Tuesday, June 6, 2017

Strawberry Fields argument filed with appellate court

Posted By on Tue, Jun 6, 2017 at 5:47 PM

click to enlarge A resident who tried to persuade City Council from approving the Strawberry Fields land swap in 2016. Now, the matter is in the courts. - FILE PHOTO
  • File photo
  • A resident who tried to persuade City Council from approving the Strawberry Fields land swap in 2016. Now, the matter is in the courts.

The dispute over the city open space known as Strawberry Fields is continuing with the filing of written arguments in the Colorado Court of Appeals.

The city traded the open space to The Broadmoor in exchange for other lands, leading to an uproar and the formation of the group Save Cheyenne, which aimed to stop the trade.

The brief was recently filed by Save Cheyenne, which appealed a District Court ruling in December that dismissed Save Cheyenne's lawsuit that alleged the city's land exchange with The Broadmoor was illegal.

In its arguments, Save Cheyenne notes that the City Charter forbids the city from issuing a "right to use" permit to anyone for city parkland for more than 25 years without a vote of the people. Hence, Save Cheyenne, argues, the city did an end-run by simply transferring title to Strawberry Fields open space to The Broadmoor for ownership forever.

Save Cheyenne, a nonprofit formed to oppose the exchange, wants to overturn the deal.

From its brief:
The Charter also requires a vote of the people before creating a franchise, which is a “special right or privilege…granted to any person, firm, or corporation to…operate a business activity affective of the public interest and which permanently occupies and obstructs the public…properties…” Authorizing the Broadmoor to operate an equestrian center and 100 seat barbeque/buffet event center for 40 plus events a season in the Building Envelope of 8.5 acres on Strawberry Fields does precisely that, without a vote.

The interpretation advocated by Save Cheyenne avoids an absurd result. If Colorado Springs had leased Strawberry Fields to the Broadmoor, it would have to have a vote of the people and the term could be no longer than twenty-five years. However, this problem can be avoided in the City’s view just by trading the City’s interest away entirely! This absurd result should not be accepted by the Court.
The case was filed on Aug. 2, 2016, after City Council voted 6 to 3 on May 24, 2016, to trade the 189-acre Strawberry Fields open space in Cheyenne Cañon to The Broadmoor in exchange for forested property around Mt. Muscoco and various trail easements.

Save Cheyenne sued the city, Mayor John Suthers and the city's real estate manager.

Save Cheyenne lost the case on Dec. 15 when Judge Michael McHenry ruled in the city's favor dismissing the case.

In that ruling, he said:
No one disputes that this land is among the crown jewels of Colorado Springs’ park system, such as the Garden of the Gods and Cheyenne Canon, which are world-renowned and vital to the quality of life in Colorado Springs. Conveyance of such parkland to a private entity is always a serious matte[r.] This case raises important issues concerning the sound stewardship of our public lands.
On January 5, Save Cheyenne appealed that ruling. Now, briefs for and against the land exchange are being filed.

Also, since the appeal, three entities have intervened. They are the Manitou and Pikes Peak Railway Co., COG Land & Development Co. and The Broadmoor.

Save Cheyenne contests the sale on five grounds:

1. That the City Council resolution approving the conveyance of Strawberry Fields violated the terms of a statutory and common law dedication of the parcel as a park.

2. That the resolution violated the City Charter by conveying a perpetual right to use Strawberry Fields for a term greater than 25 years and without a vote of the people.

3. That the conveyance violated the terms of state law, which requires an election before park property may be sold or disposed of.

4. That the land exchange violates the Colorado Constitution, which prohibits any city from making a donation or grant to any corporation or company. (Save Cheyenne says the city land is worth more than the land acquired by the city in the transaction.)

5. That the proposed use of about 8.5 acres of Strawberry Fields as an equestrian center available only to the Broadmoor’s guests violates the terms of the deed restriction required by the resolution that the property be in a PK [park] zone for public recreation and open space.

Here's the Save Cheyenne filing:

The city will file its brief in coming weeks.

Save Cheyenne member Kent Obee says oral arguments could be heard later this year, with a decision expected in 2018.

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