Friday, September 4, 2015
The matter of what attorney John Case contends is the city’s illegal taking of 11.5 acres of Hampden Heights North (Hentzell) Park is now in the hands of the Corardo Court of Appeals. Case has been fighting the legal battle pro bono for nearly three years.
Here are two reports from courtroom observers, plus the actual courtroom video. The video doesn’t actually start until 24 minutes into the “broadcast.” Use the slider to advance the time. A reporter for the daily publication attended the oral argument hearing Tuesday (9/1), but nothing had been printed by Thursday afternoon.
A citizens’ group on Tuesday brought a long-term solution before the Colorado Court of Appeals for a controversial land swap of Hampden Heights North Park land to Denver Public Schools. The group has argued the deal originated by the city of Denver without a vote of the people, in violation of the city charter.
“The elephant in the room is that the school district built the school with this case pending,” said John Case, pro bono attorney for the nonprofit Friends of Denver Parks. “This case may set a precedent for the city to do this over and over again.”
The school opened for the first time last week. Part of the group’s argument is that it was being built in the Cherry Creek floodplain.
Case asked the three-judge panel to reverse the decision and remand the case to the lower court. If the court agrees, once the useful life of the school ends, in 20 or 30 years, the land would revert back to open space. Denver Public Schools would in effect lease the property until that point.
City of Denver attorney David Broadwell said the group never proved that the land was operated as a park before 1955, the year designated in a 1996 law. It was operated as a park in the 1960s and later. He made a distinction between designated parks and non designated parks.
Case said the intent to use the land as park to connect parkland in Denver to the west dated back to 1936.
The court will announce its decision later.
Following the hearing, group spokesperson Renee Lewis feared that city park land would be in jeopardy should the group lose the case. Sixty percent of the park land in the city has been considered non-designated by the city of Denver.
John Case did a great job. He was articulate and forceful. He had the first say, and started with Section 2.4.5 of the city charter. If it was used as a park prior to 12-31-55, a park was a “common law” park even if it was never “designated” as a park. Then there’s the question of the meaning of “designate”, with an ordinary meaning of “denote” or “show”. The word is apparently not defined in the charter. Of course, this is important because park land can’t be sold without a vote of the people.
Then there’s a fascinating issue of “designate” versus “dedicate”. A street or alley can be “dedicated” by council resolution and doesn’t require an ordinance. Hentzell Park was not dedicated by ordinance, but was included in parks maps, and an expert witness testified that it was used as a park.
David Broadwell for the city argued that it’s only a park if it’s so identified in the deed, in the plat, or by ordinance and that mere use as a park is not enough. Judge Rothenberg asked him about the parks commission’s annual reports in which the city repeatedly listed it as a park. He responded that there was no evidence of pre-1955 use as a park.
Then Broadwell dived into the 2010 zoning ordinances, the 1983 OSA zoning for the park , the ripple effect if no OSA land could be sold, and finally his big point: THE SCHOOL HAS ALREADY BEEN BUILT AND IN FACT IS IN SESSION!
Case had the last word. He responded that in the McIntyre case, park land had been illegally sold. There, the parties worked out a settlement involving a long-term lease. Case also refuted the lack of pre-1955 park use, citing a December ’55 deed connecting the “park” to a highway.
That was a lot of talking in a half hour.
at 10:40 AM
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