Whitelaw, III v. Denver City Council
2017 COA 47
| Colo. Ct. App. | 2017Background
- Cedar Metropolitan LLC sought rezoning of a 2.3-acre parcel at 195 S. Monaco Parkway (site of a deteriorating church) from single‑unit (E‑SU‑DX) to S‑MU‑3 to build an age‑targeted, three‑story multiunit development.
- After a public hearing with extensive oral and written comment, Denver City Council approved the rezoning by an 8–4 vote in June 2015; opponents (neighbors) sued under C.R.C.P. 106(a)(4).
- Neighbors challenged the Council decision on multiple grounds: procedural due process (ex parte contacts, Planning Board conflict, reliance on irrelevant factors, improper application of the protest‑petition area, campaign contributions), failure to comply with the Denver Zoning Code (consistency with adopted plans, justifying circumstances, public health/safety/welfare), and spot zoning.
- The district court rejected all claims; the Court of Appeals reviewed the Council’s quasi‑judicial rezoning decision de novo and limited review to the administrative record before the Council.
- The appellate court affirmed: it found no due‑process violation, concluded the protest‑petition calculation complied with precedent, held claims based on evidence outside the record (campaign contributions) were unreviewable on 106(a)(4) review, and determined competent evidence supported compliance with the zoning code and that the rezoning was not spot zoning.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ex parte communications / impartiality | Maley (Cedar lobbyist) emailed/ called council members; neighbors lacked opportunity to rebut; Council biased | Council members presumed impartial; no substantial prejudice shown; Susman voted against rezoning | No due‑process violation; presumption of impartiality not rebutted; no showing of prejudice |
| Planning Board conflict of interest | Architect‑Board member submitted application; Board recommendation tainted by colleague’s involvement | Planning Board member did not participate or vote; Board only issues recommendation, not a final quasi‑judicial decision | Not reviewable under Rule 106(a)(4); Planning Board recommendation is intermediate and non‑final |
| Protest petition area computation | City improperly included city‑owned park land without providing a way to collect city signatures | Charter language and Burns require inclusion of all land within 200‑foot area regardless of ownership | Inclusion of City‑owned land was proper and consistent with Burns; court cannot compel creation of a signature procedure |
| Campaign contributions / alleged bias | Contributions to council members created bias analogous to judicial recusal principles | Evidence of contributions was not part of the administrative record before Council; 106(a)(4) review limited to record | Not reviewable on 106(a)(4) because based on facts outside the record |
| Compliance with zoning code (consistency / justifying circumstances / public welfare) | Rezoning inconsistent with adopted plans; no justifying circumstances; traffic/parking harms not adequately considered | CPD staff and Council found rezoning consistent with Plan 2000 and Blueprint Denver, promoted infill, addressed an ‘‘edge’’ and reinvestment, and remedied blight; traffic/parking were considered | Competent evidence supports consistency with adopted plans, existence of justifying circumstances, and that rezoning furthers public health, safety, and welfare |
| Spot zoning | Rezoning creates an isolated pocket inconsistent with comprehensive plan | Rezoning furthers Plan and Blueprint Denver goals, fits adjacent mixed zoning, and addresses edge between Area of Change and Area of Stability | Not spot zoning; rezoning consistent with surrounding zoning and adopted plans |
Key Cases Cited
- Cherry Hills Resort Dev. Co. v. City of Cherry Hills Village, 757 P.2d 622 (Colo. 1988) (quasi‑judicial rezoning requires notice and opportunity to be heard; seats presumption of impartiality for decisionmakers)
- Burns v. City Council, 759 P.2d 748 (Colo. App. 1988) (protest‑petition area defined by perimeter distance includes city‑owned land in area calculation)
- Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) (due‑process recusal principles where extreme campaign influence creates serious risk of actual bias)
- Town of Grand Lake v. Lanzi, 937 P.2d 785 (Colo. App. 1996) (public welfare inquiry on rezoning may include traffic and parking considerations)
- Clark v. City of Boulder, 362 P.2d 160 (Colo. 1961) (spot zoning doctrine: rezoning must further comprehensive plan and not merely relieve special owner)