The starting point for analyzing the Park Hill Golf Course (“PHGC”) land conservation easement is the Colorado Conservation Easement Statute, C.R.S. §38-30.5-101 et seq. The conservation easement states explicitly that it was created pursuant to this Colorado statute. Although Clayton Early Learning and its attorney Bruce James, during Clayton’s ownership of the land, and now Westside Investment Partners, Inc. 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.
Tash Mitchell speaks at a Denver City Council Listening Session 08-22-20.
This bill if approved will provide an amendment to the Charter of the City and County of Denver to prohibit the following without the approval of voters in a regularly scheduled municipal or special election: any commercial or residential development on land protected by a City-owned conservation easement except where consistent with the conservation easement purposes and any partial or complete cancellation of a City-owned conservation easement unless for the purpose of creating a new park.
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
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.
Greater Park Hill Community Newsletter June 1 2020
From the Greater Park Hill Community Newsletter
Two Critical Words
As a lifelong Park Hill resident, a Greater Park Hill Community board member and an active member of Save Open Space Denver, I’m writing in response to Kenneth Ho’s guest opinion piece in the May edition regarding land speculator and real estate developer Westside Investment Partners’ development plans for the Park Hill Golf Course land. Mr. Ho is one of Westside’s owners and Westside’s point person trying to convince our community that Westside should be able to build a mini-city on the invaluable 155-acre open space.
Glaringly, Mr. Ho failed to use the two critical words – “conservation easement” – anywhere in his opinion piece. Mr. Ho, Westside, and the Hancock administration want to pretend that there are no legal impediments to their development plans.
Here are the undisputable facts: In 1997, Denver taxpayers paid $2 million for the perpetual open space conservation easement that forever protects the Park Hill Golf Course land from being developed. The “conservation purposes” of the conservation easement are to conserve the land “as open space” and “to maintain [the land’s] scenic and open condition and to preserve [the land] for recreational use.”
The Conservation Easement Granted July 11, 2019 by the George W. Clayton Trust to the City of Denver
I. What Is the Language of the Conservation Easement Covering the Park Hill Golf Course Land?
a. The “Conservation Easement” granted July 11, 2019 by the George W. Clayton Trust to the City of Denver and recorded at Reception No. 2019090259 (“the 2019 Conservation Easement”) is clearly labeled “Conservation Easement” in the heading. The 2019 Conservation Easement preserves the entire 155 acres of the Park Hill Golf Course land (“PHGC Land”) as open space.
b. The fourth Whereas Clause of the 2019 Conservation Easement states that that Denver “desires to acquire a conservation easement” and that the conservation easement is granted “pursuant to Title 38, Article 30.5 of the Colorado Revised Statutes”, commonly referred to as the Colorado Conservation Easement Statute (the “Act”). The Act provides the statutory rules governing all Colorado “conservation easements in gross.” See C.R.S § 38-30.5-101.
c. Paragraph 2 (Grant of Easement) of the 2019 Conservation Easement grants to the City “a perpetual, non-exclusive conservation easement in gross.”
As you surely know, Save Open Space Denver is comprised of the residents of Northeast Park Hill, North Park Hill, South Park Hill, as well as concerned residents of many other Denver neighborhoods. Our members range in age from their twenties through their eighties, and every age in between. We are all of diverse backgrounds and cultures, reflecting the diversity for which Greater Park Hill is renowned. Many work hard at their jobs, some are retired; all have families, and love our community, just as you do. There is not a single paid member. We are all volunteers dedicated to our unified purpose of preserving the last large urban open space with mature trees left in Denver, fortuitously located in the section of Denver with the greatest need for it. The reason the conservation easement protecting the Park Hill Golf Course land was created was to preserve this jewel, in whole, so that it wouldn’t continue to be broken up into small pieces until nothing remained.
Westside Investment Partners (note: they are investors first and foremost — they hire the developers, urban planners, lobbyists and public relations consultants as needed — many of whom perhaps have been in touch with you already) has one goal — to remove all obstacles to turning their $24 million plus investment into a profitable income stream for their investors. That is fine — that’s what commerce is all about. However, their interests do not always align with the best interests of the city or more critically, the community. This is one such case. We understand and completely agree that there is a critical need for mixed income, workforce and affordable housing in Northeast Park Hill and other amenities desired by the community. And had Westside chosen to spend $24 million buying up some of the many available vacant or underutilized industrial properties on either side of Colorado Boulevard, including in Skyland, Clayton, or Northeast Park Hill, we would have applauded their vision and commitment to improving the quality of life in our community. But no, they chose the one health-giving open space that has been the jewel of Park Hill for 90 years — the most obvious candidate for becoming a welcome addition to our parks system — targeting it to come under the blade of a bulldozer.
Save Open Space Denver is not anti-development. We are pro-smart development. Green field development will necessitate outlandishly expensive infrastructure spending, paid for entirely by the future property buyers. Since this cost is buried into future property taxes from Metro Tax Districts (controlled by the developer, not the city) rather than being reflected in the selling price of the residences, buyers are lured into purchasing homes that might at first blush appear to be a bit of a stretch, but doable (if you consider $550,000 starting prices affordable), but in reality may strain the finances of all but the upper middle class or wealthier clientele. That is the formula for gentrification. Meeting the need for truly affordable, mixed use and workforce housing would be better served if they were built on properties that already provide much of the infrastructure otherwise missing from open space — roads, sidewalks, water, sewer, power, etc. This is available just a few blocks away from the 40th and Colorado Blvd. commuter rail station, leaving in place the conservation easement and Park Hill Golf Course land unmolested — to some day become the public park for which it is ideally suited.
Save Open Space Denver strenuously opposes the apparent plan of the Community Planning and Development Department to initiate a small area planning process for the Park Hill Golf Course land. The land is protected by the perpetual open space conservation easement that cannot be terminated without a court order determining that based on changes on or surrounding the land since July 11, 2019 it is impossible to fulfill the conservation purposes of the easement. These conservation purposes are to maintain the land “predominantly in a natural, scenic, or open condition…or for…recreational…or other use or condition consistent with the protection of open land, environmental quality or life-sustaining ecological diversity.” As long as the conservation easement is in place, it is a waste of city and citizen resources for CPD to do a small area planning process for the land.
Furthermore, if CPD does in the future initiate some kind of planning process for land that includes the Park Hill Golf Course land, the planning area would properly need to be a significantly larger geographic area east and west of the protected Park Hill Golf Course land likely centered on the 40th and Colorado Blvd. commuter rail station. Such a planning area would allow the city and the involved neighborhoods to address the full range of community needs and desires and identify the appropriate places for residential and commercial development.
Finally, the residents of Denver do not owe a land speculation company any special favors in order to break a covenant made 23 years ago just so the speculator can recover from bad judgment or hubris in picking a controversial location to construct its next investment property.