FOR YOUR AMUSEMENT

THE CITY IS UP TO ITS NECK IN THE OLD ELITCH'S--AND NOW IT'S CLAMMING UP.QUEASY RIDERS THE BATTLE OVER THE OLD ELITCH'S THROWS A CITY COUNCILMAN--AND HIS CONSTITUENTS--FOR A LOOP.

But while a council vote on Elitch's may be guaranteed, similar assurances can't be made about the quality of democratic representation voters will get. The discussions during the July 7 briefing got so absurd that at one point, at-large councilwoman Susan Barnes-Gelt suggested that councilmembers might simply want to recuse themselves from voting on any "contentious [zoning] issues" in their districts.

That would be a far cry from the old days of "courtesy voting," in which members assumed that the councilperson who represented the district in question knew the most about the issue and deferred to him or her. When Polly Flobeck brought up the issue of courtesy voting during the council briefing, Kelly suggested that courtesy voting in and of itself would violate Mount Airy, since councilmembers partial to another councilmember are technically not impartial. Gallagher only got redder.

Strangely enough, under Kelly's interpretation of Mount Airy, councilmembers can be lobbied on zoning issues, even though they can't talk to the public about them. Kelly told councilmembers that "as long as you still retain impartiality," lobbying is acceptable. Ortega agreed, saying, "It's typical for us to receive calls from lobbyists about zoning issues. It's helpful, because we don't all sit on the zoning committee, so we're not as up to speed."

But while Ortega is comfortable with the idea of lobbying, attorney Loewi isn't. "We take the view that any ex parte contact on a quasi-judicial matter is inappropriate," he says. Still, to be on the safe side, Loewi says he plans to register as a lobbyist on the Elitch's issue "when the filing gets closer."

Nobody at City Hall seems to know exactly why Mount Airy has resurfaced with such a vengeance now. Kelly says he can't remember whether it was his office or city council that first asked for the special briefing. Ted Hackworth says he thinks councilmembers raised the issue. "I know some of us [on the council] have expressed to the city attorney our own concern that a particular member expressed an opinion about a zoning issue before it was appropriate," says Hackworth. (He won't say who.) "I don't want to finger anybody," Hackworth says, "but it did occur in the last six months."

There's also the possibility that Mount Airy was introduced into the equation by the lawyers at Brownstein Hyatt. During recent hearings on the fate of the old May D&F paraboloid on the 16th Street Mall, attorney Loewi and his partner Tom Strickland asked the city's Robert Kelly if the hearings were considered quasi-judicial. Loewi says now that he and Strickland didn't care much what the answer was but just wanted to know how to proceed. Kelly, he adds, wouldn't answer them anyway.

Loewi unequivocally denies that his firm invoked Mount Airy in an attempt to stifle Gallagher. But he says he reserves the right to raise the issue of whether councilmembers have spoken out of turn. "Let me tell you, we're certainly going to preserve all our legal rights and remedies in this matter," he says. "If the process appears to be tainted from the start, we'd take action. But we certainly haven't threatened that to anyone."

While all this attention is being focused on preserving an appearance of neutrality for members of city council, no one at the city attorney's office seems the least bit concerned that Ellen Ittelson over at city planning has agreed to handle media relations for Biehl's firm, General Management Company. The Elitch's redevelopment, Ittelson explains, "is an unusual project because the city has a fiduciary interest. It's in the city's interest to retain the value of the property."

That "unusual" state of affairs means Ittelson is faxing out an "Elitch Redevelopment Fact Sheet" as if it were a city document and not a press release drafted by Andy Loewi. In addition, Ittelson says that Biehl is "helping out with background research" for her department's planning committee. The developer is providing helpful information on "things like case studies of other retail projects in cities of similar size," she says.

"Retaining the value" of the old Elitch's may be tricky--there's some dispute over just how much the property is worth. While the land stands as collateral for the $7 million MOED loan, the property has been appraised as being worth only $4 million. And even that figure seems high to some experts.

The $4 million appraisal certainly gave Mike Heitzmann, executive director of the Denver Employees Retirement Plan, some pause. Heitzmann conducted a detailed analysis of the financing deal for the new Elitch's to ascertain whether to invest DERP's considerable wealth in it (the pension fund never did make the loan to Elitch's). "I can certainly say the appraised value [of the old Elitch's land] stunned me," Heitzmann says. "It really seemed high."

Gurtler won't say how much he thinks his property is worth. And he refuses to disclose the purchase price of his contract with Biehl, though he does confirm that the contract is contingent on Biehl getting a rezoning package through city council.

What Gurtler does say is that he's been wrongfully "painted as a bad guy" by a group of familiar foes: the old north Denver political team of Dennis Gallagher, Rob Hernandez and Bill Scheitler. The neighborhood committee formed to advise the city on what to do with the old Elitch's, Gurtler complains, is "just a lot of friends of Dennis Gallagher. I hear you can be a renter and have a say."

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