Neighbors face almost $44,000 in zoning suit

Highlights:

• Defendants in zoning case file for fees.
• Neighbors on hook for almost $44,000.
• Attorney fees not collectible.

This former church would be incorporated into a new apartment building planned on Lowell Boulevard.

The 10 neighbors who lost a lawsuit against the Denver City Council and the land owner regarding a zoning battle in West Highland, now could be on the hook for almost $44,000.

The city and the attorney for the limited liability companies that own the three properties zoned U-MS-5 in the heart of the trendy neighborhood, on Wednesday filed a “Bill of Costs” with the Denver District Court.

Together, the city and the limited liability companies controlled by Tom Wootten are seeking $43,674.31 to recover costs they spent for the three-day bench trial that ended on Aug. 23.

Last week, Denver District Court Judge Robert L. McGahey, Jr. ruled against the neighbors on all counts regarding the zoning that allows five-story buildings on parcels north of West 32nd Avenue on Lowell Boulevard, Meade Street and West Moncrieff Place. The owners of record for the trio of parcels are Highland Square LLC, Meade Partners LLC and Moncrieff Placemaking LLC. Collectively, they are known as the HMM defendants. Denver-based RedPeak Properties initially had the parcels under contract, where it planned to develop luxury and energy-efficient apartment buildings. RedPeak no longer has the land under contract, but apparently still hopes to buy the property and develop about 150 apartment units in three buildings.

Of the costs the defendants hope to elect, some $42,301.06, 04, or almost 97 percent, is being sought by HMM. The city is only seeking $1,373.25.

The single biggest cost HMM is seeking to recover is $28,175.77 for expert witness Sarah Rockwell.

Rockwell, a Denver land use and real estate lawyer with a master’s degree in city planning from MIT, charged $475 per hour for her time and $275 per hour for research.

However, just because the HMM is asking for about $42,300, doesn’t mean it will get it.

“We will aggressively fight the amounts sought,” said Laurie J. Rust, one of the pro bono attorneys who represented the neighbors.

She said the court could decide not to award costs at all or it could award a lower amount. The basis for doing so will be laid out in an opposition brief,  said Rust, an attorney with Gordon & Rees.

The fees being sought by the defendants were not the only expenses incurred by the neighbors, even though she and attorney Ryan S. Coward, with Elkus, Sisson & Rosenstein, represented the neighbors for free.

“Litigation is expensive,” Rust said. “And, unfortunately, it is a barrier to justice for many. In addition to the costs Wootten and City Council are seeking, plaintiffs have had to pay their costs along the way. an award of the full amount would certainly be a hardship to the plaintiffs.”

She noted that part of the reason for the disparity in the costs between the two defendants is because the expert witness the city called to the stand works for the city and “thus they did not incur expert (witness) costs. The other reason is that Wootten’s attorney took the lead for the defense.” Wootten was represented by Thomas Macdonald of Otten, Johnson, Robinson , Neff & Ragonetti.

The cost to the plaintiffs would have been much higher if Wootten’s attorney fees were collectible.

Typically, unless both sides contractually agree that the losing side will pay the other’s legal fees, attorney fees can only be collected in a “statutorily” mandated case, that is, a civil right action, or in an action that lacks “substantial justification.”

In that case, the suit is typically described as being “frivolous and groundless.”

The 10 plaintiffs who sued are Peter Brey, Don Fowler, Dennis Keane, Lynn Keane, Todd Lilienthal, Bea Lopez, Christine Manesis, Gail Montoya, Richard Montoya and Victoria Rozales.

Rust said they are still “exploring appellate options. The deadline to file a notice of appeal is 49 days from the date judgement is entered, so we have some time.”

Have a story idea or real estate tip? Contact John Rebchook at  JRCHOOK@gmail.com. InsideRealEstateNews.com is sponsored by Universal Lending, Land Title Guarantee and 8z Real Estate. To read more articles by John Rebchook, subscribe to the Colorado Real Estate Journal.

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