14CA1641 Friends of Denver Parks v Denver 09-17-2015

COLORADO COURT OF APPEALS

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.

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

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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

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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

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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 (non-

parks) 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.

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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

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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.

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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.

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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.

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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.

NOTICE CONCERNING ISSUANCE OF THE MANDATE Pursuant to C.A.R. 41(b), the mandate of the Court of Appeals may issue forty-three 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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