From: Jesse Lipschuetz - SMTP:jnlpc@yahoo.com To: Williams, Gretchen - City Council - EX:/O=DENVERCITY/OU=DENVERCO/CN=RECIPIENTS/CN=CITY COUNCIL/CN=GWILLIAM Received: 2/13/2012 12:48:00 AM Subject: Fw: Opposition to CB12-0043 amending the enabling act for the new Denver Zoning Code (Ord. 333, 2010) Message: Ms. Williams Would you kindly include the email below and the 3 page attachment with the materials for Council Members for this evening's meeting? Thank you. Jesse Lipschuetz --- On Mon, 2/13/12, Jesse Lipschuetz wrote: From: Jesse Lipschuetz Subject: Opposition to CB12-0043 amending the enabling act for the new Denver Zoning Code (Ord. 333, 2010) To: "Jeanne - City Council Dist. #10 Robb" , "Chris Nevitt" , "Peggy Lehmann" , "Susan Shepherd" , "Mary Beth Susman" , "Judy Montero" , "Jeanne Faatz" , "Paul Lopez" , "Charlie Brown" , "Albus Brooks" , "Christopher Herndon" , "Robin kniech" , "Deborah Ortega" Cc: "Nora D. - City Council District #10 Kimball" , "Kerry Buckey" , "Peter C. Forbes" , "Cedra Goldman" , "'Doug Goldman'" , "Nancy Chapin" , "Brian Crary" , "Vince & Andrea" , "Catherine Rands" , "Jesse Lipschuetz" , "Gretchen Williams" Date: Monday, February 13, 2012, 12:42 AM Dear Council Members:   I have previously written to LUTI and City Council asking them not to adopt 333 as written, but to consider alternatives such as doing nothing or making exception to the new rights being granted.  For the following reasons I respectfully request the Council Members to vote against the Bill or to table it so that it can be resubmitted  after determination of the consequences of the Bill:   First, we do not understand the motive to push this flawed Bill through Council so quickly.   As of the Feb. 6 Council meeting, very limited data were available to even indicate whether there was an issue other than the one in which I am involved as a party in a pending lawsuit regarding the validity of a permit issued under 59-26(f) and not 59-26(d).     Second, we do not believe the consequences of the Bill have been adequately considered, especially in light of the lack of data.   It certainly has a material adverse consequence on us, our immediate neighbors and the Capitol Hill neighborhood as a whole   Third, there are some material questions that remain unanswered.   Was it the original intent of Council that 59-26(e) and (f) permits continue to be issued in the transition period?   No. See attached testimony of Mr. O’Flaherty at the Preliminary Injunction hearing on May 13, 2011 (lines 6-11): "...City Council tried to accommodate situations where plans were in progress to develop under the old code..."  This is consistent with the recollection of at least one Councilperson and some local AIA members involved in the drafting of the new code.   No. Section 2(d) of Ordinance 333 made no provision for what would happen if no building permit were required (which, incidentally, happened with 740 Clarkson when the Building Official decided no building permits were required).   The lack of such language and lack of a requirement to establish use under Ordinance 333 shows that Council was not contemplating any use or change of use permits.     No.  There is no ambiguity on the face of Ordinance.  It may be narrow but it is not ambiguous.  Legislative intent is determined by the plain language of the ordinance.   Ordinance 333 strictly limited permits to 59-26(d) permits and nothing else.     Was establishment of use for a 59-26(e) or (f) permit  that was issued during the transition period determined under the new code or the old code?    The new Code?  Statements made by Messer’s Buckey, Broadwell and Nevitt at the LUTI meetings show that the new code was used to determine establishment of use.   In particular see video statements from @ 01:13 -  0:1.15, and especially Mr. Buckey’s statement at 01:37:30 in response to Councilperson Sussman’s  question regarding establishing use:  “…since you have been rezoned to the new code you are now under the new code for all other purposes which includes you have to legally establish your use, whatever that entails.”  Mr. Buckey also states at 01:40:37 that you “…do have to establish it within 6 mos. for any use…”. http://www.denvergov.org/sirepub/mtgviewer.aspx?meetid=893&  doctype=SUMMARY The old code?   After 180 days passed for the zoning permit holder to obtain building permits or to establish use at 740 Clarkson, I filed a complaint with the Zoning Administrator that claimed that the rooming and boarding use was not established because the permit holder failed to obtain certain permits and failed to obtain an excise license within 180 days as required under new Zoning Code Section 12.4.1.10(a).  The Administrator denied my claim on the grounds that the new Code did not apply.  (See Mr. O’Flaherty’s 7/13/11 attached email.)   Why are different standards being applied?     Fourth, at the very minimum Council should carve out an exception for matters pending in litigation.   The proposed Amendment does not take away rights previously granted.  It grants new rights and Council can exclude granting those rights to others.   I submit for consideration the following language for a new section to be added to the Bill, based on a similar clause in Section 59-18 (Pending actions and proceedings) of the old zoning code:   All actions and proceedings whether judicial or administrative pending in any court of record or any court sitting as an appellate court (or pending with the Denver Board of Adjustment or the Denver Zoning Administrator - optional) before the effective date of this Bill shall be treated until the conclusion of such actions and proceedings as though Ordinance 333 was not amended by this Bill.  All other actions and proceedings, of every kind and nature and whether judicial or administrative, pending on the effective date of this Bill or commenced after the effective date of this Bill shall be governed by the provisions of Ordinance 333 as amended by this Bill.   Fifth, Council should exclude rooming and boarding from those rights being granted by the Amendment.   Rooming and boarding is a use that was intended to no longer be permitted in our R-3 zoning district when it was downzoned to U-RH-2.5.   However, we do not believe the City has yet determined if any other R&B permits are in jeopardy of being void ab initio for the same reason as I have claimed.  A decision should not be made on this issue until a complete analysis of the data is completed.   For additional information regarding our opposition to the proposed Amendment, please see my letters to LUTI dated January 9, 2012 and to the Council dated February 5, 2012 that have been made part of your packages   Thank you for taking the time to consider our objections to the proposed Amendment.   Jesse Lipschuetz 728 Clarkson St. Denver CO 80218