Judge Dismisses Littleton Resident's Lawsuit Against The Grove

A lawsuit seeking to appeal Littleton’s approval of a mixed-use development in the city’s historic downtown has been dismissed.

Arapahoe County District Court Judge Kurt Horton found that plaintiff Leah Burkett does not have the right to appeal the city’s approval of a site-development plan  for The Grove, a 260-unit age-restricted residential and retail project being developed by Zocalo Community Development. The case had been scheduled for trial on September 1.

“It’s a win for all of those who are thoughtful or progressive-minded,” says David Zucker, principal of Zocalo and one of five developers profiled in "Developing Community," our August 25 cover story.

Littleton’s staff had approved the project’s site-development plan after determining that it conformed to the city’s existing zoning code. Under Littleton municipal code, a site-development plan falls under the purview of the city’s staff, and the only entity that has a right to appeal the staff’s decision to the Board of Adjustment is the applicant — and then only if the plan is rejected. Burkett had asked to appeal the staff’s decision to the Board of Adjustment.

In his ruling, Horton cited a section of the code that says the decision of city staff on a site-development plan shall be final unless the applicant files a written appeal to the decision. And Zocalo has not done that.

“Concerning the Plaintiff’s constitutional argument, this Court also agrees with the City and finds Plaintiff does not have a procedural due process right to appeal the approval of the SDP to the Board of Adjustment,” Horton wrote.

In his order, Horton noted that Burkett’s complaint closely resembles a Rule 106 petition, which allows people who are unhappy with a land-use or development decision by a board or governing body to appeal the decision to the courts, but said that she “has instead pursued more narrow relief — whether she had a right to appeal the SDP approval to the Board of Adjustment — and this Court addresses the issues as presented.”

Burkett could not be reached for comment. Her attorney, David Foster of Foster Graham Milstein & Calisher, declined to comment, citing ongoing litigation.

The project, which has been under construction since May, has been mired in controversy, with opponents arguing that it’s too big for the location and should not have been approved without input from the public.

In June, Littleton City Councilman Doug Clark brought a motion before the council to revoke Zocalo’s building permit. After it failed, the council then fired City Manager Michael Penny, a move many believe was the result of Penny and his staff approving plans for The Grove.

"I’m certainly excited for Zocalo, but I’m more excited for the City of Littleton and for the judge’s unambiguous validation of the hard work of thoughtful leaders like Councilwoman [Debbie] Brinkman and former City Manager Penny," Zucker says. "Their attempts to create open discourse and respectful dialogue are central to moving Littleton forward."