By Sara Flemming Westword Jan 8 2020
There has been no shortage of strong opinions on what should happen to the historic 155-acre land that was once Park Hill Golf Course after Westside Investments bought the property in a controversial sale last July. Some residents have been vocal about their desire for the entirety of the land to remain open space. Others want to see affordable housing or a grocery store.
The uncertain future of the land has stirred tension in the historic neighborhood, and Westside and the city have long promised a public community planning process before any big moves. The city’s Community Planning and Development (CPD) department now confirms that it will kick off a formal “small area planning” process for the property some time in 2020 — despite an active conservation easement that prevents the land from becoming anything but a golf course, much less being developed.
“We need to engage the community and have a conversation about what we want to happen,” says Sarah Showalter, the city’s interim planning manager.
The city will facilitate a series of public meetings led by selected community members who reside, work or are otherwise involved in the neighborhoods surrounding the golf course. They will discuss their preferences on issues such as land use, transportation, density, design, parks and other aspects of urban planning. Within about a year after the process starts, CPD will produce a lengthy document that will outline a vision for the golf course, ideally based on a consensus reached by those involved.
Laura Swartz, CPD’s communications director, clarifies that the small area planning process will be separate from Westside’s efforts to remove or modify the conservation easement, which will require approval from Denver City Council, and possibly approval by a judge. Open-space advocates sent a letter to city council and the mayor in October, citing an attorney who wrote that because of a 2019 state statute change she helped draft, removing any conservation easement requires a judge’s declaration that the easement’s original conservation purpose has become impossible to fulfill. The city says it believes there is a clear legal path to removing the easement, though the Denver City Attorney’s Office has not elaborated on what that will entail. If Westside cannot remove the conservation easement, it may be liable to restore the property to a golf course at its own expense.
By Sara Flemming Westword 12-26-19
For the past few months, most of the Westword headlines that have to do with the Park Hill neighborhood in northeast Denver have centered on a certain 155-acre stretch of land and a seemingly endless trove of historical and legal questions about it. The battle over the future of Park Hill Golf Course heated up when developer Westside Investments bought it in July, and it’s not likely to settle down for years. Westside is trying to figure out a legal route to remove a conservation easement that currently prohibits development, to the chagrin of a group of residents who would rather see the land remain open space.
But the future of the now-defunct golf course is not the only question facing this historic Denver neighborhood. Park Hill (which is really three statistical neighborhoods as defined by the U.S. Census: northeast, north and south Park Hill) is experiencing rapid gentrification and displacement, especially impacting African-Americans. The debate over the golf course has brought out tensions over what it means for the community to have a voice in its future.
James Roy II is the executive director of the Park Hill Collective Impact, an organization that aims to help children in the neighborhood thrive. Roy helped organize a community meeting on Monday, December 9, at the Hope Center to discuss how to engage Park Hill residents who may not have their voices heard. “There’s obviously some strong opinions being expressed on open space. I think that’s valid,” he says. But, he continues, “there should be an effort to really understand what the community that has been most marginalized and is closest to the golf course would actually think.”
The golf course sits squarely in northeast Park Hill, the historically black part of the neighborhood. So far, Save Open Space (SOS) Denver has been the loudest grassroots group taking a side on the course, opposing any development on the land. But many of its members are not from the immediately proximate neighborhood, leading some northeast Park Hill community leaders to distrust SOS. Imam Abdur-Ahim Ali is the director of the Northeast Denver Islamic Center, a mosque just a block south of the golf course. “For [SOS Denver] to be where they are and to have this much concern kind of raises your eyebrows,” he says.
Park Hill has long presented itself as a beacon of racial harmony — a diverse, integrated and accepting neighborhood, touted as an example for the nation. Martin Luther King Jr. even visited the neighborhood to speak at Montview Boulevard Presbyterian Church in January 1964. Through the community organization Park Hill Action Committee, residents fought “blockbusting” practices (in which real estate developers sought to profit off of “white flight”), seeking instead to become an integrated neighborhood. But Park Hill’s integration was not equal throughout. The southern part of the neighborhood has always been whiter and wealthier than the rest.
Northeast Park Hill, meanwhile, was for decades a middle-class majority-black neighborhood with a strong community, where children would play on the sloping lawns and black-owned businesses thrived. Constance Ross’s family was one of many black families that began moving farther east in Denver during the ’60s and ’70s after redlining became illegal. The family ended up in northeast Park Hill, in a house across from the golf course. “My brother used to steal over there during the night, jump over the fence, collect all the abandoned golf balls and have them in a bucket, bring them back over, wash all them, polish ’em up, go over there to the parking lot and sell them to the golfers,” she remembers. The northeast Park Hill neighborhood became a primarily middle-class black one, and a great place to live, she says.
Jonathan McMillan also grew up in northeast Park Hill, during the ’70s and ’80s. He remembers walking to friends’ houses just blocks away, going to the recreation centers and the strip malls to play games. “The neighborhood was so close-knit, if you didn’t know somebody, you knew someone who did,” he says.
The following document supplements the document submitted to Mayor Hancock and City Council members with the Save Open Space Denver letter dated November 11, 2019. This version of the document slightly modifies Section VIII by adding the additional requirement that the Park Hill Neighborhood Plan would need to be amended prior to any possible commercial or residential development occurring on the Park Hill Golf Course land
Response to Material Points Asserted in the Following City Documents: (1) “GOLF COURSE USE RESTRICTIONS; Conservation Easement on the Park Hill Golf Course; October 1, 2019” (“Use Restriction Memorandum”) and (2) “PARK HILL GOLF COURSE FAQ; Updated and Revised November 4, 2019” (“PHGC FAQ”)
November 11, 2019 [as modified November 25, 2019]
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.”
II. What Is a Conservation Easement?
a. In its Use Restriction Memorandum and PHGC FAQ, the City frequently refers to the 2019 Conservation Easement merely as “use restrictions.” In fact, the 2019 Conservation Easement is a statutory conservation easement in gross defined in the Act as follows in relevant part:
[A] right in the owner of the easement to prohibit or require limitation upon…a land…area…owned by the grantor appropriate to the retaining or maintaining of such land…predominantly in a natural, scenic, or open condition, or for wildlife habitat, or for…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- 102 [emphasis added]
b. A conservation easement is a real property interest. C.R.S. § 38-30.5-103 (2).
c. The duration of a conservation easement is perpetual unless otherwise stated in the creating document. C.R.S. § 38-30.5-103 (3).
d. A conservation easement is intended to convey a public benefit to the community at large by preserving valuable open space by only allowing uses compatible with the “conservation purposes.”
III. What Are the Requirements for Terminating the 2019 Conservation Easement Under the Act?
a. As amended effective June 30, 2019 by HB 19-1264, conservation easements can only be terminated, released, extinguished or abandoned in accordance with the following provisions of C.R.S. § 38-30.5-107:
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 the property encumbered by a conservation easement and the holder of the conservation easement, terminate, release, extinguish, or abandon the conservation easement. [emphasis added]
b. As applied specifically to the 2019 Conservation Easement, a court would need to determine that “conditions on or surrounding” the PHGC Land have changed since July 11, 2019 when the conservation easement was created so that it has become “impossible to fulfill” the “conservation purposes” that are defined in the deed of conservation easement.
IV. What Are the “Conservation Purposes” of the 2019 Conservation Easement?
a. The City takes the narrow view that the “conservation purposes” of the 2019 Conservation Easement are limited to the operation of a regulation-length 18-hole public golf course. Real estate developer Westside Investment Partners, Inc. (“Westside”) shares this view.
b. Since the 2019 Conservation Easement was granted pursuant to the Act, the “conservation easement in gross” definition in the Act applies to the Conservation Easement. The provisions of that definition relevant to the 2019 Conservation Easement are:
“Conservation easement in gross”…means a right in the owner of the easement to prohibit or require a limitation upon…a land…area…owned by the grantor appropriate to the retaining or maintaining of such land…predominantly in a natural, scenic, or open condition, or for wildlife habitat, or for…recreational… or other use or condition consistent with the protection of open land, environmental quality or life- sustaining ecological diversity…. C.R.S. § 38-30.5-102 [emphasis added].
c. Consistent with the Act, the overarching “conservation purposes” of the 2019 Conservation Easement are “for the conservation of the Golf Course Land as open space”(Paragraph 1) and“to maintain the Golf Course Land’s scenic and open condition and to preserve the Golf Course Land for recreational use.” (Paragraph 2).
d. The language in the 2019 Conservation Easement regarding use of the PHGC Land for a“regulation-length 18-hole daily fee public golf course” with related uses and activities and for “unrelated recreational uses such as ball fields, tennis courts, etc.” are permitted uses of the land consistent and compatible with the “conservation purposes” of the deed of conservation easement.
V. Could the City and Westside Terminate the 2019 Conservation Easement Based on its Overarching “Conservation Purposes”?
No. There is no credible evidence that would permit a court to determine that conditions on or surrounding the PHGC Land have changed since July 11, 2019 so that it has become “impossible” to fulfill the overarching “conservation purposes” of conserving the land as open space, maintaining the land’s scenic and open condition, and preserving the land for recreational purposes.
VI. Even if the “Conservation Purposes” Were Interpreted as Limited Solely to the Operation of a Regulation-Length 18-Hole Public Golf Course, Could the City and Westside Terminate the 2019 Conservation Easement?
a. No. There is no credible evidence that would permit a court to determine that conditions on or surrounding the PHGC Land have changed since July 11, 2019 so that it has become “impossible” for Westside to operate a regulation-length 18-hole public golf course on the land.
b. Prior to July 11, 2019, the golf course had been temporarily closed due to the City’s installation of the Platte to Park Hill stormwater detention project in the northeast corner of the land. The City has consistently asserted that the design of the stormwater drainage project would permit the land to be restored to a regulation-length 18-hole pubic golf course upon completion of the project. This is exactly what the City is doing with the City Park Golf Course. Furthermore, Westside chose to buyout and terminate the viable Arcis golf course lease that continued through December 31, 2023 with an option for another five-year renewal through December 31, 2028.
VII. What Are Westside’s Options if it Decides not to Continue Operating a Golf Course on the PHGC Land?
a. If Westside wants to add another public open space recreational use for the PHGC Land and amend or remove references to golf course use in the 2019 Conservation Easement, it and the City could agree to modify the 2019 Conservation Easement regarding permitted uses so long as the new use is consistent with the “conservation purposes”of the 2019 Conservation Easement. In no event would such changes permit residential or commercial development on the land.
b. Westside could sell the PHGC Land to the City for the City to designate as a regional park. The sale price in such a transaction would be based upon the appraised current fair market value of the land as restricted by the 2019 Conservation Easement
VIII. In Addition to Securing a Court Order of Impossibility Pursuant to C.R.S. § 38-30.5-107, What Else Would Need to Happen before Westside Could Construct a Residential or Commercial Development on the PHGC Land?
First, at least seven City Council members would need to vote to terminate the 2019 Conservation Easement. Second, City Council would need to vote to amend the Park Hill Neighborhood Plan that identifies the PHGC Land as a major facility of open space. Third, at least seven and possibly as many as ten City Council members would need to vote to change the current OS-B (Open Space-Recreation) zoning.
An editorial appearing in the Denver Post 11-13-2019 by Mayor Wellington Webb
The definition of the word conservation is “prevention of wasteful use of a resource,” and Colorado conservation easements are voluntary, legal agreements that permanently limit uses of land in order to protect its conservation values for future generations. Until June of this year, Colorado conservation easements like the one that preserves the Park Hill Golf Course land open space could be terminated simply with the mutual agreement of the two parties that created them.
In 2017 the Denver city administration and the landowner, Clayton Trust, thought they would be able to terminate the conservation easement between themselves simply with a wink and a nod and city council approval. Had it not been for Arcis Golf, the company that operated the golf course crying foul, termination of that agreement would have flown under the radar, tucked into a measure for a vote by Denver City Council to approve the sale and development of that 155-acre, tree-filled green space.
Then, in July, Westside Investment Partners, Inc., a real estate development company, purchased the Park Hill Golf Course land for a price far in excess of the land’s appraised value, encumbered as the land was with a perpetual conservation easement and “open space-recreation zoning” in place. They speculated that they would be able to terminate the easement and change the open space-recreation zoning easily — but they were wrong.
This year the Colorado General Assembly took action with a dedicated group of conservation-minded nonprofit land trusts — members of the statewide coalition Keep It Colorado — to successfully strengthen the law governing the termination of conservation easements. On June 30, 2019, House Bill 1264 amended the Colorado conservation easement statute. HB 1264 establishes a higher standard for the entire state and puts the true intent of perpetual conservation easements into practice.
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