THE SHRINKING OF PUBLIC OPEN SPACE

From the INC President, Larry Ambrose

Larry Ambrose, INC President

For better or worse, I came to INC after years of involvement with many neighborhood zoning and open space skirmishes. In recent years, however, it seems that the public has become used to -- even numbed to -- Mayors and City Councils who seem to have become uncompromising cheerleaders for powerful development interests. If you are fortunate enough to live in a stable neighborhood not overrun by the stampede toward density, you probably don't live in the inner city.

There seem to be a number of reasons why people now perceive development interests to have carte blanche in Denver. Most obvious is the tradition of “courtesy zoning” about which I have written before. Despite Council's quasi-judicial responsibility, this is the very real, but unwritten rule, that a large majority of Council members will support and vote on site-specific zoning matters according to the wishes of the Council member whose District is effected. As a result, developers have learned that it takes only one vote to get a zoning change in Denver. Perhaps the most notorious example of Council's allegiance to courtesy zoning was the Lowry Vista rezoning in 2009. Despite the fact that the subject of the rezoning was an unmitigated, toxic waste dump, and that opponents stayed until 2 a.m. to voice objections to it being developed, the Council overwhelmingly (12-1) followed then Councilwoman Marcia Johnson's lead to approve a massive 400,000 sq. ft. commercial mixed-use development.


Another reason it seems that developers have carte blanche is the new zoning code and a new use of the General Development Plan (GDP) in Denver land development. Despite Denver's strong Mayor form of government, City Council traditionally has had more than proportionate power over zoning matters with the staff from Community Planning and Development (CPD) making recommendations to the Planning Board who would then forward on their decision to Council. For large developments of more than 10 acres, the GDP came into favor under Planning Manager, Peter Park and the old zoning code. GDPs were intended to allow CPD to help developers plan infrastructure, open space and building heights so that the City could assess the impact for services such as water, storm drainage, streets and right-of-ways, schools and parks and recreation. The Code actually envisioned a hierarchy in which overall zoning came first from Council, followed by a General Development Plan, and then Site Development Plans.

Originally, GDPs were tied to the existing zoning so that building heights and open space were related to whatever zone district was chosen. Generally, the higher the density zoning, the more open space was required. Under the old zoning code, the T-MU-30 zone district at Gates and Union Station needed a GDP in order to reserve district-wide open space which was not included in the high density zoning. Individual T-MU-30 lots were required to have 20% open space. The GDP allowed the aggregation of open space and plazas for the larger area and the amount was lowered to 10%. Thus, developers were given a 10% density bonus in return for combining open space in one contiguous area.

Good planning practices should require zoning to be in place before the GDP. However, GDPs have been approved without any zoning tied to them, preceding zoning. Even before the 2010 update to the Zoning Code, as with the Lowry Vista GDP, whatever was outlined in the GDP was used as a basis to determine which zoning Council was to approve for the site. GDPs became a back door to zoning for large developments.

Although not realized by City Council when they voted overwhelmingly to approve the new Code, power was transferred from Council back to the Mayor through CPD and the Planning Board because zoning has been made a secondary to GDPs, and City Council does not review and approve GDPs. The power is in the hands of unelected Mayoral-appointed Planning Board officials who, for the most part, represent development and planning interests.

Not only is Council now expected to approve whatever zoning is called for in the GDP but, under the new Code, after Planning Board approval, a City staff committee can actually make minor changes to a GDP. Major revisions can be approved by the Planning Board. City Council cannot amend a GDP even if they wanted to.

This summer, the current owner of the old St. Anthony's Hospital site, EnviroFinance Group (EFG), put forth a seriously overreaching GDP. For a development with a possible 1,700,000 sq. ft., up to 1,750 units in 8-, 12- and 20-story buildings, in the middle of a single-family neighborhood, EFG has given as their main open space a 0.9 acre (out of a total 25 acres) pocket park which would be surrounded and shaded by high-rises. The total open

space, including streetscapes, represents only 5.5% of the total GDP area. The zoning code requirement reads: “A minimum of 10% of the total GDP area (including the Primary Area plus any Secondary Areas) shall be included in the GDP as open space.” However, CPD has interpreted the Code as if Total means Net and is thus allowing the deduction of right-of-ways (streets, curbs, gutters and streetscapes). This results in significantly lower required open space. The more right-of-ways there are, the less open space needed.

Open space in developments didn't used to be taken so lightly. A number of recent GDPs including Denargo Market, Buckley Annex and Union Station have publicly accessible open space of up to 17% of the Gross GDP area.

In November, INC passed a Resolution calling upon the Denver Planning Board to require that 10% of Total (Gross) General Development Plan Areas, (including primary and secondary areas) for all General Development Plans be devoted to publicly accessible open space as is clearly required in the new zoning code. INC also resolved that no GDP should be deficient in open space that would have the effect of diminishing the average per person amount of parks and publicly accessible open space available to Denver residents.

However, as a response to INC's Resolution calling for more rather than less open space, on November 18, CPD introduced a text amendment to codify using Net GDP area. The "Omnibus" text amendment to the Zoning Code includes a language change that would allow GDPs to use 10% of Net instead of 10% of Gross GDP area.

City Council will be asked sometime in the next three months to decide: more open space for large developments or less? In the meantime CPD is asking the Planning Board to allow calculating open space for the EFG GDP based on the Net area while at the same time admitting that the ordinance needs clarification from City Council.

Hopefully, one or more of our Council representatives will realize that the GDP process takes planning power away from City Council, the elected representatives of the people. If EFG is successful in getting approval of a net calculation for open space now that the planning office has put the question on the table, Council's prerogative to make the decision will have been usurped. The Planning Board is not supposed to be making law, just following it.

What then are appropriate courses of action in the interest of bringing balance back to Denver governance?

* The Planning Board must wait to make a decision about any GDP open space until Council makes the decision on more or less open space for all future large developments in the City.

* Council should reject the Mayor's request to provide less publicly accessible open space in new large developments.

* Council should also add their own text amendment giving themselves the ultimate power over approval and amendment of General Development Plans and amendments.