DENVER ZONING CODE CREATING MAJOR HEADACHES FOR SOME RESIDENTS AND BUSINESS OWNERS

Posted September 2, 2012

Mention "Homeowners Association" or "HOA" to anyone and you'll likely get one of two reactions.

While some "sing praises" with reference to HOA's, others despise them.

In fact, many people regard HOA's as "legalized bullies" that unduly infringe on the rights of individual residents by forcing them to "conform" to the will of the majority.

While the expression "a man's (or woman's) home is his (or her) castle" used to prevail, the HOA has basically rendered that idea obsolete in the minds and viewpoint of many.

This sentiment was reflected in one Craigslist ad posted in the "items wanted" category on May 25, 2012 where a fellow wanted an "ugly" car to "tick off" his HOA. The ad said that the car must run and have a title.

HOA's have proven to be a major factor in many people choosing to avoid townhome or condominium living -- because they don't like the idea of being told by their neighbors what they can or cannot do on their own property. This also accounts for why people choose to avoid living in any HOA-controlled subdivision, preferring to own their own home in an area in which there is no HOA to "bully" them.

Simularly, while some may "sing the praises" of the new Denver zoning code, many people are now of the opinion that living in the City of Denver is like living under a huge HOA. In some situations this also applies to working in the City of Denver as well.

Residential Concerns

For one thing, the "hit and miss" nature of the City of Denver's Neighborhood Inspection Program plus the zoning code as it now is has proven to be the "nosy neighbor's goldmine" or the "nosy neighbor's jackpot" depending on which phrase you would like to apply to it.

The fact is that, typically, inspections of a given property are conducted only after someone calls the City with a "property concern" or some other type of "concern" -- a concern regarding animals, for instance. It can be argued that this makes economic sense in a time of strained City budgets, limited operational flexibility, and reduced City staff -- including the number of available City inspectors. But there are ramifications that result from this "hit and miss" approach that go beyond economics.

In the Park Hill area, for instance, it is reported that more and more rich people are moving into the neighborhood and some of these -- but not all -- are using the Neighborhood Inspection system as a means of attempting to force lower-income residents whom the new richer residents view as "undesirables" or "bums" out of the neighborhood. The usual strategy is to make life so difficult for the lower-income people so as to cause the latter to conclude that continuing to stay in the neighborhood is just not worth the hassle and that it's best to just move out. Costly City tickets and fines serve to accelerate this process, particularly when a low-income family gets hit with a $ 150.00, $ 500.00, or $ 1,000.00 fine which serves only to make an already terrible financial situation even worse.

Anyone sufficiently familiar with the Neighborhood Inspection System knows that all it takes is one anonymous phone call -- even an unfounded one -- to trigger a full City inspection of a property and all of the consequences that go along with it.

It is further reported that some of the residents -- while walking their dogs or otherwise walking or driving around the neighborhood -- are in actually looking at their neighbors' properties under the guise of serving as "citizen inspectors" and turning in anyone whose properties do not measure up to the personal standards of the so-called "citizen inspectors."

In all fairness, it has to be observed that all residents -- and the City -- have a legitimate interest in assuring that the neigborhood is safe, clean, and reflects well on everyone. The difficulty here is "striking the balance" between ensuring a good neighborhood on the one hand and unduly harrasing one's neighbors on the other.

It is also important to note that we have been assured upon pointing all of this out to the City that City staff are aware of the Neighborhood Inspection System's vulnerability to this type of mis-use and try to do everything in their power to see that residents are not unduly harassed in this way. Indeed, many City inspectors as an example are deserving of many "kudos" so to speak in that they try to be reasonable and to work with those who are the subject of calls to the City.

Even so, being the target of a call to the City can be an absolutely demoralizing experience, causing the resident or residents who are the subject of the call to no longer feel welcome in the neighborhood. Such an experience indeed always has the potential to be an absolutely devastating one from an emotional standpoint.

All of this having been said, the fact is that while this is being used as a means of unreasonably harrassing one's neighbors, other concerns -- such as failure to remove snow from sidewalks -- goes widely unreported and the City is powerless to do anything about the uncleared sidewalks. The presence of snow and ice on sidewalks is not only a safety hazard to everyone but is also a major concern to the elderly and persons with disabilities. When a bus stop is not cleared, for instance, even those bus stops which are ideal under most circumstances from the standpoint of wheelchair-accessibility become unusable when snow is not removed from either the bus stop itself or from the sidewalks and curb cuts leading to it.

Business Concerns

As mentioned in the title, business owners, too, are affected by the zoning code. Operators of home-based businesses find that they are not allowed to store items outdoors on their property. This creates hardships for owners of many home-based businesses as these often cannot afford commercial space nor can they afford to rent a storage unit nor are they able to afford the expense of building or otherwise obtaining a suitable storage shed. While some may be able to store items within their homes, others -- particularly those having large families such that living space in a home is largely limited to accomodating family members -- find that they are left with few options in a time in which even just trying to make ends meet in supporting their family is extremely difficult in and of itself.

Owners of other businesses are affected also. For example, Denver zoning codes in many business districts -- including those zoned UMS-3 or "Urban Main Street - 3" according to the City absolutely prohibit any type of "outdoor retail sales". This means that if the owner of a business has a need to rent spac in front of his or her business to vendors as a means of providing opportunities for the vendors and generating revenue for the business, the business owner according to the City is absolutely barred from doing so.

This is clearly an infringement on the rights of a business owner to do what they wish on their own business property.

Discussions with City staff in the Zoning Department indicate that all of this came about as a result of a "completely revamped" City zoning code that went into effect about two years ago after a "huge public input process." City staff further indicates that the prohibition is indeed absolute and at best very, very difficult to fight. A business owner who tries to appeal to the City's Board of Adjustment would apparently have to spend about $ 400.00 in doing so and the likelihood of an appeal being granted is very, very remote at best if not outright impossible because the prohibition against all "outdoor retail sales" is in place throughout the entire district.

It is also well-known that where there is reduced or absent competition, there is monopoly. If one limits the possible locations at which street vendors can set up and operate in the community generally, this gives whatever locations that remain -- like the downtown Denver business area for instance -- a nearly exclusive monopoly in terms of renting space to vendors. This in turn makes it easier for those areas in the monopoly to charge the vendors whatever amounts of rent they please -- even if these amounts are outragous -- and to make life for the vendors difficult in other ways as well.

Options Being Considered

Possible options to deal with this situation include:

-- attempting to meet with City Council members to try to help them understand the difficulties being created for residents and business owners.

-- attempting to meet with people from the Mayor's Office to help these understand the difficulties being created for residents and business owners as well.

-- attempting to consult with business organizations and other organizations as appropriate to determine what other steps might be taken.

In fighting any type of situation like this, the first step is generally that of conducting research to find out how this all came about, including how much attention to these aspects of this issue was given during the "public input process".

The fact is that "public input processes" are not infallible and are not a guarantee that potentially detrimental aspects of a proposed regulation or a proposed modification to a regulation will be adequately protested and objected to prior to taking effect. Any modification -- no matter how detrimental it may be to certain individuals -- that does not receive adequate input against it -- will generally always be enacted and will thus take effect.

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