Put Up or Shut Up
For years, Ann Bonnell has been a volunteer at the Denver Botanic Gardens' Chatfield Arboretum. The former farm next to the Chatfield Reservoir has been operated as a nature preserve since the 1970s, and volunteers have planted thousands of trees and bushes on the property that parallels Deer Creek.
Bonnell loves birds, and the arboretum has become a choice spot for bird-watchers. A group known as the Tuesday Birders meets regularly to look for red-winged blackbirds, mountain bluebirds, Swainson's hawks and great blue herons, all of which regularly visit the arboretum. Like Bonnell, many of the bird-watchers are retirees who relish seeing wildlife on the edge of the metro area.
However, this is one slice of the Front Range that may not be rural much longer. Shea Homes, the huge California homebuilder that last year bought Highlands Ranch, is planning an 800-home development known as Chatfield Green on the bluff that overlooks the arboretum on its southern boundary. Already, a bright-yellow backhoe is digging up the hillside, installing a pipeline intended to carry runoff from the project down the hill and around the arboretum.
The South Platte chapter of the Sierra Club and the Denver Audubon Society (Bonnell is a member of both groups) are challenging the proposed development in court, arguing that the City of Littleton annexed the property illegally and overlooked major environmental problems with the site. Last July the group's volunteer attorney, Alison Maynard, even won an injunction against development of the property in the Colorado Court of Appeals. The appeals court ruled that Littleton and Shea would have to delay work on the project until the case goes to trial in Jefferson County District Court next month.
But there was one catch in the court's ruling--and in the eyes of citizen activists, that ruling has since grown into a legal roadblock that could severely limit the ability of average Coloradans to fight developers in court. After granting the injunction--an apparent victory for Maynard and Bonnell's group--the Court of Appeals made the measure contingent on the filing of a bond. The court sent the case back to Jefferson County District Court Judge Frank Plaut, who then set the bond amount at a whopping $250,000. What that meant is that if the activists wanted to see the injunction put in place, they'd have to put themselves on the line for a quarter of a million dollars--money they could lose if the developer won the case.
Maynard immediately appealed that ruling to the Colorado Supreme Court, but after agreeing to hear the case, the high court in February issued a one-sentence ruling upholding the bond amount. Bonnell and the others didn't have the money for the bond and didn't want to risk losing their homes if they lost their case and had to forfeit the money to the developer (under the law, Shea could ask a judge to compensate it for construction delays).
"I called the bondsman over in Littleton, and he said it would cost $4,000 cash and you had to have collateral for the rest," says Bonnell. "If you lost, you'd have to pay the developer $250,000. The courts are fickle; you can't predict how it will come out. There was no way we were going to stick our necks out on this."
Because they were unable to post the bond, Bonnell and her friends lost the injunction they had won in court, leaving Shea Homes free to begin construction. Their district-court case will go forward in the meantime, but by the time it's heard, much of the land Bonnell's group wants to preserve may already have been torn up. More damaging in the long run, says Maynard, is the precedent that apparently was established when the Supreme Court refused to overturn Judge Plaut's ruling. The high court's action, says the attorney, means that any citizens' group in Colorado that challenges a development in the future could also be asked to post a huge bond in order to sustain an injunction. And that, say many attorneys and civil-rights advocates, means that only those with substantial amounts of cash will be able to challenge powerful development interests in court.
"It's outrageous," says Mark Hughes, a University of Denver law professor who has been involved in dozens of environmental lawsuits. "It has the potential to deny public-interest groups of every stripe access to the courts."
Hughes says the requirement that parties who challenge development projects must post a bond is a longstanding legal practice that was put in place to prevent frivolous lawsuits. The bonding requirement, for instance, serves to dissuade developers from going to court solely to interfere with each other's projects. But he says federal courts have established a clear precedent that public-interest groups that don't stand to make any money off delaying a project should only have to pay minimal amounts--often as little as $1,000--to have an injunction enforced.
"It's pretty well established in federal law that the bond requirement should be minimal for this type of action," says Hughes. "I've been practicing law here since 1988 and have never seen a bond set anywhere close to this."
However, DU law professor Federico Cheever says more and more environmental cases are being heard in state court as grassroots groups challenge developments just down the street. But if it becomes common in Colorado to require posting such a huge bond, he predicts people of modest means will be afraid to go to court.
"You don't have to be a rocket scientist to see that this significantly limits the capacity of public-interest groups to enforce the law," says Cheever. "Very few public-interest groups could withstand a hit where they had to post $250,000."
In the Chatfield Green case, the national Sierra Club has filed a brief in support of Maynard but hasn't contributed any money to the fight. And since winning an injunction is often the only way to stop bulldozers from tearing up a site, environmental groups are particularly alarmed by the high bond set in the case.
"An injunction just means you're asking the court to put things on hold until they reach a final ruling," says Ted Zukoski, staff attorney for the Land & Water Fund of the Rockies. "If the developer wants to push the project ahead, it makes it impossible to do anything but ask for an injunction. Does [the bond requirement] mean a nonprofit can't ever stop a development?"
Maynard describes the dispute as a First Amendment issue, an argument she made unsuccessfully before Judge Plaut. "They're saying only those people with lots of bucks have the right to be heard," she claims. "The state of the law in Colorado is that you have to fork over a quarter of a million dollars to get an injunction."
The saga of Chatfield Green goes back to 1991, when Littleton agreed to annex the 345-acre property. At the time, the South Suburban Park & Recreation District hoped to build a golf course on part of the land. Those plans were nixed when the Army Corps of Engineers, which oversees the land around Chatfield Reservoir, balked at the idea of building part of the golf course on federal property.
A group of Canadian developers, who later sold the property to Shea Homes, then decided to pursue building a subdivision on the bluff south of the arboretum. The land that houses the arboretum is leased from the federal government by the Denver Botanic Gardens--an agency of the City of Denver--and the lease gave the city control of an easement along Wadsworth Boulevard. To gain access to the Chatfield Green property, the developers had to get Denver to grant them the right to run a road over the easement into the subdivision.
Denver officials didn't hesitate to sign off the right to the easement. Former Denver parks and recreation director Bruce Alexander approved the easement for Chatfield Green in 1995, telling Westword, "the developer owns the land and has a right to develop it."
City councilman Ed Thomas questioned the deal, but he says the city attorney's office told him Alexander had the authority to sign off on the easement without council approval. Thomas also met with Littleton city officials, but he says they showed no interest in preserving the land as open space.
"They wanted absolutely no part of this," he says. "If they could have cared less, they would."
(A spokeswoman for the City of Littleton says city officials will not comment on the Chatfield Green issue because of the lawsuit. Littleton city attorney Larry Berkowitz did not return phone calls.)
After opponents had exhausted their appeals with government officials, Maynard filed suit in Jefferson County last June. The suit names the City of Littleton and Shea Homes as defendants and alleges that Littleton violated its own policies by annexing a parcel several miles away from the rest of the city and by approving a subdivision that had not been included in the city's comprehensive plan. The lawsuit also claims the site is prone to expansive soils and says Littleton did not follow state guidelines in approving development in "geologic hazard" areas.
The suit further alleges that building a subdivision with just one entrance will present a danger to the public in the event that the single road is blocked, and it charges that Shea Homes failed to obtain permits required by the federal Clean Water Act.
A spokesman for Shea Homes insists that the company has met all legal requirements for the project and says that the bond requirement is only fair because the subdivision's opponents are costing Shea Homes time and money.
"We believe that the bond should have been set at a much higher level," says Andy Chaikovsky. "To have our project stopped has significant economic ramifications. If plaintiffs can stop projects with no bond or a small bond, that will have dramatic ramifications on property owners and property owners' rights."
Steve Wilson, a spokesman for the Homebuilders Association of Metro Denver, agrees, saying that since all pertinent government entities have given the Chatfield Green project their approval, Shea Homes deserves protection from opponents seeking to delay the project. "If anybody brings a suit and it's a delaying tactic, it's only fair that they have to post a substantial bond," says Wilson.
Chaikovsky says the company is moving ahead on the development and expects to begin building the first homes at Chatfield Green this summer. Full buildout of the projects' 800 new homes is expected to take four years.
Even as the backhoe was starting to tear up the hillside above the arboretum last week, Maynard filed suit in U.S. District Court asking federal judge John Kane to issue a temporary restraining order halting construction on the project. The federal suit, which names the City of Denver and the Denver Botanic Gardens as defendants (along with a litany of federal agencies), alleges that Denver officials violated the city charter by giving the easement to Chatfield Green without the city council's approval. However, Judge Kane refused to halt work on the subdivision, ruling that the plaintiff in the case, a member of the Denver chapter of the Sierra Club, hadn't proved that he would sustain "legal injury" from the project. Kane gave Maynard twenty days to find other plaintiffs for her suit, which is still pending.
Already, the suit has strained relations between the Sierra Club and the Botanic Gardens, which last week released a statement saying it was "unfortunate that some members of the Sierra Club, in their enthusiasm to stop the development adjacent to the Chatfield Arboretum, are intentionally misrepresenting the purpose of the current construction."
That construction is part of an agreement reached between the developer and the Botanic Gardens to protect the arboretum. The "stormwater diversion system" being installed is supposed to keep wetlands near the arboretum from being contaminated by runoff from the planned 800 homes. "We are not able to stop the development," the release from the Botanic Gardens continues, "but we secured a binding legal agreement with the developer for this elaborate, multi-faceted program."
Of course, if Ann Bonnell had had an extra $250,000 lying around, an injunction would already be in effect at Chatfield Green. The construction crews working on the hillside would have had to wait at least until the conclusion of next month's trial in Jefferson County.
Maynard feels so strongly about the injustice of the bond requirement that she says she may try to take the case all the way to the U.S. Supreme Court. "I've moved heaven and earth to try to get an injunction," she says. "I've done everything I can think of."
But Bonnell now fears it may be too late to prevent a subdivision that will loom over her beloved arboretum. She also believes Littleton and Denver have botched an opportunity to create a regional park in the southwest metro area, since the arboretum is already sandwiched between the state park at Chatfield Reservoir and a Jefferson County open-space park to the west.
"This is the last view of the mountain backdrop from Wadsworth without houses in the middle of it," Bonnell says. "Now the arboretum will be surrounded by subdivisions."
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