All posts by Friends of Crestmoor Park

Challenge to Kudla rezoning in Crestmoor will be argued March 7 in the Court of Appeals

Digital version of article that appeared in Denice Reich’s February 2017 Newsletter.

By Greg Kerwin

A courageous group of Crestmoor residents has been challenging in court Peter Kudla’s high-density rezoning of the Mt. Gilead church parcel at the southeast corner of Crestmoor Park.  A 3-judge panel of the state Court of Appeals will hear oral argument on March 7 on that challenge.  The Denver trial judge rejected the challenge, but the appellate panel will take its own fresh look at all the issues and is not required to defer to the trial judge’s decision.

Because Kudla is continuing to build, we asked the Colorado Supreme Court review the case immediately, but they declined.  Nevertheless, the Court of Appeals granted our request to expedite the oral argument and will likely issue a decision soon after the argument.  If the Court of Appeals invalidates the rezoning that allowed Kudla’s high-density development, we will ask to have construction immediately stopped.

This appeal challenges the fairness of Denver’s “quasi-judicial” process for approving rezonings, which allows lobbyists to communicate secretly with Council decisionmakers before the public hearing and control the process behind the scenes.  Under state law, Council members are supposed to function like judges, rather than politicians, in the rezoning process.  But Denver has not implemented procedures to ensure a fair, neutral process.  Kudla’s zoning applicant was Peter Bershof, a current Denver Planning Board member.  Denver argues there was no conflict of interest with Bershof serving as the zoning applicant who requested Planning Board approval—a necessary step before Council review.  Denver also sees no conflict with Council members accepting large contributions of cash and services from the lobbyists who advocate for a rezoning.  In this instance, for example, Maria Garcia-Berry, CEO of Kudla’s lobbying firm CRL, served as Councilmember Nevitt’s campaign treasurer.  Nevitt spoke passionately in favor of the rezoning at the lame-duck Council meeting, just after losing his bid to become the city auditor.

The appeal also seeks to enforce several important Denver Zoning Code requirements intended to protect residents from arbitrary zoning changes.  The City has admitted in the appeal that its official policy is not to consider traffic and parking problems that a rezoning may cause.  In addition, a rezoning must be consistent with the City’s adopted plans, and there must be justifying circumstances such as neighborhood blight.  Because the Crestmoor neighborhood is stable, Denver planners never even proposed a “small area plan” to guide redevelopment.  Denver now argues that “strategies” in city-wide plans, which call for promoting infill development and a diverse mix of housing types justify this rezoning. If that’s the case, Denver planning officials can use those same “strategies” to justify high-density development in any stable neighborhood.

Please thank your neighbors who have served as plaintiffs.  They have spent many hours fighting for the neighborhood on this issue.  Most recently, Kudla’s lawyer, David Foster, made a baseless argument to seek attorney’s fees from them, contending parts of the appeal are frivolous.

Also please plan to attend the March 7 court of appeals argument at the Ralph Carr Judicial Center: 2 E. 14th Ave. in Denver (at 14th and Broadway, opposite the main library).  It will begin at 9:00 am in the First Floor Court of Appeals courtroom and last about 30 minutes (it is possible another case could be argued before or after).  It is important not to make any audience noise while the court is in session. You can also watch the argument by live video feed online at the court of appeals website: https://www.courts.state.co.us/Courts/live/

If you want to receive email updates on this case, please send an email to:  FriendsofCrestmoorPark@gmail.com  Help show the appellate judges you care about Peter Kudla’s scheme to “improve” the Crestmoor neighborhood.  Please also ask Councilwoman Susman to honor her promises to help residents deal with the onslaught of traffic and parking problems caused by the new development she has supported in east Denver including Lowry.

 

Appeals Court Oral Arguments Set for March 7 at 9 a.m. — Public Welcome

A lawsuit challenging Denver City Council members and planners for their decision to allow the high-density rezoning of the former church and synagogue property at 195 S. Monaco Parkway continues to move forward.

Unfortunately, a three-judge panel with the Colorado Court of Appeals recently ruled against the plaintiffs who have challenged the improper rezoning of the former Mt. Gilead property at 195 S. Monaco Parkway.  The court’s decision defers to every aspect of the City’s actions here without addressing the underlying problems.  (Click here or below to read the ruling.)

But the fight is not over. We are planning to ask the Colorado Supreme Court to review the case and address the unfairness of the City’s quasi-judicial process in the rezoning process.

In the meantime, we are hearing from a number of neighbors who would like to recall Councilwoman Mary Beth Susman for her role behind the scenes in orchestrating the improper zoning with the developers and lobbyists. If you would like to lead that effort, please send an email to FriendsofCrestmoorPark@gmail.com

Thank you.

For more background on the case, please read this article and visit www.FriendsofCrestmoorPark to see documents.

Below are links to recent court filings:

April 6, 2017 Colorado Court of Appeals Ruling

January 9, 2017: Reply Brief of Plaintiffs-Appellants

December 19, 2016: Cedar Answer Brief

December 19, 2016: Denver’s Answer Brief

October 31, 2016: Court of Appeals Order re: Expedited Oral Argument

October 31, 2016:  Colorado Supreme Court Ruling

October 13, 2016: Court of Appeals – Plaintiffs-Appellants’ Opening Brief

(Click here to see a copy of the Plaintiffs’ original complaint.)

Click here to read the Plaintiffs Opening Brief filed on Jan. 14, 2016, spelling out their claims.

August 1, 2016: Petition for Writ of Certiorari

August 15, 2016: City Opposition to Petition Under CAR 50

August 15, 2016: Cedar Opposition to CAR 50 Petition

August 22, 2016: Reply ISO Petition for Certiorari

Below are links to other court filings:

March 24, 2016: Judge’s Order re: Plaintiffs’ Request on Stay of any New Construction

March 22, 2016: Plaintiffs’ Notice of Setting of Oral Arguments

March 14, 2016: Judge’s Order re: Plaintiffs’ Request for Oral Argument

March 3, 2016: Plaintiffs’ Request for Oral Argument

March 3, 2016: Plaintiffs’ Reply Brief in Support of Their Claims Under Colorado R. Civ. P. 106 (A)(4) and for Declaratory Judgment

February 18, 2016: City Defendants’ Answer Brief

February 18, 2016: Defendant Cedar Metropolitan, LLC’s Answer Brief

January 14, 2016: Plaintiffs’ Opening Brief in Support of Their Claims Under Colo. R. Civ.P 106(A)(4) and for Declaratory Judgment.

Appendix 1: Chronology of emails not included in the City’s public record.

Appendix 2: Excerpts from City’s public record.

Appendix 3: Affidavit of Gregory J. Kerwin Concerning Summary of Public Data on Campaign Contributions to Certain City Council Members

One of the most significant rulings thus far came on Sept. 18, when Denver District Court Judge Shelley I. Gilman denied the City’s attempt to have the lawsuit thrown out.

Click here to read Gilman’s ruling.

Below are other major court filings in case you’d like to read the legal arguments.

Judge’s rulings:

November 4, 2015 – Order Re: Status of Certified Record

November 4, 2015 – Order re: Plaintiffs’ Motion under C.R.C.P. 106(a)(4)(V) and 65 for Stay of Actions by City of Denver to Allow any New Construction on Mt. Gilead Parcel Pending this Court’s Ruling on the Merits of Plaintiffs’ Claims in their Complaint

November 3, 2015 – Order re: Plaintiff’s Motion for Leave to Serve Document Subpoenas and Take Brief Depositions to Obtain Evidence Concerning Ex Parte Communications with City Council Members that should be Memorialized in the Administrative Record

November 2, 2015 – Order re: City’s Motion to Amend the Court’s Order Requiring Certification of the Record

October 7, 2015 – Order re: Plaintiffs’ Motion for Entry of Interim Default Judgment against Defendant Cedar Metropolitan LLC and Cedar Metropolitan, LLC’s Motion to Dismiss

September 18, 2015 – Denial of Motion to Dismiss

July 29, 2015 – Order Granting Plaintiffs’ Motion Under C.R.C.P. 106(a)(4)(III) Requiring Certification of Record Within 28 Days After Defendants File an Answer

Plaintiffs’ filings:

July 6, 2015 – Complaint

October 27, 2015 – Plaintiff’s Response to Certain Arguments in Defendant Cedar Metropolitan LLC’s Briefs Concerning Pending Motions Filed on October 21, 2015

October 14, 2015 – Plaintiff’s Brief in Opposition to City’s Motion to Amend the Court’s Order Requiring Certification of the Record

October 13, 2015 – Plaintiff’s Reply Brief in Support of their Motion for Leave to Serve Document Subpoenas and Take Brief Depositions to Obtain Evidence Concerning Ex Parte Communications with City Council Members that Should be Memorialized in the Administrative Record

October 7, 2015 – Plaintiff’s Reply Brief in Support of Their Motion Under C.R.C.P. 106(A)(4)(V) and 65 for Stay of Actions by City of Denver to Allow Any New Construction on Mt. Gilead Parcel Pending This Court’s Ruling on the Merits of Plaintiff’s Claims in Their Complaint

September 29, 2015 – Plaintiffs’ Brief in Opposition to Defendant Cedar Metropolitan, LLC’s Motion to Dismiss and Plaintifff’s Request to Strike that Motion as Untimely

September 28, 2015 – Plaintiffs’ Motion for Leave to Serve Document Subpoenas and Take Brief Depositions to Obtain Evidence Concerning Ex Parte Communications with City Council Members that Should be Memorialized in the Administrative Record

September 16, 2015 – Plaintiffs’ Reply Brief in Support of Their Motion for Entry of Interim Default Judgment Against Defendant Cedar Metropolitan, LLC.

September 9, 2015 – Plaintiffs Motion for Stay by the Ciy

September 8, 2015 – Plaintiffs Motion for Entry of Default Against Cedar Metropolitan

August 17, 2015 – Plaintiffs Brief in Opposition to City Defendants’ Motion to Dismiss

City’s filings:

October 30, 2015 – City Defendants’ Transmittal of Record

October 20, 2015 – City Defendants’ Reply in Support of Motion to Amend Order

October 6, 2015 – City Defendants’ Response to Plaintiffs’ Motion for Leave to Serve Subpoenas and Take Depositions on its Rule 106(a)(4) CLAIM

October 2, 2015 – City Defendants’ Answer

September 30, 2015 – City Defendants’ Response to Plaintiffs’ Motion to Stay

September 23, 2015 – City’s Motion to Amend the Court’s Order Requiring Certification of the Record

Septmeber 18, 2015 – City’s Defendants’ Motion to Dismiss

August 24, 2015 – City Defendants’ Reply in Support of Motion to Dismiss

July 28, 2015 – City’s motion to dismiss

Developer’s filings:

October 21, 2015 – Defendant Cedar Metropolitan, LLC’s Response to Plaintiff’s Motion for Leave to Serve Document Subpoenas and Take Brief Depositions

October 21, 2015 – Defendant Cedar Metropolitan, LLC’s Response to Plaintiff’s Motion for Stay

October 21, 2015 – Defendant Cedar Metropolitan, LLC’s Answer to Complaint for Relief Under C.R.C.P. 106(A)(4)
and for Declaratory Judgment

September 10, 2015 – Defendant Cedar Metropolitan, LLC’s Motion to Dismiss and REsponse to Motion for Interim Default

Recent media coverage:

Denver Post

Lawsuit challenging Denver rezoning decision passes 1st hurdle

Lawsuit challenges Denver City Council approval of church rezoning

Missing the point on urban density

Screen shot 2015-07-07 at 4.50.20 PM

Big uproar over small Denver project set for rezoning hearing Monday

 

 

Glendale Cherry Creek Chronicle:

 

Neighbors lose Crestmoor vote 8 to 4

Great piece from the Denver Post

Click here to read: The human cost of high density

Aaron photo with sons
Aaron Schwartz, with his two sons, Raphael, 4, and Moshe, 7-months. Last spring, Aaron’s wife, Shoshana, who was then pregnant with Moshe, was hit by a car after she walked her husband to work at Monaco Parkway and Alameda. Raphael was ejected from his stroller into the street. Aaron and Shoshana Schwartz worry about the human cost of high-density development. Photo courtesy of the Schwartz family.

 

 

 

 

 

 

 

 

 

Thank you to our wonderful volunteers for all your work. Despite an amazing showing at City Council on June 8 and 9, the City Council voted 8 to 4 to allow a zoning change that will permit a high-density development at 195 S. Monaco Parkway.

Thank you to our Friends for showing their orange pride.

IMG_2220
Neighbors who live closest to the proposed apartment complex at 195 S. Monaco Parkway shared their concerns with Mayor Michael Hancock. They told him the site is simply too small for such a big development.

 

Be sure to follow us on Facebookhttps://www.facebook.com/friendsofcrestmoorpark

And we now have a twitter feed.

Follow us on Twitter @ProtectOurPark

If you want to receive email updates or you want to share your photos of Crestmoor Park, please email them to us at friendsofcrestmoorpark@gmail.com

Since last April, developer Peter Kudla of Metropolitan Homes has insisted on doing large apartment complex and told neighbors they’d have to accept his “product.”

Click here to listen to Kudla informing neighbors last April that he was going to do 124 units whether they liked it or not.

Protect preschool children at the Crestmoor Learning Center and members of the Jewish community who walk to services.

Jewish families walk along Cedar Avenue in Crestmoor on the Sabbath. Help keep them safe.
Jewish families walk along Cedar Avenue in Crestmoor on the Sabbath. Help keep them safe.

 

Click here for more information on how to contact your City Council representatives.

Click here to see the developer’s application for a zoning change.