Council modifies conformity plan after uproar
LAKEWOOD: City Council late Monday put property owners in the driver’s seat when it comes to decisions about seeking letters of automatic conformance with zoning regulations on properties left incomplete by partial takings.
The proposal originally was designed to allow governments embarking on road, rail and bridge projects to have properties the agencies don’t own declared in conformance with zoning rules even if actual conditions left by government takings leave the property in actual violation.
But, in apparent reaction to a groundswell of public opinion, City Hall’s proposal was changed shortly before Monday night’s public hearing even started.
“There is an amendment to this ordinance to make (it) voluntary and not mandatory,” Mayor
Bob Murphy told the dozens of citizens who showed up to oppose the ordinance. Many of them left after Murphy indicated consideration of the proposal would stretch late into the night.
And it did. It was after 11 p.m. when Council voted 9-2 to approve the more citizen-friendly regulations.
“This is a chance where we can say ‘You have a choice,’” said Councilman Adam Paul.
CouncilwomanVicki Stack fought the proposal for weeks, alerting property owners in the path of RTD’s West Corridor Light Rail project of the proposal’s threat to their property rights and right to compensation.
She left the meeting concerned that even the amended proposal could take a less beneficial turn in the future.
“I left Council Chambers believing we lost again,” Stack said Tuesday. “But, as I studied the amended version, I soon realized what we had accomplished in stopping the original from going forward.”
Stack, who spent days researching the original ordinance, its attempted application in other areas and its potential effect on compensation and current mortgages, lined up legal opinions and an attorney to present the case against City Hall’s plan.
Those arguments became unnecessary after the plan was amended in favor of property owners.
The original proposal to modify city code provisions on “non-conforming” properties, would allow the Regional Transportation District and other governmental agencies to seek administrative relief for “non-conforming” parcels that no longer meet zoning requirements after public agencies have taken a bite out of the property through eminent domain.
Non-conforming properties fall short of zoning regulations in such things as how far fences, homes and other structures are setback from property lines; minimum lot sizes; and other zoning regulations.
City Hall portrayed the idea as a method “to reduce some difficulties the current ordinance could cause some property owners along RTD’s (light rail) project” and as a way to “reduce the burden” and “uncertainty” for property owners.
But property-rights advocates said that idea was designed to save public agencies a lot of money at the expense of homeowners.
City Hall’s proposal would actually “deprive property owners of the compensation they are otherwise entitled to,” said attorney Robert Hoban, a prominent metro-area property rights lawyer.
“They’re keeping money in RTD’s pockets that they otherwise would probably have to go pay to bring these properties back into compliance,” Hoban said.
Hoban also said the initial plan would taint the “nature of negotiations” between property owners and public agencies and takes away one of the most important arguments in establishing damages through a District Court filing.
When a transportation project requires taking a piece of private property, the diminished value of the remaining non-conforming property must be paid by the agency, according to case law.
“When a portion of a parcel of land is taken from a property owner in a condemnation proceeding, the landowner is entitled to recover all damages that are the natural, necessary, and reasonable result of the taking, as measured by the reduction in the market value of the remainder of the property,” according to the language cited in at least three separate Colorado court rulings.
“I am wondering how our ordinance could trump those court rulings,” Stack said before Monday’s meeting.
Under the original proposal, a government agency could simply ask City Hall to designate the property as conforming and the city could set aside the rules, providing a “cure” on paper without the agency actually fixing or paying for the damage to the remainder of the parcel.
”If you are a property owner and part of your property is taken, there are two things you are entitled to in the Constitution: You are entitled to a property that is compliant, whether non-conformance is allowed is sort of a non-issue, you are entitled to have it be fixed and you are entitled to the compensation to have it be fixed,” Hoban said.
“So if they are saying that the non-conformity is allowed, they are basically taking away your right to be compensated for that non-conformity.”
Hoban worries that future City Councils could change the plan, throwing the properties back under the restrictions of non-conforming properties.
Nowhere in the city’s letter to affected property owners, its request that City Council approve the changes or in the language of the proposed ordinance did City Hall mention the effect on compensation, or the legal requirement that damages to parcels from partial takings be paid for.
Stack also questioned City Hall’s failure to address the issue of compensation.
”In fact, somebody asked them (city administrators) about it, but it was dismissed as ‘not something we are talking about here,’” she said.
Stack also has concerns about the way lenders might react to a mortgaged property being out of compliance with zoning regulations, even if the city has declared it OK.
“Some loans are called when you make changes like this,” she said.