Friends of Denver Parks, Inc. v. City of Denver

• Decision Date: 26 December 2013
• Docket Number: Court of Appeals No. 13CA1249
• Citation: 327 P.3d 311
• Parties: FRIENDS OF DENVER PARKS, INC.; Renee Lewis; David Hill; Shawn Smith; John Case; Judy Case; Steve Waldstein; and Zelda Hawkins, Plaintiffs–Appellants, v. CITY AND COUNTY OF DENVER; Denver School District No. 1; and Debra Johnson, Clerk and Recorder for the City and County of Denver, Defendants–Appellees.
• Court: Colorado Court of Appeals

327 P.3d 311

FRIENDS OF DENVER PARKS, INC.; Renee Lewis; David Hill; Shawn Smith; John Case; Judy Case; Steve Waldstein; and Zelda Hawkins, Plaintiffs–Appellants,

v.CITY AND COUNTY OF DENVER; Denver School District No. 1; and Debra Johnson, Clerk and Recorder for the City and County of Denver, Defendants–Appellees.

Court of Appeals No. 13CA1249

Colorado Court of Appeals,

Div. A.

Announced December 26, 2013

City and County of Denver District Court No. 13CV32444, Honorable Herbert L. Stern, III, Judge

Benson & Case, LLP, John Case, Denver, Colorado, for Plaintiffs–Appellants.

Michael Hickman, Molly Ferrer, Jerome DeHerrera, Denver, Colorado, for Defendant–Appellee Denver School District No. 1.

Douglas J. Friednash, City Attorney, David W. Broadwell, Assistant City Attorney, Patrick A. Wheeler, Assistant City Attorney, Mitch T. Behr, Assistant City Attorney, Denver, Colorado, for Defendants–Appellees City and County of Denver and Debra Johnson.

Opinion by JUDGE BERNARD

¶ 1 How does land in the city of Denver become a park? This appeal requires us to look at that question through two lenses: (1) Denver's charter; and (2) common law principles concerning the dedication of property to particular uses, such as parks. Once we have viewed the case through those lenses, we must then decide which one controls our analysis.

¶ 2 If a city's charter provides no guidance on a legal issue, courts look to the common law. Colorado, like many other states, recognizes a common law doctrine that governs the dedication of lands to public uses such as parks. If a city communicates an unequivocal intent to set aside land as a park by its conduct, this doctrine dedicates the land as a park. The city does not have to take formal action. In other words, if a city's charter does not expressly state or clearly imply otherwise, then the city may dedicate land as a park by its conduct.

¶ 3 This appeal requires us to decide whether the Denver city charter makes such an express statement or clear implication. We conclude that it does.

¶ 4 In this case, the city of Denver, the defendant, agreed to transfer a parcel of land, which we shall call “the southern parcel,” to a school district so that the district could build a school on it. The city passed an ordinance to accomplish the transfer. Plaintiffs, an organization called Friends of Denver Parks, Inc., and some additional persons, believed that the southern parcel was a park, and they opposed the transfer. They took two courses of action.

¶ 5 First, plaintiffs tried to file a referendum petition with the city's clerk and recorder. They wanted to repeal the ordinance transferring the southern parcel, and they contended that the city's charter required the city to hold an election to determine whether the voters—as opposed to the city's government—would authorize the transfer. The clerk refused to accept the petition.

¶ 6 Second, plaintiffs filed a motion for a preliminary injunction to enjoin the city's transfer of the southern parcel to the school district. Plaintiffs contended that the southern parcel was a park, and they asked the court to prevent the city from transferring the southern parcel until the court could decide whether the city's charter authorized the city to transfer it to the school district. Plaintiffs also argued that the court should order the city's clerk to accept their referendum petition and to schedule an election to determine whether the city's voters would authorize the transfer.

¶ 7 The court denied both requests, and plaintiffs appealed. We affirm because we conclude that the pertinent law and the record support the trial court's determination that plaintiffs did not have a reasonable likelihood of success on the merits of the issues that they raised.

I. Background

A. Procedural History

¶ 8 This appeal concerns some undeveloped land that the city owns in southeastern Denver. This land is roughly triangular; South Havana Street and East Girard Avenue border its southern tip.

¶ 9 In the spring of 2013, the city decided to divide this land into two parcels. First, it agreed to trade the southern parcel that is the focus of this appeal, plus about $700,000, to a school district in exchange for a building on a commercial plot in another part of town. The school district plans to build a school on the southern parcel. The city intends to use the school district's building on the commercial plot as a center to assist victims of domestic violence. (As is pertinent to this opinion, the positions of the city and the school district are congruent.)

¶ 10 Second, the city attached the northern parcel of the tract to Paul A. Hentzell Park, which is located to the north of the northern parcel.

¶ 11 The city council passed ordinances to effect the trade of the southern parcel to the school district and to attach the northern parcel to Paul A. Hentzell Park.

¶ 12 Plaintiffs submitted a referendum petition to the city's clerk and recorder. It requested that the city hold a vote to repeal the ordinance that approved the trade. The clerk rejected the petition. Plaintiffs obtained over 6,600 signatures and resubmitted the petition. The clerk rejected the petition again, adding that the law did not authorize plaintiffs to obtain the signatures.

¶ 13 Plaintiffs filed this lawsuit. They asserted two theories to support their claim that the city could not trade the southern parcel to the school district: (1) the city's conduct over the years had dedicated the southern parcel as a park under the common law; and (2) the city's charter requires that voters approve the transfer of a “park belonging to the city as of December 31, 1955.”

¶ 14 The city replied that (1) although the southern parcel “belong[ed] to the city,” it was not considered or treated as a “park” as of December 31, 1955; and (2) the city's charter does not permit land to be dedicated as parks under the common law.

¶ 15 The trial court held three hearings on plaintiffs' request for a preliminary injunction. The first covered two days in mid-June 2013, and the plaintiffs and the city presented testimony and other evidence to the court.

¶ 16 The court held the second hearing at the end of June 2013. Plaintiffs and the city provided the court with legal argument. The court then orally denied plaintiffs' request for a preliminary injunction because it concluded that there was not a reasonable probability that they would succeed on the merits of their claims. The court issued a written order to that effect at the beginning of July 2013.

¶ 17 The trial court held a third hearing in September 2013, and it denied plaintiffs' request for a stay pending appeal. The court reaffirmed its decision to deny plaintiffs' request for a preliminary injunction.

¶ 18 A motions division of this court denied a stay pending appeal. We expedited the briefing in this appeal so that we could decide it before the school district breaks ground on the southern parcel in early 2014 to begin the process of building the school.

B. The Evidence

¶ 19 Our review of the record indicates that the following facts the parties presented at the two-day June 2013 hearing are undisputed.

¶ 20 In 1936, the city acquired 36.45 acres of land through which Cherry Creek flows. The southern parcel that the city proposes to transfer to the school district is a 10.77–acre piece of this larger tract. The southern parcel is the southernmost piece of the original tract, and it abuts part of the eastern border of the Hampden Heights subdivision.

¶ 21 The city acquired the entire tract by deed. The deed does not restrict how the city may use the tract.

¶ 22 The city acquired the tract to control flooding along Cherry Creek, but the tract was not within the city limits when the city acquired it. The city later annexed the entire tract, and all the land that made up the tract is now within the city limits.

¶ 23 The city did not develop or otherwise use the southern parcel between 1936 and the late 1960s. During this time, some people had walked or had ridden their horses across it for recreational purposes, some people had picnics on it, and some people had used part of it as a dump for trash.

¶ 24 The city has not passed any ordinances that designate the southern parcel as a park.

¶ 25 A developer built the Hampden Heights subdivision in the late 1960s. When a person was deciding whether to buy a house in the subdivision in 1976, a member of the city's planning department told him that the southern parcel was land in a park, and gave him a 1967 brochure that identified the southern parcel as a proposed “public open park.” The city had published the brochure to reflect its revised comprehensive plan. The prospective purchaser decided to buy the house, relying on this statement.

¶ 26 In 1979, a resident of the Hampden Heights subdivision complained that the northern and southern parcels had become an eyesore. The resident wondered whether the city could maintain the parcels better or sell them to someone who would build a home there. The city's mayor responded in a letter that budget constraints limited the city's ability to maintain the parcels. But he added that the parcels would “eventually ... be developed into a park,” and the city could not sell them “because [they are] dedicated park land.”

¶ 27 In 1983, the city passed an ordinance that dedicated land north of the northern parcel as Paul H. Hentzell Park. This land was not part of the original tract that the city had obtained in 1936.

¶ 28 In 1992, the manager of the city's parks and recreation department sent a memorandum to the city's director of asset management. The parks manager stated that it was his “understanding, with the concurrence of ... the [c]ity [a]ttorney ... that the [southern parcel] ... is not a dedicated park.” He stated that his understanding was “based on the fact that there is no park dedication ordinance and the [southern parcel] was not used as a park ... when all parks were...