Tuesday, January 9, 2018

UPDATE: Strawberry Fields case argued before the Colorado Court of Appeals

Posted By on Tue, Jan 9, 2018 at 3:03 PM

click to enlarge The case of Strawberry Fields open space made it to the Colorado Court of Appeals on Jan. 9. A decision is expected in coming months. - PAM ZUBECK
  • Pam Zubeck
  • The case of Strawberry Fields open space made it to the Colorado Court of Appeals on Jan. 9. A decision is expected in coming months.

UPDATE: This blog post has been updated to reflect a correction to which Court of Appeals judge is nearing retirement.

———————ORIGINAL POST 3:03 P.M. TUESDAY, SEPT. 9, 2018———————

DENVER — Opponents of the city of Colorado Springs' land exchange with The Broadmoor, finalized in December 2016, showed up in force on Jan. 9 for arguments of their case before the Colorado Court of Appeals.

Save Cheyenne, a nonprofit formed amid debate over the land swap in early 2016, sued the city later that year arguing that 186-acre Strawberry Fields open space in North Cheyenne Cañon park couldn't be disposed of without voter approval. They argue the land was purchased from a bank in 1885 after voters approved the acquisition, meaning it was dedicated park land, which can't be sold or traded without voters having a say.

The city counters that there's no deed restriction, and the city's home rule powers enable City Council to dispose of city-owned land as it sees fit for the betterment of the city.

In addition, Save Cheyenne asserts that land received by the city isn't worth as much as the land it ceded to The Broadmoor, which is unconstitutional if the exchange constituted a "gift" from the government to a corporation. The city, and The Broadmoor, which has intervened in the case, argue otherwise, saying there was no gift.

The land exchange gave The Broadmoor the open space and a half-acre parking lot at the foot of the Manitou Incline. The city received more than 400 acres of wilderness property, easements for various trails and a roughly 9-acre tract immediately east of Bear Creek Regional Park. According to appraisals, The Broadmoor's land far exceeded the value of the city's land, but an appraisal of Strawberry Fields came into dispute when the Colorado Board of Real Estate Appraisers ruled, in response to a complaint, that the appraisal fell short in following standard appraisal practices and ordered the appraiser, Kyle Wigington, to pay a fine and take classes in such things as highest and best use and other appraisal skills.

The city has argued the land swap was good for the city, because it provides key trails connections and offloads care of Strawberry Fields from a Parks Department that's strapped for money to maintain the lands it oversees. The Broadmoor is planning to build a horse stable and picnic pavilion on about 8 acres amid the open space for use by its guests, while placing the balance under a conservation easement overseen by the Palmer Land Trust and opened for public use.

After a District Court judge dismissed Save Cheyenne's case, it appealed to the Court of Appeals where attorneys for both sides squared off on Jan. 9.

Charles Norton, a Denver attorney, represents Save Cheyenne, while City Attorney Wynetta Massey appeared on the city's behalf.

Their 15-minute arguments were confined to issues of law previously outlined in court briefs. The three Court of Appeals judges who heard those arguments interjected questions, such as one challenging the authority argued by Save Cheyenne for asserting a vote of the people was necessary for the Strawberry Fields transfer, and another asking Massey if the word "dedication" in the 1885 ordinance has a meaning.

After the brief hearing, attended by about a dozen Save Cheyenne supporters, Norton said questions surrounding the legitimacy of the Strawberry Fields appraisal aren't relevant to the appellate case, which pivots only on the law that dictates what the city can and can't do in disposing of property.

"The city is arguing that none of that makes any difference," he said, "that the court has no power to review the transaction or the appraisal."

However, if the court agrees with Save Cheyenne's arguments, it could send the case back to the District Court for trial, at which, Norton said, information about the appraisal would become pertinent.

Norton's take on the hearing was that the court "is wrestling with the issues."

Both sides have promised to appeal an unfavorable ruling to the Colorado Supreme Court, so the case could persist for months. The Court of Appeals ruling will be handed down "in due course," according to appeals Judge John Webb, but Save Cheyenne supporters hope for a decision sometime in February noting Webb's one of the judge's imminent retirement. (Jon Sarche, spokesman for the Colorado Judicial Department says  Judge Dennis Graham plans to retire effective Feb. 12.)

Among those attending on Save Cheyenne's behalf was supporter Donna Strom. "This could affect every city in Colorado," she told the Independent. "I feel like I'm standing in the shoes of those people in 1885 [who voted to acquire the open space], and I will never give up."

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