The Clock Is Ticking on Options for Park Hill Golf Course

The clock is ticking for Westside Investment Partners.

The owners of the Park Hill Golf Course now have less than ninety days to submit an application to have the 155-acre property rezoned back to an Open Space Recreation district, aka OS-B, the zoning designation used for golf courses. That deadline was set forth in the development agreement between Westside and the city, which was approved before the April 4 vote on whether to lift the conservation easement on the land and allow that development.

The ninety-day countdown began on April 20, following the Denver Clerk and Recorder's announcement that the results of the municipal election had been certified — marking the official failure of Referred Measure 2O.

Had 2O passed, it would have lifted the conservation easement on the land limiting its use to an eighteen-hole golf course — and would ultimately have allowed Westside to move forward with its development plan. Earlier this year, Denver City Council had approved the rezoning that would make the plan possible; now the property must be re-rezoned in order to allow a golf course, the only use allowed under the easement.

In a statement following the election and an announcement that the land has been closed to public use, the investment group has indicated that the golf course will return, though it has provided no timeline.

According to Jeff Peshut, a real estate consultant and adjunct law professor at the University of Colorado law school, however, the reopening of the golf course is just one of at least three possible scenarios.

One possibility, though an admittedly unlikely one, is that Westside could buy the conservation easement, Peshut suggests.

Had Westside purchased the easement from the city at the same time it bought the defunct golf course from the Clayton Trust for $24 million in 2019, this multi-year drama of area plan developments and "vote yes for affordable housing" campaigns might never have happened, Peshut says. That's because the easement could have been terminated under "the doctrine of merger," a legal concept that essentially makes a land easement redundant when it is owned by the same person who owns the land to which the easement applies. When this occurs, the easement "extinguishes," he explains.

Peshut thinks Westside could apply this principle in the next ninety days, before the zoning reverts — if the company manages to purchase the easement from the city, which placed it there under the administration of Mayor Wellington Webb.

But according to Mike Strott, director of communications for the mayor's office, "That isn't something being considered or explored." Westside declined to comment.

"Easements can be bought and sold just like other property interests," says Brian Connolly, a Denver land-use attorney whose firm represents Westside. But there is less precedent in this area for conservation easements, he notes, adding that he doesn't know of any specific situations in which the doctrine of merger has been used for a conservation easement.

The same principle would have been the mechanism used to lift the conservation easement had 2O passed, however. According to the development agreement, Westside would have briefly given the land to the city, the easement would have extinguished, and the city would have returned the land — easement-free — to the developer.

The obstacle to using the principle now, says Peshut, would be Ordinance 301, which Denver voters passed in 2021 to mandate that a citywide vote be held to decide if a city-owned conservation easement can be lifted. But the phrase "city-owned" could be key in allowing Westside to make this last-ditch effort, as the easement would no longer be city-owned if Westside owned it.

Additionally, Referred Measure 2O asked voters if they would authorize the release of the conservation easement. Says Peshut: "If Westside purchases the easement and it terminates automatically under the doctrine of merger, the Hancock administration could claim that they didn't release the easement, they simply sold the easement."

But even if Westside did buy the easement from the city, voters would still have to give approval to terminate the conservation easement because of Ordinance 301, Connolly says.

"The electorate was certainly heard loud and clear by the two mayoral candidates," he points out. "Even if Westside wanted to purchase the easement, I can't imagine the city would even engage in that discussion about selling it to them."

Penfield Tate, a lawyer and recent candidate for Denver City Council who was a member of the 2O opposition group Save Open Space Denver, thinks that the sale and extinguishment of the conservation easement might be legally possible, but only if Westside pays fair market value. Peshut puts this figure at around $55 million, estimating that the value of the land with the easement is $5 million, and around $60 million without it. A Denver Post editorial from earlier this year put the easement's value at $184 million.

"This developer is not going to pay $184 million for that land," Tate says.

Peshut thinks the hefty price is probably why Westside didn't buy the easement in the first place.

"Westside had to pay $24 million for [the property], because that's the price that Clayton Early Learning was willing to sell for," says Peshut. "Westside believed it would be worth at least $24 million — and perhaps more — if they [were] able to get the city to remove the easement without having to pay the city for it."

"They're land speculators," says Tate of the developers. "They overpaid for the land, but they underpaid because they knew what the value was without the conservation easement. They speculated and lost, and that's what happens in the development world."

Even as he discusses the possibility of the "doctrine of merger," Peshut says that the most likely scenario now for the Park Hill Golf Course land is that it would be acquired by the City of Denver, which would turn it into a park. This could be done by an outright purchase, or perhaps by employing eminent domain. If Westside does not reopen the golf course and allows the land to sit empty, Tate believes that would give the city a basis for an eminent domain proceeding.

Mayoral candidates Mike Johnston and Kelly Brough have both expressed support for acquiring the property, but both have talked about purchasing the land, not eminent domain. Westside, however, maintains that it is not open to selling the land.

Save Open Space Denver plans to continue the fight to make the property a park. "We ran a campaign to pass an initiated ordinance to stop development. If we have to, we may pursue something else to compel the city to activate the land, consistent with the desires of the community," Tate says.

"We didn't take on this fight to get a golf course."