In August, writer Alan Prendergast noted, "It's not easy to prove that Mayor Michael Hancock and his minions are violating the Denver City Charter in their pursuit of a $300 million stormwater diversion project" that would involve closing City Park Golf Course for two years and bulldozing hundreds of trees. And he was right. Denver District Court Judge David Goldberg has ruled against the plaintiffs in a 2016 lawsuit that tied the project to the Interstate 70 expansion, which opponents deride with the phrase "Ditch the ditch."
The original lawsuit, filed on behalf of Park Hill resident and former Colorado attorney general John D. MacFarlane, among others, is accessible below. At the time, attorney Aaron Goldhamer, who represents MacFarlane, issued a statement that reads, in part, "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. 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."
The efforts of MacFarlane and company to prove their case turned on city regulations, as Judge Goldberg noted in his ruling, also linked below.
"Plaintiffs allege that the City and County of Denver is planning a construction project that will redesign City Park Golf Course to integrate an industrial-level stormwater management project into CPGC in contravention of: (1) the City’s zoning code; (2) restrictions on the use of parkland in the Denver City Charter; and (3) case law interpreting similar dispositions of parkland," he wrote. "Plaintiffs argue that although the City stresses that the Project is designed to mitigate 100-year storm flooding risk in the Montclair Basin, the true purpose of the Project is linked to the Colorado Department of Transportation’s proposed widening of Interstate 70 and the City’s new construction plans along the I-70 corridor."
Goldberg adds: "Specifically, Plaintiffs contend that the Project is designed to protect against the risk of flooding to the proposed expansion and lowering of I-70 in north Denver between Brighton and Colorado Boulevards, and public and private development plans for and around the National Western Center. Plaintiffs argue that this shifts the costs of these public and private developments from the builders to the stormwater fee paying public via the Wastewater Management Enterprise Fund, which is the funding mechanism for the Wastewater Management Division of the City."
In Goldberg's view, these assorted claims mean the court's "task is narrow — namely, to determine whether Defendants’ Project violates the Denver Zoning Code, the Denver City Charter or Colorado common law."
As such, Goldberg doesn't take on the motives behind the stormwater project — but his explanation suggests some sympathy for the plaintiffs. "Though the reconfiguration of CPGC may be a thinly veiled subterfuge to pave the way for new construction plans on I-70 and along the I-70 corridor, consideration of the various rationales and funding mechanisms for the Project is beyond the scope of this Court’s charge due to the applicable standard of review," he allows.
Over the course of 24 extremely detailed pages, Goldberg explores the plaintiff's contentions in regard to a wide variety of topic areas. Examples include "Tree Canopy and Habitat" and "Cultural Heritage, Historic Character, and Historic Designations," and on multiple occasions, he validates some of the plaintiffs' concerns.
In the end, though, he finds that "neither the Denver City Charter, the Denver Zoning Code, nor Colorado common law provides a basis for this Court to enter a declaratory judgment in favor of Plaintiffs. As Plaintiffs have not prevailed on the merits of their claim, their request for a permanent injunction must be denied. Plaintiffs’ requests for declaratory relief and for a permanent injunction are both DENIED."
Goldhamer responded with a statement of his own: "While Judge Goldberg found that — in fact — the proposed project will result in a 'materially detrimental' effect on the natural habitat and neighborhood due to the loss of mature trees, and that the large scale regrading of the course may result 'in detrimental changes to the health of the soil and remaining trees,' he found that the existing law compelled his deference to the decision of Denver’s Department of Parks and Recreation to proceed with the project. The Judge also acknowledged the 'significant detriment' to Denver residents should the course lose its historic designations, which he acknowledged is a real possibility. Judge Goldberg noted he was 'loath' to see the course close, but that his hands were tied under existing law to defer to our elected officials and their appointees."
For this reason, Goldhamer believes that "to ensure that Denver’s parks are protected in the future, we may need new laws or new elected officials."
In contrast, Denver Public Works celebrated the ruling via this statement:
We are pleased that the Court has agreed with the City’s interpretation of the Denver Charter and Zoning Code and that the City Park Golf Course Redesign project will be able to proceed.
As the City showed during the trial, harmonizing stormwater management and recreation in urban parks is a best practice that Denver, and cities around the world, are utilizing to create great public spaces that provide a multitude of environmental benefits.
The City Park Golf Course Redesign Project represents a key opportunity to address the need for increased flood control to protect residents and other property owners in the Montclair Basin and improve water quality while also modernizing and improving the City Park Golf Course for golfers and the community as a whole.
That's hardly the final word on the subject. Goldhamer points out that "litigation continues against the I-70 expansion," notably by way of a July lawsuit filed by Brad Evans. Moreover, the plaintiffs are said to be "evaluating their appellate options." But time is running short. The project is scheduled to get under way on November 1.
Click to read the order regarding John MacFarland et. al. v. the City and County of Denver et. al. and the original 2016 lawsuit.
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