Friends of Denver Parks vs. City and County of Denver

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14CA1641 Friends of Denver Parks v Denver 09-17-2015
COLORADO COURT OF APPEALS

DATE FILED: September 17, 2015
CASE NUMBER: 2014CA1641

Court of Appeals No. 14CA1641
City and County of Denver District Court No. 13CV32444
Honorable Herbert L. Stern, III, Judge

Friends of Denver Parks, Inc., a Colorado non-profit corporation; Steve
Waldstein; and Zelda Hawkins,
Plaintiffs-Appellants,
v.
City and County of Denver; and Denver School District No. 1,
Defendant-Appellees.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE NIETO*
Loeb, C.J., and Rothenberg*, J., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(f)
Announced September 17, 2015
Benson & Case, LLP, John Case, Denver, Colorado, for Plaintiffs-Appellants
D. Scott Martinez, City Attorney, David W. Broadwell, Assistant City Attorney,
Patrick A. Wheeler, Assistant City Attorney, Mitch T. Behr, Assistant City
Attorney, Denver, Colorado, for Defendant-Appellee City and County of Denver
Jerome DeHerrera, Molly Ferrer, Denver, Colorado, for Defendant-Appellee
Denver School District No. 1
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2015.

Plaintiffs, Friends of Denver Parks, Inc., Steve Waldstein, and
Zelda Hawkins, appeal the trial court’s order granting summary
judgment in favor of defendants, the City and County of Denver and
Denver School District No. 1. We affirm.
I. Background and Procedural History
This appeal concerns some undeveloped land owned by the
city of Denver located in the southeastern portion of the city. In
2013, the city divided this land into a northern parcel and a
southern parcel. The southern parcel is the focus of this appeal.
The city arranged to transfer the southern parcel to the school
district, which planned to build a school there. Plaintiffs opposed
the transfer. They filed this action, and they requested a
preliminary injunction to enjoin the transfer. The trial court denied
the request, and a division of this court affirmed the trial court’s
order. Friends of Denver Parks, Inc. v. City & Cnty. of Denver, 2013
COA 177. After interpreting relevant portions of the city charter,
the division concluded that plaintiffs had not established that they
were likely to succeed on the merits of their claims.
The defendants then moved for summary judgment asserting
that the unequivocal facts showed that the parcel was not a park as
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of December 31, 1955, and was never designated as a park by
ordinance. The trial court accepted all of plaintiffs’ evidence as
true, but nevertheless found that the parcel was not a common law
park before December 31, 1955, and was not designated as a park
by ordinance after that date. The trial court then granted
defendants’ motion for summary judgment and plaintiffs appealed.
II. Summary Judgment Order
A. Standard of Review
We review a grant of summary judgment de novo. Shelter Mut.
Ins. Co. v. Mid-Century Ins. Co., 246 P.3d 651, 657 (Colo. 2011).
Summary judgment is a drastic remedy to be granted only when
there has been a clear showing that no genuine issue of material
fact exists. Churchey v. Adolph Coors Co., 759 P.2d 1336, 1340
(Colo. 1988). A court’s ruling on “the genuineness of a factual
dispute” is a matter of law. Andersen v. Lindenbaum, 160 P.3d 237,
241 (Colo. 2007). The court’s decision is not rendered discretionary
merely because an evaluation of the entirety of the circumstances
cannot be reduced to a precise formula. Id.
In a motion for summary judgment, the moving party has the
burden of establishing the absence of a triable factual issue.
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Churchey, 759 P.2d at 1340. When the party that does not bear the
burden of persuasion at trial moves for summary judgment, the
initial burden of production is satisfied if the moving party
affirmatively shows an “absence of evidence in the record to support
the nonmoving party’s case.” Cont’l Air Lines, Inc. v. Keenan, 731
P.2d 708, 712-713 (Colo. 1987). Once the moving party has met
the initial burden, the burden then shifts to the nonmoving party to
establish a triable issue. Id. An affirmative showing of
uncontradicted, specific facts dictates the conclusion that no
genuine issue of material fact exists. Civil Serv. Comm’n v. Pinder,
812 P.2d 645, 649 (Colo. 1991). All doubts are resolved in the favor
of the nonmoving party. Churchey, 759 P.2d at 1340.
B. The Southern Parcel is Not a Park
1. Legal Principles
In Friends of Denver Parks, a division of this court concluded
that by enacting Denver Charter section 2.4.5, “as of December 31,
1955, the city intended (1) to eliminate the concept of common law
dedication of parks; (2) for land that the city owned as of that date;
(3) that had not already been dedicated as a park by such means.”
Friends of Denver Parks, ¶ 53. Under Denver Charter section 2.4.5,
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city land can only become a park after December 31, 1955, if it is
“specifically designated a park by ordinance.” Id. at ¶ 48 (emphasis
added). It must be established that the parcel was a park before
December 31, 1955, or was specifically designated as a park by
ordinance after that date before voter approval is required for sale
or transfer of the parcel. Id. at ¶¶ 56, 58.
The mere use by the public of a city-owned parcel of land as a
park is insufficient to convert that parcel into a park. Hall v. City &
Cnty. of Denver, 115 Colo. 538, 542, 177 P.2d 234, 236 (1946)
(citing Starr v. People, 17 Colo. 458, 30 P.64 (1892)).
2. Dedication as Park Land Prior to December 31, 1955
Plaintiffs contend that the trial court erred when it granted
defendants’ motion for summary judgment because, at a minimum,
plaintiffs’ evidence raised a genuine issue of material fact as to
whether the southern parcel was dedicated as a park by the city
prior to December 31, 1955. We disagree.
There is no dispute that the city did not by ordinance
designate the parcel as a park prior to December 31, 1955.
Therefore, the parcel could have become a park only by common
law dedication. Friends of Denver Parks, ¶ 46. “Common law
4

dedication occurs when the city’s unambiguous actions
demonstrate its unequivocal intent to set the land aside for a
particular public use.” Id. (internal quotation marks omitted).
Moreover, for a material issue of fact to exist as to whether the
southern parcel was common law dedicated as a park, plaintiffs
must provide some evidence of the city’s acts or declarations that
could constitute unambiguous acts demonstrating an unequivocal
intent to dedicate the parcel as a park prior to 1955. We agree with
the trial court that such evidence was lacking.
The plaintiffs’ reliance on evidence of use by the public is
unavailing. See Hall, 115 Colo. at 542, 177 P.2d at 236. There is
no evidence in the record of the city’s acts or declarations prior to
1955 that support common law dedication. The only evidence of
any city action related to the parcel prior to 1955 is: (1) the deed by
which the city acquired the original thirty-six-acre parcel that
contains the southern parcel; and (2) an ordinance granting
easements over various parcels of property, one of which crossed
over a portion of the original thirty-six-acre parcel. The stated
purpose of the easements was to assist the Department of Highways
in “establishing and improving the system of roads connecting the
5

city and County of Denver and its parks and parkways outside such
limits. . . .”
No restriction in the deed required the city to dedicate the
parcel as a public park. The question then becomes whether, taken
in the light most favorable to the plaintiffs, the ordinance that
granted an easement over the original parcel, with the stated
purpose of connecting Denver roads with “parks and parkways”
outside the city limits, is an “act or declaration” that demonstrates
the “unequivocal intent” of the city to dedicate the southern parcel
as a park. We conclude that it did not. An easement granted to
assist in connecting roads to parks (plural) and parkways (nonparks) cannot be said to constitute an unambiguous designation of
the southern parcel as a park.
Additionally, statements by city employees and a former city
council member that they believed the parcel was a city park do not
show that the city had taken unambiguous action prior to
December 31, 1955, to dedicate the parcel as a park. These
statements show what the declarants believed the situations to be,
but they do not show any action by the city to dedicate the parcel
as a park.
6

We therefore conclude that no genuine issue of material fact
exists as to whether the southern parcel was dedicated as a park
under the common law prior to 1955.
3. Designation of a Park after 1955
Plaintiffs contend that the southern parcel was designated as
a park by Ordinance No. 333, Series 2010; adoption of the 2010
Denver Zoning Code; and adoption of the Official Map that shows
the southern parcel lies within an Open Space Public Parks (OS-A)
zoning district. We disagree.
Plaintiffs contend that the trial court erred in granting
summary judgment in favor of defendants because plaintiffs
established that a 2010 zoning ordinance specifically designated the
southern parcel a park. Plaintiffs seek to equate a designation of a
zoning district with designation of a park. We do not agree.
The same rules of construction apply in interpreting statutes
as apply in interpreting ordinances, including zoning ordinances.
City of Colo. Springs v. Securcare Self Storage, Inc., 10 P.3d 1244,
1248 (Colo. 2000); Walter G. Burkey Trust v. City & Cnty. of Denver,
2012 COA 20, ¶ 8. “When interpreting an ordinance, a court may
review its other provisions in order to construe the disputed section
7

in context.” Abbott v. Bd. of Cnty. Comm’rs, 895 P.2d 1165, 1167
(Colo. App. 1995). If the language of the ordinance is clear and
unambiguous, it should “not be subjected to a strained or forced
interpretation.” City of Colo. Springs, 10 P.3d at 1249.
Applying these principles, we conclude that the plain language
of Ordinance No. 333 specifically designates zoning districts — not
a park. Plaintiffs direct us to section 59-4(b) of the ordinance that
states: “All land . . . shown on the Official Map as being zoned to a
zone district . . . is hereby rezoned as designated on the Official
Map.” Plaintiffs urge us to rely on the plain meaning of the word
“designated” in Ordinance No. 333 as “to mark or point out.” This
does not change our analysis. Even accepting plaintiffs’ definition,
Ordinance No. 333 “marks or points out” a zoning district. The
plain meaning of the phrase “rezoned as designated” is most
logically construed to mean zoning districts that are designated in
the manner shown on the map. This interpretation is further
supported when examined in context of other provisions. Section
59-3 of the ordinance addresses rezoning, and it specifically
indicates that land is receiving a “zoning designation,” and does not
refer to designation as a park.
8

It is undisputed that the southern parcel falls within an OS-A
zoning district, the purpose of which is “to protect and preserve
public parks,” but a district intended to protect and preserve parks
is not the same as the park itself. Additionally, Denver Zoning Code
11.12.3.3 includes land that is not owned, but merely “managed” by
the city in its definition of “city park.”
An examination of Ordinance No. 168, Series 2013 is
instructive on the differences between an ordinance that designates
zoning districts and an ordinance that “specifically designate[s] a
park.” Ordinance No. 168 identifies itself as “an ordinance
designating certain property as a ‘park’ under section 2.4.5” and
provides the metes and bounds of the northern parcel. The
northern parcel is also within an OS-A district. The ordinance
indicates that the property “has been or will be used” as a park and
is to be “formally designated as a ‘park’ under section 2.4.5 of the
City Charter.” (Emphasis added.) Prior use as a park, and that this
parcel fell within a previously designated OS-A zoning district, did
not make the land “specifically designated a park” prior to this
ordinance.

9

Because plaintiffs have provided evidence only of an ordinance
designating a zoning district, and have provided no evidence of an
ordinance showing the southern parcel “specifically designated a
park,” there exists no genuine issue of material fact as to whether
the southern parcel was designated a park by ordinance after 1955.
III. Plaintiffs’ Remaining Contentions
Plaintiffs contend that the trial court improperly made findings
on disputed facts. Specifically, they assert that the meaning of the
term “park belonging to the City as of December 31, 1955,” in the
city charter is an issue of material fact. We reject their contention,
for two reasons.
First, a municipal charter is the equivalent of a statute. See
Friends of Denver Parks, ¶ 41. Statutory interpretation is a
question of law. MDC Holdings, Inc. v. Town of Parker, 223 P.3d
710, 717 (Colo. 2010). Secondly, the interpretation of Denver
Charter section 2.4.5 was decided in Friends of Denver Parks, and
the division there did not find this section to be ambiguous. Thus,
the interpretation became the law of the case when the division of
this court interpreted the relevant portion of the city charter.
Giampapa v. Am. Family Mut. Ins. Co., 64 P.3d 230, 243 (Colo.
10

2003); Youngs v. Indus. Claim Appeals Office, 2012 COA 85M, ¶ 48
(“Once an issue has been raised and decided, it becomes the law of
the case.”). Accordingly, there was no factual dispute as to the
meaning of a “park belonging to the City” in section 2.4.5.
Lastly, because we have concluded that the trial court properly
granted summary judgment, we need not address plaintiffs’
contention that they are entitled to a jury trial. See Glennon
Heights, Inc. v. Cent. Bank & Trust, 658 P.2d 872, 875 (Colo. 1983)
(stating that a court’s denial of plaintiffs’ motion for summary
judgment and granting of defendants’ motion for summary
judgment effectively ends a case).
The judgment is affirmed.
CHIEF JUDGE LOEB and JUDGE ROTHENBERG concur.

11

STATE OF COLORADO
2 East 14th Avenue
Denver, CO 80203
(720) 625-5150
CHRIS RYAN

PAULINE BROCK

CLERK OF THE COURT

CHIEF DEPUTY CLERK

NOTICE CONCERNING ISSUANCE OF THE MANDATE

Pursuant to C.A.R. 41(b), the mandate of the Court of Appeals may issue fortythree days after entry of the judgment. In worker’s compensation and
unemployment insurance cases, the mandate of the Court of Appeals may issue
thirty-one days after entry of the judgment. Pursuant to C.A.R. 3.4(l), the
mandate of the Court of Appeals may issue twenty-nine days after the entry of
the judgment in appeals from proceedings in dependency or neglect.
Filing of a Petition for Rehearing, within the time permitted by C.A.R. 40, will
stay the mandate until the court has ruled on the petition. Filing a Petition for
Writ of Certiorari with the Supreme Court, within the time permitted by C.A.R.
52(b) will also stay the mandate until the Supreme Court has ruled on the
Petition.

BY THE COURT:

Alan M. Loeb
Chief Judge

DATED: October 23, 2014
Notice to self-represented parties: The Colorado Bar Association
provides free volunteer attorneys in a small number of appellate cases. If
you are representing yourself and meet the CBA low income qualifications,
you may apply to the CBA to see if your case may be chosen for a free
lawyer. Self-represented parties who are interested should visit the
Appellate Pro Bono Program page at
http://www.cobar.org/index.cfm/ID/21607.

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