Brief Filed With Colorado Court of Appeals on February 4, 2015

Dear Friends,

Thank you for your continuing support of Friends of Denver Parks and efforts to protect open space in Denver.

Attached is a copy of the brief that Evans Case LLP filed for plaintiffs-appellants in the Colorado Court of Appeals on February 4, 2015.  We are asking the court to reverse the decision of Judge Stern so that, in accordance with Charter Section 2.4.5, the people of Denver may vote on the issue of whether 11 acres of park land should be traded to DPS for use as a school.  We filed a lis pendens on the property in 2013 before the City conveyed it to DPS, so our interests are protected until all appeals are exhausted.

If we are successful, there are a number of possibilities that may come into play.  One, there could be a vote of the people.  Two, could be an agreement reached between the plaintiffs and the city and DPS to eventually restore the 11 acres to its original protected park-natural area status after the useful life of the school expires – say in 15 years, or even forty years, as the original contract between the city and DPS contemplated.

Another factor may be potential danger to elementary school children if there is a severe rain event which requires the Corps of Engineers to release a sudden large volume of water from Cherry Creek Reservoir, through the floodgates of the Cherry Creek Dam, into the flood plain where the school is constructed.  This possibility was once considered extremely remote, but in my opinion, a careful reading of the Corps of Engineers 2012-2013 report on front range dams shows that, if a big enough rain storm dumps a sufficient volume of water into the Cherry Creek Reservoir and surrounding drainage basin, flooding of the new school with loss of life may be an actual danger unless the dam is modified or other precautions are initiated.  According to a former engineer for the Army Corps of Engineers whom I consulted with, risk of flooding can be minimized by releasing all of the water in Cherry Creek Reservoir through the floodgates in measured discharge before the rainy season starts, and hope that enough rain will be recovered in the rainy season to re-fill the reservoir. One of the missions of Cherry Creek Reservoir is recreational use. Draining the reservoir in the summer to avoid risk to a school that was unwisely built in the floodplain 50 yards from the creek, would not be popular with the Cherry Creek Yacht Club, jet skiers, water skiers, paddle boaters, swimmers, campers, environmentalists, beach people, or fisherman.

Members of the Friends board of directors who attended the Corps of Engineers presentation on January 24, 2015 were told that the Corps of Engineers has no control over local officials who authorize development in a flood plain.  Because development of real property in a flood plain is a dangerous choice for inhabitants, the Corps of Engineers discourages development, but cannot prevent it.

Once again, thanks to all of you for your hard work and support. J

John Case

EVANS CASE, LLP

 Opening Brief Colorado Court of Appeals Filed Feb 4, 2015

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