Friends of Denver Parks v. City of Denver, Debra Johnson, and Denver Public Schools – Update

Friends of Denver Parks plaintiffs, Zelda Hawkins, left, John Case, and Steve Waldstein, right, take about their court case against the City of Denver standing inside Hentzell Park along the Cherry Creek bike path near Hampden Ave on June 01, 2013. (THE DENVER POST | Andy Cross)

Dear Friends,
All of us continue to be inspired by the sacrifices of each other to prevent the destruction of Hampden Heights North Park.  We continue to make progress in the fight against city hall.
On Monday August 19, 2013 Friends of Denver Parks filed 25 more petition sections at the clerk and recorder’s office, totaling 1,297 signatures. A copy of the letter to the clerk and recorder with a list of the petition sections and circulators is attached.  Thanks to all of you who circulated petitions successfully. Please go here to see letter to Clerk and Recorder
Also on August 19 Judge Stern signed an order allowing the plaintiffs to proceed on their revised third amended complaint.  A copy of the order is attached here.
The revised third amended complaint makes the claims set forth below.  These claims are scheduled for a seven day trial in Judge Stern’s courtroom (courtroom 376, Denver District Court) starting May 19, 2014. We have requested trial by jury because the issue in dispute involves title to real property, for which Colorado allows trial by jury.  The city opposes trial by jury.  The city wants judge Stern to hear the evidence and decide the case without a jury.

Judge Stern will decide before trial if plaintiffs are entitled to a jury trial. In the near future, Judge Stern also is expected to decide if INC will join the suit as a plaintiff.
After the trial next May, when final judgment enters in the trial court, any party may appeal as a matter of right to the Colorado Court of Appeals.
The lis pendens that was recorded against the property May 29, 2013 remains in place until the last appeal is decided. The claims that go to trial May 19, 2014 are as follows:
Plaintiffs’ First Claim for Relief seeks a declaratory judgment that Hampden Heights North Park (“HHNP”) is park land owned by Defendant City and County of Denver (“the City”).  Plaintiffs claim that by signing a contract to trade part of the park land for an office building downtown, the City acted ultra vires, in violation of City Charter section 2.4.5, which prohibits the sale of any park land without a vote of the people.  Plaintiffs ask the Court to enjoin the City and DPS from developing HHNP.
Plaintiffs’ Second Claim for Relief seeks a Declaratory Judgment that on April 1, 2013 city council subdivided HHNP into two separate parcels, each with different land uses, and designating 10.771 acres of open space for development by Defendant School District No. 1 in the City and County of Denver (“DPS”).  Plaintiffs assert that subdividing HHNP constitutes new municipal policy and legislative action by the City.
Plaintiffs’ Third Claim for Relief seeks a Declaratory Judgment that DPS does not lawfully hold title to the above-referenced 10.771 acre parcel. Plaintiffs ask the Court to enjoin DPS from developing the subject land in a manner inconsistent with its long-standing use as a public park.
Plaintiffs’ Fourth Claim for Relief seeks declaratory judgment that section 8.3.2 (C) of the city Charter on its face and as applied violates fundamental rights of the plaintiffs and the people of Denver guaranteed by the First, Fifth, and Fourteenth Amendments of the U.S. Constitution, Article II Sections 10 and 25, and Article V § 1 of the Constitution of Colorado, and section 8.3.1 of the Charter of the City and County of Denver.
Plaintiffs’ Fifth, Sixth, and Seventh Claims for relief seek judicial review pursuant to CRCP 106(4)(a) of the clerk and recorder’s interference with Petitioners’ activities and rejection of the Petitioners Committee referendum petition.  The referendum petition was signed by 6,664 registered voters in the city and county of Denver.  6,129 signatures are required to place the issue on the ballot.  The referendum petition included more than enough signatures to place the issue on the ballot.  On July 3, 2013 Johnson rejected the referendum petition.  Johnson refuses to place the referendum issue on the ballot as required by the city Charter. Plaintiffs seek injunctive relief allowing them until August 19, 2013 to gather more signatures on the referendum petition, and an order directing the city and Johnson to place the referendum issue on the ballot.
A complete copy of the revised third amended complaint can be viewed here on our website at FriendsOfDenverParks.Org.
On August 16, 2013 the Colorado Court of Appeals received the certified record from clerk of the Denver District Court.  The Court of Appeals will decide if Judge Stern erred when he refused to grant a preliminary injunction preventing the sale of Hampden Heights North Park.  The Court of Appeals will soon send out a briefing schedule.  Plaintiffs’ opening brief will be due approximately September 27, defendants’ answer briefs October 25, plaintiffs’ reply brief Nov 8. The Court of Appeals may hear oral argument after the briefs are filed.  There is pending before Judge Stern a motion to grant an injunction prohibiting development of HHNP during the pendency of the appeal.  If Judge Stern denies this motion, the Court of Appeals can grant it.
Please feel free to call my cell 303-667-7407 if you have questions.
John Case
BENSON & CASE, LLP