Lawsuit Looms Over Denver's Stormwater Fee Hike, City Park Golf Course Plans

In the wee hours of Tuesday morning, at the exhausted end of a nine-hour meeting, Denver City Council approved a $383 million hike in stormwater fees, more than half of which help pay for a flood-protection project in northeast Denver that has been a source of protest and angry questions for months. But while the vote may have ended the debate among councilmembers for now, controversy over the project is moving to another venue.

Just hours before the 8-3 council vote, a lawsuit was filed by Park Hill resident and former Colorado attorney general JD MacFarlane, challenging the city's right to transform City Park Golf Course into a stormwater detention facility. 

City engineers say the Platte to Park Hill Stormwater Systems program is needed to protect northeast Denver neighborhoods from flooding during a hundred-year storm event. But neighborhood groups in the affected areas have objected to several components of the project, including regrading the western third of the golf course to provide stormwater runoff detention —a move that will close the golf course for more than a year and require bulldozing hundreds of trees — and a fifteen-block open channel to be dug through a Superfund site in the Cole neighborhood. They claim that residents are being required to shoulder a stiff fee hike — about $116 over the next five years for the average household — for work that primarily provides flood protection for the below-grade I-70 expansion, the planned renovation of the National Western Center and other new developments along RTD's new rail line to the airport. 

Opponents rallied outside the council meeting on Monday and released a new video focusing on the I-70 connection. But when the fee increase came to a vote in the final minutes of an agenda-stuffed meeting, only three councilmembers — Kevin Flynn, Paul Kashmann and Rafael Espinoza, all elected last year  — opposed the measure. All three complained that there were still too many unanswered questions about how the increase, the largest ever sought for wastewater issues, was going to be spent. Espinoza was particularly critical of Department of Public Works employees' bland denials that the "P2PH" project had any connection to the requirement for hundred-year flood protection for the I-70 corridor. "It's not for the people who are there, that's for damn sure," Espinoza said.

The complaint filed in the MacFarlane lawsuit takes a similar tack, alleging that the plan to use the  golf course for stormwater detention violates the city charter.

"The I-70 expansion is troubling in and of itself, because expanding a highway in heavily Hispanic and working-class north Denver neighborhoods worsens environmental and social injustices," Aaron Goldhamer, MacFarlane's attorney, said in a prepared statement announcing the lawsuit. "The city's planned misuse of designated parkland — which has met significant public resistance — at tremendous cost to Denver stormwater ratepayers to benefit the I-70 project and other construction adds further insult to injury."

Two months ago, in response to a letter from Goldhamer challenging the legality of the P2PH project, the city attorney's office pointed out that other park areas have been used for stormwater detention, including City Park's own Ferril Lake. But the MacFarlane complaint cites a 1990 ruling that stopped the city from turning the City Park Pavilion into office space for the Department of Parks and Recreation, a ruling that held that "the City cannot impose upon such dedicated property any servitude or burden inconsistent with the dedication of the property for public park purposes.”

Read the full complaint below. 

MacFarlane v. City of Denver

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Alan Prendergast has been writing for Westword for over thirty years. He teaches journalism at Colorado College; his stories about the justice system, historic crimes, high-security prisons and death by misadventure have won numerous awards and appeared in a wide range of magazines and anthologies.
Contact: Alan Prendergast