CO Appellate Court Reverses Dismissal of Historic District Challenge

This post was authored by Amy Lavine, Esq.

 

The Colorado Court of Appeals ruled in May that a supermajority voting requirement in the Denver City Charter applied to historic district designations as well as to other land use district regulations. Although the city argued that historic district regulations were distinct from zoning and therefore weren’t covered by the supermajority provision, the court found no basis in the charter’s text or plain meaning to support this interpretation.

The supermajority voting issue arose after the Denver City Council approved a historic district designation in 2017 for a neighborhood known as Packard’s Hill. The vote was only by eight to five, however, and several of the affected property owners claimed that at least ten votes were required under a city charter provision requiring a supermajority for certain changes to land use district regulations. The district court concluded that this rule didn’t apply to historic districts and dismissed their challenge, but the Colorado Court of Appeals reversed. As the court explained on appeal, the city charter generally authorized the creation of land use districts and zoning regulations, as well as providing that those “regulations, restrictions and boundaries may from time to time be amended, supplemented, changed, modified or repealed.” If such a change was opposed by the owners of at least 20% of affected property area, the charter provisions imposed a 10-vote supermajority requirement on the city council.

The city’s general argument was the charter provisions didn’t apply to historic districts, which it claimed were distinct from the sort of land use districts envisioned under the charter. Although a city’s interpretation of its charter is usually entitled to deference, the court refused to accept the city’s argument in this case. As it explained: “we owe no deference to interpretations that are contrary to the provisions’ clear language. Charter section 3.2.9 clearly authorizes the City Council to draw districts and regulate and restrict what can be done to buildings, structures, and land within those districts. Creating a historic district pursuant to the landmark preservation code also does just that….” The court emphasized that the charter didn’t define the term “district,” instead only stating that the city council was authorized to create “[d]istricts of such manner, shape and area as may be deemed best suited to carry out the purposes of this Charter.” The court also noted that the type of regulations specified in the charter and the historic district ordinance were nearly identical, with both regulating the construction, alteration, repair, and use of buildings, structures, and land.

The city also argued that the zoning and historic preservation ordinances were contained in separate sections of the municipal code and prescribed distinct regulatory schemes on the use of land. The court found these points to be irrelevant, however, as there was no reason why the charter couldn’t authorize both the zoning code and the historic preservation ordinances as separate exercises of the city’s authority to regulate land use districts. Nothing in the charter limited its application to ordinances enacted in the same division of the municipal code, the court explained, nor did it suggest that the authority to create land use districts was somehow intended to exclude historic districts. The city additionally contended that historic district designations were police power regulations and for this reason weren’t controlled by the charter provisions. But this argument was based on little more than the similar “general welfare” purpose stated in both the police power authorization and the historic preservation ordinance, neither of which actually excluded historic preservation districts from the charter provisions. Moreover, the plain language of the charter provisions stated that the creation of land use districts was also intended for “the general welfare of the community.”

Accordingly, the court agreed with the property owners, as a general matter, that the charter’s supermajority voting requirement applied to historic district designations. It nevertheless declined to rule on their more specific allegations regarding the city’s approval of the Packard’s Hill historic district, because the complaint failed to explain how the historic district designation affected any existing regulations, restrictions, or boundaries. The plaintiffs were entitled to amend their complaint to address these issues on remand, the court added.

 

O’Connell v. City Council of Denver, 2019 COA 65 (5/2/19).