Sunday, July 14, 2013
by Paul Kashmann
With an April Fool’s Day vote that parks advocates only wish was a prank, Denver City Council approved a deal to hand Denver Public Schools a wad of cash, along with 9 acres of southeast Denver parkland in the Hentzell Open Space (Hampden Heights Natural Area) on which to build a much needed elementary school. In exchange, the City and County of Denver gets a DPS office building at 1330 Fox St., where Mayor Hancock wants to house a domestic violence resource center.
A school for our sweet little children. A safe place in which to help heal the horrific damage wrought by domestic violence. Both worthy purposes to be sure. I wholeheartedly support both projects. In theory.
But should this particular bit of civic parcel shuffling have ever been consummated?
A contingent of parks advocates has objected to the swap both on principle and as a matter of law. The principle being violated is the notion that in a landlocked urban environment, where green space is at a premium, it is bad public policy to decommission parkland for any reason. Once it goes away, you can’t just push out the boundaries and create more. The legal issue revolves around a city charter provision declaring that before the city takes such action – selling off parkland – an affirmative vote of the public is required.
The city and DPS skirted the charter on an administrative technicality they believe justifies bypassing a public vote. While the parkland in question is “designated” as park land, has been used as such for decades, is indicated on signs as parkland and is managed by the Department of Parks and Recreation, because of a DPR oversight the Hentzell Open Space (along with dozens of other park parcels, including Ruby Hill Park among the most notable) has not gone through a formal administrative step to have it “dedicated” as parkland. This is a failure of DPR to complete its assigned duties.
The decommissioning of park property not formally dedicated can be carried out on the authority of the Manager of Parks and Recreation. So say the parties to the agreement.
Attorney John Case, representing Friends of Denver Parks filed suit a couple of months back, disagreeing with the city interpretation, opining instead that section 2.4.5 of the Denver City Charter allows parkland acquired before 1955 – which includes the Hentzell Open Space – to be dedicated as parkland without a specific administrative declaration as such.
Case’s point seems well taken. Section 2.4.5 states: “Without the approval of a majority of those registered electors voting in an election held by the City and County of Denver, no park or portion of any park belonging to the City as of December 31, 1955, shall be sold or leased.”
Further, the Denver Municipal Code would appear to categorize the land in question clearly as parkland. Sec. 39-191 (2) defines City parkland as follows: “City parkland. Any parks, parkways, mountain parks and other recreational facilities, as well as other land, waterways and water bodies, owned, operated or controlled by the Department of Parks and Recreation.”
I’m looking for ambivalence, but I’m not finding it.
With those passages apparently indicating the law on their side, parks supporters were disappointed, if not stunned, on June 28 when District Judge Herbert L. Stern told Friends of Denver Parks that “Case law cannot get me where you would like me to be,” and declined to issue an injunction halting the land swap, which was to be completed two days later.
Friends of Denver Parks are not throwing in the towel yet. In addition to requesting through attorney Case that the matter be sent back before a jury for its consideration, parks activists are gathering signatures in an attempt to put a question on the November ballot.
Once again, the matter enters into murky gray waters here. Denver Clerk and Recorder Debra Johnson ruled last spring that such a petition is invalid under city law because City Council administrative acts cannot be undone by petition. Case, however, argues that Council acted in a legislative manner in approving the land swap, and that would be subject to recall.
I must admit, I have to side with those that would send this matter to a vote of the people. Should a technicality of this sort throw a public policy decision into question – though I must admit, I don’t see it as particularly questionable – I would always hope a governing body that finds its ultimate authority in a document calling for government “of the people, BY the people and for the people,” would lean toward the more inclusive solution.
And, I need to say that I am fairly well convinced that Councilwoman Lehmann’s District 4 is sorely in need of additional seats to support the growing bodies of young students. And I heartily applaud Mayor Hancock for his thoughtful commitment to addressing the issue of domestic violence.
And, with all due respect to those of you who are fearful of a never-ending nibble at our civic green space, I’m not particularly panicked over the thought of giving up a few acres for a worthy purpose.
But what chills me to the bone is the type of sidestep I see taking place right before my eyes, and before the eyes of my fellow citizens.
The charter tells those who would administer our parks that they shall not sell them without the matter going before the public for their approval or lack thereof. The failure of DPR, which has suffered through notable periods of shamefully weak management in recent decades, to adequately execute its duties and complete the designation process for acre upon acre of parkland, does not provide reason to bestow upon that same department the ability to hand that parkland away, regardless of reason.
Don’t tell me the doors to City Hall are wide open, and then slam them in my face when I carry a message you’d rather not hear. As I sit here today, I’m not really sure which way I’ll vote should the matter go to ballot. But I am sure I deserve the chance to weigh in.
I hope you had a great 4th of July, celebrating the occasion of victory over tyranny.
Check our website for updates and articles www.friendsofdenverparks.org
Check our website for updates and articles www.friendsofdenverparks.org
at 7:42 AM
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