Appeal Filed on The Grove – Update from Advocates For Littleton

Dear fellow Advocates,
It’s not over yet…
Monday, a motion to reconsider was filed in the case of Burkett vs. City of Littleton and Zocalo. We have asked Judge Horton to take a second look at the reasoning applied when deciding in Littleton’s favor. The defendants have a week to respond to our motion and we will have a week to reply to their arguments against us. So, the motion and responses will be before the judge by September 26th. Colorado Rules of Civil Procedure allow up to 63 days for the judge to reconsider and decide. At the very latest, by November 28th we may have a new answer from the Court.
 
You can view a copy of the Judge’s order as well as our motion to reconsider by visiting the legal timeline on our website or clicking here. https://sites.google.com/site/advocates4littleton/fundraising/legal-timeline
 
As a reminder, we asked the Court to determine Littleton’s code allows an appeal of site development plans to the Board of Adjustment and therefore the Court should order the City to allow the hearing. The City argued that the code did not allow the appeal as two sections of code seem to conflict. We are arguing the Judge should have chosen the more constitutional reading which would have allowed due process to the neighboring property owners through a BOA hearing. Here is an excerpt from the motion to reconsider that gets to the heart of the matter:
“… SDP determinations are a quasi-judicial act to which constitutional due process protections automatically attach. The City cannot simply insulate its quasi-judicial actions from meaningful notice, hearing, and review. Therefore, if the LMC does not afford Plaintiff notice and a hearing (e.g., through the Board’s appeal process), it would be unconstitutional and the City will have violated Plaintiff’s constitutional due process rights. Because the Court must presume the LMC is constitutional and choose a constitutional interpretation over an unconstitutional one where possible, the Court erred in choosing the latter.”
 
Although Littleton processed the Grove project administratively, technically their action was quasi judicial. The legal test for distinguishing quasi-judicial acts from administrative acts is to determine whether discretion was exercised in the decision. The rules governing site plan approvals (Code section 10-7) include a number of discretionary findings, such as whether or not adverse impacts on adjacent property are mitigated or eliminated. In fact, the City itself admitted that their decision was quasi-judicial in its motion to dismiss, paragraph 16.
 
There will be a number of people who will argue we should “get over it” and let this issue go. We cannot. Many property owners in Littleton have only the zoning code to rely on for the regulation of development. When the zoning code is arbitrarily applied and neighbors are blocked from having a zoning decision reviewed, it adds an undesirable layer of risk to property ownership in Littleton. The Board of Adjustment must be made available as an avenue to review administrative zoning decisions; the board serves as an important check & balance to ensure that zoning decisions are made fairly. The continuation of this case should ultimately ensure that right.
 
That being said, Advocates for Littleton is still accepting donations toward the legal battle. Donations can be made through our online fundraiser at www.gofundme.com/fightthegrove or by mail to:
Advocates for Littleton
PO BOX 620253
Littleton, CO 80162
 
Thank you again for your continued interest in this case.
Advocates for Littleton
 
PS – There appears to be misinformation spreading that the judge’s ruling declared that there were no zoning violations. To date, no opinion of the Grove’s zoning interpretations has been given (other than the city itself stating that it was a lawful use). The Littleton Awake group incorrectly reported the judge’s ruling to mean that Littleton had done no wrong in approving the Grove. Again, that was NOT the outcome. The judge only sided with Littleton’s interpretation that an appeal of the decision was not allowed. We are hoping that after additional clarification, the judge will change his mind. Only then can the zoning issues surrounding the Grove’s approval be examined ruled upon.
 
PPS – Check out this story out of Monument, CO where their Board of Adjustment overturned a decision that would have allowed a methadone clinic in the heart of Monument’s downtown: http://www.csbj.com/2015/08/11/monument-methadone-clinic-cant-get-past-boa/ There’s no doubt that a city’s board of adjustment serves a very important function!

 

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