The Colorado Court of Appeals recently upheld a land exchange between the City of Colorado Springs and the Broadmoor Hotel. The court’s decision in Save Cheyenne v. City of Colorado Springs affirms the broad power of home‑rule municipalities to “purchase, receive, hold and enjoy or sell and dispose of” property according to the dictates of their charters and ordinances.
In 2016, the Colorado Springs City Council passed a resolution that authorized a land exchange between the city and the Broadmoor Hotel. The city conveyed 189.5 acres and a city‑owned parking lot to the Broadmoor, and in exchange the Broadmoor conveyed 371.2 acres and several trail easements to the city. The land owned by the city was part of North Cheyenne Cañon Park. The resolution authorized the Broadmoor to construct a private equestrian center and banquet facility within an 8.5‑acre parcel at the northern end of the park. As a condition of the exchange, the Broadmoor must continue to allow public access to the rest of the park.
Save Cheyenne, a citizen group, filed suit in district court seeking declaratory and injunctive relief to nullify the resolution as ultra vires and unwind the exchange. Three claims made by Save Cheyenne raise interesting questions of state law.
1. Did the city dedicate the park?
A “dedication” is a specific type of conveyance in which a governmental entity acquires an interest in property for “public use.” The concept of dedicated public roads dates back to Roman law. The common‑law test for a dedication is based on the assent of a landowner to convey property coupled with a governmental intent to accept the conveyed property. The vast majority of dedications today are statutory dedications, which occur when a private real estate developer conveys streets, park lands, or open space to a municipal government as a condition of annexation or subdivision.
A dedication is different than a run‑of‑the‑mill property acquisition in so far as non‑dedicated municipal property can later be sold or transferred through the regular course of municipal business, whereas a dedication imposes certain trust obligations on the municipality accepting the dedication.
The court of appeals held that no statutory dedication had occurred with this park, despite the fact that the original 1885 ordinance authorizing its purchase said that “[t]he property above named is dedicated as a public park….” Under a formalistic reading of Colorado’s dedication statute, C.R.S. § 31‑23‑107, which is essentially unchanged from the statute that was in effect when the city purchased the park in 1885, the court reasoned that a dedication must be made “on the map or plat” of a city or town, and a purported dedication by ordinance fails to strictly comply with this requirement.
The court also rejected Save Cheyenne’s claim that the city had effectuated a common‑law dedication. Save Cheyenne pointed out that the city had operated what is now North Cheyenne Cañon Park as a public park for more than 130 years, which, according to the plaintiffs, demonstrated the city’s “unequivocal intent” to dedicate the land.
Following a 2013 Colorado Court of Appeals case involving a park‑land swap in Denver, the Save Cheyenne court held that municipal ordinances can abrogate any common‑law dedication by express contradiction or clear implication. In this case, the court read a provision in the 1885 ordinance that empowered the city council to “direct any act or thing to be done concerning said parks, which they may deem best for improvement of said park” to abrogate any common‑law restrictions on alienation.
2. If the city had dedicated the park, could the city convey it regardless?
Herein lies the thornier legal question. The court acknowledged that precedent on this issue is “unclear.”
The plaintiffs relied heavily on two Colorado Supreme Court cases from 1900 and 1957, which held that dedicated land is “unalienable” and that it “vest[s] in the City in its governmental capacity in trust for the use of the public” to support their argument that a municipality cannot convey dedicated property.
The defendants (and the Colorado Municipal League, which filed an amicus brief in support of Colorado Springs) argued that the Colorado Constitution empowers home‑rule municipalities to “purchase, receive, hold and enjoy or sell and dispose of real … property” according to the dictates of their charters and ordinances. A state statute empowers statutory municipalities to do the same. With a narrow exception for property accepted by a municipality by gift, bequest, or trust, the defendants and Colorado Municipal League argued that these provision abrogate any common‑law limitations on the ability of municipalities in Colorado to convey dedicated property.
The court acknowledged both arguments, but because it determined that no dedication had occurred, the court declined to examine the issue further.
3. Must a home‑rule municipality submit a land conveyance to a popular referendum?
The court held that Colorado Springs, as a home‑rule municipality, did not need to adhere to a statutory requirement requiring a popular referendum to “sell and dispose of … real property used or held for park purposes.” The court recognized that authority over property acquisition and disposition is an enumerated power granted to home‑rule municipalities under the state constitution, and if a home‑rule municipality promulgates alternative procedures, those procedures supersede the state statute. Because the Colorado Springs municipal code provided such an alternative procedure—city council review and approval by resolution—no referendum was necessary.
Back in Colorado Springs, the city is moving ahead with its North Cheyenne Cañon Master and Management Plan, and Save Cheyenne has filed a writ or certiorari with the Colorado Supreme Court.