The Widening of Colorado Boulevard at City Park
By J. Harrison Belknap
Our Association membership is indeed interested in the highway system within our city, and we are also interested in the beauty of Denver and our parks and their usefulness. The widening and relocation of Colorado Boulevard has been watched with interest and we are convinced that that important thoroughfare has been improved greatly. But we are concerned that in this improvement our fair city has lost valuable park area and that a beautiful planting of American Elms has been destroyed. Our concern is greatest because we fear that other contemplated highway changes may cut further into our dedicated park lands.
In the light of the very definite interest of the Colorado Forestry and Horticulture Association in the welfare of our people, and the usefulness and beauty of the dedicated park lands, I have been asked by the Editorial Committee of “The Green Thumb” to study and report on the Colorado Boulevard situation and to provide a layman’s analysis of the legal aspects as presented in the “Brief of the Plaintiff in Error”. That brief was presented by Mr. I. H. Kaiser, attorney for the “Plaintiff in Error”, Mrs. Madaline M. Welch.
First of all, as I see it, I should provide some background for the Colorado Boulevard project. This I will do. It is known that the State Department of Highways has had a right-of-way through the city for Colorado Boulevard. That right-of-way embraces land that has been a part of City Park and land that, to all intents and purposes, has been a part of the private properties abutting on the boulevard. It was decided by the State Department of Highways to realign the boulevard and in the widening to cut largely from the park area on the west, or park, side of the thoroughfare, and to use only a small portion of the right-of-way on the east side of the boulevard, opposite City Park. On the basis of that decision all of the right-of-way land on the City Park side would be used for the realigned and widened highway, and an additional 17 feet of dedicated park land would also be used. This means that a total width of 35 feet would be taken from City Park. On the other hand, the right-of-way strip on the east and private property side to the street edge of the then existing sidewalk only would be required for the proposed realigned and widened street. Our City Council agreed to this decision and set up two enabling ordinances. In addition it was agreed, in a somewhat inconclusive interpolation, that the city would be given eight thousand dollars for the dedicated park land taken, or to provide new trees to compensate for those that would be destroyed as a result of the widening of the boulevard. Now, we are all aware that the realignment and widening of the boulevard has been accomplished, and we know that dedicated park land has been taken from City Park.
In the initial court action the plaintiff asked for temporary and permanent restraint to prevent the use of dedicated park land for other than park purposes. But at the suggestion of the court, she agreed to refrain from pressing her motion for a preliminary injunction, with the understanding that the issues raised by her motion could be dealt with at once at the trial. The defendant agreed not to permit construction on the dedicated park land until after trial, or without giving the plaintiff sufficient advance notice to enable her to call the motion for a preliminary injunction for hearing.
The trial was in open court. After due deliberation, the court decided the ordinances of the City Council of the City and County of Denver to be consistent with the trust empowered upon the Council to preserve dedicated park land within the borders of Denver. The defendants were then authorized to proceed with the widening of Colorado Boulevard utilizing dedicated park land as proposed.
Suit was appealed to the Supreme Court of the State of Colorado by Mrs. Madaline M. Welch, “Plaintiff in Error”, against the City and County of Denver and the State Highway Commission of the State of Colorado to have the ordinances declared null and void on the grounds that City Council did not have the authority to take dedicated park land for other than park purposes under existing statutes and common law.
The further allegations of the plaintiff were that the greatest good for the greatest number of people as well as the public health, welfare and safety were not being served by the ordinances, and that the ordinances violated:
a. The basic City Planning concept of the preservation of dedicated park land;
b. the inviolability of dedicated park land; and
c. the consideration of available and reasonable alternates which should have been investigated before consideration was given to the encroachment upon dedicated park land.
The plaintiff has contended in the Supreme Court that error was committed in the Lower Court, and that the judgment given by that court should be reversed. It was stated in the brief that ordinances by City Council under the present charter did not have legal standing and that work should have been delayed until there had been a decision by the electorate of the City and County of Denver.
A point made by the plaintiff is that the City Council may not, according to the City Charter, sell or lease land dedicated to park purposes. And it was then contended that the action by City Council was, to all intents and purposes, a sale or lease. On the other hand, the defendant claimed that an easement only had been granted. It is understood that the City bargained with the State Highway Department and was to receive eight thousand dollars, which sum was a consideration in return for the City granting the additional land, or an interest in the land, to the State Highway Department for use as a thoroughfare. It appears also, as mentioned in the foregoing, that this amount may be used to purchase nursery stock to compensate for the loss of the two rows of American Elms.
As said before, we, as citizens of Denver, are vitally interested in our city and its services, including the thoroughfares, and we hope that the beauty of our parks and their usefulness can be maintained, and even bettered. We do not want to stand in the way of progress, but we are concerned that the action on Colorado Boulevard at City Park may constitute a precedent for similar violations of dedicated park land. We fear that our lovely Berkeley Park area and its lake will be reduced to but a small segment of its present size if presently considered plans are carried out. We respectfully appeal to the people of our fair city to be on guard against actions which do not consider all alternatives and which emphasize improvement in the arterial highway scheme, and which may tend to disregard the usefulness and beauty of our dedicated park lands.