New Date for Court Hearing on The Grove – February 27, 2018

Our court appearance for the legal appeal regarding the Grove (aka Vita) has been rescheduled for Tuesday, February 27th.  You are invited to attend the hearing at 1:30 pm at the Ralph Carr Judicial Center, 1st floor courtroom.
Tuesday, February 27th 2018
1:30pm, First Floor Courtroom
Ralph Carr Judicial Center
At the appeal hearing, our attorneys at FGMC will present argument for why the City of Littleton should have allowed our local Board of Adjustment (BOA) to review the zoning determinations made for The Grove project.  We will be asking the panel of judges to force the City of Littleton to allow this hearing (which was denied by the very same staff who approved the Grove in the first place).
As a refresher, neighbors of the Grove project had applied for a zoning review with the BOA immediately upon the Grove’s approval by city staff in September 2015.  After the City blocked neighbors’ attempt to appeal to the Board of Adjustment, a lawsuit followed and was ultimately decided in Littleton’s favor by Judge Horton of the 18th Arapahoe Circuit in September 2016.  The case was soon after appealed, and finally our day to present to the judges has arrived.  Meanwhile, the Grove (aka Vita) is nearing completion with tenant occupancy expected by this May.

Court of Appeals to Hear Oral Arguments on the Grove Lawsuit

January 24th 2018 the Court of Appeals will hear oral arguments from both sides – the citizens vs the city in the claim that the process to appeal to the Board of Adjustments on the zoning for The Grove denied the citizens their due process.

For those that don’t know or have listened and believed certain council members (Bill Hopping and Patrick Driscoll most recently) the courts have not decided the matter on whether or not the zoning was correctly applied for The Grove.  The Court never considered that question because the citizens were never able to take the question to the Court.

In order for the citizens to take the “use by right” question to the District Court they had to go to the Board of Adjustment first.  When the appeal was made to the Board of Adjustment Jocelyn Mills intervened and denied the appeal.  It was not her decision to make – the Board of Adjustment should have made considered the matter.  If they had done so then the path to the District Court would have been easy to navigate.  But, because she denied the appeal the citizens could not pursue the matter in District Court.  (A reminder, Ms. Mills is the staff member that signed the building permit for The Grove and denied the appeal to the Board of Adjustment challenging her approval.  This is the crux of the matter in Court – was due process carried out or denied?)

People has asked why continue with the claim.  Speaking for myself, I believe it is important for citizens to have a way to challenge an administrative decision (the approval of The Grove was done administratively and not through a public process).  We need to have a process in place and if the current process is not viable we will need to challenge our city council to provide a mechanism for citizen challenges in the future.  Currently, citizens can challenge any council approved Ordinance by Referendum and we can pass our own Ordinance through an Initiative process.  If we can overturn a council decision shouldn’t we be able to do the same for a decision made by staff?

When Divide Means to Combine! Only in Littleton

If you have been keeping up with the issues surrounding the approval for The Grove then you want to read this.  We have been told, along with the Planning Board and the City Council, that The Grove was approved as a “use by right.”  In other words, no zoning changed was required for the project to go forward and thus no public process was required.  We were told that the applicant met all the requirements of the Subdivision Exemption (Chapter 9 of the Zoning Code).  The Subdivision Exemption has also been challenged – was it appropriately applied in this instance?  You decide.

11-9-1:  Purpose of the Subdivision Exemption Chapter states – “It is the purpose and intent of this chapter to allow the owner or purchaser of land, or agent thereof, to divide such land into not more than two (2) parcels, which meet the requirements of the governing zone district classification, without requiring a subdivision plat.  The most obvious question to ask is what large parcel was subdivided in The Grove project?  The question has been asked a number of times without any satisfactory answer – until now.

The question was finally posed to Michael Penny, our city manager.  Here’s his response.

The Grove project was a combining of parcels and did not result in a division of land into more than two lots.  Any project that requires a plat for the “re-assemblage of parcels” (see Definition of Plat in 11-1-6) would be subject to this process. 

Only recently did the council update the Subdivision Exemption Code to include the combining of parcels……………that was long after the code was violated to approve the Grove for the Subdivision Exemption.




City Council Study Session – 25 July 2017 – Dispatch Mediaiton

City Council Study Session.       25 July 2017.     Citizen Minutes

1.  Ordinance review of minor clarifications to Title 11, Subdivision Code, Chapter 9, Administrative Plat and Replat.  In May 2017 council approved changes to the subdivision exemption code (This change was triggered by The Grove approval – this was one of the codes that was violated when it was administratively approved.  The exemption required property to be divided not combined but it was used to combine parcels in the case of The Grove.)  When council approved the changes in May a citizen pointed out language that was not clearly written and would be subject to a different interpretation than intended.  This change will clarify the confusing language.  The word “less” will be changed to “more.”  A second clarification will be included in the Ordinance – a clarification to what is meant by adequate water and sewer facilities.  A Will Serve letter will fulfill the requirement. Continue reading

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.
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 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: There’s no doubt that a city’s board of adjustment serves a very important function!