Tuesday, November 24, 2009

Parks as Profit Centers - an email conversation (Updated)

DenverDirect file photo of Admin Building in City Park

The Hickenlooper administration has been moving on a straight line towards an administrative takeover of our Parks ever since Anschutz asked him to (see Parks Policy in the sidebar index). This is a two-pronged attack using the new Zoning Code and a new Admission Based Events Policy. Meanwhile, an email conversation has been occurring between Councilwoman Marcia Johnson and a group of concerned (and very knowledgeable) citizens. I reprint it here (unedited except for removal of email headers) in the hope of bringing more people into the conversation. Make no mistake about it, if Hick gets his way, this will bring about a major change in our parks and our ability to control what goes on in them.

Update 11/28/09: Is Councilwoman Johnson turning around on this issue? See her email towards the end of the updated section where she says "I got a number of examples and now agree that Parks should not have unlimited say in what goes on in the parks." (bold added)

From Councilwoman Marcia Johnson

Cathy Donohue is right. The new OS-A zoning being proposed for Parks in the new Zoning Code does take away Council's power to zone them. But I would argue that City Council has many other tools in which to exercise control over our Parks.
I asked our Parks Recreation department to prepare a response to Councilwoman Donohue's letter. In their response (attached), they list 15 ways that Council, with public input, controls what happens in the Parks.
1. Year-to-year budgeting and capital appropriations for park improvements are entirely subject to approval by the Council.
2. Any capital improvement to park lands financed through bonded indebtedness is subject to approval by the Council.
3. Any expenditure contract in excess of $500,000 for parks services or improvements is subject to approval by the Council.
4. Any capital equipment purchase in excess of $50,000 on behalf of DPR is subject to Council approval.
5. The granting of any lease or concession for park purposes is subject to Council approval.
6. The authority to ultimately allow "compatible non-park usage" of historic structures in parks is vested entirely in the City Council.
7. The establishment of any fee or charge for use of city parks and recreation facilities is subject to Council approval.
8. The acceptance of any and all grants or gifts for the creation or improvement of parks is subject to the approval of Council.
9. The authority to refer to the voters any proposal to sell existing park lands or to lease any park lands for non-park uses is vested entirely in the City Council.
10. The approval of cooperative agreements with non-profit entities (e.g. the Denver Zoo, Botanic Gardens, Museum of Nature and Science) and with other government entities (e.g. DPS, Jefferson County, etc.) is subject to approval by the Council.
11. The establishment of any "enterprise" related to parks operations (e.g. the Golf Enterprise) is subject to legislative approval by Council.
12. The City Council has adopted view planes that control the height of structure in and adjacent to parks.
13. The City Council has adopted building and construction codes that apply equally to any and all city structures, including structures in park lands.
14. Through Chapter 39 of the Denver Revised Municipal Code, the City Council has traditionally regulated a wide variety of activities in city parks (e.g. service of alcohol, sales of goods and services, curfews, camping, vehicle restrictions, etc.)
15. Thirteen of the nineteen members of the Board of Parks and Recreation are appointed by members of the City Council.
Thanks for your email – we have also sent an article over to Shadron which discusses this issue.
Marcia Johnson

From Cathy Donohue

I, and many others, have seen the famous list of 15 ways council has control over parks' budget, projects, etc.
They are just fine if you happen to be an elected member of council. In none of these options is there a option for citizen redress because there is no ordinance process by which a citizens group can recall or reject the actions of the parks management or the council. No group of citizens can recall any ordinance procedure, as they can today, whenever Council passes a zoning change in a city park. Marcia Johnson evades the issue of recall of an ordinance; which we will be losing as soon as the Council hands over land use control to parks. I am sick of this completely uneducated nonsense, which is put forth by our elected officials in order to fool us into thinking we, the citizens, still have any kind of control in the 15 in-house trading mechanisms she and her friends at city hall keep thinking will fool all of us.
Cathy Donohue

From Councilwoman Marcia Johnson

Would someone please tell me when a rezoning of a park has come up? If you don’t know of any in the past would someone please construct a plausible hypothetical of an action that Parks might take that would be thwarted by the re-zoning process of a park? I would fight for a cause that I could understand had content.
As for the famous 15 things Council has to pass on before something major can happen in a park, everything Council is in committee, on Channel 8, subject to review of written minutes and therefore public. I catch myself…No, sometimes we pass things on a consent agenda, which is not very transparent. These items are not controversial, though and every member of the Amenities Committee has to sign off. Any time on a consent agenda would be ‘way below an issue equivalent to a rezoning.
I really want to get some response to the first paragraph because these are the questions I have wanted to ask any of you and haven’t caught up with you at the end of a meeting to have the conversation.
Marcia Johnson

From Tom Morris:

While council has carefully avoided asserting its zoning powers in parks, it might have avoided years of dispute and mistrust had it done so.

Under the zoning ordinance a zone lot is allowed but one "accessory use." This has resulted in both the zoo and museum being classified as "accessory uses" at various times down through the years. The last iteration of this fabrication defined the zoo as a park and therefore a "use by right" and the museum as an "accessory use." The code limits an "accessory use" to ten percent of the zone lot. At its present extent the museum is approaching this limit. The zoo, under its present classification avoids any land use review at all.

Over the years there have been numerous attempts to bring orderly and transparent governance to City Park. Council has always taken the least contentious approach. There was a green space regulation (or ordinance, I'm not sure which) which requires public hearings when green space is lost. I suspect that it is a regulation since when the Junior golf clubhouse was constructed in City Park golf course, no public notification or input occured.

When a firestation was proposed located in City Park at 17th and Jackson, only a change in administration from McNichols to Pena prevented it from being constructed. It required thousands of hours of citizen time to defeat the station which ended up at 14th and Harrison. Had it been built as proposed, the station would have had grass and trees in fully half it adjacent area.

The 1985 additions to the museum were undertaken without any citizen input or participation. Community disgust at that project allowed us to successfully oppose location of the city's aquarium in the park. There were no rules. It required public protests, picketing, confrontational public meetings and eventual reluctant capitulation by the Pena administration. The dispute over the aquarium led to five years of public meetings, a change in the city charter (expanding the Advisory Board), the green space regulation/ordinance, a disputed City Park master plan, road closures, a solemn pledge from the museum never to ask for those roads to be opened for supplementary parking, the two garages, and an almost universal distrust of the Department of Parks and Recreation among neighborhood groups. Because of a pledge by Raylene Decatur, the museum CEO, that the museum would never expand in City Park, the museum garage was constructed without the capacity to expand vertically. The latest bond issue results in an addition 60,000 sq.ft. of exhibit space (300 cars required under the existing zoning code) with no place to park the cars. I'm sure the residents of west Park Hill will make someone pay for this lack of orderly land use.

The proposal to put the Department's offices in the pavilion without zoning control was overturned by the U.S. District court after years of confrontation, demonstrations, picketing, public meetings and more distrust of city government.

I suspect without orderly zoning requirements these kinds of disputes will continue. We have already seen a glimpse in the AEG proposal. When people discover that council has given away the people's right to legally petition to overturn a decision by the manager or to require an extraordinary majority of council to pass a change in the park, I suspect there will be hell to pay. I plan to participate in that.

Citizens have always had the right to complain. They will retain that right under this proposal to deny the checks and balances of orderly democracy. Even if an administration sneaks a park change past them, the people will find a way. It is unfortunate that this council is willing to keep park land use issues in this maelstrom of anger and haphazard governance.

The failure of past councils to exert their land use responsibilities is not a good reason to continue a failed system. It is only an excuse for council to continue to place their constituents at a disadvantage which can only be overcome by the basest public efforts and public anger.

Think about it, please.

Tom Morris

From Larry Ambrose

Dear Councilwoman Johnson:
Please note one example of a controversial capital construction project for a Denver park which could quite possibly come up very soon. The Library Commission is considering putting a new already bond-funded West Denver Library in Sloan's Lake Park. Under the proposed zoning code change, the Manager of Parks & Recreation would have exclusive power to decide whether to put such a building in the Park and to determine its shape, scale and height. You (Council) already approved funding and building it before you even knew where it was going! You may be changing the definitions of zoning for private property under the new zoning code being considered, but you are not taking away the citizens rights under the Charter to either ask for a rezoning or to challenge a zoning change. Council's willingness to limit the publics' right to participate in decisions or redress decisions with which they may not agree with regard to zoning of public property, especially Denver's limited, valuable and historically admired park system and to turn it over to the whims of any particular Mayor or bureaucrat would be first, and foremost, unnecessary, not to mention fool-hearty, bad civic policy, a violation of your oaths and dereliction of your fiduciary duties.
Respectfully but indigently,
Larry Ambrose

From Cathy Donohue:

Just imagine for one minute that the Manager of Parks would like to put a Tennis Ball practice machine (at 10 balls for a dollar) in Cramner Park. Anyone that wanted to practice hitting tennis balls that were in the machine would simply put their dollar in the machine and hit balls till closing time. Who made the decision to put in the ball dispensing machine? This kind of for-pay project would certainly not need the approval of council for any reason should you hand over you power to control the land use in parks to the Manager.. Would this use be a "parks use" as described in the Charter, especially the "for pay" part?. Whether or not the zoning surrounding Cramner allowed such a profit making machine is questionable. Just how would any citizen stop the Manager. Now, under the Charter with rules for ordinance control of land in parks, a group of citizens could pass a legal petition to stop a Council member who would vote such an abuse of zoning rules (I imagine Cramner is probably R-1, or something close to that). Tom Morris' lengthy history of abuses over the years just in City Park is noteworthy in that it shows very clearly that the parks' legacy is open for abuse.
As I have said before, the list of 15 ways to influence a decision of the Council which has been designed by the Parks Dept. is simply another insider trading game played in Council Committee or with the city Administrator. This list of 15 ways to execute your influence do not include a public referendum as currently required by Charter. You were elected and swore to uphold the Charter. We would all like to see the sworn duty remain in Council's hands.
Cathy Donohue

From Ray Ehrenstein

Dear Councilwoman Johnson,
When I moved to Denver from El Paso some 37 years ago I was informed that Denver has a "Strong Mayor" form of city government. I have certainly found this to be true during my years living here. Mr. Morris illustrated this fact perfectly with his description of what happened to that firehouse proposed but moved when the change of administrations between Bill McNichols and Federico Pena took place. The thousands of hours of citizen time and input Mr. Morris referred to apparently influenced the Mayor and hence the decision was made.
I would be interested if anyone can remember a time when the Denver City Council ever successfully opposed any Denver Mayor and won their battle? Is there any example where the Council Members changed the Mayor's mind or possibly overrode his decision? Just curious.
It does seem to me that when Denver citizens elect Council members, they should expect a more forceful and involved legislative branch and not one which Mr. Morris said "takes the least contentious approach" to issues. Charlie Brown being an exception. Xcel has his ear.
After considering Denver's City Council's history as described by Cathy Donohue, Tom Morris and others involved with this Parks discussion, I will agree the last thing our City Council should be doing is to further dilute their powers, especially to a Mayor's appointee.
With as little open green space as Denver has left within its' borders, we should look for locations for libraries, fire stations, museums and the like outside of the open park spaces we have currently. Please let's not give up any more park land and trees for any building.
Ray Ehrenstein

Updated Nov. 26, 2009

From Marcia Johnson:
I have only served on Council along with the current administration. The pattern for the process in bringing anything forward to Council has been consistently that

1.) Someone from the department of the administration where the issue originates visits with the councilperson(s) whose district(s) are affected. There have been some items die or get altered right here. Council members can set up meetings in their districts to air the issue.
2.) The item goes to the appropriate committee or, because it was passed by the chairman on the consent agenda, goes to Mayor Council. Even there the affected City Council member can greatly alter the outcome.
3.) The Mayor appointed RD Sewald and Amber Callendar as liaisons to Council and they check over and over with Councilmembers on whether or not we are ok with what is being proposed. They have negotiated with Councilmembers and changed the proposals.
4.) Still, Council members weigh in at meetings, (witness Jeanne Faatz’ comments).
5.) Proposals can be held and changed at this point. This happened with budget items.
As a consequence, there is little drama on Monday nights. It may appear that Council is rolling over because there is so little debate at this point. All that has happened with much input before things get to the floor.Your concern is that there will be many mayors with various styles of working and the zoning code must guarantee that the public and the public’s representatives have access to processes before the final ordinances are passed. We all get this.

Thanks to this email dialogue, you have sent this example and I did receive some other useful specifics from George Cerrone. I’ll check with CPD to see how it has adapted to the concerns raised. I heard CPD planners, sitting to my right at the listening sessions, saying that there needed to be some response. Then you can see if that response allays your concerns.Thank you for your clear language. Personally, I find you one of Denver's most accessible and responsive Council Members. You took my point about changing Mayors exactly and I take your point that you have only served during the tenure of one Mayor.

I continue to believe that as long as we create a New Zoning Code only every forty years or so, our citizenry does want and need protective language in this newest code ...

From George Cerrone:


Below are my responses to the questions in your first paragraph.

When has a rezoning of a park come up?

Rezoning of a park comes up virtually every time Council enacts a “language amendment” to the Zoning Code.

Council “rezones” property (changes or modifies permitted uses or forms of structures) in one of two ways: through “language amendments” to the Code it changes the regulations and rules that govern the use and form of structures on properties; and through “map amendments” to the Code it changes the boundaries of a zone district or the district in which a particular property is to be governed.

Under our Zoning Code, parks are governed by the general y applicable Code regulations and the regulations of the Zone District in which they are located. When these regulations are changed or modified, (or “rezoned”), one or more of the parks are “rezoned”.

Examples of some of the subjects of “language amendments” to the Code that would affect a park include: uses to be made of the properties, set-backs (front, side and rear), parking space requirements, traffic study requirements, interior roads, street access, building heights, bulk plane restrictions, separation restrictions (between liquor stores, adult bookstores, soon-to-be marijuana dispensaries, etc.).

Park’s Actions Thwarted by “Rezoning”.

Park’s actions have “recently” been thwarted at least twice: once by a proposed citizen-initiated rezoning; and once by a failure of Council to rezone.

Proposed Rezoning. The most recent proposed Park’s action that was thwarted by a proposed rezoning is the proposed siting of the Colorado History Museum in Civic Center Park. The Mayor and Council and the State were very recently set in building the new museum in Civic Center Park, only the details remained to be worked out. A group of citizens began a petition drive to initiate a rezoning of the park which would have prevented the construction of the museum. The proponents of the museum backed down and went elsewhere. Park’s action was thwarted.
Failure to Rezone. In the late1980’s, Parks proposed siting some of its administrative and management facilities in City Park. The Denver District Court prevented such action, ruling that Council failed to rezone the park to allow such siting, since the then current zoning did not allow such use and forms of structures. Park’s action was thwarted.

From Tom Morris:

Slowly, they turn. Why we have to invent a new means of land use control is beyond my understanding. We know how zoning works. It is tried and true. Disputes arise, are discussed and resolved. Inventing a new system guarantees that it will fail in some new and exciting way. Viewing the manager of parks as a developer rather than a tool of the mayor would be too simple for words.

From Councilwoman Marcia Johnson:

I got a number of examples and now agree that Parks should not have unlimited say in what goes on in the parks. However, I am not sure zoning is the only tool we can use to insert Council accountability. I am ready to hear what other solutions may come forward.

From jdwerther:

if the city attorney were an elected position would this discussion go in a different direction?



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