Even though a recently enacted zoning ordinance only applies to housing operated by Colorado Christian University, the state’s second-highest court last month concluded the city of Lakewood did not unconstitutionally discriminate against the school by forcing it to stop leasing to students in a residential neighborhood next to campus.

CCU sued the city over an April 2021 ordinance that created a new category of housing – “student living unit.” Under the new rule, housing units owned by a college or university and occupied by its students were not allowed anywhere but college or university-zoned areas. The consequence was that CCU – as the only university operating student housing in the city – received a cease-and-desist letter from the city for the six homes it leases to students.

In a Nov. 22 opinion, a three-judge panel for the Court of Appeals noted local governments typically have broad leeway to regulate health, safety and welfare through zoning ordinances. To that end, courts have long recognized “preserving neighborhood character” as a valid purpose for a zoning change.

“The city’s objective is to prevent the development of concentrated blocs of off-campus student housing in family residential areas,” wrote Judge John Daniel Dailey. “Thus, the Ordinance aims to prevent penetration of permanent student housing into neighborhoods that are not zoned for university use – thereby preserving their character and ensuring the neighborhoods do not turn into university residential life centers.”

He acknowledged that private landlords also rent to students and the new ordinance does not regulate their choices, but “university-owned student housing is, by definition, specifically designed to serve as student residential life.”

Case: Colorado Christian University v. Lakewood

Decided: November 22, 2023

Jurisdiction: Jefferson County

Ruling: 3-0

Judges: John Daniel Dailey (author)

Matthew D. Grove

Christina F. Gomez

CCU filed suit shortly after the ordinance went into effect, noting it owned six homes on S. Cody Court next to its campus. The school was “the only entity in Lakewood being targeted for enforcement,” it wrote, and the city allegedly violated its constitutional rights to equal protection and due process.

Nearby residents sought to intervene in the case, with one telling the court that CCU bought an entire block of housing, only to displace existing tenants and rent to students instead.

Last year, Jefferson County District Court Judge Russell B. Klein sided with the city. Lakewood’s move to “control population density” and to protect the “character and vitality of residential neighborhoods” was a valid purpose.

Moreover, private landlords were likelier than CCU to rent to non-students, or else they could choose to cease renting and live in the home themselves. CCU, as a university, “cannot occupy their units,” Klein observed.

“While the ordinance may only apply to CCU at this time, that does not mean that the number of colleges or universities within the city limits is fixed or incapable of future fluctuations,” he added.

CCU appealed Klein’s decision, arguing the zoning ordinance treated landlords differently based on their identity. University landlords could rent to everyone but their own students, whereas all other landlords had no prohibition on who they could rent to.

“The City cannot supply any reason – or any evidence – suggesting that universities are any more ‘likely’ to ‘overwhelm’ neighborhoods than are other landlords renting to students. The students are the same. They must live somewhere,” CCU’s lawyers wrote. 

The city defended its ability to prevent “congestion” and “over population.”

“Here, the basis is as follows: a university renting to its own students could buy up residential properties in a neighborhood, overwhelm said neighborhood, and as a result significantly change the character,” wrote lawyer Alex Dorotik. “A neighborhood that has a high percentage of students from the same university has a fundamentally different character.”

The Court of Appeals panel conceded it was “speculation” that private landlords near a university would be less likely to rent to students than CCU. But it was rational to believe private landlords’ leasing choices would threaten “neighborhood character” less, a justification that supported the ordinance’s constitutionality.

Lakewood’s ordinance also did not amount to unconstitutional “special legislation,” which would effectively apply to a single entity.

Even if CCU was the only university currently affected by the ordinance, “we cannot say that the Ordinance, as written, could only ever apply to CCU, and not another institution,” Dailey wrote.

Attorneys for the university did not immediately respond to a request for comment.

The case is Colorado Christian University v. City of Lakewood.