There is nothing new about the passion surrounding real property rights. For local government, land use is at the heart of political power.
In Denver, more than 50 years of negotiations between property owners, developers and City Council members have led to an opaque and unpredictable zoning code, where nearly every significant land-use decision is a negotiation between property owners and neighborhood interests.
The unenforceability of planning documents, the use of planned unit developments, waivers and conditions, overlay districts and development agreements has resulted in a stew of a zoning code, benefiting only lawyers, consultants and lobbyists.
City Council members, dependent upon the support of registered neighborhood organizations and campaign contributions from developers, walk a fine line. Residents who spend months engaged in planning processes are frustrated because adopted planning documents are merely advisory. Developers need the support of neighborhood associations to rezone property. Council and city planners are caught in the middle.
Sometimes the outcome of this delicate balance is good — such as in Stapleton, North Denver’s Highland Gardens, Uptown and Riverfront. Sometimes the results are less than optimal.
Because the new code is based on diverse community input, the new code and map should mitigate the intense political negotiations that occur during rezoning.
However, unintended consequences persist, despite the desire to mitigate the transactional/political nature of rezoning. Private development agreements between neighborhood groups and developers persist despite the new zoning code. These agreements attach to real property as covenants, conditions and restrictions on the property. That means that current and future property owners are deed-restricted by negotiations between neighborhood organizations and developers that run with the land in perpetuity.
Because the city will not become a party to these private contracts and neighborhood interests want to influence development beyond the terms of the new zoning code, developers are encouraged by district council people to enter into these agreements. Issues covered in these private agreements include everything from design guidelines, parking restrictions, setbacks, use restrictions, prohibitions on rentals in residential development and so-called “good neighbor construction policies.”
Though many of the issues covered are reasonable — context-compatible design, pedestrian amenities, setbacks and build-to standards and landscaping — issues of enforceability, damages, longevity and liability are troubling.
Cities change and the character of neighborhoods adapt. New infrastructure and public investment rightly influence land-use patterns. When a neighborhood or homeowners’ association is given the authority to control development patterns in perpetuity, is the public’s interest being served?
The issue is whether the City Council is giving too much authority to private interests.
If council representatives persist in basing their support for rezoning on the developer’s willingness to accept deed restrictions, the point of a consistent, transparent zoning code is compromised. In time, Denver will be back where we started.
Susan Barnes-Gelt (sbg13@comcast.net) is a consultant to local architectural and development companies. She was a member of the zoning code task force.
