COLORADO SPRINGS OFFICE OF THE CITY ATTORNEY. Privileged Attorney- Client Communication TO:

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1 7 %k% COLORADO SPRINGS TV USA OFFICE OF THE CITY ATTORNEY Privileged Attorney- Client Communication TO: City Council Karen Palus, Parks, Recreation and Cultural Services Director From: Office of the CityAttoL Date: May 20, 2016 Subject: Approval Procedure for a Land Exchange Involving City-owned Park Property FACTS: The Parks and Recreation Advisory Board has recommended to City Council that acres of park property owned by the City of Colorado Springs ( City ) and located at North Cheyenne Canon, and.55 acres of City-owned Colorado Springs Utilities property be exchanged for acres of property and acres of new public trail easements currently owned by the Broadmoor and the Pikes Peak Cog Railway. City Council received preliminary briefings about the proposed exchange and received a full briefing at its April 25, 2016, Work Session. The Office of the City Attorney has been asked to identify the proper methodology for approving the potential land exchange in light of (1) Colorado Revised Statute ( C.R.S. ) , which provides that the question of the sale or disposition of municipally owned real property held for park purposes or for any governmental purpose to be submitted to voters in the same manner as for authorization for bonded indebtedness; and (2) the electorate s authorization to acquire the North Cheyenne Canon property, including the acres proposed for trade, sometimes called North Cheyenne Canon Strawberry Hill Area, following a vote at the special election of August 18, QUESTION: If a home rule municipality desires to exchange parkland property for other property to be used for parkland purposes, does such an exchange constitute 1 All acreages are approximate and subject to survey. 30 S. Nevada Avenue, Suite 501 TEL FAX Mailing Address: Post Office Box 1575, Mail code 510 colorado Springs, co

2 a sale or disposition and is it required to go to a vote of the qualified electors of the municipality as contemplated by C.R.S ? ANSWER: No. Though the proposed exchange is a disposition of real property used for park purposes, City Council has adopted an ordinance of general applicability, through the exercise of the City s constitutional home rule authority, authorizing the sale or exchange of municipally-owned real property, and providing disposition procedures, which do not require approval by vote of the electorate. This ordinance and the procedures adopted pursuant to the ordinance supersede the requirements of C.R.S with respect to the sale or disposition of municipallyowned real property. The City derives its home rule authority under and by virtue of Article XX, Sections 1 and 6 of the Colorado Constitution. The voters of the City exercised this constitutional home rule authority by adopting a city charter that includes authorization for the City to sell or dispose of its real property2. In furtherance of that authority, the City Council adopted an ordinance, codified at City Code , that supersedes all conflicting state statutes. City Council also adopted ordinances governing the method and procedure to be used for all real property transactions involving municipally-owned real property3. Under established law, including Fraternal Order of Police v City & County of Den ve, 926 P.2d 582 (Cob. 1996); Town of Te/luride v. San Miguel Valley Corp., 185 P.3d 161 (Cob. 2008), the conflicting state statute is superseded by the City ordinances which require compliance with the City of Colorado Springs Procedure Manual for the Acquisition and Disposition of Real Property Interests ( Real Estate Manual or RES Manual ) and prescribe the legally controlling procedure by which a land exchange is completed. Compliance with the Real Estate Manual is the only procedural requirement applicable to this transaction. DISCUSSION: The City is a home rule city governed by the provisions of Colorado Constitution Art. XX, 55 1, 4, 5 and 6. Section 6 states: It is the intention of this article to grant and confirm to the people of all municipalities coming within its provisions the full right of selfgovernment in both local and municipal matters and the enumeration herein of certain powers shall not be construed to deny such cities and towns, and the people thereof, any right or power essential or proper to the full exercise of such right. 2 city Chatter 1-20(b) City Code Page

3 Art. XX, 6 authorizes the City to adopt a charter and ordinances pursuant to the charter, and provides that the charter and ordinances so adopted shall supersede any State statute in conflict with the charter and ordinances in regard to matters of local and municipal concern. The City of Colorado Springs City Charter ( City Charter ) was adopted by the electorate on May 11, Art. XX of the Colorado State Constitution was adopted by statewide vote and became effective on January 22, Because the City s Charter was already in effect when Art. XX was adopted, Art. XX, 5 6 ratified, affirmed, and validated all provisions of the City Charter of Colorado Springs. Art. XX grants to a home rule city the powers set out in its sections 1, 4, and 5. With regard to municipally-owned real property transactions, both Cob. Const. Art. XX, 1 and City Charter (b) contain identical language indicating that the City may purchase, receive, hold and enjoy, or sell and dispose of real and personal property. The General Assembly has no power to enact any law that denies a right specifically granted by the Colorado Constitution. See City of Thornton v Farmers Reservoir & Irrigation Co., 575 P.2d 382,389 (Cob. 1978). Because Art. XX, 5 1 specifically grants the right to purchase, receive, hold and enjoy, or sell and dispose of real and personal property to home rule municipalities, it constitutes such a local and municipal matter over which the General Assembly has no authority to impose restrictions or conditions upon a home rule municipality. Additionally, under Cob. Const. Art. XX, a home rule municipality may supersede the laws of the state of Colorado with respect to matters of local and municipal concern. Although both home rule cities and the state may legislate in matters of local concern, the home rule enactment will control in the event of any conflict with state legislation. City & County of Denver v State, 788 P.2d 764, 767 (Cob. 1990); Fraternal Order of Police, supra. It follows that real property transactions involving property that is owned by a home rule municipality and used for municipal purposes are, by their nature, matters of local and municipal concern. When a municipality exercises constitutional and charter authority to acquire, use, or dispose of real property interests, it does so to further local and municipal interests and concerns. Municipal real property transactions are also of local concern due to the proximity to and effect of the real property transaction on the municipality and its citizens. It would be difficult to argue that the acquisition or disposition of any and all real property by every home rule municipality would have such an impact on the whole of 3IPage

4 Colorado that this should be considered a matter of statewide concern. As the Colorado Supreme Court stated in Town of Telluride v. San Miguel Valley Corp., 185 P.3d 161, 168, land use policy traditionally has been a local government function in the state, and that Colorado municipalities are active in incorporating open space, parks, and recreation into their planning. In addition. many Colorado home rule municipalities of all sizes.. and geographies manage extensive open space programs. We conclude that municipalities, neighboring counties, and the state have traditionally acted on the presumption that land planning for open space and parks is a local government function. The proposed land exchange is merely a mechanism by which the City plans for its parks and open space. CITY ORDINANCES: City Council has through legislative action evidenced a clear intent to exercise the City s home rule authority to supersede contrary state statutes through the City Council s adoption of City Code , which states: Any and all laws and statutes of the State of Colorado which limit, restrict, regulate, inhibit, direct or impose conditions and restrictions upon the grant of plenary power in local and municipal matters, under article XX of the Constitution of the State of Colorado, or which limit, restrict, regulate, inhibit, direct or impose conditions and restrictions in the administration and discharge of the functions, powers and rights of the City in local and municipal matters, shall be and are hereby superseded and declared to be not applicable to any functions, rights and powers of the City in local and municipal matters. Nothing contained elsewhere in this Code and specifically in section shall be construed to limit the generality of this section. Moreover, on August 28, 2007, the City Council of Colorado Springs adopted Ordinance No , which required compliance with the Real Estate Manual for acquisitions or dispositions of real property interests by deed or other conveyancing document4. This ordinance effectively enacted and codified requirements, limitations, procedures, and a methodology for acquisition and disposition of City-owned real property interests. Under the authority of City Code (A), City Council adopted all provisions of the RES Manual through its passage of Resolution No Pursuant to RES Manual 4.5, City Council is authorized to make decisions regarding whether to accept a land exchange by Resolution. See City Code and Page

5 The requirements of the City ordinances concerning real property transactions, particularly land exchanges, are in conflict with the requirements of C.R.S because they do not require a vote of the electorate, but rather provide for approval by Council. As a result of the City Council s home rule adoption of an ordinance regulating the transfer of property interests via land exchange, the City Code provisions and the RES Manual prescribe the legally controlling procedure by which a land exchange is completed by the City. C.R.S has effectively been superseded by the exercise of home rule power and authority and is not applicable to land exchanges within the City of Colorado Springs. Finally, some members of the community have suggested that because the North Cheyenne Canon Strawberry Hill area was originally purchased after a vote of the registered electors at an election, any transfer or disposition of the property should also be authorized by a vote of the City electorate. There exists no legal authority to support this assertion. Although state legislation adopted in April of 1885 did authorize municipalities to seek a vote of the people to authorize the purchase of park property, it did not mandate that to be done, nor did it provide restrictions on the ownership, use, or future disposition of the property. A review of the City ordinance and resolution to implement the 1885 vote in favor of purchasing the park property also did not yield any future restrictions on the ownership, use, or potential disposition of the property. CONCLUSION: The City of Colorado Springs has home rule authority over its real property transactions granted by Cob. Const. Art. XX, 1 and 6. The electors of the City have adopted the City Charter of Colorado Springs which authorizes the City to sell or dispose of real property. Cob. Const. Art. XX 6 ratified, affirmed and validated all provisions of the Charter of the City of Colorado Springs. Pursuant to the Charter, City Council has adopted ordinances governing the method and procedure to be used for all City transactions involving municipally-owned real property. The applicable City Code provisions adopted by the City Council prescribe the legal procedure by which a land exchange may be approved. C.R.S has been superseded and is not the controlling procedure to dispose of municipally-owned parkland pursuant to the proposed land exchange. See also, Centennial Properties v. City of Littleton, 390 P2d. 471, 476 (Cob. 1964). 5IPage