2424 protests

Opponents of the 2424 Garden of the Gods Road development in August before persuading City Council to deny a rezoning request to accommodate apartments. Now, that decision is being challenged in court.

The developer of a tract of land at 2424 Garden of the Gods Road has asked a District Court judge to overturn the Colorado Springs City Council's Aug. 24 decision to deny a rezoning request, concept plan and master plan amendment to allow for a residential/commercial development at the foot of the Mountain Shadows area.

2424GOTG LLC, owned by a Florida company, sought approval of the changes to allow 125 acres to host 420 apartments and commercial development on property that now contains a 750,000-square-foot office building and 1,000-vehicle parking lot.

The 5-4 decision followed the council's approval in May of the development; council switched gears after hearing from neighbors concerned about the ability to safely evacuate surrounding neighborhoods in the case of a wildland fire or other calamity.

The lawsuit, filed Sept. 17, alleges council exceeded its authority by considering evacuation criteria, which does not appear in the city's land development code as a requirement. Council also "abused its discretion and acted arbitrarily" in imposing an obligation on the developer never before imposed, the court filing said.

Planning for evacuations is a city responsibility, not that of a developer, the lawsuit said, adding that the denial of the developer's application "effectively denied the Plaintiff of the use and enjoyment of the Subject Property."

The developer, represented by local attorney Steven Mulliken, also alleged councilors abused their discretion and violated rules for quasi-judicial hearings by receiving evidence and discussing the development outside of the public hearing, having ex parte communications with persons opposing the development and committing to oppose it before the public hearing was held. The foundation for those claims is not explained.

The developer also contended that the city's review of its traffic study concluded traffic would not be a problem and that the development would actually generate less traffic than if the property were to further develop under its current industrial zoning. It also alleged the city's emergency leaders for police, fire and emergency operations testified at the hearing "that evacuation planning was a City responsibility, was being performed by the City, had been successful in all past emergencies, and that they had no concerns about the proposed New Development from an evacuation planning standpoint."

Council President Tom Strand declined to comment, citing the pending litigation.

Bill Wysong, with Mountain Shadows Community Association, who led the opposition, said he hasn't seen the lawsuit, but notes the traffic review was not done as Council requested, which should have taken community input into account but didn't.

"In reference to a request for an evacuation study, Council requested it. The city didn't do anything," he said.

Moreover, Wysong said the city code contains a basis for the development denial. "In the city code, a proposal for a zone change may be approved by city council only if the findings are made that the action will not be detrimental to the public interest, health, safety, convenience or general welfare," he said.

"It says right there in the code if there's a safety issue, they can deny it," Wysong noted, adding the development changes were "voted down purely on the safety element, which is part of the city code."

The developer seeks a determination that the city exceeded its jurisdiction and/or abused its discretion in denying the zoning change, an order reversing the council's decision and its attorney fees and costs.