Appeals court rules house can be 18 inches too high
An appeals court ruled March 2 that a homeowner in Washington Park can’t stop construction of a three-story house next door just because it will be 18 inches taller than others.
Three years ago, Robert and Tina Fitzpatrick, founders of the luxury homebuilding company Living Mile High, bought 980 S. Franklin St. across from Washington Park for $1.5 million. They demolished the house there and made plans to build a three-story, 30-foot-tall home.
But after buying the pricey lot, the Fitzpatricks learned that it, unlike properties around it, is in a potential flood inundation area. As a result, its ground floor must be raised by 2 feet, pushing the roof of their proposed house above Washington Park’s 30-foot-high zoning limit.
The Denver Board of Adjustment for Zoning Appeals, recognizing these “unusual physical circumstances or conditions peculiar to the affected property,” voted 4-1 in 2021 to allow the Fitzpatricks to build a house that is 31 feet, 6 inches high, over the objections of a neighbor.
That neighbor, local real estate investor Gary Cook, lives in a comparatively modest house just to the north and expects a large building next door will block the sun at times. So Cook sued the Fitzpatricks’ LLC and the Board of Adjustment Appeals in June 2021.
Six months later, Denver District Judge Eric Elliff sided against him, finding “there was sufficient competent evidence” to support the 18-inch zoning variance. Cook appealed that ruling to the Colorado Court of Appeals, which also sided against him March 2.
“The homeowner had no way of knowing that the floor elevation would need to be raised as no other home in the neighborhood was required to do so,” Judge Matthew Grove wrote.
Two other judges concurred, making the three-judge opinion unanimous. The trio determined that without the small variance, the Fitzpatricks’ home would be worth $500,000 less and, through no fault of their own, they would not be able to have the house they want.
“An inability to construct the homeowner’s desired home is a non-financial hardship,” the judges determined. “And because there is evidence in the record to support the (adjustment appeals) board’s conclusion on that point, we will not disturb its ruling.”
Lawyers for Cook and the Fitzpatricks did not answer requests for comment on the opinion.
“The Denver city attorney’s office is pleased with the Court of Appeals’ well-reasoned ruling to affirm the judgment in favor of the city,” said spokeswoman Melissa Sisneros.