Subdividing land in Denver: I say 'simple,' you say 'not so'

The Colorado legislature has assigned responsibility for the regulation of the subdivision of land into less than thirty-five acre parcels to the counties and home rule cities. See C.R.S. § 30-28-101 et seq. Generally, anytime a parcel of land is subdivided into one or more parcels, any one of which contains less than thirty-five acres, the subdivision must go through a county/city approval process. Under C.R.S. §30-28-110(4) (commonly referred to as “SB35”), it is a misdemeanor to sell improperly subdivided land.

Most cities and counties have formal procedures for subdividing land. For example, in Jefferson County, the process to subdivide land into one or more parcels of less than thirty-five acres begins with a recommended pre-application review consisting of a pre-application submittal, staff review, pre-application meeting, and the pre-application review response. A case manager helps guide the applicant through the process and upon completion, the applicant receives a summary of the case manager’s findings and a recommended course of action for the formal application process. The formal application process consists of a sufficiency review by staff, and two public hearings - one before the Planning Commission which culminates in a non-binding advisory vote, and a second before the Board of County Commissioners which culminates in a final vote to approve or deny. At the end of this process, the successful applicant has legally subdivided parcels.

In contrast, in the City and County of Denver, a property owner need do nothing more than record a deed in order to subdivide property into whatever size or whatever configuration the property owner desires. It has been said (though not by the authors) that the City and County of Denver ‘has never seen an illegal subdivision...only an improvident one.’ Whether or not that is true, the City and County of Denver does not have the same formal subdivision procedures as other cities and counties in Colorado.

The Denver Assessor maintains a map of all of the “lots,” called “assessor’s parcels,” situated within the City. Although Denver has an official “Assessor’s Parcel Reconfiguration” process, it is only occasionally used. Instead, property owners desiring to subdivide (or combine) their properties need only record deeds with the new legal descriptions, and the Assessor will automatically update the assessor’s map to reflect the new boundaries, configurations and ownerships, and assign new parcel numbers to the resulting “lots.”

Denver also maintains a system of “zone lots,” typically containing multiple assessor’s parcels, but governed by a single category of zoning. Modifying a zone lot requires an administrative amendment process. According to Michael O’Flaherty, the Zoning Administrator for the City and County of Denver, “a major issue is, people are not aware of the difference between a parcel change and a zone lot amendment.” In order to obtain a zone lot amendment, an applicant must provide two surveys showing the existing and proposed zone lot legal descriptions, and an application form signed by all of the owners of assessor’s parcels within the zone lot in issue. Zoning department staff then reviews the application to determine if the amendment would result in any non-conformities with the current zoning code. Once any non-conformities are resolved, the application is approved. Notably, Denver’s process does not involve the types of public hearings required by almost every other city and county in the state.

Although this process seems simple, there are inherent dangers. Set back requirements do not generally apply to assessor’s parcels, but they do apply to zone lot lines. Additionally, you cannot build across a zone lot line. Accordingly, if the zone lot being amended does not contain structures, the process is relatively simple. However, when dealing with developed parcels, the location of improvements within the zone lot can be problematic. As Michael O’Flaherty stated, “every situation is different” and people sometimes realize too late in the process that they “need to tear down the existing structure” in order to obtain approval of the zone lot amendment. Additionally, having multiple, separately-owned assessor parcels within the same zone lot can create major issues for land developers, because Section (F) of the Denver Zoning Code requires that all owners of assessor’s parcels within an existing zone lot must agree in writing to any amendment to the zone lot or the uses permitted therein.

As illustrated above, while subdividing land in Denver is simple and automatic at the assessor’s parcel level, it can be problematic and challenging at the zone lot level. From a land developer’s perspective, consolidating an assemblage within a single zone lot and employing the services of experienced counsel to navigate the zone lot amendment process as a condition to closing are essential.

Originally published in the Colorado Real Estate Journal.