The fight over whether apartments should be allowed near the end of Garden of the Gods Road is headed to the state Court of Appeals, in what could be a precedent-setting case. 

The Colorado Springs City Council refused to rezone property at 2424 Garden of the Gods Road last fall, blocking the construction of 420 apartments on underused parking lots. In that vote, the council sided with neighbors who argued the new residents could slow an evacuation during a wildfire, among many other concerns. Some opposed to the apartments lived through the slow evacuation from Mountain Shadows during the Waldo Canyon fire that burned 346 homes in 2012. 

Judge rules on Colorado Springs City Council rejecting Garden of the Gods apartment project

In May, District Court Judge David Prince ruled the city was within its right to deny a rezone because emergency evacuation considerations fall within the general rubric of public health and safety that the council uses to weigh a project. 

Attorney Steve Mulliken, representing the developers, plans to argue Prince was incorrect and the city should not have considered evacuation planning in its decision because the city did not have criteria for evaluating new housing or subdivisions using evacuation metrics and has not created any since the council blocked the new apartments. 

“To apply it to this development, contrary to what they have done in other developments, is just not right,” Mulliken said. 

The Colorado State Fire Chiefs, an industry association, and Mulliken were not aware of any similar cases at the state level that have weighed wildfire concerns against a housing project in the state. 

Controversial Colorado Springs apartment project on Garden of the Gods Road denied, a win for protesters

However, several similar cases in California are playing out. In one case, a judge blocked a project that included 1,100 homes in San Diego County, saying, in part, wildfire risks were not properly disclosed.

Notice of appeal.pdf

California Attorney General Rob Bonta has stood with those with wildfire concerns, according to an Associated Press report last week. 

“You can’t keep doing things the way we’ve been doing when the world is changing around us,” Bonta told the AP.

Colorado saw its most destructive fire start on Dec. 30 last year, when the Marshall fire burned more than 1,000 homes.  

Mulliken said the Colorado Springs case could guide how other municipalities weigh housing projects and wildfire concerns in Colorado and show that rules should be laid out ahead of time in code.

“I think it will be a wake up call for jurisdictions,” he said. 

Macnak 2021CV31499_21_2022-07-11_2022CA1145_Advisement_of_Filing_Notice_of_Appeal_1483688880917753320.pdf

Westside Watch advocate Bill Wysong said he hoped the state Court of Appeals ruling would uphold the City Council’s ability to consider wildfire safety. 

“It could put a pall over this whole free reign that developers have,” he said. 

President of the State Fire Chiefs David DelVecchio said he does see room for local governments to require certain requirements on new building, such as an additional route out of a neighborhood. But he wouldn’t want to see entire projects blocked. 

“There has got to be some common ground between the government and the builders and residents in some of these areas,” he said.