Taking Zoning Law to New Heights
Amanda Li & William Kessinger
Colorado Springs is renowned for its majestic views of the Pikes Peak mountain, overlooking the entire Eastern plains of Colorado. When viewing a map of Colorado Springs, it is evident that the city has grown naturally in accordance with each property getting to have a stellar view of this crown jewel in the rockies. What makes the map particularly unique is its vertical sprawl - from North to South—each neighborhood seems almost curated towards this particular peak. However, new developments (and developers) have arrived in “the Springs” to attempt to ameliorate the local ongoing housing crisis. This proposed development (dubbed “One Vela”) would place a 27-story skyscraper right in the heart of downtown, a record-breaking 11 stories taller than the current tallest building in the city. Many Springs locals claim this is against the centuries long ban on tall buildings in the city—but is this a fact or fiction?
We can begin by looking at the zoning laws in Colorado Springs. Colorado Springs has divided its building height restriction ordinances by neighborhood zone—with the furthest outskirts of the city limited to four stories, increasing to six, then ten, and ultimately no maximum height for the zones including downtown. This means that, despite local legend, there is no height restriction on developments in downtown Colorado Springs, where the proposed One Vela project is situated. One Vela sits in a downtown lot, in a zoning district with no height restriction, per Colorado Springs City Code § 7.2.101. Its plan complies with all other codified zoning standards—use, density, design review, and procedural requirements. The Colorado Supreme Court has previously held, in Sherman v. Colorado Springs Planning Commission, that when zoning requirements are met, “approval is not discretionary but mandatory,” and a denial would be deemed “arbitrary and capricious.”
Opponents of One Vela may point to the reasoning in Village of Euclid v. Ambler Realty Co., where the U.S. Supreme Court upheld zoning laws designed to preserve neighborhood character. The Court stated that a zoning law need only be valid if the issue is “fairly debatable” and emphasized the metaphor that an undesirable use might be “a pig in the parlor instead of the barnyard.” Here, they could argue that One Vela is the pig—legal in theory, but disruptive in practice to the “parlor” of downtown Colorado Springs. However, Euclid validated the creation of zoning rules, not the ability to ignore them. The issue in One Vela is not whether the city can regulate height, but whether it has already done so. And it hasn’t—not in this zone.
If the city were to deny One Vela’s application, developers could also invoke Penn Central Transportation Co. v. New York City, which provides a framework for regulatory takings and unequal treatment of parcels. There, New York City enacted the Landmarks Preservation law to designate Grand Central Station a historical landmark, preventing the construction of a skyscraper building above the existing structure. The Court in Penn Central noted that a regulation may become unconstitutional when it imposes “unjustifiably unequal treatment on similarly situated properties.” To determine whether a state regulation constitutes a taking under the Fifth and Fourteenth Amendments, the court should consider the following: the economic impact of the regulation on the owner, the extent to which the regulation has interfered with the owner’s reasonable investment-backed expectations, and the character of the government action involved in the regulation. This test outlines that there must be more than a unilateral expectation on the part of the property owner, and favors broad laws that don’t single out an owner. The government here typically prevails.
Applying the Penn Central test to a hypothetical permit denial for One Vela, first we can see that preventing the construction of the high-rise would have a heavy economic impact on the developers. Preventing their use of the current space would additionally interfere with the developer’s reasonable investment-backed expectations of the years of planning, developing, contracting, and surveying that has been put in place to create a thorough plan that has gone through several rounds of appeals. Finally, the government action involved in a specific regulation targeting just One Vela would not grant the developers reciprocity of advantage, but rather One Vela is stuck with this regulation on their own, being singled out. Though the government typically prevails under Penn Central, here the balance is clearly in favor of the developers.
If other buildings downtown can rise without height limits, but One Vela is uniquely blocked, the developers may have a colorable spot zoning or equal protection claim. One Vela meets the law—and the law must be honored. Zoning codes are contracts between the city and its citizens. If they can be bypassed through political pressure, they lose their value as legal instruments and become tools of exclusion or favoritism (which some say is the central issue in Penn Central). From a property theory standpoint, the doctrine reflects a reliance interest: developers who invest time and money based on published rules should be able to expect those rules to apply. Denying them arbitrarily would destabilize markets and chill innovation. Still, this rule imposes constraints on local communities. If residents of Colorado Springs want to limit building heights in the future, they must amend the zoning code, not circumvent it. That process takes time, hearings, and political will—but it also reflects democratic legitimacy.
For developers, the lesson is clear: ensure full compliance with objective requirements, document everything, and prepare to defend your rights. For opponents, the most effective path is legislative, not judicial. If you want to stop the next One Vela, change the law—not the rules midstream. Despite the city population’s strong apprehension and desperate attempts to thwart the development of One Vela through appeals, its legacy will live strong as the new skyscraper in town, permanently changing the skyline of Olympic City.
Amanda Li is a law student at the American University Washington College of Law.
William Kessinger is a law student at the American University Washington College of Law.
Image: Map of Colorado Springs, Colorado.
