Wednesday, September 13, 2017

Strawberry Fields planning continues, so does lawsuit

Posted By on Wed, Sep 13, 2017 at 5:03 PM

click to enlarge John Spengler holds a sign saying not to trust the Palmer Land Trust. - PHOTOS BY PAM ZUBECK
  • Photos by Pam Zubeck
  • John Spengler holds a sign saying not to trust the Palmer Land Trust.
The third public meeting, held Sept. 12 at Cheyenne Mountain High School, for how The Broadmoor will develop Strawberry Fields open space drew dozens of people.

During the two-hour meeting, they were told that contractor N.E.S., Inc., is trying to map out where trails will be placed through the 189-acre open space acquired last year from the city, a highly controversial land swap that gave the city nearly 500 acres of trail easements and wilderness property. (Blog, May 24, 2016)

click to enlarge About 40 to 50 people showed up for the third planning session for Strawberry Fields open space.
  • About 40 to 50 people showed up for the third planning session for Strawberry Fields open space.

It wasn't a friendly crowd.

Many questions poured out, most notably from City Council President Richard Skorman. Skorman had served as president of Save Cheyenne, a nonprofit formed amid the land swap debate in 2016, but when he was elected to Council in April, he resigned from the group.

Still, Skorman obviously is passionate about the idea of the property falling into private hands and told N.E.S. personnel "it seems backwards" to determine trail locations before a development plan is unveiled. That development plan would use only about 8.5 acres on the open space's north end for a stable and pavilion for Broadmoor guests.

His comments drew enthusiastic applause from many who attended.

Skorman also has said the North Cheyenne Cañon master plan should include Strawberry Fields and be completed before any development takes place.

When Skorman asked how many would like to see a master plan developed first before talking about trails, more than half of the hands shot up.

Other questions included which trails would be used by Broadmoor horses, how the trails will be maintained whether an archeologist has been consulted and who's responsible for fire mitigation.

In answer to that last question, Tim Siebert, principal of N.E.S., said, "I'm assuming The Broadmoor is responsible."

John Spengler stood off to the side, holding a sign that read, "Don't trust Palmer Land Distrust." The Palmer Land Trust holds a conservation easement on Strawberry Fields. That means except for the 8.5 acres of developed area, the remainder is to be kept open for public use under conditions monitored by the trust.

Asked about the sign, Spengler told the Independent, "In November, the Palmer Land Trust told us they wouldn't proceed with the conservation easement until the litigation was done. One month later, they renegged on that."

Not true, says the trust's director Rebecca Jewett.

"That is a misunderstanding. We never said we would wait till the litigation is over," she says in an interview. "We said from the beginning we needed to go do the due diligence. We're not a party to the litigation, so we've been watching it, and if that goes in the direction that impacts the project, we will do what needs to be done. The easement itself was never contingent on the resolution of the litigation.

"We have always maintained our neutral stance on the exchange itself, and our goal has always been with the easement to assure public access," she adds. "There are so many avenues this could go down, I find it hard to speculate on the easement [if Save Cheyenne prevails]. If something undid the easement legally, I don't know what that would look like. We would work to ensure public access on that property. From our perspective, our goal has always been, regardless of land ownership, we want to assure public access."

Jewett also said the conservation easement requires The Broadmoor to go through a planning process and engage the public in that process, while reporting to the trust as things unfold. There also are timelines stated in the easement "to ensure what the public was told and promised will be delivered within a time frame," she says.

Meantime, the litigation continues.

On July 31, The Broadmoor and city filed a motion asking the Court of Appeals to dismiss the case because it's moot. After the District Court dismissed Save Cheyenne's lawsuit challenging the legality of the land swap, the motion states:

Save Cheyenne did not take an emergency appeal. Nor did it seek a
stay of the impending transaction from the district court or this Court. Instead, Save Cheyenne held off filing its notice of appeal until early January, three weeks after the district court’s ruling.

By then, the land exchange had closed. As part of the closing, and as required by the resolution, the Broadmoor conveyed a conservation easement covering Strawberry Fields to the Palmer Land Trust—an easement that ensures Strawberry Fields will be preserved and enhanced as parkland for the public to freely use and enjoy in perpetuity.

That the land exchange has already closed raises a threshold justiciability question: Is this case now moot? The answer is yes, for two reasons. First, this Court has held that when, as here, a plaintiff seeks declaratory and injunctive relief to prevent an event that has already occurred, the plaintiff’s case is moot. Second, rescinding the land exchange this late in the day would flunk the Colorado Supreme Court’s three-factor balancing test from DeVilbiss v. Zoning Board of Adjustment....
In response, Save Cheyenne filed a pleading saying the motion was an "end run" on the appellate process:
This closing took place in the face of a recorded lis pendens [pending legal action] filed in the real property records of the El Paso County Clerk and Recorder. That lis pendens was noted by the title insurance company that closed the transaction as an exception to its policy of title insurance. Of course, a lis pendens was not even necessary in this case; both the City and the Broadmoor were parties to the litigation; they knew that Save Cheyenne had raised substantial questions about whether Colorado Springs had the authority to convey Strawberry Fields and that the case was within the appeal period. Heedless of the risk, they chose to close anyway. It is true that the Palmer Land Trust took a conservation easement over Strawberry Fields; however, that entity is bound by the lis pendens and only took the easement to protect the public from the consequences of the fact that their public park had been conveyed into private hands.

The Motion to Dismiss is an improper use of motion practice before this Court and a blatant effort to deprive Save Cheyenne of its appeal rights while introducing a litany of “facts” that are not in the appellate record. In the applicable precedent cases, some cited by Defendants and some not, when appellees have moved to dismiss an appeal as “moot,” they have also sought a remand to the trial court so that it may engage in fact-finding regarding matters that arose following the judgment that the appellees contended made the case “moot.” In this case, Appellees would much prefer to try their case before an appellate court through the use of ex parte affidavits, doling out selective “facts” about matters exclusively outside of Save Cheyenne’s knowledge and control and in the absence of discovery, cross-examination, or basic due process at an evidentiary hearing. This effort to end run the appellate process should not be rewarded by the Court and it constitutes grounds to deny the Motion to Dismiss on its own.

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