By Joel Warner
By Michael Roberts
By Alan Prendergast
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By Patricia Calhoun
By William Breathes
The Wildcat, the rickety roller coaster at the old Elitch Gardens, was known for turning the world upside down--and for turning a few stomachs. Now the brewing storm over what to do with the amusement park's abandoned northwest Denver digs promises to do the same.
The Denver City Council will soon begin deliberations on how to rezone the 26 acres of land that used to be the stuff dreams were made of, determining what will take the place of young love, carousel music and cotton candy. In a neighborhood known for its tree-lined streets, a contest between strip malls and public gardens was bound to get controversial. And the political maneuvering so far has had as many twists and turns as a carnival ride.
Among the political loop-the-loops: The city planning office is acting as PR agent for the private investor who hopes to redevelop the now-dormant Elitch's site at 38th Avenue and Tennyson Street; Elitch's owner Sandy Gurtler is feuding not only with a neighborhood organization set up to monitor the redevelopment but also with newly elected city councilman and longtime nemesis Dennis Gallagher; and the city, which heavily subsidized the Gurtler family's recent relocation to the Central Platte Valley, has backed itself into a deal whereby it will have to make zoning decisions about a property in which it now has a direct fiduciary interest.
Even Hollywood actress turned Las Vegas hotelier Debbie Reynolds has a bit part in the melodrama. But in what may be the most bizarre development, the Elitch's rezoning has been cloaked in silence--all because the office of City Attorney Dan Muse has decided that councilmembers who bother to inform themselves about rezoning cases are prohibited by law from expressing an opinion on them.
The "law" the city's top legal minds read as allowing uninformed opinions--but barring those actually based on fact--is known around City Hall as "Mount Airy." The name refers to a decision by the Colorado Supreme Court in the 1976 case Corper v. Denver v. Mount Airy Foundation. In that case, the high court held that rezoning hearings before the city council are "quasi-judicial" in nature.
In the past, city attorneys have interpreted the Mount Airy decision to mean that councilmembers should refrain from expressing opinions on zoning applications between the time they're filed and the time the council takes them up in a public hearing. Not anymore.
Two decades after the fact, Muse's office has suddenly turned up the heat on the issue. In its expanded reading of Mount Airy, city councilmembers may be prohibited from uttering a syllable on rezoning questions even before a rezoning application has been filed. Muse's office has even gone so far as to question whether it's proper for councilmembers to gather facts outside of the hearing process. Though Jerry Biehl, the developer who wants to build on the old Elitch's site, hasn't submitted a formal proposal to the city yet, councilmembers have been warned that voicing an opinion about Elitch's could "taint" the rezoning process, expose them to personal liability and subject their ultimate decision to reversal on appeal.
At a "special briefing session" held before the council on July 7, assistant city attorneys Robert E. Kelly and Karen Aviles spent more than an hour trying to explain to visibly flummoxed councilmembers (veterans and newcomers alike) how to serve their constituents without breaking the law. The bottom line, according to Kelly: "If you have information on which to base an opinion, don't say anything. If you don't know anything, go ahead and talk."
It's no wonder the new interpretation of Mount Airy is making some councilmembers uncomfortable. After all, politicians are elected to advocate for their constituents. Judges are expected to remain neutral. Trying to make one into the other is like trying to squeeze a hippopotamus into a Coke bottle: an unnatural fit no matter how hard you push.
In practice, it produces ridiculous results--especially in the case of the Elitch's rezoning.
According to Kelly and Aviles, the Mount Airy ruling requires councilmembers to take no position--and acquire no knowledge that may impair their impartiality--outside of the actual zoning hearing. For Dennis Gallagher, the newly elected councilmember from District 1, that spells trouble. Gallagher, who formerly represented the Elitch's neighborhood as a state senator, knows something about how his constituents feel with regard to the rezoning: His office is receiving the results of a survey that predecessor Bill Scheitler mailed out to 20,000 registered voters in the area asking what they'd like to see in Elitch's place. Completed surveys already have been mailed back by 1,900 residents. And according to those early returns, strip malls are definitely out.
At the Mount Airy briefing before city council, Gallagher was clearly distraught. Red-faced and squirming, he asked Kelly if such information-gathering was considered illegal. Kelly was vague in his response. "If you receive information outside of the actual hearing, you may lose your ability to be impartial to the process," he said. Gallagher appeared dumbfounded. "You mean if you have in-depth information, you can't vote?" he demanded. "Isn't getting in-depth information our job? Aren't we supposed to find out what's going on?"