OFFICE OF THE CITY ATTORNEY

OFFICE OF THE CITY ATTORNEY DATE: January 17, 2019 TO: FROM: SUBJECT: City Cuncil City Attrney s Office Legal Analysis f Prpsed POPs Charter Amendment The President f Cuncil has asked the City Attrney s Office (CAO) t prepare a legal analysis f the prpsed POPs Charter Amendment (the Amendment ) which seeks t require vter authrizatin t sell, trade, exchange, transfer, dispse f, abandn, cnvey, r therwise alienate (cllectively, transfer ) City wned parks and pen space. A cpy f the Amendment is attached fr yur reference. There is n statutry r case law n pint t assist us in an analysis f the language f the Amendment. T assist City Cuncil in its cnsideratin f the Amendment, this memrandum identifies definitinal issues and administrative/peratinal impact that, withut further clarificatin, will require substantial interpretatin in rder t implement the Amendment. OVERVIEW: The management f the City s real prperty assets is an administrative and executive functin within the discretin f the Mayr. We wuld initially nte that the current system fr managing the City s real prperty assets, including park prperty, is an administrative and executive functin within the discretin f the Mayr pursuant t the Cuncil-Mayr frm f gvernment utlined in the City Charter. The transfer f parkland is an administrative functin f the Mayr, Parks Department, and City Cuncil. Absent legal cnstraints 1 cncerning the use r transfer f park prperty, the City Charter, City Cde, and the Real Estate Manual set frth a lawful prcedure fr determining whether the City may divest itself f wnership f parkland. 2 There are a multitude f checks and balances in place that are designed t ensure that the transfer f any City prperty is in the best interests f the City. We rely n staff t research and perfrm due diligence and advisry bards t review and recmmend (especially fr parkland). Fr thse City-wned prperties that require authrizatin by Cuncil (an administrative act, nt a legislative ne), we rely n the citizens' elected fficials t make the final decisin. This is all designed t ensure there is a rbust public prcess befre final decisins are made. In additin, the CAO is mindful f the fact that much f the City s parkland has been deeded, willed t, r acquired by the City subject t use restrictins r has been the subject f judicial determinatins. Shuld this Amendment r a similar prpsal be apprved by the vters, and t the extent any park prperty is subject t use restrictins r judicial determinatins, any decisin 1 E.g., deed restrictins. 2 The administrative nature f this prcess was upheld in The Prtect Our Parks Petitin Cmmittee v. City f Clrad Springs, et al., Case. N. 2016CV33031, El Pas Cunty District Curt. 30 S. Nevada Avenue, Suite 501 TEL 719-385-5909 FAX 719-385-5535 Mailing Address: Pst Office Bx 1575, Mail Cde 510 Clrad Springs, CO 80901-1575 1 Page

regarding a change in use, transfer, r the need fr a public vte wuld naturally take int cnsideratin all relevant matters. What fllws is a sectin-by-sectin identificatin f issues related t hw the language r undefined terms f the Amendment shuld be interpreted and/r implemented. SECTION 1: Transferred is an undefined term. Is the Amendment intended t prhibit a gratuitus transfer f wnership t a third party? Des a change in cntrlling department within the City trigger a transfer that will necessitate an electin? What abut park uses n nn-park Citywned prperty (e.g., Utilities prperty that permits pen space and trail uses, drainage tracts upn which scial trails have appeared)? What abut a transfer f wnership frm the City t anther public entity with deed restrictins sufficient t maintain the park use (e.g., Penrse Stadium)? Sectin 1 prhibits City wned parks and pen space frm being abandned. The cncept f prperty abandnment des nt generally apply t real prperty, althugh it may apply t easements. In rder t give effect t the term abandned and avid surplusage, a definitin must be fund. One definitin culd be that park facilities must be maintained t a certain standard, which culd vilate laws against multi-year apprpriatins. It is nt clear if the Amendment is intended t apply t prperty wned by the Public Facilities Authrity (PFA) fr the purpse f issuing certificates f participatin (COPs) t finance acquisitins r imprvements. Sme park r quasi-park prperties, including City Hall, are wned by the Public Facilities Authrity and are pledged as security fr COPs. If the Amendment applied t PFA prperties, it may cnflict with existing COP cvenants r prhibit COP financing in the future. SECTION 2: Sectin 2 defines City parks as any City wned land intended fr use as public parkland r pen space, and appears t be intended t define City wned parks and pen space, which is the categry f prperty that is restricted under Sectin 1. The defined term City parks is nt used anywhere else in the Amendment. It is nt clear if City parks, City wned parks, parks and pen space are synnyms r if they represent different categries f land. Sectin 2, subsectins (a) thrugh (e) prvide Examples f parks and pen space included but are nt limited t.... The included but nt limited t language pens the dr t never ending interpretatin regarding what cnstitutes a park r pen space, and whether the prperty in questin is similar t r different than the examples presented. Example (a): City wned land that is in peratin as a park r that is in a cnditin r state f readiness and availability fr use as a park r pen space. It is nt clear when a prperty is in peratin as a park, r when it is in a cnditin r state f readiness and availability fr use as a park r pen space. D lands that are wned and used fr utility r drainage purpses effectively perate as parks if members f the public use the area fr recreatin, regardless f whether the City intends the prperty fr such use? 2 Page

The definitin f City parks cntemplates that the land be intended fr use as public parkland r pen space. Intentin is a subjective standard. The cncept f readiness and availability seems t suggest an bjective standard. It is unclear if the subjective intent shuld be judged by an bjective analysis f readiness and availability. If s, n criteria fr evaluating readiness and availability is prvided in the Amendment language and wuld be left up t future interpretatin. If an bjective standard f readiness and availability applies, then empty lts and undevelped fields that were never intended t be parks culd be affected by this prvisin if their pen nature creates a state f readiness and availability. The brad undefined nature f this example puts enterprise prperty 3 at risk f being cnstrained by the Amendment, which culd cause a cnflict with Issue 300 if enterprise land was restricted. Fr example, several Jimmy Camp Creek Parcels that were purchased by Clrad Springs Utilities fr the Suthern Delivery System are cnsidered t be candidates fr pen space. If the Amendment prevented CSU frm selling the parcels, that may be a subsidy frm CSU t the City. Example (b): Land that is zned r platted fr the intended use as a park. Zning rdinances and plats are bth subject t revisin. It is nt clear if this example can be defeated by rezning r replatting a prperty prir t a transfer. This example f City parks is nt preceded by the phrase City-wned, yet there are prperties nt wned by the City that have been zned r platted and intended fr park uses. Is the divestiture f wnership f these private parks subject t the prvisins f this prpsal? Example (c): Parks r pen spaces identified in the Clrad Springs Parks System Master Plan dated September 23, 2014, Appendix A, and identified as parks classified as: reginal, cmmunity, neighbrhd, pen space including special resurce areas, sprts, and special purpse parks. Althugh the Sectin 1 and the definitin f City parks in Sectin 2 bth specifically state that the land must be City-wned, example (c) references a planning dcument that incrprates land that is nt City-wned. It is nt clear if the intentin is t restrict the use f this land if it is ever acquired by the City, even if the intentin f the City is t acquire the land fr a nn-park purpse. It is nt clear if the Parks Master Plan may be updated in rder t remve a prperty frm identificatin as a park. Example (d): Future apprved additins t the inventry f parks and pen space as identified in future Clrad Springs Parks System Master Plans r similar dcuments. Example (d) has issues similar t example (c). It is nt clear if remval f a prperty frm a list culd defeat transfer restrictins. Example (e): Any part r prtin f an existing park r pen space. 3 Enterprise prperty wuld include prperty whse cntrlling department perates as an enterprise f the City, e.g., Utilities prperty, MHS enterprise prperty, Airprt, glf curse, cemetery, etc. 3 Page

Existing is an unclear term. It culd mean existing n the date the Amendment is apprved, r it culd mean existing frm time-t-time. Neither park nr pen space is a specifically defined term. Hw might this impact PLDO and TOPS parks, pen spaces, and trails; ROWs; drainage tracts; Utilities and ther enterprise prperty; r City-a park use smetime in the future? SECTION 3: Sectin 3 excludes certain specific transfers, r prpsed parks frm the requirements f a vte befre any transfer. It is nt clear what easements fr utilities wuld mean. The City wuld nt grant an easement t CSU. City Charter 10-100 requires that easements granted t third parties be revcable, which is effectively nt an easement. It is unclear if this prvisin is intended t mdify r amend City Charter 10-100. It is nt clear if the first exceptin is fr easements, which may be fr utilities, rights f way r emergency services, r if easements fr utilities, right f ways 4 and emergency services are separate categries. It is nt clear what an easement fr emergency services wuld be. Right f ways is an ambiguus term. In gvernment, this term is generally used fr a publicly wned street that is pen t the public fr travel. City rights f way are required t be available fr franchisees and public utilities t install infrastructure. In many industries a right f way is synnymus with an easement. In thers, it is the land area encumbered by an easement. It is unclear what a curt rdered transfer f title, pssessin r ther matters wuld be r whether the term includes quiet title, ejectment, r eminent dmain judgments. The City peridically transfers land t CDOT and ther state entities. If, fr example, CDOT required a prtin f park land, the Amendment culd require the City t bear the expense f fruitless eminent dmain litigatin if there is n exceptin fr a deed in lieu f cndemnatin. It is nt clear what survey, bundary r encrachment adjustments are. Surveys are reprts f facts, wuld nt be subject t revisin, and d nt transfer prperty. A bundary adjustment almst certainly requires a trade, exchange r transfer f prperty. An encrachment adjustment wuld similarly requires a trade, exchange r transfer, and is als nt subject t limitatin if the encrachment is severe. This exceptin alne may bviate the rest f the Amendment if interpreted bradly. The exceptin fr shrt term leasing creates an ambiguity with City Charter 10-60, which allws park land t be leased fr 25 years. It is nt clear if a 25 year lease is shrt term r if the Amendment further restricts leases. Park leases that culd be affected include the Switchbacks lease and the prpsed lease fr prtins f the Vibes stadium. There is als the questin f when land is unsuitable fr use due t safety r envirnmental issues. This prvisin is subject t very brad interpretatin. There are 4 The legal term is rights f way, nt right f ways as used in the language f the Amendment. See, e.g., City Cde 7.7.204(B)(10) (A preliminary plat shall shw all adjacent public rights f way.... ). 4 Page

n criteria fr determining what safety r envirnmental issues might be unsuitable, and the Amendment des nt tell us wh wuld make this finding. If, fr example, the City were t determine that t many peple were injuring themselves when rck climbing in the Garden f the Gds, culd the City divest itself f wnership f the unsafe prtins f thse parks withut a vte f the peple? Or, if the envirnmental mnitring f the landfill abve Red Rck Canyn indicated that marginally unsafe levels f chemicals were leaching int the pnd, culd the City divest itself f wnership f the pnd withut a vte? Sectin 2 references planning dcuments that identify future prpsed park sites as an example f City parks that wuld be subject t the Amendment, but Sectin 3 prvides an exceptin fr prpsed parks in the planning prcess under PLDO r similar rdinances. This exceptin des nt indicatin whether a site that is restricted by a park master plan wuld then becme exempt nce the area is in the prcess f being master planned r platted by cmmunity develpment. It is unclear whether land acquired under the PLDO is frever exempt s lng as it is in a planning r develpment prcess r if the exemptin ends nce the land is dedicated. The last exceptin is fr transfer f trails if the transfer is fr the purpse f develpment f trails, access t parks, imprvement f a park r realignment f a trail. There is n definitin f a trail. It is nt clear when a prperty is a trail r when it might be characterized as a City-wned park r pen space. Ntably, there is n exclusin frm the vte requirement fr land deeded t the City but nt accepted by the City. 5 There is als n exceptin fr hnring r cmplying with deeds that include reversinary rights (e.g., the Perkins Deed) r rights f first refusal. ADDITIONAL QUESTIONS: Culd a grantr deed, r a testatr bequeath, prperty t the City with an express restrictin r cnditin that the prperty is nt subject t this Amendment and that the City culd chse t dispse f the prperty withut a vte? If the prpsal is referred t the vters with its current language, hw shuld the City interpret and implement the undefined and ambiguus terms? The City Attrney s Office culd issue ne r a series f legal pinins t guide the discretin f the Mayr, Chief f Staff and Parks Department n a case-by-case basis, but wuld the better curse be t engage in a legislative cnstructin exercise similar t hw the City interpreted the language f Issue 300? 5 RES Manual 7.5 authrizes the City t disclaim a purprted cnveyance f prperty t the City if the purprted cnveyance is nt in cmpliance with the requirements f the City Cde r this Manual. The City has used this prcess t disclaim purprted cnveyances f land fr park purpses that is nt in cmpliance with PLDO r that has nt been requested r accepted by the Parks Department. 5 Page