Real Estate, Land Use, and Zoning Litigation

The Kaplan Kirsch team regularly represents public and private parties in administrative proceedings and litigation regarding zoning, comprehensive planning and other land use issues. Complex land use issues frequently include an additional challenge: they are often high profile, publicly controversial subjects.

We regularly represent clients before planning boards, city councils and other decision-making bodies, where we develop cases that address the political and policy needs of persuasion and the need to develop a strong record for any future challenges. When our clients find themselves the subject of judicial action, we use our extensive knowledge of land use litigation to maximize the chances of success.

Our lawyers serve on (or have served on) planning and other boards in cities where they live. They have participated in hundreds of quasi-judicial land use matters, drafted and negotiated zoning ordinances, developed and approved comprehensive and area plans, and heard zoning appeals and requests for variances. Our experience as deciding officials, proponents and opponents in land use matters enables us to provide the best counsel, strategy, and advocacy.

Representative Experience

Access Easement & Implied Rights: Represented Forney Transportation Museum at the Colorado Court of Appeals regarding the scope of an access easement and implied rights relating to Museum’s use of property in Denver, Colorado. Forney Museum of Transportation v. 4301 Brighton LLC, No. 2022CA745 (Colo. App.)

Land Use: Represented Douglas County, Colorado, in defense of land use regulations. Colo. Dep’t of Transp. v. Board of Comm’rs of Douglas County, 2008 WL 1903523 (Colo. App. 2008)

Abandoned Mining Claims: Represented a local Land Trust and other amici curiae in defense of Pitkin County open space parcels created on abandoned mining claims. Board of Comm’rs of Pitkin County v. Timroth, 87 P.3d 102 (Colo. 2004)

Construction Injunction: Obtained an injunction against construction of a HDTV tower and remand to County Commission. City of Golden v. Jefferson County, Case No. 03CV3045 (D. Colo. 2004)

Ballot Measure Challenge: Challenged Denver Election Commission’s approval of a measure to repeal a local land use ordinance and obtained an injunction against placement of the measure on the ballot. Olson v. Denver, No. 03CA1896 (Colo. App. 2004)

City of Burbank: Represented the City of Burbank in prosecuting a challenge to a citizen-sponsored initiative on airport development City of Burbank v. Burbank-Glendale-Pasadena Airport Auth., 113 Cal. App. 4th 465 (Cal. Ct. App. 2003). Also represented the City of Burbank in defense of its authority under state law to review the acquisition of property for airport expansion. City of Burbank v. Burbank-Glendale-Pasadena Airport Auth., 72 Cal. App. 4th 366 (Cal. Ct. App. 1999)

Rezoning Department of Defense property: The firm represented the Lowry Redevelopment Authority in the successful 2015 rezoning of former Department of Defense property to create vibrant mixed uses, despite challenges from certain neighborhood groups.

New School Construction in Denver: Represented a school in Denver, Colorado, before the Denver Board of Adjustment in 2015 to successfully secure variances from Denver Zoning Code provisions for new school construction.

The firm has represented a variety of cities on issues that have included:

  • Represented a coalition of local governments in a challenge to land use approval for a new runway project in Des Moines. City of Des Moines v. Puget Sound Regional Council, 988 P.2d 27 (Wash. Ct. App. 1999)
  • Represented the City of Brook Park in defense of zoning regulations controlling airport expansion. City of Cleveland, Ohio v. City of Brook Park, Ohio, 893 F.Supp. 742 (N.D. Ohio 1995):
  • Represented Texas municipalities in a challenge to zoning applicable to airports. City of Irving v. Dallas/Fort Worth Int’l Airport Bd., 894 S.W.2d 456 (Tex. App. 1995):
  • Represented a citizens’ group in successful defense of Eagle County’s denial of land use permit against regulatory takings and preemption claims. City of Colorado Springs v. Board of County Comm’rs of County of Eagle, 895 P.2d 1105 (Colo. App. 1994), cert. denied, 116 S.Ct. 564 (1995):
  • Represented Texas municipalities in a challenge to zoning for an airport project. Dallas/Fort Worth Int’l Airport Bd. v. City of Irving, Tex., 854 S.W.2d 161 (Tex. App. 1993):
  • Filed an amicus brief on behalf of a county seeking to regulate a landfill by imposing composting requirement. Waste Systems Corp. v. County of Martin, Minn., 985 F.2d 1381 (8th Cir. 1993):
  • Represented landowners in a challenge to a county-wide downzoning ordinance. County of Fairfax v. Fleet Industrial Park, Ltd., 410 S.E.2d 669 (Va. 1991)
  • Developed, defended and assisted in the issuance of permits for areas and activities of statewide interest regulations in Pitkin County; Douglas County; Golden, Colorado; and other communities.
  • Represented the City of Golden in litigation challenging use permits for high-definition television towers that resulted in multiple remands to the Board of County Commissioners.

The firm has also:

  • Drafted zoning code amendments for transformative projects such as Denver Union Station.
  • Served on various boards and committees, including the Lowry Redevelopment Authority, Boulder Planning Board and committees developing the Denver form-based code and comprehensive plans.
  • Served as expert witnesses in litigation and arbitration proceedings involving land use entitlement issues.

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