Four Days In Court, A Recollection

Overview:

During the four day J. D. MacFarlane vs. City & County of Denver trial, the City continued to dig itself deeper and deeper into a hole. What came through loud and clear —and which will persist regardless of the final opinion in the case — is that the City looked very foolish for pushing forward with a $45 Million “golf course redesign project†on the most urban and most treasured golf course in Denver in order to support its obligations to CDOT.

Day 1:

“The J.D. MacFarlane vs. City & County of Denver (City Park Golf Course) trial got off to a great start yesterday with strong opening remarks by our lead counsel Aaron Goldhamer. Jon Murray’s covered those Opening Statements here.

 http://www.denverpost.com/2017/08/21/city-park-golf-course-lawsuit-trial-begins/

A big THANK YOU to all of you who came down bright and early, and some of you who stayed for the entire day!!! Aaron opened by saying: “This case is about what the Denver charter gives the people — and about what the city is trying to take away from the people in violation of the charter.â€

Four of the eight plaintiffs led off the Plaintiffs’ testimony, and an arborist who talked about the potential harm to City Park Golf Course’s soil and trees to trees not only because 262 trees will be destroyed in pursuit of this project, and not only because the City plans only to replace 42% of that canopy on the course, but about the potential unknown damage of cut and fill throughout the entire course. (The City will use its Tree Canopy program to “make up†the rest of the loss elsewhere.)

Two representatives of the City were asked at length about the evolution of this decision and its connection to I70, and it was clearly established that this project arose not out of Parks & Recreation Planning, but Public Works’ needs associated with the Platte to Park Hill project, which as readers well know, was designed in conjunction with the Intergovernmental Agreement with CDOT.

Plaintiffs’ Attorney Tony Vaida then brought Dennis Royer to the stand to give his opinion on whether the Stormwater Project at CPGC was found in the City’s Storm Drainage Master Plan.. Mr. Royer worked for the City for years, including as Deputy Manager of Public Works for Operations, the department that signed off on the 2005 Stormwater Master Plan. He testified that the Project is not in accordance with the 2014 Stormwater Master Plan and not in accordance with the process for amending Stormwater Master Plans, so in his opinion that the project could not be for the purpose of solving a CPGC stormwater problem or even a Montclair Basis stormwater problem.

Day 2

Plaintiffs’ Attorneys Aaron Goldhamer and Tony Vaida continued to present the Plaintiffs’ case Tuesday in Judge David Goldberg’s Courtroom. Tuesday’s first witness — put on the stand as part of the Plaintiffs’ case — was Director of Parks & Recreation Happy Haynes, and she was asked numerous tough questions about her knowledge of parks’ policies such as the 2001 City Park Master Plan which recommends Preservation for all of City Park, including the City Park Golf Course. This 2001 City Park Master Plan covers ALL of City Park, including the Golf Course.

Aaron Goldhamer spent considerable time asking Ms. Haynes about the purpose of the proposed Stormwater Project, about Park Purpose in general, about negative impacts of the project, and whether she knew of any Denver park that had been closed in its entirety for a considerable length of time to install a regional storm water detention facility. He also pressed her as to why she did not allow the Parks & Recreation Advisory Board hold a vote on the Platte to Park Hill project.

Ms. Haynes agreed that helping CDOT with its highway construction support is not a park purpose. Additionally, Ms. Haynes opined about replacing the “lost†trees with the City’s tree canopy program which can replace “lost†trees (did you know all the trees chopped down in one fell swoop will be considered a “loss�) with new trees at parks around the ‘hood. She believes replacing only 42% of the canopy at the course itself is a “robust†replanting of trees.

Councilwoman Ortega testified briefly about the evolution of this drainage project to $298Million, that the rate increase was an unusual size, her concerns with passing an IGA without dealing with protection of Globeville at the same time, and the fact that the IGA directly ties I70 together with the Platte to Park Hill Project. Bruce Uhernik, an engineer with public works testified about the 2014 Storm Drainage Master Plan, admitting that Platte to Park Hill was not included in that last-approved storm drainage plan. He also seemed to disagree with certain policies in the SDMP pointed out by Aaron Goldhamer, indicating these policies in that plan work in some conditions but not for the Montclair and Park Hill Basins. The gist of his testimony was that the City wanted to put detention in CPGC because this was a “natural†location of this digitalized buried creek that was just found, although the City would then turn all the stormwater flow AWAY from this creed to flow directly west at 39th because that is where the existing pipes are located and can be tripled in capacity.

Chris Proud, who was Happy Haynes’ right-hand man providing her with the information about the project as it progressed, also testified at length about his emails to the “team.†Aaron Goldhamer questioned him about these emails, in which he expressed numerous concerns with the project. Mr. Proud tried to downplay these quite serious concerns expressed by him in emails, saying at trial that “at the time†the City really didn’t have an understanding about what the impacts of taking City Park Golf Course might be, and he wanted the team to take these into consideration.

Adrian Brown, a professional engineer with decades of experience, (many of you are familiar with his description of the risk involved in the Globeville Landing Outfall portion of this drainage project) took the stand as an expert witness, and testified that the proposed stormwater project at City Park Golf Course did not serve any storm related park improvement purpose in the City Park Golf Course and that there was no need for this additional engineered detention at CPGC but for the lowering of I70 pursuant to its expansion plans.

At that point the City Attorney asked the Court to issue a “Directed Verdict” in favor of the City. In other words, the City was arguing that based on what had been presented, there was not enough for the trial to move forward, and the trial should be ended. The Judge laid out the law about issuing Directed Verdicts, and then issued a finding that Plaintiffs had presented enough evidence to establish a “prima facie†case and that the trial would continue.

Day 3

On Day 3, the City began to present its case. The City began with Public Works project manager Bruce Uhernik who presented the story of flooding in the Montclair/Park Hill basins, that Montclair is the “worst” basin in the City, a video of a car floating down the street, tons of maps. The Judge indicated he was interested in hearing about Parks in which Public Works had taken a role in projects, and spent a great deal of time asking Bruce about drainage projects throughout the City.

Next up was Scott Rethlake, the Director of Golf, who talked about the history of the golf course, the Request for Proposal, trees, etc. Aaron Goldhamer asked whether the Golf Enterprise Fund is paying for this project, as Scott had just related that the Golf Enterprise Fund was “self-sufficient.” Rethlake said that in this case, he believe the Wastewater Enterprise Fund dollars could be used to cover all things that needed to be replaced to take care of the drainage. (This is tricky territory. On the one hand the City is calling it the project an “improvement” to the Golf Course (improvements should be covered by the Golf Enterprise Fund ) and the next minute they are calling it a stormwater project (Wastewater Enterprise Funds’ expenditures should not include these costly upgrades to an entire golf course).

Parks Director Happy Haynes was next, and she was on the stand for perhaps three hours so this is difficult to summarize. (I welcome more astute soundbites…) Her qualifications alone took a half hour, as Ms. Haynes has been involved in politics and non-profits for decades, although Mayor Hancock just installed her as Manager of Parks & Rec in the fall of 2015, at precisely the time the Platte to Park Hill project began to be marketed to the neighborhoods. Some of the things she covered: “green” infrastructure, the need to increase amount of natural open space, what park purpose means to her, her list of storm water “detention†in parks throughout the city, and her personal history with City Park Golf Course. (Ms. Haynes grew up a block away from the Golf Course, admitted to cutting through it on the way to school, took up golf & said she considers it “her course.” I can only imagine how painful it must be for her to advocate for this project.)

She described AT LENGTH her involvement in the process of designing the new course (AFTER decision to use CPGC and AFTER lawsuit filed), so beginning in summer 2016. She described her involvement sitting in on the technical Public Works meetings as the Request for Proposal was put together, again in 2016. She skillfully avoided saying exactly how involved she was on the “Executive Oversight Team” that made the actual decision to place detention at CPGC.

Ms. Haynes stated that closing parks for extended periods of time was something that Parks does regularly, and mentioned numerous parks that have been either created or improved as part of an effort along the South Platte called River Vision (Urban Drainage/Greenway Foundation/Denver) which is addressing major floodplain issues and greatly adding to parks viability along the edges of the River. This is a great project involving South Platte restoration work and we can thank Greenway Foundation for spearheading. It encompasses the work done at Confluence Park as well as at the Weir Gulch, Grant-Frontier, Pasquinell’s Landing etc., all wonderful River projects undertaken with years of planning for the South Platte. The exact parallels to closing CPGC not drawn.

Happy went on to talk about parks without trees such as Civic Center Pavilion and Skateboard Park, and that we don’t need trees to have “a park.” Several times she referred to a non-dated, non-labelled list showing has 500 acres of Stormwater Detention Facilities in Parks, as if this in and of itself provided grounds for adding detention to CPGC. (I pointed out on Friday that out of the 500 acres listed, over 350 acres was comprised of lakes such as the 170 acre Sloan’s Lake, Berkeley Lake, Huston Lake etc.) The goal seemed to be to lump all lakes and parks and gulches and detention ponds that hold or carry water into this one list as support of blanket discretion on the part of Happy Haynes to close ANY park for ANY project, for any stated reason, for ANY length of time. It was an extensive well-rehearsed briefing to convince the Court that what the City proposes for CPGC is business as usual.

Day 4

Time to recount what must have been the most embarrassing moment for the City in the four day trial. I am going to skip ahead to the afternoon testimony because it really was a complete shock. Denver called Adrian Benepe of the Trust for the Public Lands (TPL) as an expert yesterday to testify on the City Park Golf Course proposal.

I want readers to hold on to their hats. I want to take great pains to acknowledge up front that many of us hold the Trust for the Public Lands (TPL) in high regard for its work to “keep public lands in public hands.” TPL’s site says “Our public lands should be saved, not sold.”

Adrian Benepe — who served for years as New York City parks commissioner — is a senior VP and Director of city park development for TPL. It quickly became clear in his testimony that he knew very little about the project itself, and had done no homework to prepare to testify as an expert except talk to various Denver officials and staffers whom he could not name. I say “could not name” because he said he couldn’t recall any names. Note that Denver Parks & Recreation Director Happy Haynes chairs the Colorado Advisory Board of the Trust for Public Land.

Mr. Benepe had not read the RFP (Request for Proposal) issued by the City on the CPGC project. He had not read the City Park Master Plan (which calls for PRESERVATION), so Aaron Goldhamer could not even inquire if he thought the project was consistent with the Master Plan.

When Aaron Goldhamer commended him on his Olmsted medal (Frederick Law Olmsted known as father of modern landscape architecture), and asked him if he knew if City Park was designed as part of Olmsted’s efforts, he did not know. He did not know if CPGC was on the National Register of Historic Places. He did not know the acreage of the area of the golf course to be used for detention. He took awhile to answer a question about the typography of the golf course. He said he was unaware of ANY problems that currently exist at City Park Golf Course! (This is part of plaintiffs’ case.) He was “not sure” and “not aware” of many details, and kept coming back to his general extensive experience informing his testimony.

I hope others will jump in here because I can’t recall all the faux pas of his testimony. It certainly was an “ah hah” moment for people in attendance, hearing Mr. Benepe talk about his experience in “green infrastructure,” drop anecdotes about the Nederlands’ attempt to use public space (below sea level) to design “storm capture,” and numerous other examples not comparable or applicable to CPGC.

Most uncomfortable for me was the moment Mr. Benepe stated that it would be “civic malpractice” for Denver to not use CPGC for this project. The implication made many times is that there are no limits to the Director of Parks & Recreation in using its parks for any and every conceivable use. He knew nothing about the 2014 Storm Drainage Plan, knew nothing about I70, knew nothing about how much soil testing had been done on existing 138 acres of golf course. Most of the courtroom sat in shock as he admitted having no knowledge of the RFP or the 2001 City Park Master Plan that covers City Park Golf Course.