Legal floodgate expands to protect public parks

Reprinted from the North Denver Tribune

By Basha Cohen


DENVER — In an ongoing floodgate of legal battles moving parallel to North Denver corridor’s fight against I-70, a diverse group of Denver residents sought court approval to join the legal fight against the city’s proposal to flood and redevelop the historic City Park Golf Course to support the Central 70 highway expansion project, also known as “The Ditch.” On February 21 they asked Judge Michael Vallejos of the Denver District Court to permit them to join as plaintiffs in a pending lawsuit to enforce laws that protect public parkland and stop the redevelopment before it begins.  Former Colorado Attorney General J.D. MacFarlane initiated the pending lawsuit in June of 2016, and the City’s Motion to dismiss the suit was denied in November.

Residents, who are moving to join as plaintiffs, include Northwest Denver’s City Councilman Rafael Espinoza, as well as City Park residents or nearby neighbors David Torres, LaMone Noles, Sarah Edgell, Vida Hughes, Theresa Johnson, Heather Strack McCutcheon and Christine O’Connor.

Joe Boven, an active participant in the unfolding event, explains, “These citizens are deeply concerned about the proposed use of City Park Golf Course — which is designated parkland entitled to protection under Denver’s Charter — for purposes both contrary to the public good and park purposes.” They are further concerned that the city has hidden its intention to use a recent stormwater drainage fee increase to fund the Platte to Park Hill drainage system. That system proposes construction of a multi-acre stormwater detention facility in the Golf Course to ease drainage concerns and reduce Colorado Department of Transportation (CDOT) expenditures for “The Ditch.”

“The case hinges on whether the City and County of Denver may construct an industrial-level stormwater management project in designated parkland. This project is designed specifically to protect a highly controversial highway project and other new development. Absent a popular vote, amendment of the Denver City Charter, or a change in the applicable law governing designated parkland, it is unlawful,” said Aaron Goldhamer, an attorney at Keating Wagner Polidori Free, P.C. who is leading the case. “Ultimately, this plan violates laws protecting our public lands and the right of the people to determine the future of their property.”

After consultation with the city as to whether it would oppose the addition of all the proposed plaintiffs, Goldhamer filed a motion for leave to amend the present Complaint on February 22. The “Partially Unopposed Motion to Amend Complaint and Join Parties,” proposed all additional plaintiffs be admitted into the suit. The motion’s summary states, “Rights held by every resident-taxpayer in the City of Denver are at issue in this case.” By adding a small subset of Denver’s resident-taxpayers as additional plaintiffs, they would be able to “vindicate those rights and effectively tell the story of why those rights are important and should be protected.” The Defendant’s counsel did not oppose the amendment of the Complaint to include the majority of additional plaintiffs. Most live in proximity to the City Park Golf Course, utilize it regularly, and have been active participants in the City presentations and documents relevant to the case.

Defendants Counsel did, however, oppose the inclusion of Rafael Espinoza as a plaintiff in the action because he currently serves as an elected Councilman on Denver’s City Council. The motion summary stated, “While Defendants have expressed that his testimony as a witness at trial may not be objectionable, they base their opposition to his addition as a plaintiff on a misreading of the law governing deliberative privilege.” It continues, “There is no basis in law to assert a deliberative privilege between Denver’s executive branch (Defendant City and County of Denver and its departments and officers) and members of its legislative branch (City Council) such that Mr. Espinoza should be prevented from becoming a plaintiff.”

It was argued that Espinoza should be permitted to join as a Plaintiff alongside the “Unopposed Proposed Plaintiffs” since this case can be conceptualized as a class action that pertains to rights held by every Denver resident-taxpayer. “While Mr. Espinoza certainly has the greater good in mind, he brings his claims as an individual and was not stripped of his rights to bring claims by virtue of winning an election. He has studiously examined the at-issue project, is firmly convinced that it is not for park purpose, and can provide compelling assistance to this case.” The outcome is yet to come.

While the city asserts that the project is primarily designed to mitigate a newly determined “most severe” flooding risk area, that area had not previously been designated as having priority over other flood mitigation needs in recent studies. The city has also incorrectly asserted that the project is not associated with or linked to the CDOT’s proposed widening of Interstate 70, the city’s new construction plans along the I-70 corridor or private redevelopment around the new RTD A-Line stop at 38th and Blake.

Espinoza voted against the storm drain usage fee increase based on his concern that District 1 residents, as well as residents in most districts, will be saddled with fees that do not address their drainage needs. Likewise, he understands that the project will increase flooding risks in the Globeville neighborhood. Espinoza sees the city’s argument as violating the public trust and contradicts what Council was told when the fee increase for the Platte to Park Hill project was being requested by the city.

“If the city is claiming that the flooding of City Park Golf Course has nothing to do with the Central 70 project, that is a direct contradiction of what Council was told when the city sought approval for the fee hike,” said Espinoza, who represents District 1. “I voted against this increase because it missed the opportunity to not only address the stormwater drainage problems of District 1, but of the entire city. Instead, this project misappropriates the use of the public good to focus on a flood plain that directly eases the development of the I-70 Ditch at the expense of a more comprehensive citywide solution.”

Noles, a longtime Denver resident, is concerned about the city’s violation of laws protecting parklands, said the city needs to be improving not jeopardizing our parks.

“With the planned housing density in Denver, all residents have for open space are public parks,” said Noles. “City Park and the Golf Course are all we have in terms of open space in the neighborhoods surrounding the park.”

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