Response From Maria Flora To CM. Kevin Flynn

On August 10 2020 some members of SOS Denver appeared at City Council during their open comment period.  Shortly after Maria Flora made her comment she received an email from CM Kevin Flynn regarding her comments. Email From Kevin Flynn

See below for the response from Maria Flora on behalf of Save Open Space Denver

 

VIA EMAIL ONLY

August 11, 2020

Councilman Flynn,

Thank you for your email. I am very pleased to have an opportunity to address the issues regarding interpretation of the perpetual open space conservation easement that protects the Park Hill Golf Course land (“the PHGC land conservation easement”) from development.

First of all, I think you would agree that the PHGC land conservation easement is not the best drafted legal document that we’ve ever seen. In fact, there are some internal inconsistencies that I will discuss below.

The starting point for analyzing the PHGC land conservation easement is the Colorado Conservation Easement Statute, C.R.S. §38-30.5-101 et seq. The conservation easement applicable to the PHGC land states explicitly that it was created pursuant to this Colorado statute. Although Clayton and its attorney Bruce James, during Clayton’s ownership of the land, and now Westside, have always wanted to try to diminish the legal effect of the conservation easement by calling it a “use agreement,” it is in fact a conservation easement created under and governed by this Colorado statute.
In relevant part, the statute defines a conservation easement as follows:

a right in the owner of the easement to prohibit or require a limitation upon…a land
area…appropriate to the retaining or maintaining of such land…predominantly in a natural, scenic or open condition, or for wildlife habitat…or recreational…or other use or condition consistent with the protection of open land, environmental quality or life-sustaining ecological diversity…. C.R.S. §38-30.5-101.

An interpretation of the PHGC land conservation easement must begin with an analysis of the conservation purposes that are consistent with this statutory definition of a conservation easement.  These overarching conservation purposes are “for the conservation of the [land] as open space” (paragraph 1) and “to maintain [the land’s] scenic and open condition and to preserve [the land] for recreational use” (paragraph 2). These conservation purposes are completely consistent with the statutory definition of a conservation easement and they are the legal essence of the PHGC land conservation easement.

Permitted uses of the land that are consistent with the conservation purposes are another matter. And, the PHGC land conservation easement contains some imprecise language about the permitted uses of the land. Paragraph 4(a) titled “Permitted Uses” states that the permitted uses are

a regulation 18-hole daily fee public golf course with such related uses and activities as may be accessory or incidental to the operation of a golf course, including but not limited to a driving range, golf learning center, club house, restaurant and bar, and such unrelated recreational uses such as ball fields, tennis courts, etc.

The internal inconsistencies and ambiguities regarding these permitted uses include that, on the one hand, the document allows these broad permitted uses but, on the other hand, the document seems to say that a permitted use must always be a regulation 18-hole golf course. Since the PHGC land is only 155 acres, a regulation 18-hole golf course is not compatible with “unrelated recreational uses such as ball fields, tennis courts, etc.” The ambiguities also include fleshing out the scope of the term “unrelated recreational uses such as ball fields, tennis courts, etc.” As a matter of legal interpretation, it is necessary to interpret a document in consideration of all its terms, including the term “unrelated recreational uses such as ball fields, tennis courts, etc.” But, as explained below, if Westside chooses not to operate a golf course on the PHGC land, the City and Westside can modify the permitted uses language to clear up any inconsistencies and ambiguities as long as the modifications are consistent with the conservation purposes of the easement.

Why are the conservation purposes of the PHGC land conservation easement important? First, and foremost, the conservation purposes explain how the easement complies with the statutory definition of a conservation easement, and the conservation purposes of the PHGC conservation easement identified above are entirely consistent with C.R.S. §38-30.5-101. Second, the conservation purposes of the PHGC land conservation easement are critical because the easement cannot be terminated, released, extinguished, or abandoned without compliance with the following “release—termination” provisions of the Colorado Conservation Easement Statute:

If it is determined that conditions on or surrounding a property encumbered by a conservation easement in gross change so that it becomes impossible to fulfill its conservation purposes that are defined in the deed of conservation easement, a court with jurisdiction may, at the joint request of both the owner of property encumbered by a conservation easement and the holder of the easement, terminate, release, extinguish, or abandon the conservation easement. [Emphasis added] C.R.S. §38-30.5-107

Therefore, the City and Westside cannot legally take any action that would be tantamount to defeating the conservation purposes of the PHGC conservation easement unless they convince a court that since July 10, 2019, when the easement was created, conditions on or surrounding the PHGC land have changed in a manner so that it has become impossible to fulfill the conservation purposes. We know of no such changes that arguably could permit a court to approve termination, release, extinguishment, or abandonment of the PHGC land conservation easement.

That said, if Westside chooses not to operate a golf course on the PHGC land, it and the City can modify and clarify the permitted uses of the PHGC land conservation easement as long as the modifications and clarifications are consistent with the conservation purposes of the easement. I will not discuss the propriety of Westside continuing to do nothing with the land, even as a golf course. Alternatively, consistent with the recent PRAB recommendations to the Department of Parks and Recreation, Westside can sell the land to the City for a designated park.

Finally, I would like to address the issue of transparency and the obfuscation by Westside and the City regarding how they intend to deal with the Colorado Conservation Easement Statute in connection with Westside’s development plans for the PHGC land. Since November 4, 2019, when the city and the city attorney issued the document identified as “Park Hill Golf Course FAQ,” representatives of Save Open Space Denver have repeatedly requested in writing that the mayor and the city attorney explain in detail what they meant when they wrote that “a clear legal path exists under the State Statute that would allow modifications to be made to the Conservation Easement.” If this merely means that permitted uses could be modified consistent with the conservation purposes, we entirely agree. However, we would hope and expect a broad community engagement process and conversation to discuss what those modified permitted uses might be. Otherwise, if the City, the city attorney, and Westside assert that there is a “clear legal path” for Westside to develop the land in compliance with the Colorado Conservation Easement Statute, Denver citizens and taxpayers are entitled to know exactly what that “clear legal path” is. We would appreciate your assistance with Westside, the mayor and the city attorney in our effort to secure this critical information.

Thank you for your continued interest in these issues. We hope that you will support referring the proposed conservation easement charter amendment to the voters for a November 3 vote so that Denver voters will have the right to decide whether a city-owned conservation easement might be cancelled and whether there can be residential or commercial construction on land protected by city-owned conservation easements. Let Denver vote!

{Typographical error corrected]

Maria Flora, on behalf of Save Open Space Denver

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