I've looked at all options."

"I have been elected, ultimately, to represent the district and the neighbors are the members of my district, not the developer," says Shepherd. "So ultimately, that's who I'm accountable to.

"There's been a wide mix of response to this project," she continues. "Probably ten percent of the emails I've received are in support of the project, of the emails I've received to date. There is a significant percentage that are against, 100 percent against, in terms of saying, 'This zoning is incorrect. We want you, Council Woman Shepherd, to initiate the process for a down-zoning of this property.'"

Opponents of RedPeak's development believe five-story buildings are grossly out of place at the proposed site and will have a negative impact on the character of the historic Highland Square neighborhood dominated by one- and two-story buildings. No High Rises co-founder Laura Goode says she has more than 1,500 signatures asking the city to review the proposed development and reduce its height and density.

Residents are also worried about traffic congestion at an already busy intersection, lack of parking and construction that will take eighteen months under optimal conditions -- especially after nearby business owners saw an overly disruptive construction process contribute to the closure of several businesses on Tennyson Street over the past year.

"I've been in my house for a decade and I have a beautiful view of the downtown Denver sky line from the back of my house and that's going to disappear if five-story buildings get put up on the parcel in question," says Bill Menezes, a member of No High Rises in West Highland who lives on Meade Street just west of the proposed development.

Goode says she and Shepherd have discussed a more creative solution to the problem. The property for the proposed development is made of three different parcels; one borders Meade Street, which is one block west of Lowell, the largest borders Lowell and the third borders Montcrieff Place, which runs parallel to 32nd. All three are set about a half block north of 32nd. Goode says her group and Shepherd may attempt to down-zone only two of those parcels, preferably to a maximum height of two stories.

"We're actually talking about a potential compromise right now," says Goode, who lives on Meade Street. "She (Shepherd) had thrown a situation out to us and said, 'Look, it might be easier for me to gain the council support if we just go for the two residential parcels and leave the Lowell parcel alone.' We're excited about the fact that possibly this might be a good compromise and might be something that can gain council support."

But a compromise might not make either side happy. Some members of Goode's group have bristled at the idea of having any five-story structures in their neighborhood, while Wootten and RedPeak don't plan to change their proposal at all.

"Certainly, we do not want the property re-zoned," says Wootten. "Certainly, we have no desire to see it down-zoned and if someone submitted that we would oppose it."

Typically, a re-zoning is initiated by a property owner in order to make specific changes, but Shepherd points out that "this is a potential attempt by a group of people to take away the rights that this property owner has." That is something that hasn't happened before under the new code and could set a dangerous precedent.

Wootten fears that a down-zoning could make his property less valuable and feels it would be theft of his property rights. "It's like buying a house and having the ability to expand it," he says. "And if someone came in later and said you don't have the ability to expand your house that could impact what you do with your property."

But Steve Kite, zoning chair for the West Highland Neighborhood Association (WHNA) says Wootten's claim to property rights based on previous zoning is inaccurate. The previous zoning code for the three parcels, which was called R-4, was a residential zoning that allowed for higher height and density than the current zoning.

Blueprint Denver is a land use and transportation plan adopted by the city in 2002 that was used as a basis for a city-wide re-zoning that began in 2005. Part of Blueprint Denver was a plan map that showed Wootten's property was planned to be zoned single family residential.

"The point is that when he purchased these parcels in 2007 Blueprint Denver's land use map was on the books," says Kite. "So the city's intent to zone these parcels single family residential was clear and unambiguous. His claim that he had entitlements I think is weakened by that."

While Wootten's claim to property rights based on the R-4 zoning might be shaky, he was awarded the right to build structures up to five stories when city council voted on the new zoning code. The No High Rises group has emphatically stated that it is not anti-development, but is upset Wootten was granted the ability to build a five story structure.

One of the three major themes for Blueprint Denver was to designate every piece of land in the city as either an area of stability or an area of change. The land owned by Wootten, as well as the immediate surrounding area, was deemed an area of stability, meaning no significant land use changes are suspected over the next twenty years.

Based on the themes of Blueprint Denver, City Council members and City Planning and Development (CPD) went to work assigning a completely new zoning code across the city. In June 2009 they began sharing the first zoning map drafts with the public. These were meant to be a starting point for each neighborhood's zoning.

The first map had the property just north of 32nd and Lowell zoned as U-MS-2, which means an urban neighborhood with main street designation and a maximum height of two stories. The U and MS essentially mean the area is predominantly a mix of one- and two-unit homes and small scale commercial buildings, with public and pedestrian traffic.

Kite says he was largely satisfied with the first draft map, but wanted a residential zoning for this particular property. WHNA notes show that it requested the U-MS-2 zoning be changed to U-SU-A, a designation for residential neighborhoods dominated by single-unit homes.

"We went away from that exercise thinking the promises of Blueprint Denver were intact," says Kite. "And so we reported that back to the membership that, 'It's looking pretty good, guys.' We had some issues, but nothing really insurmountable. We didn't think.

"Then, map two came," continues Kite. "Map number two threw us for a loop."

Between the release of the first map draft and August 7, 2009, when the second draft was released, residents had the opportunity to view the maps and provide feedback to City Council members and CPD staff, which the city says was taken into consideration while making changes between drafts.

The second draft of the zoning map showed the property north of 32nd and Lowell as U-MS-5, meaning that CPD and former Council Man for this district, Rick Garcia, had not taken the WHNA's recommendation and increased the potential height of buildings on that property to five stories.

"And so rather than reverting this to some kind of residential (zone) and say, meeting us halfway, they left it commercial and bumped the uses and the heights," says Kite. "We don't know why that happened. We had many meetings. We asked questions, and the bottom line answer, the last answer we got in the spring of 2010 from the CPD, was that the U-MS-5 acknowledges the prior R-4 zoning. That was the final explanation."

The R-4 zoning did indeed allow for buildings as high as 75 feet for this particular property, but Kite notes it was still a residential zone. When Kite attended a listening session with CPD and asked by the property was zoned U-MS-5, the answer referenced the classification for 32nd and Lowell and the previous R-4 zoning.

CPD and city staff are not shy about referencing three criteria they used for making zoning changes between the two maps. Those criteria are the existing conditions of the area, the current zoning, which was R-4, and adopted plan recommendations, such as Blueprint Denver and general development plans. Input from all stakeholders for a land area was also taken into consideration.

"The community planning and development department would present the maps and sit down with people and explain to them the differences and then people would put their input," says Rachel Chaparro, Communications Specialist for the city of Denver. "So there was mixed input. Some people thought it should be MS-5. Some people thought it could be more. Some people thought it could be less. Of course, you look at what existing entitlements the property owner had under R-4 and so weigh all that, the three criteria as well as Blueprint Denver, which is the adopted plan recommendations. It's weighing those three criteria."

But the public's feedback can only go so far, as City Council has the final vote on zoning designations. Given that Blueprint Denver's plan map showed this property was planned to be residential and that all the buildings currently on the property are one or two stories, Kite has a different view on those three criteria.

"You're supposed to take those three criteria and kind of weigh them and come up with, within the context of a stabilized neighborhood, an appropriate zone district," he says. "It doesn't look like that happened."

Wootten, who says he was very aware of the zoning process, feels his property is zoned properly.

"First of all, I think it's important to understand the context of the neighborhood," he says. "The buildings the developer is proposing are not inconsistent with buildings that are already there. There is a high rise at the corner of 32nd and Julian. What we can do under existing zoning or what RedPeak can do under existing zoning is not a high rise. It is not remotely close to the height that could have been built under the zoning prior to the re-zoning by the city and county of Denver.

"I understand that people don't like change, but I think it's important to look at the facts and circumstances around the process of re-zoning, which was very deliberate, very open, as well as the context, which already has buildings that the community says they don't want," he continues. "And the community is a diverse, open community. I believe RedPeak's development is something that would ultimately compliment that community."

Some would argue that the zoning of Wootten's parcels seems out of place relative to the surrounding area.

"Aside from these parcels the rest of Moncrieff was zoned single family residential as was the rest of Meade street," says Kite. "Those are facts. No one knows how to explain them. But they're facts."

Wootten says that if Shepherd or anyone else initiates a re-zoning of his property, he will file a legal petition to stop it. If Shepherd does initiate the re-zoning, she has to recuse herself from voting on the issue, leaving twelve city council member to vote. Assuming Wootten files petition against the down-zoning, it would require a super majority vote by city council, meaning ten of the twelve members would have to vote for a re-zoning in order for it to pass, rather than a traditional simple majority.

RedPeak has remained quiet on the issue, but did release the following statement.

"We are planning a high quality project that will add to the neighborhood and preserve an iconic church structure.

Our plan proposes mid rise buildings that are in context with other buildings in the neighborhood --these buildings will not be high rises. We have a great design team with an impressive record of preserving and enhancing established Denver neighborhoods.

Our plan does not require a rezoning, in fact, the use and height has been in place within the zoning for over 50 years (since 1961). The current zoning that was put in place through the city's rezoning effort in 2010 actually lowered the allowable height on the properties. This will be a LEED certified project that will meet all aspects of the current zoning and will actually exceed the required parking. We are also pursuing bike share and car share stations that would be available to the neighborhood as part of the project.

We know this neighborhood is a unique place. That is why we are going above and beyond the required level of community outreach and input. We have agreed to convene a design advisory committee made up of residents and business owners working together to guide the design process.

We are committed to a great outcome.

If the City & County of Denver's zoning laws and property rights cannot be relied upon for projects and investments in the city, it is not just West Highlands that will suffer, as the impacts and reputation of unreliable zoning will spread well beyond just Northwest Denver. "

Goode argues that a re-zoning of this property will not set a precedent for taking away rights of property owners because there are so few parcels zoned this way. Main street zoning designations are typically applied linearly along main streets, such as 32nd Avenue, but it's not common for the main street designation to be given to a parcel like the one in dispute, which doesn't directly face a main street. It's also rare for local streets like Meade and Moncrieff to have an MS-5 designation.

Another route the No High Rises group could take is to initiate a moratorium, which would essentially put a halt on all work on this project and give all involved more time to discuss their options. If Shepherd does initiate a re-zoning, those in favor of a re-zoning would have less of an argument that the city is looking only to help a wealthy developer.

"This truly is a situation about property rights," says Goode. "And it's about the rights of thousands of residents, and particularly hundreds of residents that are right around the area vs. one wealthy land owner who clearly received preferential treatment in the zoning process.

"I think that's what the crux of this issue is really about," continues Goode. "It's about favoritism. It's about special treatment to big business and big-pocketed developers vs. the rights of the tax paying citizens in Denver."

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