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Battle over Strawberry Fields continues in court and, maybe, at the ballot box 

click to enlarge A part of Strawberry Fields that will become The Broadmoor's stable and picnic area. - FILE PHOTO
  • File photo
  • A part of Strawberry Fields that will become The Broadmoor's stable and picnic area.

Five months after City Council approved a highly controversial land swap with The Broadmoor that trades away the city's Strawberry Fields open space, the battle to overturn the deal rages on.

Save Cheyenne, a nonprofit born amid the debate, must fend off the city's and resort's bids to have its lawsuit dismissed while also playing offense by taking the fight directly to voters.

One way or another, Save Cheyenne wants to put a measure on the April 4 city ballot — either through an initiative that requires gathering 15,202 signatures on petitions or via a Council-referred measure, a long shot considering councilors voted 6-3 on May 24 to approve the swap in the first place.

The ballot measure would amend the City Charter to require a vote of the people to sell or trade city parkland and open space contained in the 2014 parks master plan. If approved, the measure could sideline the Strawberry Fields land swap.

Meantime, the city is working to close the land deal.

At the center of the dispute is Strawberry Fields, an idyllic 189 acres adjacent to Broadmoor-owned Seven Falls in Cheyenne Cañon. The parcel, acquired through voter approval in 1885, was largely untended for decades but became the swap's lightning rod after the city sprang the deal on the community in January in a news release. The deal also includes a city-owned half acre of land at the base of the Manitou Incline.

In exchange, The Broadmoor is giving the city about 360 acres of wilderness property around Mount Muscoco west of Strawberry Fields, and a 9-acre tract adjacent to El Paso County-owned Bear Creek Regional Park. As well, The Broadmoor is forfeiting 115 acres of trail easements for the Barr Trail and Chamberlain Trail.

As crowds grew at a series of public meetings, the deal was amended to require The Broadmoor to obtain a conservation easement on Strawberry Fields and open it for public use, except for an 8.5-acre tract in the meadow where the resort plans a horse stable and picnic pavilion for its guests. The resort also agreed to build trails and drainage improvements within the open space.

Not placated, Save Cheyenne filed a lawsuit in August, arguing the open space can't be sold or traded without voters' permission, because it was dedicated as park land. The lawsuit contends the swap violates a state law that calls for a vote of the people before park land may be disposed of and that the state law applies because the issue is of statewide concern. The lawsuit also argues that because Strawberry Fields has a greater value than land given to the city, the swap violates the state Constitution, which bars government gifts to corporations.

Though Save Cheyenne sued the city, not The Broadmoor, the resort sought and gained permission to intervene on Oct. 11, about three weeks after the city filed a motion to dismiss.

In its motion, the city argues the 1885 public vote didn't effect a statutory dedication, and, besides, the city's Charter and ordinances allow the city, via home-rule authority, to dispose of property as it wishes without consulting voters. The city also asserts the land swap is of "purely local concern," further invalidating the state law's impact on the swap.

The swap doesn't violate the state Constitution, the city says, because the city is receiving land valued at $3.6 million, while Strawberry Fields is valued by a city-hired appraiser at $1.6 million. (Save Cheyenne argues that price understates the open space's value.)

Last week, The Broadmoor filed its motion to dismiss on behalf of various entities that hold property subject to the swap, all controlled by billionaire Philip Anschutz, who also owns the Gazette in Colorado Springs.

Submitted by John Cook with Hogan and Lovells law firm, the motion argues that Save Cheyenne "get[s] the law wrong" and that the group "wants to dismantle the entire land exchange over 8.5 acres."

Speaking to the claim the trade constitutes an unconstitutional gift, the motion states, "The only thing that matters is whether the Broadmoor will provide consideration. It will." In addition, the motion says a Colorado Supreme Court ruling notes an exception to the ban on gifts if the gift "furthers a valid public purpose," which the land swap does by enabling the city to expand its parks and trail system.

Moreover, the motion points out the city's past practice of trading land, notably an undisputed Sept. 24, 2013, transaction in which the city traded 1.56 acres of park land to Verdoorn Charitable Trust for its 3.96 acres southwest of Allegheny Drive to be used for a trail corridor.

Save Cheyenne is to respond to the motions by Nov. 8, after which responses from The Broadmoor and city are due Nov. 22. After that, a judge will rule.

If Save Cheyenne prevails in the suit, the land swap could be void, and the city might choose to place a measure on the April 4 ballot. If Save Cheyenne loses in court, the group might seek an injunction that would suspend closing the land swap deal pending the outcome of its initiative on the April 4 ballot, says Save Cheyenne leader Richard Skorman, former vice mayor and downtown businessman.

As the Independent went to press this week, Save Cheyenne's ballot measure's title was to be set on Nov. 1 by City Clerk Sarah Johnson, City Attorney Wynetta Massey and Chief Municipal Judge HayDen Kane.

One sticking point that might arise is whether the measure contains only a single subject, as required by law. The measure, dubbed Protect Our Parks (POPs), calls for a vote of the people on disposal of parkland and open space, and also states that it would apply to all such disposals not finalized by May 1, 2016, which means it would apply to Strawberry Fields.

Rejecting the title for any reason would delay Save Cheyenne from starting to gather signatures. That's a problem, because to make the April 4 ballot, ample valid signatures must be turned in to the City Clerk's Office by Jan. 4. One option, Skorman says, is for Save Cheyenne to appeal the Title Board's ruling to district court.

That legal maneuver wouldn't be necessary, though, if Council at its Nov. 7 meeting grants Save Cheyenne's request to simply refer the measure to the ballot on its own authority.

In an email to Council, Skorman notes a scientific poll of 500 likely voters found that 77 percent support a City Charter change that would mandate a vote of the people to sell or trade parkland and open space.

"There's nothing unusual or onerous about this," Skorman notes in an interview, noting the same mandate applies in most Front Range cities, for land funded by Great Outdoors Colorado, for land dedicated as parks by city founder William Palmer, and for the city's Trails, Open Space and Parks land.

"If they didn't want to appear to suppress voters' will," he says, "they'll put this in front of voters to decide."

Of the six councilors who favored the swap, three responded to the Indy's question about supporting a referendum.

Tom Strand says he hasn't made up his mind. Keith King said he opposes it, and Don Knight says he wants to know more about ballot wording; if it would overturn the land swap, he opposes putting it on the ballot.

A city spokesperson says progress continues on the land swap's title work, surveys, environmental study and other due diligence steps. The city didn't provide a potential closing date.

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