cfOSBT CONSIDERATION OF USAPCC bike race
Date: August 8, 2013
To: Open Space Board of Trustees
From: Allyn Feinberg, Chair, OSBT
Subject: USA Pro Cycling Challenge Bicycle Race (USAPCC)
In 2012, the OSBT considered the issues related to holding a stage of the 2012 USAPCC on Open
Space, with a finish at the top of Flagstaff Mountain. For various reasons, the prohibition of
competitive events on Open Space was not seriously evaluated until well after commitments had
been made to the race organizers. OSBT did not hold a public hearing and consider the issue until
its June 2012 meeting, by which time it was too late to make any changes.
Many Open Space supporters, and some members of the OSBT felt that the Open Space Charter
had been violated, and that if no action was taken to give this situation a fair hearing and
evaluation, that there would be no way to deny future requests for events that would violate the
Charter, but that were embraced by the City Manager and City Council as fun, exciting and
financially beneficial to the city. I assembled the following document in 2012 in response to the
arguments the City Attorney made to allow the City Council to approve the 2012 USAPCC, but did
not use this document as the decision had already been made.
The City Attorney’s arguments were made with the intention of allowing the race to take place on
Open Space, and involved a number of interpretations of the Charter and the supporting
ordinances in the Boulder Revised Code. Most of the interpretations were new and were not in
accord with several decades of practical implementation of the provisions of the Open Space
Charter and Code, therefore placing the City Attorney and the argument for the race in an
adversarial relationship with OSMP and OSBT. It is important that these conflicts be resolved.
Leaving the situation as it is clouds the intent of the Open Space Charter and protections that
citizens have counted on over the history of the program. If, as appears likely, there is an
application to the city to host a stage of a future race, it is important to clarify this prior to a
decision.
I am asking the OSBT to reflect on the counter arguments to the City Attorney’s, and clarify our
view of the appropriate interpretation. It is possible that an independent outside counsel will be
needed to provide OSBT with analysis and an opinion. If there is still a difference of opinion among
the OSBT, the City Council, the City Attorney and the City Manager, a court should make the
decision. If the court finds for the arguments that allow the race to be held on Open Space, OSMP
and OSBT should consider divesting OSMP of Summit Road, the parking area and the Sunrise
Amphitheater so it can more flexibly be used for events such as a bike race without the conflict
with the Open Space Charter.
Getting to a point of clarity on this has implications for the long term survival of the Open Space
program, in my opinion. There will only be more pressure to use Open Space for non-Open Space
purposes as time passes, more people access Open Space and available land is more constrained.
Thank you for considering this information.
AGENDA ITEM 4 PAGE 1
OSBT CONSIDERATION OF USA PRO CYCLING CHALLENGE BICYCLE RACE
In 2012, Boulder hosted a stage of the USA Pro Cycling Challenge (USAPCC) bicycle race. The race
organizers proposed that the stage end at the top of Flagstaff Mountain and the City Manager
agreed. The race finish was on Open Space, which by City Charter, allows only passive recreational
bicycling in approved locations, and the Boulder Revised Code does not allow competitive events
at all. While the City Manager (CM) was informed of this situation in January of 2012, race
planning for the Flagstaff summit finish continued without involving the OSBT or the public.
OSBT finally discussed the situation at its meeting in May, 2012and again in June. At the June 5,
2012 City Council meeting (prior to the June OSBT meeting), the City Attorney (CA) presented a
memo making assertions that circumvented the clear meaning, intent and community
understanding of the Open Space Charter and Boulder Revised Code provisions. These assertions
became the basis for the council approving the USAPCC taking place on Open Space, which passed
at their June 5meeting. The OSBT supported the Council’s position at its June 13th meeting in a 3
th
to 2 vote, with the underlying assumption being that it was too late to change the location of the
finish without disrupting the organization of the race, and potentially opening the city up to
liability. The intention of those that had serious reservations about the basis for circumventing the
charter and city code was to re-examine this situation prior to any future race, and to clarify, in
court if necessary, the appropriate interpretation of the Charter and city code with regard to
holding a professional competitive event on Open Space.
The OSBT members are not municipal attorneys, nor should that training be necessary in order to
do our job; we are appointed to represent the citizens of Boulder in protecting open space and
upholding the Charter, as we all swore to do in our oath of office. The 2012 bike race situation
devolved into the CA generating legal arguments that are adversarial to the Open Space Charter
and program in order to support the decisions made by the CM too early in the process. This did
not allow the OSBT to fulfill its responsibilities under the Charter to consider issues specific to
Open Space with consultation with the public, and to provide recommendations to the Council.
The actions by the CM, the arguments in support made by the CA, and the actions of the Council
are potentially damaging to the Open Space program by opening the door to circumvention of the
Open Space Charter for other prohibited uses and events.
Action by the OSBT
Before another stage of the USAPCC is held on Open Space, the disagreements regarding the
ownership of the road and the requirements of the Charter must be resolved. Based on the
arguments that the CA has made to support holding a competitive event on Open Space, key
questions to be resolved include:
(1)whether Flagstaff Summit Drive is Open Space, because as part of Open Space, Charter
Section 176 restricts allowed uses to passive recreation, which this race is not; and
(2)whether the permits required to hold the race are “exclusive” or “non-exclusive”, since if
they are “exclusive”, they are governed by Charter Section 177, which requires an
affirmative vote of the OSBT.
Assertions and Responses
The CA provided an analysis of the situation for the City Council in a memo for the June 5, 2012
meeting (see Attachment C, p. 13). These assertions argue for finishing the race up Summit Drive
AGENDA ITEM 4 PAGE 2
and allowing restricted access and commercial uses on Open Space. However, there are stronger
arguments against holding the race on Summit Drive, which is Open Space, and for upholding the
requirements of the Charter and Boulder Revised Code with respect to what other uses the race
organizers might want. The following are the assertions made in support of the CA’s analysis and
counter argument to these assertions.
CA Assertion: The CA’s memo states, “The City Attorney’s office has concluded that the Boulder stage
of the race can be permitted and will not violate any provisions of the city’s Charter. Further, no laws
or rules need to be waived”.
Response: Both conclusions are incorrect.
The race and ancillary support events will take place on Open Space (specifically Summit Road, the
summit parking lot and the Sunrise Amphitheater). Competitive races are not a use allowed by
Charter Section 176, and more specifically codified in Section 8-8-10 Competitive Events
Prohibited (see Attachment D, p. 17). Because of this, none of the required permits for
commercial uses on open space would be allowed for such an event because they are not allowed
by the Charter or the Code.
No other users will have access to Summit Road and portions of the summit parking lot and
Sunrise Amphitheater during this event. A VIP area in the summit parking lot will be cordoned off
for the exclusive use of race customers who have paid for that use, and no other vendors will be
allowed to do business in that area. All these permits required of the USAPCC in 2012 were
inaccurately characterized as non-exclusive to avoid the violation of the existing laws and rules, in
particular Section 8-8-9.
CA Assertion: Staff does not believe that any competitive activity will be conducted on “Open Space
Lands” as that term is defined in the Charter
(Charter Sec. 170 (see Attachment A, p. 9): “As used in this charter, ‘open space land’ shall
mean any interest in real property purchased or leased with sales and use tax pledged to
the open space fund pursuant to the vote of the electorate on Nov. 7, l967, or proceeds
thereof, any interest in real property dedicated to the city for open space purposes and any
interest in real property that is ever placed under the direction, supervision, or control of
the open space department unless disposed of as expressly provided in Sec. 177”).
Response: Clearly, the Flagstaff Summit Road, summit parking lot and Sunrise Amphitheater, all
proposed to be used for competitive race purposes or as necessary for the support of the race, are
“open space lands” as described in Charter Sec. 170. They were transferred to Open Space by the
Parks and Recreation Department in 2000/2001 without reservation. They have been managed
and maintained by the Open Space and Mountain Parks Department and OSBT, and supported by
funds from the Open Space Fund since then. No exception was made for Summit Drive. All this
land was obtained by the City at the end of the 19Century from the Federal government.
th
CA Assertion: Commercial activities can occur on Open Space pursuant to a permit under the
provisions of Section 8-8-9, “Permits for Commercial Uses on Open Space and Mountain Parks Land.
Response: Section 8-8-9(c) (see Attachment B, p. 11) specifically forbids issuance of “exclusive
permits”, and clearly defines what “exclusive” means. The USAPCC required exclusive use of
both Summit Drive and some of the surrounding land. Therefore, the only way permits can be
issued is to exempt this race from the requirements of the Commercial Uses.
AGENDA ITEM 4 PAGE 3
CA Assertion: The CA has questioned whether or not Flagstaff Summit Road is owned by the city and
concluded that there is no way to know with certainty. There are no relevant records related to the
Flagstaff roads after about 1929 until current times (thought to have been lost in the courthouse
fire); however, there is a map from the County Road Book, showing the main Flagstaff Road and a
road leading north from Realization Point along the west side of the summit of Flagstaff mountain,
along with notes from a journal entry that describe a road that is located as shown on the map from
the County Road Book. It is asserted that this map represents Flagstaff Summit Road and it is
consistent with the location of the road as it is today.
Response: Regarding the County Road Map representing the current Flagstaff Summit Road, this is
inaccurate. The road shown and described in the journal notes extends in a northerly direction
along the west side of the summit, while the road in today’s location extends in an easterly
direction, does not go near the summit of the mountain and ends significantly to the east of the
summit. The road shown on the County Road Book Map is generally identical to the current Ute
Trail, except in its relationship to the spring near the current summit day use area. (see
Attachment F, p. 25)
Regarding the ownership of the summit road, there is substantial evidence that it is owned by the
city:
Land now known as Flagstaff Mountain was provided to the city under a U.S. Patent for
parks and cemetery purposes in the 1890’s, and became a city park;
The county built a road up Flagstaff in stages over time in a location similar to its current
one – (Daily Camera article notes the dedication was held in Oct of 1926; see Attachment E,
p. 21)
While the actual records may be missing, there is a record preserved in the historical files
of the Daily Camera, in which the road to the summit is described as belonging to the city in
several articles related to road improvements:
Newspaper articles from Daily Camera report that the city and county agreed in
1947 that the main road was the County’s and that Chapman Drive and the summit
road belonged to the city (see Attachment E, p. 22).
This was reconfirmed in a quote by County Commissioner Joe Smith, as reported in
a Daily Camera article from 1964 (see Attachment E, p. 23).
There is no doubt that extensive improvements to the summit road were paid for and
completed by the Parks and Recreation Department in 1970, with maintenance of the road,
including closing the road in the winter, by either Parks and Recreation or Open Space and
Mountain Parks since then (and no one, including the CA, has argued to the contrary);
The road was placed into the Open Space program through the transfer of Mountain Parks
from the Parks and Recreation program in 2000/2001. All records related to the transfer to
Open Space and Mountain Parks, including personal notes, meeting minutes, motions,
ordinances, etc., show no exception of the road from the land transferred to OSMP; refer to
testimony by the 2000/2001 Vice Chair of the Parks and Recreation Advisory Board, a
member of the OSBT and the Director of OSMP:;
At the time of the transfer, the parks board requested an opinion from the then CA
regarding whether any existing parks uses would violate the open space charter, and the
CA’s opinion was that they would not (see Attachment G, p. 27, 28);
The Open Space Fund has been used to maintain summit road and related facilities during
the time since the transfer;
AGENDA ITEM 4 PAGE 4
The preponderance of evidence is that whatever interest the County may have had in the road in
the past, it has abandoned that interest, and the road belongs to the city. It is land dedicated to
OSMP through the transfer.
CA Assertions: The road is not Open Space land as the term is used in the Charter, because:
It was not purchased or leased with the open space tax and it was not dedicated to the city for Open
Space purposes.
Response: This assertion is incorrect. Following the logic of this, none of the Mountain Parks
transfer is Open Space since it was not “purchased with open space tax”, but transferred to Open
Space at the direction of the City Council. This process meets the requirements in the Charter,
being real property dedicated to the city for open space purposes and placed under the direction,
supervision or control of the Open Space Department, as has clearly been the case for a dozen
years to this point (Refer to Charter Section 170 regarding real property: Attachment A, p. 9).
CA Assertions: The road is not Open Space land as the term is used in the Charter, because:
A road is held by the city as a public trust. Roads are not interests in real property placed under the
control of a department. Considering a road to be Open Space would place normal road usage into
conflict with permitted Open Space uses. The memo goes on to list the uses allowed on open space
and says that use by cars is not passive recreational use, therefore the only consistent interpretation
of the Charter is that is does not contemplate inclusion of a road as open space.
Response: This conclusion is inaccurate. Charter Section 176 also states that “Open Space land
may not be improved after acquisition unless such improvements are necessary to protect or
maintain the land or to provide for passive recreational, agricultural or wild life habitat use of the
land”. This clearly includes roads, parking lots, toilet facilities, etc. that are improvements
necessary to provide for passive recreational use of Open Space. The fact is that there are many
roads that are part of Open Space and the Charter contemplates that.
There is a related assertion by the CA that a department cannot place restrictions on roads that
are used by the public, which is clearly not the case. There are roads that are managed and
maintained, restricted by fee booths, closed during winter months, etc. by various departments of
the city, including Open Space. This has been the accepted situation for roads of the city of Boulder
for years, until the current situation when a need was found to circumvent the restrictions of the
Open Space program in order to allow the race to take place on Open Space.
In addition, there is no public right to use the road, as is clear from the annual closures; there is no
right in Colorado whereby citizens can gain adverse possession of such public land; and Colorado
does not have a codified public trust doctrine that would apply to this situation. All this was
resolved in a case involving Chapman Drive some years ago.
CA Assertions: The road is not Open Space land as the term is used in the Charter, because:
This above reasoning is consistent with the view of the Colorado Court of Appeals in Douglas County
v. the City of Aurora, an annexation dispute between Douglas County and the City of Aurora. (see
Attachment D, p. 1710491053ColoApp2002
Douglas County v City of Aurora 62P3d
)
Response: This case is not applicable; this is also the opinion of two attorneys practicing municipal
law and who are familiar with the Boulder City Charter and Code. The case is related to State
annexation law regarding how to calculate the 1/6contiguity requirement for annexations. The
th
Douglas County decision that a road is not Open Space for purposes of calculating contiguity is
AGENDA ITEM 4 PAGE 5
unrelated to whether a home rule city, such as Boulder, can consider a road as part of its Open
Space holdings. There are many roads that are held by the city as part of the land in the Open
Space program that have been subject to the program’s restrictions.
CA Assertion: The Charter prohibits issuance of exclusive permits for Open Space lands.
Response: This is not true. The Charter contemplates exclusive permits and requires that the
OSBT and the council agree on the issuance of exclusive permits since they are governed by
Charter Section 177, Disposal of Open Space. (see Attachment A, p. 9)
CA Assertion: The race and its ancillary support activities are not exclusive; therefore only non-
exclusive permits need to be issued, which the CM is authorized to issue. The activity on the road is
allowed since roads are not “Open Space lands”.
Fact: This is inaccurate; the road is “Open Space land” (see the various arguments above) and
therefore subject to the restriction of Section 8-8-10 Competitive Events Prohibited. An
emergency ordinance has been passed by council to exempt this event, and this event only, from
the restrictions of Section 8-8-10, which makes any permit for this event an “exclusive permit”,
governed by Charter Section 177, as all these permits are “exclusive” to this race.
CA Assertion: Based on Council’s previous interpretation of the Charter and provisions in the Code,
the term “exclusive permit or license” does not apply to a right to occupy a portion of an area for a
limited time.
Response: There is no substantiation for this assertion. The language in Charter Section 177 does
not support this restricted applicability. The CA further asserts that the fact that OSMP charges a
fee for parking is an argument for allowing the charge of a fee for a “limited exclusive use of Open
Space”. Charging a parking fee does not limit or make exclusive the use of Open Space. Every
visitor to Open Space has exactly the same access as any other. What is limited is the visitor’s
ability to be accompanied by his/her automobile.
The CA further asserts that the drafters of the Charter did not intend to include short-term use of
small areas, since it expressly excludes agricultural leases from Charter Section 177. The
exception of agricultural leases of a term of five years or less from disposal of OSMP land through
an exclusive license or permit reflects the use of such leases as a key and ongoing management
tool for agricultural use, which is an allowed purpose under the Charter. This does not have any
relationship to the time period of any other exclusive license or permit. If the drafters of the Open
Space Charter wished to define the length of time or the size of the area of an exclusive license or
permit, they could have done so and did not.
CA Assertion: The council has adopted an ordinance that reflects an interpretation of the Charter
that would allow a person to charge a fee for a limited exclusive use of Open Space. The special dining
and viewing areas are activities within the scope of this definition.
Response: There is no such thing under the Charter or the Code as limited exclusive use.
Commercial users that charge fees for the service they provide on Open Space must conform to the
requirements of Section. 8-8-9 Permits for Commercial Uses on Open Space. The USAPCC does
not and cannot conform to these requirements, and therefore these requirements must be waived
in order for the race to take place on Open Space. To the extent that fees are charged for parking,
they are not being charged for commercial uses, and therefore, do not fall under Section. 8-8-9
Permits for Commercial Uses on Open Space and Mountain Parks.
AGENDA ITEM 4 PAGE 6
Response: Related to the assertion that the special dining and viewing areas are activities within
the scope of the definition of Commercial Use in Section 8-8-9. This is clearly and unequivocally
NOT the case. Section. 8-8-9(c) specifically states:
“No person who has obtained a permit from the city manager under this section shall assert or
attempt to assert an exclusive right to use a particular place, site or area, nor shall any such
person remove or exclude, or attempt to remove or exclude, any other person from a
particular place, site or area.” As proposed by the Race Organization, only certain people would
have the right to be in the special dining and viewing areas and any others would be excluded.
Therefore these activities would not be allowed under Section 8-8-9, because they are exclusive
in the plain meaning of the word – “to exclude”.
CA Assertion: The ancillary support activities that will take place on non-road open space do not
require exclusive permits, since a restricted area will be open to anyone who can pay $500 until the
capacity of that area is used up. The code authorizes the City Manager to issue permits for
commercial events on Open Space.
Response: This assertion does not include the part of Sec. 8-8-9(c) that states:
“No person who has obtained a permit from the city manager under this section shall assert or
attempt to assert an exclusive right to use a particular place, site or area, nor shall any such person
remove or exclude, or attempt to remove or exclude, any other person from a particular place, site
or area.” This is essentially the definition of non-exclusive use. (see Attachment B, p. 11)
This means under the non-exclusive permit allowed in this section, that no vendor can exclude
another vendor, and no person can be excluded, otherwise it is an exclusive permit. But under the
USAPCC, Citizens without $500 will be excluded from the USAPCC restricted area. No other
vendors can receive permits to provide service in this area, or even in areas not restricted to those
who have paid $500. Citizens have been, and will be prohibited from permits for use of facilities in
this area for other functions during the race setup and event days, such as weddings in the
amphitheater.
When OSMP issues non-exclusive permits under Section 8-8-9 Permits for Commercial Uses on
Open Space, these permits do not exclude other users without permits. Holding a wedding in the
Amphitheater does not restrict an Open Space user from accessing the amphitheater and enjoying
a stranger’s wedding. If a photographer offers a photography class on Open Space, it doesn’t
preclude another Open Space user from accessing the Open Space land being used by the
photography class. Therefore all permits for the ancillary USAPCC activities are “exclusive
permits”.
Conclusion
The City Attorney inaccurately characterizes the reality of the issues related to the 2012 Pro Cycle
Challenge Bicycle Race. The facts support the following:
1. Flagstaff Summit Road is Open Space and the USAPCC is not an allowed use of Open Space;
therefore a competitive race should not be held on Summit Road. City Council has passed an
ordinance waiving Section 8-8-10, which forbids competitive events on Open Space; however,
this portion of the code was a further clarification of the Charter purposes limiting recreational
use to passive recreation. Waiving this ordinance does not change the prohibition of the Charter.
2. In general, ancillary race support activities on Open Space at the top of Flagstaff are not in
conformance with the non-exclusivity requirements of Open Space Commercial Use permits. This
makes the permits exclusive permits requiring the approval of the council and the OSBT under
Charter Section 177.
AGENDA ITEM 4 PAGE 7
3. Specifically, the race event has taken over the Open Space road, parking lot and amphitheater,
excluding other vendors and excluding persons from the area. This means that the required
permits are exclusive, not non-exclusive.
Recommendation
If the CM and the council consider hosting a subsequent stage of the USAPCC, the location of the
finish should be changed, and the top of Flagstaff should not be considered because these uses
violates the Open Space Charter and related Code ordinances.
Even if just the main road on Flagstaff is used, there will be significant costs to Open Space, and the
Charter forbids Open Space funds from being used to cover these expenses.
Therefore, the CM and the Council should carefully weigh the costs and benefits of finishing the
stage on Flagstaff, and perhaps should consider a finish on another hill without the Open Space
issues.
ATTACHMENTS:
A.City of Boulder Charter Sections 170, 176 and 177
B.Code Section 8-8-9 and 8-8-10
C.Portion of City Council agenda memo related to Open Space and Mountain Parks issues
D.Relevant portion ofDouglas County v Aurora decision
E.Newspaper articles related to Flagstaff
F.Map and notes from County Road Book
G.Letters from City Attorney
AGENDA ITEM 4 PAGE 8
ATTACHMENT A
CITY OF BOULDER CHARTER SECTION 170, 176, 177
Sec. 170. Creation of a department of open space.
There shall be a department of open space, which shall be responsible for all open space land and other
property associated therewith.
As used in this charter, "open space land" shall mean any interest in real property purchased or leased
with the sales and use tax pledged to the open space fund pursuant to the vote of the electorate on
November 7, 1967, or proceeds thereof, any interest in real property dedicated to the city for open space
purposes, and any interest in real property that is ever placed under thedirection, supervision, or control
of the open space department, unless disposed of as expressly provided in section 177below. (Added by
Ord. No. 4996 (1986), § 1, adopted by electorate on November 4, 1986.)
Sec. 176. Open space purposes-Open space land.
Open space land shall be acquired, maintained, preserved, retained, and used only for the following
purposes:
(a) Preservation or restoration of natural areas characterized by or including terrain, geologic formations,
flora, or fauna that are unusual, spectacular, historically important, scientifically valuable, or unique, or
that represent outstanding or rare examples of native species;
(b) Preservation of water resources in their natural or traditional state, scenic areas or vistas, wildlife
habitats, or fragile ecosystems;
(c) Preservation of land for passive recreational use, such as hiking, photography or nature studies, and,
if specifically designated, bicycling, horseback riding, or fishing;
(d) Preservation of agricultural uses and land suitable for agricultural production;
(e) Utilization of land for shaping the development of the city, limiting urban sprawl, and disciplining
growth;
(f) Utilization of non-urban land for spatial definition of urban areas;
(g) Utilization of land to prevent encroachment on floodplains; and
(h) Preservation of land for its aesthetic or passive recreational value and its contribution to the quality
of life of the community.
Open space land may not be improved after acquisition unless such improvements are necessary to
protect or maintain the land or to provide for passive recreational, open agricultural, or wildlife habitat
use of the land. (Added by Ord. No. 4996 (1986), § 1, adopted by electorate on November 4, 1986.
Section 177. Disposal of Open Space Land
No open space land owned by the city may be sold, leased, traded, or otherwise conveyed, nor may any
exclusive license or permit on such open space land be given, until approval of such disposal by the city
council. Such approval may be given only after approval of such disposal by the affirmative vote of at
least three members of the open space board of trustees after a public hearing held with notice published
AGENDA ITEM 4 PAGE 9
at least ten days in advance in a newspaper of general circulation in the city, giving the location of the
land in question and the intended disposal thereof. No open space land owned by the city shall be
disposed of until sixty days following the date of city council approval of such disposal. If, within such
sixty-day period, a petition meeting the requirements of Section 45above and signed by registered
electors of the city to the number of at least five percent of the registered electors of the city as of the
day the petition is filed with the city clerk, requesting that such disposal be submitted to a vote of the
electors, such disposal shall not become effective until the steps indicated in Sections 46and 47above
have been followed.
This section shall not apply to agricultural leases for crop or grazing purposes for a term of five years or
less.
This section is to be construed liberally in favor of providing opportunities for the citizens of the city to
refer measures proposing the disposal of any open space land. (Added by Ord. No. 4996 (1986), § 1,
adopted by electorate on November 4, 1986.)
AGENDA ITEM 4 PAGE 10
ATTACHMENT B
CODE SECTION 8-8-9 AND 8-8-10
8-8-9 Permits for Commercial Uses on Open Space and Mountain Parks Lands.
(a) No person shall organize, promote, or stage a commercial use event on any open space and mountain
parks property without firstobtaining a permit from the city manager under this section.
(b) No person who has obtained a permit from the city manager under this section shall organize,
promote, or stage a commercial use event on any open space and mountain parks property without
having the permit in their possession at all times during such event.
(c) No person who has obtained a permit from the city manager under this section shall assert or attempt
to assert an exclusive right to use a particular place, site or area, nor shall anysuch person remove or
exclude, or attempt to remove or exclude, any other person from a particular place, site or area.
(d) For the purposes of this section, "commercial use" shall mean either:
(1) Any activity for which a fee, charge, purchase of goods or services, or donation is required for
the provision of a service or as a condition of attendance or participation, including, but not limited
to, dog walking, outdoor guide services, environmental education, and clubs, camps or other
organizations that merely use school facilities; or
(2) Photography, videography, or filmmaking for compensation or hire that involves human or
animal subjects;
provided however that a bona fide educational group engaged in a curricular school activity, including
noncompetitive athletic activities and before-or after-school activities, shall not be considered engaged
in a commercial use.
(e) The city manager may issue single event commercial use permits or annual commercial use permits
for groups of not more than sixteen persons without conducting a special review of the application. The
city manager may also issue triennial commercial use permits to such annual permittees who have three
consecutive years of successful compliance with all requirements of the annual permit.
(f)The city manager may issue single event commercial use permits or annual commercial use permits
for groups of more than sixteen persons upon conducting a special review of the application. "Special
review" shall mean a thorough examination of the proposeduse, and imposition of conditions of
approval, to assure mitigation of large group impacts. The city manager shall prescribe the requirements
for special review through rule issued under section 8-3-3, "City Manager May Issue Rules," B.R.C.
1981. The city manager may also issue triennial commercial use permits to such annual permittees who
have three consecutive years of successful compliance with all requirements of the annualpermit.
(g) The city manager may issue limited use permits for groups of not more than sixteen. "Limited use
permit" shall mean an annual permit for which the commercial use events are restricted to not more than
fifty visitor days (number of persons x number of days, including the leader) of designated trail use with
groups of sixteen or fewer.
(h) An applicant for a permit shall file an application at least fourteen days before the requested event or
AGENDA ITEM 4 PAGE 11
annual permit application period. If an application isdenied, the applicant may request a statement of the
reasons for the denial. The city manager shall require applicants to provide insurance naming the city as
an additional insured in such amounts as may be required to cover the maximum possible municipal
liability exposure under state law. The city manager may prescribe such additional requirements and
restrictions as may be necessary to minimize and mitigate use impacts, and as may be necessary or
desirable for the implementation and enforcement of this section.
(i) The city manager shall prescribe by rule issued under section 8-3-3, "City Manager May Issue
Rules," B.R.C. 1981, such additional requirements as may be deemed necessary for the implementation
and enforcement of this section.
(j) The city manager may revoke a permit issued under this section at any time before or during the
permit period for any reason, for no reason, or for breach of any of the conditions prescribed by
subsection (f) of this section. Any permit issued pursuant to this section shall be deemed a revocable
license that does not convey a property interest of any kind. If a permit is revoked before the event, any
security deposit shall be promptly refunded to the permittee. If the manager revokes the permit, the
event must cease immediately. No person shall continue an event after a permit has been revoked.
(k) No person shall fail to comply with each term and condition of a permit issued under this section.
(Ordinance Nos. 7458 (2006); 7479 (2006); 7503 (2006))
8-8-10 Competitive Events Prohibited.
No person shall organize, promote, conduct or participate in a competitive event upon open space and
mountain parks properties except as authorized by the city manager in a written permit for the limited
purpose of an annual world-class pro cycling race. For the purposes of this section, "competitive event"
shall mean any event or activity in which four or more persons try to exceed the performance of each
other or another person in a physical activity.
Ordinance Nos. 7458 (2006); 7851 (2012)
AGENDA ITEM 4 PAGE 12
ATTACHMENT C
PORTION OF CITY COUNCIL AGENDA MEMO RELATED TO
OPEN SPACE AND MOUNTAIN PARKS ISSUES
ii. The Charter.
Some concerns have been raised about whetherpermitting such a race could potentially violate charter
restrictions related to the use of Open Space lands. The Charter includes explicit provisions regulating
the use of “Open Space Lands,” Charter §§ 170-77, B.R.C. 1981. These provisions are intended to
preserve and protect the city’s Open Space land.
a. Public Roads and Open Space Lands
The Boulder stage of the USPCC will be run entirely on paved road surfaces that are regularly used by
bicycles and motor vehicles. The area in which concern has been raised is the portion of the route along
Flagstaff Road to Realization Point turning on to Summit Road and ending near the parking lot. The race
itself will be confined to paved right of way. Spectators, who will line the road and probably spill into
Open Space property adjacent to the roads, will likely use city Open Space trails to access the upper
portions of Flagstaff and Summit roads. Hiking through Open Space and watching a race are the types of
passive recreational activities consistent with uses permitted on Open Space under the Charter. See
Charter § 176.
There have been some questions raised about whether the race is an appropriate use of Flagstaff Road
and Summit Road. First, there was a question about who actually owns Flagstaff and Summit Roads.
County staff has confirmed that Flagstaff Road from the city limits to Realization Point is a county road,
constructed in 1906. The status of Summit Road is less clear. Summit Road is a paved road extending
approximately .75 mile from Flagstaff Road to theamphitheater parking lot. From the county records, it
appears that Summit Road was approved as a county road by the Board of Commissioners in 1929. The
County road book includes a note referring to a Commissioner’s Journal (Journal) entry dated August
26,1929. The Journal entry reads as follows:
That Road No 217 be and is hereby amended by extension of same to the summit of Flagstaff mountain
and said amended portion made a part thereof as follows to-wit:
Beginning at the west end of the Flagstaff road asoriginally laid out and platted in Road Book C page
17 and junction point with road No 133 at its present eastern terminus; Thence in a general north-
easterly direction 1/2 mile more or less to the north base of its most elevated point of said Mtn. and 100
yards more or less west of the flagpole at the eastern rim of the Flagstaff mesa. Width 60 feet.
The Journal’s description of this extension is consistent with the location of Summit Road today.
However, the representation of the extension drawn in the Road Book shows it on the wrong sideof
Flagstaff Mountain summit. The road book includes the following notation: “Extension of No. 217 to
summit, Approximate only, No survey notes.” It appears, therefore, that Summit Road may have been
constructed as a county road in 1929.
It is clear that the city has maintained the road for many years. A city can, however, maintain a county
road without taking ownership of the road. Thus, it is impossible to say for certain at this point whether
the road is a county or a city road.
AGENDA ITEM 4 PAGE 13
What is certain, however, is that it is a road. Regardless of whether Summit Road is a city road or a
county road, it is not Open Space land as the term is used in the Charter. The Charter defines “Open
Space Land” as follows:
As used in this Charter, "open space land" shall mean any interest in real property purchased or leased
with the sales and use tax pledged to the open space fund pursuant to the vote of the electorate on
November 7, 1967, or proceeds thereof, any interest in real propertydedicated to the city for Open
Space purposes, and any interest in real property that is ever placed under the direction, supervision, or
control of the Open Space Department, unless disposed of as expressly provided in section 177 below.
Charter § 170.
Summit Road does not fit under this definition. It was not purchased or leased with the open space tax
and it was not dedicated to the city for Open Space purposes. Under Colorado law, a road also does not
fit under the last clause, that is, “any interest in real property that is ever placed under the direction,
supervision or control of the Open Space Department. . . .” A road is held by a city as a public trust.
Roads are not interests in real property placed under the control of a department.
Considering a road to be Open Space would place normal road usage into conflict with permitted Open
Space uses. Charter section 176(c), provides that Open Space land should be preserved “for passive
recreational use, such as hiking, photography or nature studies, and,if specifically designated, bicycling,
horseback riding, or fishing.” A paved road used by cars is not used for “passive recreational use.” If
Summit Road is considered Open Space then the city should probably ban cars from driving on it. The
only consistent interpretation of the Charter is that it does not contemplate inclusion of a road as Open
Space.
This reasoning is consistent with the view of the Colorado Court of Appeals. In an annexation dispute
between Douglas County and the City of Aurora, the court addressed the question whether the county’s
designation of two county roads as “open space” affected the contiguity requirement under the
Annexation statute, which excludes roads, but not open space from the contiguity calculation. The court
concluded as follows:
The property designated by the county has been improved through grading and surfacing and serves as
public roadways. Because it is not essentially unimproved, the property is not open space.
Douglas County v. City of Aurora, 62 P.3d 1049, 1053 (Colo. App. 2002). For all of these reasons, the
City Attorney’s Office has concluded that allowing the USPCC on Summit Road does not violate the
Charter.
The Charter also prohibits issuance of exclusive permits for Open Space lands. Staff recommends that
Council direct the city manager to issue only non-exclusive permits for the use of the facilities, area.
Since the race viewing area will be open to the public, an exclusive permit for the area is not needed.
The road will necessarily be closed. As noted above, the road is not “Open Apace land” so the exclusive
permit provision does not apply. As a city road, closure is expressly permitted for bicycles. § 2-2-11,
B.R.C. 1981 (“Traffic Engineering”).
b. Non-exclusive Use of Open Space Lands
AGENDA ITEM 4 PAGE 14
The separate area for ticketed persons presents a different question. The charter provides that exclusive
licenses or permits are considered disposals, requiring adherence to the disposal procedures in Charter §
177. As proposed, the ancillary events do not require exclusive licenses or permits. The race is planning
to have a dining area and special viewing area for individuals who purchase tickets at $500 per person.
The event is open to any person that can pay the admission price until the event reaches capacity. The
City Attorney’s Office does not believe that this creates an exclusive permit or license as that term is
uses in the Charter, based on Council’s previous interpretation of the Charter through ordinances. Based
on provisions in the Code, the term exclusive permit or license does not apply to a right to occupy a
portion of an area for a limited time.
The Code authorizes the city manager to issue permits for commercial events on Open Space. § 8-8-9,
B.R.C. 1981 (“Permits for Commercial Uses on Open Space and Mountain Parks Lands”). Commercial
use is defined as follows:
Any activity for which a fee, charge, purchase of goods or services, or donation is required for the
provision of a service or as a condition of attendance or participation, including, but not limited to, dog
walking, outdoor guide services, environmental education, and clubs, camps or other organizations that
merely use school facilities.
Thus, Council has adopted an ordinance that reflects an interpretation of the Charter, which would allow
The special dining and viewing
a person to charge a fee for a limited exclusive use of Open Space.
areas are activities within the scope of this definition.
An analogous provision relates to parking. A parking permit is a license to use a small portion of a
parking lot to the exclusion of others who do not have a permit. The code requires that the city manager
limit parking in certain Open Space areas to individuals with a permit:
The city manager shall, upon payment of the fee specified in section 4-20-54, "Parksand Open Space
Parking Permit Fee," B.R.C. 1981, issue a parks or open space parking permit. This permit is valid only
for the period specified, which shall be for a day or a calendar year, and for the vehicle for which issued.
The manager may provide forissuance of such permits at such places and times as the manager finds
expedient, and may provide for unattended issuance in which the applicant places the fee in an envelope,
writes the license plate number of the vehicle and the current date on the envelope, and deposits the
envelope and fee as written instructions direct, and retains and displays the specified portion of the
envelope as a permit. No permit is valid without prepayment of the specified fee and display of the
permit in a place within the vehicle where its number and anyother information required to be placed
upon it is clearly visible to a peace officer from outside the vehicle, and is in the location specified by
the manager in the permit instructions.
§ 4-24-3, B.R.C., 1981 (“Permit Issuance”). Open Space issues parking permits for the very parking lot
that will be used for race viewing.
The context of the Charter also suggests that the drafters did not intend to include short-term use of
small areas. The Charter expressly excludes agricultural leases from the prohibition, suggesting that it
was just such a long-term exclusive use that the drafters intended to prohibit. Moreover, the Charter
provides that issuance of an exclusive permit is a disposition of property implicating the process under
Charter § 177. Again, this provision suggests that exclusive was meant to include permits or licenses
that are longer in time and greater in scope that allowing a race to charge for admission to a grandstand.
Thus, the temporary use of a limited areafor a public event with a few areas restricted to those who pay
AGENDA ITEM 4 PAGE 15
a fee is a use consistent with the Charter.
G. Permits
Staff recommends that the city manager issue permits for any race activity regulated by the Code. This
will allow the city manager to provide any additional protections by including permit conditions if
necessary. Any permits relating to Open Space must be reviewed by the OSBT prior to issuance. Charter
§ 175(g). OSBT is charged with making a recommendation on the grant or denial of any non-exclusive
permit or license. Staff intends to draft the proposed permits and schedule review by OSBT. The city
manager will consider OSBT’s recommendations before issuing any permit.
Staff also recommends that the city manager be encouraged to waive any fees associated with the
permits to be issued. Although it will take time to calculate the exact fee amount, staff estimates that the
total permit fee would be less than $10,000. Considering the magnitude of the event and possible related
community benefits, this is a relatively small amount. The LOC has not requested a waiver and would
be willing to raise the money to pay the permit fees if Council determined that this is necessary.
AGENDA ITEM 4 PAGE 16
ATTACHMENT D
N
RELEVANT PORTION OF DOUGLAS COUNTY V AURORADECISIO
Following is the portion of the Court of Appeals decision related to roads and Open Space. (See the case
citation for the full decision)
Colorado Court of Appeals, Div. II.
BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY v. CITY OF
AURORA
BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, Plaintiff-
Appellee and Cross-Appellant, v. CITY OF AURORA, a Colorado municipal
corporation; and Gartrell Investment Company, L.L.C., a Colorado
limited liability company, Defendants-Appellants and Cross-Appellees.
No.01CA1380.
--September 26, 2002
J. Mark Hannen, County Attorney, Kurt G. Stiegelmeier, Assistant County Attorney,
Castle Rock, CO; Hayes, Phillips &Maloney, P.C., John E. Hayes, Denver, CO, for
Plaintiff-Appellee and Cross-Appellant.Charles H. Richardson, City Attorney, Robert
Rogers, Assistant City Attorney, Robert G. Werking, Assistant City Attorney, Aurora,
CO, for Defendant-Appellant and Cross-Appellee City of Aurora.Otten, Johnson,
Robinson, Neff & Ragonetti, P.C., Thomas J. Ragonetti, J. Thomas Macdonald, Munsey
L. Ayers, Jr., Denver, CO, for Defendant-Appellant and Cross-Appellee Gartrell
Investment Company, L.L.C.Gorsuch Kirgis, L.L.P., GeraldE. Dahl, Denver, CO;
Colorado Municipal League, Carolynne C. White, Denver, CO, for Amicus Curiae
Colorado Municipal League.Hall & Evans, L.L.C., Josh A. Marks, Denver, CO, for
Amicus Curiae Colorado Counties, Inc.
In this action for review of a land annexation, defendants, the City of Aurora and
Gartrell Investment Company, L.L.C. (developer), appeal the judgment in favor of
plaintiff, the Board of County Commissioners of Douglas County, voiding the city's
annexation of developer's property. The countycross-appeals the court's
interpretation and application of an annexation provision. We affirm in part and
reverse in part.
Developer filed petitions seeking annexation of three parcels of its land located
immediately adjacent to the city's boundary. The county and others objected to the
annexation. After the city annexed the property, the county initiated this action
seeking judicial review under §31-12-116, C.R.S.2002. The county asserted that its
designation as “open space” of two county roads between and adjacent to two of the
parcels defeated contiguity requirements; that two “special districts” were not given
AGENDA ITEM 4 PAGE 17
notice of the annexation hearing; that the city's annexation impact report was
deficient; and that the annexation petition lacked necessary signatures.
The district court agreed with the first three assertions, held that the city had abused its
discretion and exceeded its jurisdiction in annexing the three parcels, and voided the
annexation. Rejecting the county's alternative assertion, the court determined that
the petitions complied with the signature requirement. This appeal followed.
I.
Defendants contend the court erred in concluding that the county's designation of two
roadways as “county-owned open space” precluded the annexation of two parcels. We
agree.
The Municipal Annexation Act of 1965(Act), §31-12-101, et seq., C.R.S.2002, governs
annexation. Judicial review of annexation is a special statutory proceeding and is
limited to determining whether the governing body that approved the annexation
exceeded its jurisdiction or abused its discretion. Section 31-12-116(3), C.R.S.2002;
see Town of Superior v. Midcities Co., 933 P.2d 596 (Colo.1997); TCD North, Inc. v.
City Council, 713 P.2d 1320 (Colo.App.1985).
On review, the court must accord great latitude to this legislative discretion and must
indulge every reasonable presumption favoring the validity of the annexation. The
court is generally limited to determining whether the Act's procedural mandates have
been met, and it may not pass upon the wisdom of the annexation itself. See Town of
Superior v. Midcities Co., supra; City of Englewood v. Daily, 158 Colo. 356, 407 P.2d
325 (1965); TCD North, Inc. v. City Council, supra.
Because we are in the same position as the district court in reviewing annexation
proceedings, our review is de novo. See City of Colorado Springs v. Bd. of County
Comm'rs, 895 P.2d 1105 (Colo.App.1994).
The Act requires the governing body to find that at least one-sixth of the perimeter of
the area proposed for annexation is contiguous with the boundaries of the annexing
municipality. The contiguity provision then excludes certain lands from the
determination, as follows:
Contiguity shall not be affected by the existence of a platted street or alley, a public or
private right-of-way, a public or private transportation right-of-way or area, public
lands, whether owned by the state, the United States, or an agency thereof, except
county-owned open space, or a lake, reservoir, stream, or other natural or artificial
waterway between the annexing municipality and the land proposed to be annexed.
Section 31-12-104(1)(a), C.R.S.2002.
AGENDA ITEM 4 PAGE 18
Here, there is no dispute that the county roads located between the city and the
parcels are public rights-of-way within the meaning of the statute. As such,
defendants may satisfy the contiguity requirement by ignoring the two county roads.
A.
The county asserts, however, that its designation of those roadways as “open space” in
a resolution passed shortly before the annexation hearing prevents exclusion of the
roads in determining contiguity. We disagree.
While the county is authorized to own, dispose of, and designate the uses of real
property, it has no authority to define terms employed by the General Assembly in state
statutes. See Pennobscot, Inc. v. Bd. of County Comm'rs, 642 P.2d 915 (Colo.1982);
Bd. of County Comm'rs v. Gartrell Inv. Co., 33 P.3d 1244 (Colo.App.2001). Rather,
interpretation of the Act is a question of law for the court to decide, and our review is
therefore de novo. See United Airlines, Inc. v. Indus. Claim Appeals Office, 993
P.2d 1152 (Colo.2000); Minch v. Town of Mead, 957 P.2d 1054 (Colo.App.1998).
Accordingly, in determining whether the roadways at issue are open space for purposes
of the Act's contiguity requirement, the county's designation is not binding.
In construing the provisions of the Act, we seek to give effect to the intent of the
General Assembly. In doing so, we first look to the statutory language, giving words
and phrases their commonly accepted and generally understood meaning. When the
language of the statute is plain and its meaning is clear, we need not resort to
interpretive rules of statutory construction, but must apply the statute as written.
Town of Superior v. Midcities Co., supra; see §2-4-101, C.R.S.2002.
Here, “open space” is not specifically defined by the Act. However, that term is
generally understood to mean: “Any parcel or area of land or water essentially
unimproved and set aside, dedicated, designated or reserved for public or private use or
enjoyment or for the use and enjoyment of owners and occupants of landadjoining or
neighboring such open spaces.” Black's Law Dictionary 1091 (6th ed.1990).
This definition comports with the General Assembly's use of the term elsewhere. See,
e.g., §29-21-101, C.R.S.2002 (types of open space include floodplains, greenbelts,
agricultural lands, and scenic areas); §39-1-102, C.R.S.2002 (open space includes
farmland and forestland). Accordingly, we apply it here.
The property designated by the county has been improved through grading and
surfacing and serves as public roadways. Because it is not essentially unimproved, the
property is not open space within the meaning of §31-12-104(1)(a).
We reject the county's contention that the property only partly consists of roadway.
The record reveals that, while not all the roadway is surfaced, its entire length is graded
for vehicular use. Moreover, testimony at the annexation hearing likewise established
AGENDA ITEM 4 PAGE 19
that the property consists of roadways that carry a substantial volume of vehicular
traffic. The county's argument is also belied by the language of its own resolution
declaring these roads to be open space, which explicitly and exclusively refers to the
county roads by name as the designated open space property.
Because the county roads here arenot open space, they do not affect contiguity under
the terms of the Act. Hence, the court erred in voiding the annexation of the two parcels
for failure to satisfy the contiguity requirement.
Under the circumstances of this case, we need not address whether a parcel of
otherwise unimproved property that is traversed by an access road can be described as
open space. Limiting our ruling to the facts of this case, we conclude only that a parcel
consisting entirely of roadway is not “essentially unimproved”and therefore is not open
space.
AGENDA ITEM 4 PAGE 20
ATTACHMENT E
NEWSPAPER ARTICLES RELATED TO FLAGSTAFF
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ATTACHMENT F
MAP AND NOTES FROM COUNTY ROAD BOOK
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ATTACHMENT G
LETTERS FROM CITY ATTORNEY
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