COLORADO COURT OF APPEALS                                         2017COA47

Court of Appeals No. 16CA0920
City and County of Denver District Court No. 15CV32427
Honorable Shelley I. Gilman, Judge


Arthur Keith Whitelaw, III; John DeRungs; Katherine K. McCrimmon; Laura
Pitmon; Denise Sigon, f/k/a Denise L. Sager; Alan Singer; and Rita Singer,

Plaintiffs-Appellants,

v.

Denver City Council, including the individual Council members in their official
capacity, Albus Brooks, Charlie Brown, Jeanne Faatz, Christopher Herndon,
Robin Kniech, Peggy Lehmann, Paul López, Judy H. Montero, Chris Nevitt,
Debbie Ortega, Jeanne Robb, Susan Shepherd, and Mary Beth Susman;
Manager of Community Planning and Development, Brad Buchanan, in his
official capacity; Denver Planning Board, including the individual Board
members in their official capacity, Andy Baldyga, Jim Bershof, Shannon
Gifford, Renee Martinez-Stone, Brittney Morris Saunders, Joel Noble, Susan
Pearce, Arleen Taniwaki, Julie Underdahl, Frank Schultz, and Chris Smith;
City and County of Denver; and Cedar Metropolitan LLC,

Defendants-Appellees.


                            JUDGMENT AFFIRMED

                                    Division I
                          Opinion by JUDGE TAUBMAN
                         Navarro and Plank*, JJ., concur

                            Announced April 6, 2017


Gibson, Dunn & Crutcher LLP, Gregory J. Kerwin, Denver, Colorado, for
Plaintiffs-Appellants

Kristin M. Bronson, Denver City Attorney, Nathan J. Lucero, Assistant City
Attorney, Tracy A. Davis, Assistant City Attorney, Denver, Colorado, for
Defendants-Appellees Denver City Council, including the individual Council
members in their official capacity, Albus Brooks, Charlie Brown, Jeanne Faatz,
Christopher Herndon, Robin Kniech, Peggy Lehmann, Paul López, Judy H.
Montero, Chris Nevitt, Debbie Ortega, Jeanne Robb, Susan Shepherd, and
Mary Beth Susman; Manager of Community Planning and Development, Brad
Buchanan, in his official capacity; Denver Planning Board, including the
individual Board members in their official capacity, Andy Baldyga, Jim Bershof,
Shannon Gifford, Renee Martinez-Stone, Brittney Morris Saunders, Joel Noble,
Susan Pearce, Arleen Taniwaki, Julie Underdahl, Frank Schultz, and Chris
Smith; and City and County of Denver

Foster Graham Milstein & Calisher, LLP, Chip G. Schoneberger, Katherine
Roush, Denver, Colorado, for Defendant-Appellee Cedar Metropolitan LLC


*Sitting by assignment of the Chief Justice under provisions of Colo.
Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1    In this C.R.C.P. 106(a)(4) action, plaintiffs, Arthur Keith

 Whitelaw, III; John DeRungs; Katherine K. McCrimmon; Laura

 Pitmon; Denise Sigon, formerly known as Denise L. Sager; Alan

 Singer; and Rita Singer (the neighbors), seek judicial review of the

 rezoning decision of defendant Denver City Council.1 We affirm.

                         I.     Background

¶2    Defendant Cedar Metropolitan LLC (Cedar) applied to rezone

 the 2.3-acre “Mt. Gilead Parcel” located at 195 S. Monaco Parkway,

 on the southeast corner of Crestmoor Park in east Denver (the

 parcel). To build an age-targeted2 apartment complex on the site,

 Cedar sought to tear down a blighted church on the site and rezone


 1 The neighbors’ notice of appeal also names as defendants the
 individual Council members in their official capacity, Albus Brooks,
 Charlie Brown, Jeanne Faatz, Christopher Herndon, Robin Kniech,
 Peggy Lehmann, Paul López, Judy H. Montero, Chris Nevitt, Debbie
 Ortega, Jeanne Robb, Susan Shepherd, and Mary Beth Susman;
 the Manager of Community Planning and Development (Brad
 Buchanan, in his official capacity); the Denver Planning Board
 (including the individual members in their official capacity,
 Andy Baldyga, Jim Bershof, Shannon Gifford, Renee Martinez-
 Stone, Brittney Morris Saunders, Joel Noble, Susan Pearce, Arleen
 Taniwaki, Julie Underdahl, Frank Schultz, and Chris Smith); and
 the City and County of Denver.
 2 According to the June 2015 hearing record, Cedar applied to

 rezone the site in October 2014 to build this “age-targeted” housing.
 “Age-targeted” is a marketing term developers use to describe
 residents who are empty nesters or aged forty-five and older.
                                    1
 the parcel from E-SU-DX (single-family home) to S-MU-3 (allowing

 three-story apartment buildings).

¶3    The neighbors are property owners who live in the Crestmoor

 Park neighborhood located near the parcel. They challenged efforts

 by Cedar to rezone the parcel. They asserted that rezoning would

 harm their property values, create traffic and parking problems,

 cause hazards to pedestrians, and degrade the character of the

 surrounding neighborhood. In June 2015, after an eight-hour

 hearing where the City Council heard comments from the public

 both in support of and against the rezoning, the City Council

 changed the zoning designation to S-MU-3.

¶4    The neighbors then challenged the rezoning in district court.

 Their complaint asserted a claim for judicial review under C.R.C.P.

 106(a)(4) of the decisions of the City Council, the Denver Planning

 Board, and the Community Planning and Development Department

 (CPD) relating to the rezoning of the parcel. The neighbors also

 asserted a claim for declaratory relief concerning (a) the City’s policy

 and practice of not considering traffic and parking impacts in the

 rezoning process; (b) the City’s implementation of the Protest

 Procedure in the Denver City Charter and Denver Zoning Code

                                     2
 (DZC); (c) the conflicts created by campaign contributions to

 Council members from Cedar’s lobbyist seeking Council approval of

 Cedar’s proposed zoning change; and (d) whether the rezoning

 constituted unlawful spot zoning. The district court rejected all of

 the neighbors’ claims.

¶5    On appeal, the neighbors challenge the City Council’s approval

 of Cedar’s requested rezoning under C.R.C.P. 106(a)(4). They assert

 various claims, including violation of their right to due process.

 While the neighbors mention in their briefs an appeal of the court’s

 denial of their claim for declaratory relief, we do not address it,

 since the neighbors have only raised such a claim in a cursory

 manner; indeed they did not cite C.R.C.P. 57 in their appellate

 briefs. See People v. Gingles, 2014 COA 163, ¶ 29, 350 P.3d 968,

 973 (citing People v. Wallin, 167 P.3d 183, 187 (Colo. App. 2007))

 (declining to address arguments presented in a perfunctory or

 conclusory manner).

                       II.   Due Process Violation

¶6    The neighbors contend that the City Council violated their

 rights to due process in five ways. We disagree and address each

 contention in turn.

                                     3
               A.   Standard of Review and Preservation

¶7    In a Rule 106(a)(4) proceeding, our review is limited to whether

 the governmental body’s decision was an abuse of discretion or was

 made in excess of its jurisdiction, based on the evidence in the

 record before that body. C.R.C.P. 106(a)(4)(I); Verrier v. Colo. Dep’t

 of Corr., 77 P.3d 875, 879 (Colo. App. 2003); see also Alpenhof, LLC

 v. City of Ouray, 2013 COA 9, ¶ 9, 297 P.3d 1052, 1055. An

 agency’s misinterpretation or misapplication of governing law may

 constitute an alternative ground for finding an abuse of discretion

 under C.R.C.P. 106(a)(4). See Roalstad v. City of Lafayette, 2015

 COA ¶ 13, 363 P.3d 790, 793.

¶8    Because an appellate court sits in the same position as the

 district court when reviewing an agency’s decision under C.R.C.P.

 106(a)(4), appellate review of the district court’s decision is de novo.

 Alward v. Golder, 148 P.3d 424, 428 (Colo. App. 2006) (citing

 Thomas v. Colo. Dep’t of Corr., 117 P.3d 7 (Colo. App. 2004)). The

 rezoning of an individual parcel is a quasi-judicial decision by the

 City Council. Cherry Hills Resort Dev. Co. v. City of Cherry Hills

 Village, 757 P.2d 622, 625-26 (Colo. 1988). Quasi-judicial decision-

 making requires notice and an opportunity to be heard as a matter

                                    4
  of “fundamental fairness to those persons whose protected interests

  are likely to be affected by the governmental decision.” Id. at 626.

  We affirm a rezoning decision unless the governmental entity

  exceeded its jurisdiction or abused its discretion, which occurs if

  the body misapplied the law or no competent evidence supports its

  decision. Alpenhof, ¶ 9, 297 P.3d at 1055. “No competent

  evidence” means that the decision is “so devoid of evidentiary

  support that it can only be explained as an arbitrary and capricious

  exercise of authority.” Canyon Area Residents v. Bd. of Cty.

  Comm’rs, 172 P.3d 905, 907 (Colo. App. 2006) (quoting Bd. of Cty.

  Comm’rs v. O’Dell, 920 P.2d 48, 50 (Colo. 1996)). While

  interpretation of a city code is reviewed de novo, interpretations of

  the code by the governmental entity charged with administering it

  deserve deference if they are consistent with the drafters’ overall

  intent. Alpenhof, ¶ 10, 297 P.3d at 1055.

¶9     The neighbors preserved all of the issues below by raising

  them in their Rule 106 petition.

                     B.   Ex Parte Communications

¶ 10   The neighbors assert that Sean Maley, a lobbyist for Cedar,

  communicated with Council member Mary Beth Susman, the

                                     5
  Council member in whose district the parcel lies, through her

  private e-mail account and by phone prior to the public hearing.

  They also suggest that Maley had similar communications with

  other Council members. The neighbors contend that the failure to

  disclose these communications to the public prior to the hearing

  deprived them of their due process rights since they did not receive

  notice and opportunity to rebut the information on which the

  Council may have impermissibly relied in making its

  determination.3

¶ 11   Acting as quasi-judicial decision-makers, city council

  members are entitled to a “presumption of integrity, honesty, and

  impartiality.” Soon Yee Scott v. City of Englewood, 672 P.2d 225,


  3 The neighbors assert that if we do not vacate the rezoning on the
  basis of the ex parte communications, we should reverse and
  remand because of the district court’s erroneous discovery rulings,
  which blocked the neighbors from obtaining documents and
  deposition testimony about the alleged prejudicial effect of these
  communications. However, “[r]eview of a governmental body’s
  decision pursuant to Rule 106(a)(4) requires an appellate court to
  review the decision of the governmental body itself rather than the
  district court’s determination regarding the governmental body’s
  decision.” IBC Denver II, LLC v. City of Wheat Ridge, 183 P.3d 714,
  717 (Colo. App. 2008) (citation omitted). Accordingly, our review is
  based solely on the record that was before the City Council. A
  remand for further discovery is not permitted under a C.R.C.P. 106
  claim if that evidence was not a part of the record in the first place.
                                     6
  227 (Colo. App. 1983). Thus, while it is true that parties to an

  administrative hearing should have the opportunity to be

  confronted with all facts that influence the disposition of a case,

  there must be substantial prejudice that is shown to invalidate an

  agency action in order to rebut this presumption. L.G. Everist, Inc.

  v. Water Quality Control Comm’n of Colo. Dep’t of Health, 714 P.2d

  1349, 1352 (Colo. App. 1986) (citing Mobile Pre-Mix Transit, Inc. v.

  Pub. Utils. Comm’n, 618 P.2d 663 (Colo. 1980)).

¶ 12   Here, despite extensive evidence consisting of approximately

  fifty pages of e-mails that form the basis of their allegation of

  prejudice, the neighbors pointed to no evidence of e-mails or

  telephone conversations that had a substantial prejudicial impact

  on the outcome of the proceeding. In fact, Council member Susman

  ultimately voted against the rezoning. Nothing in the record

  suggests that she disclosed any prejudicial communications to

  other Council members who voted in favor of rezoning, either.

  Further, the district court, in its detailed and thorough order, noted

  that the record established that Council member Susman reiterated

  in her e-mails to several people, including one to former Council

  member Susan Barnes-Gelt, that she had a duty to remain

                                     7
  impartial. Thus, the record shows that, despite the neighbors’

  claims that Susman encouraged others to vote in favor of the

  rezoning while she voted against it,4 the neighbors have not

  rebutted the presumption that Susman acted impartially. The

  neighbors’ claims, based solely on the hearsay e-mail from Barnes-

  Gelt, are insufficient to rebut the presumption.

¶ 13   Therefore, we conclude that because the neighbors have not

  overcome the presumption of integrity, honesty, and impartiality,

  and have shown no prejudice from the communications, the City

  Council did not violate their due process rights. See Soon Yee Scott,

  672 P.2d at 227.

              C.     The Planning Board Conflict of Interest

¶ 14   The neighbors also assert that their due process rights were

  violated due to the involvement of Jim Bershof, Cedar’s architect

  and a member of the City’s Planning Board, in the application

  process. The City’s Planning Board recommended that the City

  4 The neighbors cite to an e-mail from Barnes-Gelt that said she
  heard that Council member Susman was not supporting the
  rezoning, but had been letting others know that she would be
  comfortable if it was approved. Besides the fact that this
  information is hearsay within hearsay, in her response, Council
  member Susman clearly dismissed such gossip and recognized her
  duty to be impartial.
                                     8
  Council approve the rezoning application. Bershof submitted the

  application to the Board, but he did not attend or vote on the

  rezoning. The neighbors claim that their due process rights were

  violated because Bershof’s connection to the Board imbued every

  member with an inherent conflict of interest when they voted, as

  quasi-judges, on their own colleague’s rezoning request. For the

  reasons discussed below, we do not address this claim.

¶ 15   Denver Revised Municipal Code (D.R.M.C.) section 12-44

  specifically provides:

             Any planning board member having a financial
             interest in any measure before the board shall
             not participate in the consideration of such
             measure as a board member nor vote on such
             measure, but the board shall have authority to
             grant a hearing to such member in the
             capacity of or as an applicant, subject to the
             board’s bylaws and rules and regulations
             governing such hearings.

  Bershof complied with this requirement by not attending the

  Planning Board meeting or otherwise participating in the decision.

  Regardless, whether section 12-44 creates or allows an

  impermissible conflict of interest among the Planning Board

  members is not subject to judicial review under Rule 106, which



                                    9
  limits our review to decisions of governmental bodies or officers

  “exercising judicial or quasi-judicial functions.” C.R.C.P. 106(a)(4).

¶ 16   According to the zoning code, Planning Board members only

  make recommendations to the City Council on rezoning

  applications. See DZC § 12.4.10.4(E). A division of this court

  considered a similar issue under the Cherry Hills Municipal Code in

  Buck v. Park, 839 P.2d 498, 500 (Colo. App. 1992). The plaintiffs in

  that case sought judicial review under C.R.C.P. 106(a)(4) of a

  recommendation by the Cherry Hills Planning and Zoning

  Commission to deny their rezoning application. Id. at 499. The

  division held their claim unreviewable because the Cherry Hills

  Municipal Code permitted the Commission only to make a

  recommendation, while the final decision was reserved for the City

  Council. Id. at 500.

¶ 17   Likewise, we conclude that the Planning Board’s

  recommendation on a proposed rezoning application is not

  appealable because it is not a “final decision” reviewable under

  C.R.C.P. 106(a)(4). According to the DZC, a decision by the City

  Council on a rezoning decision may be appealed to the district

  court. § 12.4.11.5. Nowhere does the DZC refer to the Planning

                                    10
  Board’s recommendation on a proposed rezoning amendment as a

  “decision.” Rather, the code refers to a “recommendation” by the

  Planning Board and a “[f]inal [d]ecision” by the City Council.

  § 12.4.11.3. The Planning Board’s recommendation is only an

  intermediate step in the review process, which concludes with the

  City Council’s decision to approve or deny the proposed rezoning

  amendment. The DZC explicitly states that only the City Council is

  responsible for “final action” on a proposed rezoning amendment.

  § 12.2.1.2. Therefore, Rule 106(a)(4) affords no jurisdictional basis

  to review Planning Board recommendations.

¶ 18   The neighbors contend that, regardless, the Planning Board’s

  recommendation is an essential step of the process warranting

  review under Rule 106(a)(4). However, our review is still limited to

  decisions of governmental bodies or officers “exercising judicial or

  quasi-judicial functions.” C.R.C.P. 106(a)(4). While the neighbors

  argue that the Planning Board could not function as a neutral

  decision-maker due to Bershof’s participation, we conclude, by

  language of the DZC, that the Planning Board does not sit as a

  quasi-judicial decision-maker, nor are its recommendations an

  exercise of a quasi-judicial function. Its recommendation is only

                                    11
  that, while the City Council holds the power to make a final

  decision on the recommendation of the Planning Board.

¶ 19   Accordingly, we do not review this claim.

                     D.   Irrelevant Political Factors

¶ 20   The neighbors next argue that their due process rights were

  violated because certain City Council members’ comments at the

  public hearing reflected “flawed quasi-judicial decision making” and

  showed that they “relied on irrelevant factors and information

  outside of the hearing record” in arriving at their decisions.

¶ 21   Quasi-judicial decision-makers are required to base their

  decisions on relevant review criteria and the evidence in the

  administrative record. See, e.g., Snyder v. City of Lakewood, 189

  Colo. 421, 425, 542 P.2d 371, 374 (1975), overruled on other

  grounds by Margolis v. Dist. Court, 638 P.2d 297, 299 (Colo. 1981).

  Again, the City Council’s decision must be upheld unless no

  competent evidence in the record supports it. City & Cty. of Denver

  v. Bd. of Adjustment, 55 P.3d 252, 254 (Colo. App. 2002).

¶ 22   As we discuss in Part III below, the neighbors fail to

  demonstrate a lack of competent evidence supporting the City

  Council’s ultimate decision or that any individual Council member

                                    12
  relied on factual information outside the hearing record or ignored

  the record evidence in casting his or her vote. Rather, the record

  shows that the City Council’s approval of the proposed rezoning was

  consistent with the City’s adopted plans, as required by the DZC,

  and the Council considered the public health, safety, and general

  welfare.

¶ 23   The neighbors even acknowledge that, in explaining their votes

  in favor of rezoning, City Council members relied on the provisions

  of the adopted plans. For example, Council member Chris Nevitt

  said that the adopted plans encouraged preservation of old

  neighborhoods and struck a balance between preservation and

  prevention of sprawl. He also noted that, consistent with the

  adopted plans, the proposed new housing complex was along a

  transit route. Council member Albus Brooks also discussed

  whether the “existing site” reflected “the context.”

¶ 24   We therefore conclude that competent evidence in the record

  supports the City Council’s rezoning decision such that the

  neighbors have failed to rebut the presumption of integrity, honesty,

  and impartiality in favor of the City Council’s decision.



                                    13
                  E.    The Protest Petition Procedure

¶ 25   The neighbors next assert that their due process rights were

  violated because the City Council stepped outside of its neutral,

  quasi-judicial role and supported Cedar by improperly applying the

  protest petition procedure of the Denver City Charter.

¶ 26   Section 3.2.9(E) of the Denver Charter outlines the protest

  petition procedure. If opponents of a City Council action gather

  signatures from property owners representing twenty percent or

  more of the land area within 200 feet of the perimeter of a proposed

  rezoning, then the rezoning must pass the City Council by a super-

  majority (ten members). In calculating the land area, the City

  included City-owned land, including the portion of Crestmoor Park

  within the 200-foot protest petition area.

¶ 27   Opponents gathered only enough signatures to represent

  seventeen percent of the perimeter zone and thus failed to trigger

  the requirement of a super-majority. The rezoning passed by an

  eight to four vote. The neighbors argue that the City improperly

  applied the protest procedure by including the park land but not

  allowing any procedure for residents to obtain petition signatures

  from the City. The neighbors request that we hold that the City

                                    14
  must either (a) exclude City-owned park land from the protest

  petition area or (b) create a procedure to allow citizens to obtain

  protest petition signatures from City representatives for City-owned

  park land.

¶ 28   Cedar and the City Council respond that the City Council

  properly followed the holding in Burns v. City Council, 759 P.2d 748

  (Colo. App. 1988), in which a division of this court interpreted

  charter section 3.2.9(E) to require inclusion of all City-owned land

  in the calculation of the 200-foot protest petition area.

¶ 29   We agree with Cedar and the City Council and conclude that

  Burns properly interpreted this ordinance to include all land in the

  200-foot area irrespective of ownership.

¶ 30   In Burns, a division of this court held that “[t]he charter and

  ordinance provisions that the protest area be defined as ‘the area to

  a distance of 200 feet from the perimeter of the area proposed for

  change’ are clear, plain, and unambiguous; accordingly, they must

  be applied as written.” 759 P.2d at 750. The division further held

  that, as a result, the City’s inclusion of City-owned streets in its

  computation of the protest area was neither arbitrary nor



                                     15
  capricious; consequently, it was not erroneous. Id. (citing Pfaff v.

  City of Lakewood, 712 P.2d 1041 (Colo. App. 1985)).

¶ 31   In calculating the land area here, the City Council likewise

  included all City-owned land within the 200-foot protest petition

  area. Because this calculation was in accordance with the plain

  language of charter section 3.2.9(E), as interpreted in Burns, this

  method of computation was not arbitrary or capricious.

¶ 32   As for the neighbors’ second claim requesting that we either

  create a procedure to allow citizens to obtain signatures from City

  representatives or compel the City to create such a procedure, we

  have no authority to do so. Further, the record reflects that the

  neighbors contacted the director of the City’s Parks Department and

  requested that she sign the petition but that she had “refused to

  take sides on the matter.” Her refusal to sign did not effectively

  foreclose the neighbors’ opportunity to meet the requirements of the

  protest petition procedure.

¶ 33   In conclusion, the City did not err in its calculation of the

  protest petition area.




                                    16
                     F.    Campaign Contributions

¶ 34   The neighbors next contend that their due process rights were

  violated because some Council members received “substantial”

  political contributions from lobbyists and, therefore, were biased in

  the rezoning vote. They assert that, based on City of Manassa v.

  Ruff, 235 P.3d 1051 (Colo. 2010), and Caperton v. A.T. Massey Coal

  Co., 556 U.S. 868 (2009), “[t]hese fundamental protections of

  neutrality and fairness also apply to non-judicial decision-makers

  acting in a quasi-judicial capacity,” Manassa, 235 P.3d at 1057,

  and therefore, quasi-judicial decision-makers should be held to the

  same judicial canons as judges.

¶ 35   However, we conclude, as did the district court, that our

  review of this proceeding under Rule 106(a)(4) is limited to the

  record that was before the City Council. Because evidence of the

  contributions was not in the record before the Council and the

  neighbors first raised this issue in the district court, we may not

  review it. Further, the neighbors did not address this issue on

  appeal in connection with their declaratory relief claim. We thus do

  not review this challenge to the Council members’ roles as neutral,



                                    17
  quasi-judicial decision-makers because it is based on facts outside

  the record of the Rule 106 proceeding.

               III.   Compliance With the Zoning Code

¶ 36   The neighbors next contend that we must vacate the rezoning

  decision because, as a matter of law, the rezoning does not comply

  with the City’s zoning ordinance; specifically, the rezoning is not

  consistent with the City’s adopted plans, no specific circumstances

  justified the rezoning, and the rezoning fails to further the public

  health, safety, and general welfare. We disagree.

¶ 37   In this case, the City Council must abide by the DZC, which

  requires that a proposed rezoning be consistent with the City’s

  adopted plans and further the public health, safety, and general

  welfare. § 12.4.10.7. There must also be specific “[j]ustifying

  [c]ircumstances” warranting the rezoning. § 12.4.10.8.

¶ 38   The City Council approved rezoning of the parcel as S-MU-3.

  The parcel is bounded on the east by South Monaco Parkway.

  There are multi-family apartments situated across the street from

  the parcel. The parcel is bounded on the south by a day-care

  establishment and one single-family home, on the north by

  rowhomes, a City-owned parks maintenance facility and portions of

                                    18
  Crestmoor Park, and on the west by rowhomes and other portions

  of Crestmoor Park. The Crestmoor Park neighborhood lies to the

  west and south of Crestmoor Park and is zoned as single family.

  South Monaco Parkway is a “residential arterial street.”

¶ 39   In its February 2015 Staff Report and Recommendation

  submitted to the City Council, the CPD found that the rezoning was

  consistent with many of the strategies of the Denver Comprehensive

  Plan 2000. Specifically, it found that the rezoning met the

  “Environmental Sustainability Strategy . . . by promoting infill

  development within walking distance of a mixed use area (Lowry

  Town Center) and commercial arterial (Alameda).” The CPD also

  noted that the proposed “three-story multi-unit residential

  development” was “consistent with similar multi-unit residential

  development across South Monaco Parkway while providing a

  height limit of three stories, compatible with nearby zone districts

  for single-unit residential development.”

¶ 40   The CPD, moreover, found that the proposed rezoning met the

  “Neighborhood Strategy . . . by providing the opportunity for a range

  of housing types in this neighborhood.” Finally, the CPD found that

  the parcel was a reinvestment area within an area of stability

                                    19
  because it “currently has a deteriorating and poorly maintained

  church.” It indicated that the proposed rezoning would “encourage

  reinvestment into the neighborhood, and provide[] a buffer between

  single-unit residential development within the Crestmoor

  neighborhood to the east and the additional development and

  activity along South Monaco Parkway.” The CPD added that the

  proposed rezoning would further the public health, safety, and

  general welfare of the City and encourage reinvestment in the area

  by “removing a structure on site that has been poorly maintained

  for many years.” The CPD reiterated its findings at the June 2015

  hearing before the City Council.

                           A.        Standard of Review

¶ 41   The same standard of review outlined in Part II.A applies to

  this claim.

                                B.    Applicable Law

¶ 42   Under the DZC, the City Council may approve a rezoning

  proposal that the City Attorney has determined is not a legislative

  rezoning if the proposed rezoning complies with the following

  criteria: (1) the proposed rezoning is consistent with the City’s

  adopted plans; (2) the proposed rezoning results in uniformity of

                                        20
  district regulations and restrictions; (3) the proposed rezoning

  furthers the public health, safety, and general welfare; (4)

  circumstances justify the proposed rezoning; and (5) the proposed

  rezoning is consistent with the description of the applicable

  neighborhood context and the stated purpose and intent of the

  proposed Zone District. §§ 12.4.10.7-.8. A justifying circumstance

  exists when “[t]he land or its surrounding environs has changed or

  is changing to such a degree that it is in the public interest to

  encourage a redevelopment of the area or to recognize the changed

  character of the area.” § 12.4.10.8(A)(4). Only two planning

  guidelines apply to the parcel in this case: the Denver

  Comprehensive Plan 2000 (2000), https://perma.cc/QUU7-VGUL

  (Plan), and Blueprint Denver (2002), https://perma.cc/SE82-M676.

¶ 43   The DZC also notes, “The Suburban Neighborhood Context is

  characterized by single-unit and multi-unit residential, commercial

  strips and centers, and office parks. . . . Multi-unit residential and

  commercial uses are primarily located along arterial and collector

  streets.” § 3.1.1.

¶ 44   Enacted in 2000, the guiding principles and policies

  established in the Plan (as well as those in Blueprint Denver) form

                                    21
the basis for the goals and recommendations of subsequent City

plans. The Plan identifies numerous goals, including environmental

sustainability, adopting effective land use policies, preserving

Denver’s legacies such as tree-lined streets, and improving Denver’s

neighborhoods. The Plan identifies several strategies to meet these

goals, including the following:

     • Environmental Sustainability Strategy 2-F: “Promoting infill

development within Denver at sites where services and

infrastructure are already in place”;

     • Land Use Strategy 3-B: Managing growth and change

through effective land use policies, including “encourag[ing] quality

infill development that is consistent with the character of the

surrounding neighborhood; [and] that offers opportunities for

increased density”;

     • Neighborhood Strategy 1-E: “Modify[ing] land-use regulations

to ensure flexibility to accommodate changing demographics and

lifestyles,” and “[a]llow . . . a diverse mix of housing types and

affordable units”; and




                                   22
       • Neighborhood Strategy 1-F: Investing in neighborhoods “to

  help meet citywide goals and objectives for a range of housing types

  and prices, community facilities, human services and mobility.”

¶ 45   The City Council also adopted Blueprint Denver “to implement

  and achieve the vision outlined in Plan 2000.” Blueprint Denver, at

  3.

¶ 46   According to Blueprint Denver, which is considered a

  “supplement” to the Plan, “Arterials are designed to provide a high

  degree of mobility and generally serve longer vehicle trips to, from,

  and within urban areas.” Id. at 51. “Denver’s arterial system

  interconnects major urban elements such as the central business

  district, employment centers, large urban and suburban

  commercial centers and residential neighborhoods.” Id. “Arterial

  streets serve a city-wide function and are, therefore, designated

  using a broader city-wide perspective.” Id.

¶ 47   Blueprint Denver also identifies “Areas of Change” and “Areas

  of Stability.” Id. at 120, 127. The parcel here is located in an Area

  of Stability directly adjacent to an Area of Change. An Area of

  Stability aims to “maintain the character of these areas yet

  accommodate some new development and redevelopment to prevent

                                    23
  stagnation.” Id. at 5. Like the Plan, Blueprint Denver identifies

  numerous strategies to meet this goal. These include: (1)

  “[a]ddress[ing] incompatible zoning and land use issues”; (2)

  “[a]ddress[ing] edges between Areas of Stability and Areas of

  Change”; and (3) encouraging “[d]iversity of housing type, size, and

  cost.” Id. at 25. Blueprint Denver explicitly identifies a “regulatory

  toolbox” to help implement these strategies in an Area of Stability.

  See id. at 123. One such “tool” is the use of zoning amendments to

  “create a better match between existing land uses [in an area] and

  the zoning.” Id. at 124.

¶ 48   Blueprint Denver divides Areas of Stability into “committed

  areas” and “reinvestment areas,” although it does not identify these

  areas on a map. Id. at 123. It defines reinvestment areas as

  “neighborhoods with a character that is desirable to maintain but

  that would benefit from reinvestment through modest infill and

  redevelopment or major projects in a small area.” Id. at 122.

  Indicators of reinvestment areas within an Area of Stability include

  “deteriorated and poorly maintained housing stock,” “inappropriate

  land uses or inadequate buffering between uses,” “lack of curbs,”

  and a need to maintain affordable housing. Id. at 122-23.

                                    24
                                C.    Analysis

¶ 49   The district court found that the record supported the City

  Council’s determination that Cedar’s proposed rezoning was

  consistent with both the Plan and Blueprint Denver. We agree with

  its analysis.

¶ 50   First, the rezoning is consistent with the objectives and

  strategies of the Plan and Blueprint Denver. As the CPD found and

  some City Council members noted during the June 2015 hearing,

  the proposed rezoning allows for infill development along a

  residential arterial and near a commercial arterial, which ensures

  the availability of transit and other services. Other members also

  noted that the proposed Cedar rezoning was not too far outside the

  character of the neighborhood and it created diversity of housing

  stock in the area — which, as Council member Nevitt noted, is

  needed as Denver continues to grow, bearing in mind that the

  preservation of old neighborhoods is still valuable while preventing

  sprawl.

¶ 51   Further, the rezoning would revitalize the parcel, which

  contained a “deteriorating and poorly maintained church” and thus

  could be characterized as a reinvestment area in an Area of

                                     25
  Stability, despite the absence of a specific map designation.5

  Moreover, because the parcel is on the edge of an Area of Stability,

  with multi-family buildings across South Monaco Parkway in an

  Area of Change, the rezoning would, as some City Council members

  noted, “address the edge” to the west and create a “buffer” between

  South Monaco Parkway and the Crestmoor neighborhood.

¶ 52   Second, we agree with the district court that competent

  evidence in the record supports the City Council’s determination

  that the rezoning furthers the public health, safety, and general

  welfare. As noted by the district court, the CPD presented evidence

  to the City Council showing that the “redevelopment of the site

  removes a poorly maintained structure, improves character along

  Monaco, and residents have access to recreation, jobs and

  commercial activities.” The evidence also indicated that the

  rezoning would increase public safety because of the addition of

  new sidewalks.

¶ 53   The neighbors argue, however, that the City Council refused to

  consider the adverse traffic and parking consequences of the

  5 At oral argument, counsel for the neighbors stated that building
  has now commenced on the site pursuant to the plan approved by
  the City Council.
                                    26
  rezoning when it considered whether rezoning would further the

  public health, safety, and welfare. The City responds that adverse

  traffic and parking consequences are not a mandatory aspect of its

  calculus when considering a rezoning.

¶ 54   We agree with the district court that the consideration of the

  public health, safety, and welfare criterion may, in certain

  instances, include a review of issues relating to traffic and parking.

  See Town of Grand Lake v. Lanzi, 937 P.2d 785, 789 (Colo. App.

  1996). Further, section 12.4.10.4(G)(2) of the DZC mandates that

  the City Council shall consider “any other comments received” at a

  public hearing on a proposed zoning amendment, which, in this

  case, would include comments related to traffic and parking. We

  conclude that the City Council considered comments concerning

  the traffic and parking consequences of the rezoning.

¶ 55   As the district court recognized, the record shows that several

  City Council members stated that the “major issue” was traffic and

  transportation and that they “need[ed] to address it.” The City

  Council members acknowledged that Cedar had altered its original

  plans to address parking and traffic concerns by reducing the

  number of units built, increasing the number of parking spaces,

                                    27
  and altering the entrances to the complex to avoid disrupting

  quieter streets. Therefore, we conclude that the City Council

  sufficiently considered the traffic and transportation consequences

  of the proposed rezoning.

¶ 56   Finally, competent evidence exists in the record to support the

  City Council’s conclusion that justifying circumstances existed for

  the rezoning. As noted above, the DZC provides that a justifying

  circumstance exists when either the land or its surrounding

  environs have changed or are changing. § 12.4.10.8(A)(4). The

  neighbors assert that “land” refers to the overall neighborhood

  itself, rather than the parcel subject to rezoning. The City argues

  that “land” refers to the parcel.

¶ 57   Like the district court, we defer to the City’s interpretation for

  two reasons. First, we may defer to a government body’s

  construction of the code, as long as it is reasonable; however, we

  are not bound by it, since our review of such code provisions is de

  novo. See City of Commerce City v. Enclave West, Inc., 185 P.3d

  174, 178 (Colo. 2008). Further, in reviewing the agency’s

  construction, we apply the basic rules of statutory construction.



                                      28
  See McCarville v. City of Colorado Springs, 2013 COA 169, ¶ 15, 338

  P.3d 1033, 1037.

¶ 58   We conclude the City Council’s interpretation is persuasive,

  because if “land” referred to both the parcel subject to rezoning and

  the surrounding neighborhood, then the term “surrounding

  environs” would be superfluous. See Doubleday v. People, 2016 CO

  3, ¶¶ 19, 20, 364 P.3d 193, 196 (When interpreting a statute, the

  court “read[s] statutory words and phrases in context” and

  “construe[s] them according to the rules of grammar and common

  usage.” It “must avoid constructions that would render any words

  or phrases superfluous or lead to illogical or absurd results.”).

¶ 59   Here, both the parcel and its surrounding environs have

  changed. Since Blueprint Denver was adopted, the church on the

  parcel deteriorated. At the June 2015 hearing, commentators

  observed that the church was blighted. Additionally, the area

  around Monaco Parkway has developed significantly. These

  changed circumstances were raised at the hearing before the City

  Council. We thus conclude that the City Council relied on

  competent evidence to determine that rezoning was in compliance

  with justifying circumstances.

                                    29
¶ 60   Based on the evidence in the record, we conclude that the

  neighbors have failed to demonstrate that the determination of the

  City Council was an abuse of discretion. The lengthy deliberations

  show that Council members discussed the criteria and evidence in

  the record, including testimony presented by both opponents and

  proponents at the hearing. Therefore, the neighbors have failed to

  demonstrate that the City Council’s approval of the proposed

  rezoning was arbitrary and capricious, see Puckett v. City & Cty. of

  Denver, 12 P.3d 313, 314 (Colo. App. 2000), and they have not

  overcome the presumption that the City Council’s decision was

  proper. Lieb v. Trimble, 183 P.3d 702, 704 (Colo. App. 2008).

                     IV.     Unlawful Spot Zoning

¶ 61   The neighbors’ final contention is that the rezoning constitutes

  impermissible spot zoning because it did not further Denver’s

  comprehensive plans and thus was an abuse of discretion. We

  disagree.

                        A.     Standard of Review

¶ 62   The same standard of review outlined in Part II.A applies to

  this claim.



                                    30
                           B.   Applicable Law

¶ 63   Spot zoning examines “whether the change in question was

  made with the purpose of furthering a comprehensive zoning plan

  or [was] designed merely to relieve a particular property from the

  restrictions of the zoning regulations.” Clark v. City of Boulder, 146

  Colo. 526, 531, 362 P.2d 160, 162 (1961) (rezoning of part of a

  planned residential area to allow a gas station was arbitrary). In

  other words, spot zoning “creates a small island of property with

  restrictions on its use different from those imposed on the

  surrounding property.” Little v. Winborn, 518 N.W.2d 384, 387

  (Iowa 1994) (citation omitted). If the rezoning is for the purpose of

  furthering a comprehensive zoning plan or based on changed

  conditions, the rezoning is not spot zoning. See King’s Mill

  Homeowners Ass’n v. City of Westminster, 192 Colo. 305, 312, 557

  P.2d 1186, 1191 (1976); see also 3 Arden H. Rathkopf & Daren A.

  Rathkopf, Rathkopf’s The Law of Zoning and Planning § 41:8 (4th

  ed. 2016). Likewise, reclassifications when the “new use is

  consistent with others in the surrounding area” or where a rezoning

  will “allow multifamily residences within a single family zone” are

  also generally permissible. 3 Rathkopf & Rathkopf, § 41:8.

                                    31
                               C.   Analysis

¶ 64   Here, as discussed above and shown on various maps

  considered by the City Council, the rezoning is not out of character

  with the adjacent area. Instead, it furthers the goals of both the

  Plan and Blueprint Denver. It “address[es] the edge” of an Area of

  Stability where hundreds of multifamily units are located directly

  across the street in an Area of Change. The approved rezoning also

  creates a “buffer” between South Monaco Parkway and the

  Crestmoor neighborhood. In addition, it will increase the “diversity

  of housing” choices. Finally, Blueprint Denver expressly recognizes

  rezoning as one “tool” for use in Areas of Stability like the

  Crestmoor neighborhood. Blueprint Denver, at 124. Rezoning is

  consistent with and contemplated by the adopted plans.

¶ 65   Despite the neighbors’ assertion that the parcel is in the

  middle of a single-family neighborhood, the parcel’s surrounding

  properties, including immediately adjacent properties, contain a

  variety of different zoning designations, including the same S-MU-3

  zoning. In fact, the property directly to the parcel’s south has the

  same S-MU-3 zoning. The properties across South Monaco

  Parkway are zoned R-2-A, a classification that permits multi-unit

                                     32
  homes. The property directly east of the parcel is home to a

  number of apartments. Only the property immediately to the

  southwest is zoned for single-family houses. Thus, rezoning the

  parcel to S-MU-3 is in line with the zoning restrictions of the

  surrounding properties.

¶ 66   We conclude that the new zone designation is consistent with

  the surrounding areas and does not constitute spot zoning. See 3

  Rathkopf & Rathkopf, § 41:8.

                            V.   Conclusion

¶ 67   Accordingly, the judgment is affirmed.

       JUDGE NAVARRO and JUDGE PLANK concur.




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