When the developers at Westside Investment Partners bought Park Hill Golf Course in July for $24 million, they knew they were going to face a major obstacle in making their investment pay off: a conservation easement placed on the land by Mayor Wellington Webb’s administration in 1997 that currently prohibits any development. To lift it would require a sure-to-be-contentious vote of Denver City Council, but Westside was confident that it could persuade council that uses other than a golf course would be in the best interest of the public.
Now opponents of development think they’ve found a state law that would make lifting the easement much more difficult, if not impossible.
Woody Garnsey, a Park Hill resident and retired lawyer, spearheads the group Save Open Space (SOS) Denver, which has vowed to fight to preserve the conservation easement. At a press conference today, October 22, he told a sizable crowd of supporters that a new law he stumbled upon might be their saving grace.
"Under the current statute, the easement cannot be terminated unless there is a judicial determination that conditions on or surrounding the Park Hill Golf Course land have changed so that it has become impossible to fulfill the intended conservation easement purposes," Garnsey says.
In a letter he and Harry Doby, another SOS Denver member, wrote to Mayor Michael Hancock and city council, Garnsey brought their attention to House Bill 19-1264, which Governor Jared Polis signed into law on June 3. The bill amends the act that governs conservation easements. Before this amendment, the two parties to the conservation easement — the city, with the approval of city council, as “grantee”; and Westside, the new landowner, as “grantor” — could simply agree to lift the easement, and it would be a done deal. Now, SOS Denver argues that in order to terminate the easement, they must seek approval from a court, which has to determine that the conditions on the land have made it impossible to fulfill its original conservation purposes.
According to one of its sponsors, Senator Kerry Donovan, the law was mostly intended to maintain an oversight board and improve accountability for the conservation easement program, which is not administered uniformly in all parts of the state. It had more typical conservation easements in mind, most of which are voluntarily granted to land trusts by agricultural landowners who want to protect their property from subdivision and development.
But the new law also includes a provision that changes the process for terminating or eliminating conservation easements. According to Representative Dylan Roberts, another sponsor of the bill, although Park Hill Golf Course never came up in the discussion, he believes that the amendment does affect every conservation easement in the state. Roberts says that the amended law isn't intended to make it any more difficult to lift a conservation easement, but rather to make the process for doing so uniform across the state. "This wasn’t any effort to pick a side on the Park Hill dispute," he maintains.
Nonetheless, open-space advocates believe the law is on their side. SOS Denver's letter to the city included a legal opinion from Jessica Jay, a conservation easement attorney who served on the working group that helped pass the amended law. She agreed that the new state law applies to the specific easement over Park Hill Golf Course, which means that the conservation easement "cannot be terminated, released, extinguished, or abandoned" unless a court determines that conditions have changed to make its conservation impossible since Westside's purchase of the land.
The city and Westside both say they're not able to comment yet on that specific interpretation. Until SOS Denver's letter, no parties involved in the situation had mentioned the change to the state statute or the possibility that lifting the conservation easement would require a court ruling. Ryan Luby, a spokesperson for the Denver City Attorney's Office, wrote in an email to Westword that city attorneys were "well aware" that the state statute had been amended, but were still "evaluating the totality" of it. Kenneth Ho, the Westside principal who is leading the project, says he was not personally aware of the specific amendment, and that Westside needs to look further into SOS Denver's interpretation. "I don’t believe anything today changes our intent. We think that it’s really important to be inclusive and listen to the voices of SOS, but we believe they represent a very specific viewpoint," Ho says.
It's not entirely clear yet what it would take to prove that the original conservation purposes have become impossible to accomplish. The question may come down to what the easement's conservation purposes actually were. The plain language of the document states that the land must operate as a "regulation length 18-hole daily fee golf course" and prohibits any change to the land that would "be a detriment to the existence and operation of the golf course."
If that language is taken literally, there might be an argument that the city has made it impossible to maintain as a golf course when it tore up thirty acres of the land for its stormwater detention project, which is what then-lessee Arcis Golf argued in a lawsuit against the city claiming the right to compensation for the damages. Westside took over that lawsuit when it bought the property and settled it, but details have not yet been made public, so it's not clear how they landed on that question.
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Either way, advocates are hoping they can push a broader interpretation of the original conservation purposes. Mayor Webb maintains that "the goal has always been to provide open space." Originally, the city wanted to buy the golf course itself to protect it from development. Taxpayers had approved $2 million in a bond referendum toward its purchase, but that wasn't enough, so instead, longtime owner Clayton Early Learning and the city agreed to put a conservation easement on it and let Clayton continue to receive lease payments, which was determined to be a fair deal at the time.
Garnsey also believes there is a legal basis for interpreting the conservation easement more broadly. "When the Westside development people put out the word that this can only be a golf course, they're just plain wrong," Garnsey said at the press conference. He argues that the "overarching intent" of the easement can be found in the language at the beginning, which says that a golf course "provides a desirable recreational activity and a visually appealing and aesthetically pleasing type of land use for neighboring communities and surrounding areas."
Ho says he disagrees with Garnsey's interpretation: "We believe very strongly that the agreement specifically states that a golf course use, a regulation 18-hole driving range are the only uses that are allowed here." Luby also agreed that "the plain language of the Conservation Easement has required the land to be used as a golf course."
Also at the press conference, Garnsey and Webb both reaffirmed that SOS Denver is opposed to any development on the land, even if it includes affordable housing or other uses that some might say would benefit the community. They would like the land to become a park, citing a need for open space and arguing that affordable housing could go elsewhere. "We need to draw a line in the sand," Webb said. "What kind of Denver do you want to see?"