Best Lawyers: Land Use and Construction

One of the first things Carolynne White did as lawyer was attend a public meeting for a proposed real estate project in Summit County. A couple hundred people showed up to have their views about the development heard.

“I really was struck by: this is really the frontline of democracy. This is where the rubber hits the road in terms of the community, the private sector and the public sector together deciding what’s going to happen,” said White, a shareholder at Brownstein Hyatt Farber Schreck named by Best Lawyers as “Lawyer of the Year” for land use and zoning law in Denver.

White began her career in the public sector as a staff attorney at the Denver Water Board and later at the Colorado Municipal League before joining Brownstein 16 years ago. About three quarters of her clients at the firm are private developers and the rest are public entities trying to attract developers and investment for a project.

She still gets a thrill from seeing local decision making in action. When White spoke to Law Week last week, she was fresh off a hearing that stretched until midnight two nights in a row as community members came out to share their thoughts on a controversial affordable housing project that was ultimately approved. 

“Part of what struck me about that was all the people that came to testify about how meaningful it has been in their lives to have a safe and affordable place to live, and all the people who hoped to live there if it gets built,” White said.

“That’s the kind of project that makes you really feel good about your chosen profession.”

While most of her clients are local developers, she said Colorado has been attracting more out-of-state investment in recent years, especially in the Front Range and Denver. But there is also a “growing fatigue” among people who are concerned about the region’s growth and traffic, she said, adding that “almost every project has some controversy to it” these days.

These attitudes are starting to shape policy. One proposed 2020 ballot measure, the “Limits on Housing Growth Initiative,” would limit the proliferation of privately owned residential housing units. Voters in Lakewood passed a similar initiative to cap residential construction in a special election in July.

White expects a statewide growth-limiting measure, if approved, would drive out-of-state investors away and could even convince local developers to take their money elsewhere. 

Colorado’s strong local controls on land use keep lawyers in the field on their toes. Unlike in many states, where rules for land use are spelled out in state statutes, Colorado’s cities have the right to decide their own rules, for the most part, which makes practicing in the area “infinitely complex” and challenging, according to White.
Tangible progress

Driving past projects and seeing them take shape is among the things Otten Johnson Robinson Neff + Ragonetti shareholder Julie Gifford likes best about working in real estate law.

“For me, that tangible aspect just makes me feel I can see what my blood, sweat and tears went into,” said Gifford, who was recognized by Best Lawyers for the first time this year.

“I love working on things that are a part of my own community and seeing the impact on neighborhoods that I enjoy.”

Gifford works in the firm’s commercial real estate group and specializes in finance transactions, typically representing banks in acquisitions, construction loans, refinancing and other contracts for developments that range from multifamily housing and mixed-use buildings to office and industrial space.

When she entered law school, Gifford thought she was headed toward a career in environmental law, but she quickly decided it wasn’t the right fit. She enjoyed her classes on real property and set her sights on finding real estate work upon graduation. 

“I started focusing on law firms in Denver that had commercial real estate practices, and Otten Johnson just always came to the top of the list,” said Gifford, who started at the firm in 2001. 

Changes to laws in the past couple years have made it more difficult to sue developers and contractors for construction defects in condominium projects. Gifford said developers are making their way back into the market after a near-freeze in condominium construction. 

After years of a strong economy and a local real estate boom, many in the industry are wondering just how long the good times will last. 

“We’re hoping that things can continue to stay on [an upward] trajectory, but it seems inevitable that there will be another turnaround,” Gifford said. She added that another recession like the one a decade ago is unlikely and that people are “not too hyper-focused yet” on the possibility of a downturn.

Keeping pace with change

During the last recession, and for several years after, Holland & Hart partner Tim Gordon only heard from clients when things were going wrong.

“With the economy having picked up, I get to be part of the projects from the beginning,” said Gordon, who works in construction litigation and made this year’s list of Best Lawyers. 

Gordon started at Holland & Hart in 1999, when he was hired as the first associate in the firm’s new construction and real estate litigation team. He had previously worked under a partner who specialized in construction litigation at another firm. Holland & Hart’s construction law group works with clients on heavy infrastructure and commercial projects and sees them through from beginning to end, including financing, contracts and any disputes that arise.

One of the changes in the industry that has affected his practice has been the rise of public-private partnerships. 

“It’s still a new way of delivering a project, because it’s not purely private and it’s not purely public,” Gordon said. “And there are some difficulties and gaps, if you will, in the law in trying to adjust to that blended way of doing it.”

One of those gaps was filled this past legislative session with Senate Bill 183, signed by the governor in April, which specifies bonding requirements for private contractors working on public projects.

Another area where the law hasn’t always kept up with construction industry practices is in the use of technology. Gordon said new wearable technology for construction workers intended to improve safety could pose privacy concerns or other legal issues. 

The use of drones at construction sites has been another area where the law needs to catch up with technology, he said.In addition to the strong market in recent years, Gordon appreciates the collegiality within his field. “We have a good bar in Colorado. The construction lawyers in Colorado have all been very cordial, for the most part. It’s a good area to work in.”

— Jessica Folker

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