The Englewood City Council, seen in background, voted 4-3 on Sept. 25 to approve the controversial CodeNext zoning overhaul as members of the public held up signs calling for the recall of three CodeNext supporters. Credit: Photo by Elisabeth Slay

The controversial CodeNext zoning overhaul is on its way to being law in Englewood after the city council approved it on second reading Sept. 25.

The 4-3 vote means the update to the Unified Development Code will take effect 30 days after publication.

Major changes include allowing owners to build an accessory dwelling unit, or ADU, in R1A and R1B zoning for the first time (as already allowed in R1C); allowing up to three ADUs, provided two are attached to the main dwelling unit, in R2B, MUR3A, MUR3B, MUR3C, and R2A corner and end-grain lots; not requiring off-street parking for ADUs; no owner occupancy requirement for ADUs; and a change in the definition of a household to as many as four unrelated adults and their dependents.

The final vote was made eight days before the Oct. 3 recall election, which targets three of the councilmembers who have supported CodeNext: District 1 Councilmember and Mayor Othoniel Sierra, District 2 Councilmember Chelsea Nunnenkamp and District 3 Councilmember Joe Anderson.

The fourth vote in favor was cast by recently appointed At-Large Councilmember PJ Kolnik, who was chosen to replace Cheryl Wink after her abrupt resignation on the same day her recall election date was to be set.

Voting against CodeNext were At-Large Councilmembers Rita Russell and Jim Woodward and District 4 Councilmember Steven Ward.

Before the final vote, Russell attempted to make a motion to send the code back to the Planning and Zoning Commission on the grounds that the council had made amendments to the draft approved by the commission.

“In reading the charter, in Planning and Zoning’s description it is very clear that any amendments to land use policy needs to go back to Planning and Zoning, and I am imploring this council to make sure that we send this back,” Russell said. 

The motion failed as no other councilmember seconded the motion despite pleas from the audience.

“Seeing there is no second, this council is violating the charter. It is very obvious that this whole scam was pushed forward to impact the developers in this city,” Russell said. “We have eliminated all of the checks and balances on this. This council will bear the responsibility of disobeying the charter.” 

In response, Ward, who like Russell has voted against the ordinance three times, explained a principle of law called “ridiculous result.” 

“Basically what the principle of law called ridiculous result says is that if a law is written in such a way that it results in a ridiculous result it can’t be enforced,” Ward said. “So if Member Russell’s interpretation of the P&Z Commission’s role is correct, and I don’t see that it is, it would result in a ridiculous result. Because we would send our modifications back to P&Z, they would approve or disapprove of them and then they would send them back to us in the form that they desired, which is the form they sent them to us in the first place.”

Additionally, Ward said the process of reviewing, modifying and voting on CodeNext does comply with the charter.

“This entire package has already been reviewed by P&Z. They have made their recommendations to the council. Council has modified those recommendations and we’ve conducted the first vote,” Ward said. “My opinion is this process complies with the charter.”

District 4 Councilmember Steve Ward speaks about the “ridiculous result” legal concept as he argues against a claim by At-Large Councilmember Rita Russell, in background, that the amended version of CodeNext needed to go back to the Englewood Planning & Zoning Commission. Ward and Russell both voted against CodeNext. Credit: Photo by Elisabeth Slay

The council reapproved the first reading of the changes to the Unified Development Code, which passed in a 4-3 vote, on Sept. 18.

The agenda item, which was originally approved on Sept. 11, was reexamined to adjust six amendments the council made to the ordinance that conflicted with the city’s charter. 

The CodeNext first reading was originally on the agenda for Sept. 5, but the meeting was canceled after the city’s two-year-old, $295,000 audio-video system malfunctioned, leaving the audio dead for citizens trying to follow the meeting on livestream.

Due to the technical issues, the first reading was then rescheduled to a special meeting on Sept. 11, where the version of CodeNext that had been approved in July by P&Z was subjected to several attempts at amendments by members of city council. 

The discussion and votes ran past midnight at the Sept. 11 meeting and into the wee hours of Sept. 12, but at the end of that meeting, it appeared the first reading of CodeNext was wrapped up and narrowly approved.

The Oct. 3 recall election was initially and largely driven by controversy over the CodeNext proposals for greater housing density, which originally included a now-shelved idea to allow multifamily dwellings in single-family zoning.

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