The Denver Botanic Gardens at Chatfield informed Jefferson County on June 3 that it will no longer submit plans to modify and expand its amphitheater to a public site-approval process.
The move comes just months after the Gardens promised concerned neighbors the project would undergo a process that allowed the public to weigh in. The site-approval process was merely a way for the public to raise concerns in a public, on-the-record setting, since the Gardens — being a governmental entity — has the right to choose not to follow the county planning commission’s recommendations.
“Our client is of the opinion that Jefferson County does not have the authority to impose zoning restrictions upon (the Gardens),” wrote Joel Mayo in a June 3 letter to Jefferson County. Mayo, one of the Gardens’ attorneys, included in the letter a traffic study, noise impact assessment and a stormwater permit issued by the state.
“Denver Botanic Gardens has made the determination to disengage from any further voluntary site-approval application processes and intends to move forward with its scheduled public interaction and construction activities for the realignment project upon the property as planned.”
The Jefferson County commissioners responded with their own letter the next day citing case law that says even though the property is on federal land, the project has to go through a site-approval process.
“We all recognize that a high level of interest and concern exists with this project from nearby residents and would expect that you would want to be a good neighbor and inform the public of your plans and attempt to resolve residents’ concerns,” the commissioners wrote June 4.
The commissioners said that statutes cited by the Gardens don’t supersede local land use regulations and that the county intends to enforce the rules.
“The County looks forward to your continued cooperation with a mutually beneficial Site Approval process, and with any further planning or permitting process that may apply,” the commissioners’ letter said.
The Gardens’ plan is to realign its amphitheater from facing due north to facing northeast, toward the intersection of C-470 and South Wadsworth Boulevard. Jurisdictional issues have beset the public’s involvement in the project for months. The Gardens is owned and operated by the city of Denver, which leases the land from the Army Corps of Engineers.
Larry Vickerman, director of the Denver Botanic Gardens at Chatfield, and Brian Vogt, CEO of the Denver Botanic Gardens, hosted a meeting March 5 with homeowners in the area to discuss the project and try to assuage concerns. Vickerman told the homeowners that his attempts to reach the county at the time were unsuccessful, a claim the county has disputed. A few weeks later, Vogt told the Courier that the Gardens would work with the county.
“We’re happy to sit down and work with whoever we need to work with,” Vogt told the Courier in late March. “There’s a lot of precedent-setting, and it’s just complicated.”
The Gardens did submit a pre-application to the county April 8, an application where the county takes seven days to assess an applicant’s proposal and identify weaknesses. Vogt said at the time the public process would allow the community to weigh in.
“We’ve been trying to figure out how to do it all along,” Vogt told the Courier. “We will submit all the paperwork, and it will give a good opportunity for the community to have some dialogue on it.”
Vogt could not be reached for comment on the latest developments. Robin Doerr, the Denver Botanic Gardens’ director of marketing and public relations, said June 20 that the studies submitted to the county show the project will not create a disturbance in the area, and that Vogt would be meeting with county planning officials June 23 to discuss the next step.
District 3 Commissioner Kathy Hartman said she’s working to have her constituents’ concerns aired.
“I’m doing what I can,” Hartman said. “The jurisdictional issues are complicated. We are hoping it will go through the special use process. Ultimately, even going through all of the special use process, we have no ability to enforce what our planning commission recommends.”
She said that the statute governing special use and site applications for governmental entities doesn’t have any teeth, but “it allows us to create a public process so neighbors have the opportunity to express concerns and have them listened to.”
Hartman added that she doesn’t think the Gardens is being unreasonable, just that the jurisdictional issues are complicated and that the county’s and the Gardens’ legal staffs disagree on case law relating to statutes.
“There’s more smoke than heat here,” Hartman said. “This will get worked out reasonably. I do think that ultimately there will be more cooperation. I think it’s going to work out. Every indication I have from my staff and from their staff is we are going to be able to work it out.”
Acting County Attorney Ellen Wakeman said the county plans to enforce the statute by making the Gardens go through the site-approval process.
“They can override it, but it gives us a chance to give input, and it gives the community a change to give input,” Wakeman said. She added that “hopefully” the situation will not end up in front of a judge.
“It’s in no one’s best interest to litigate,” Wakeman said, “especially when dealing with governments.”
Dave Evans, a local homeowner and a member of the Chatfield Bluffs Homeowners Association, has been vocal from the beginning about the Gardens submitting its plan to a county site approval process. He’s disappointed in the latest development.
“We got a public commitment that the Botanic Gardens would fulfill whatever the county wanted them to do; now they’re saying they won’t,” Evans said. “(The county is) our representative in this and there to protect the public interest. The Botanic Gardens is trying to use a loophole here.”
In Evans’ view, the statute allowing projects on federal land exists in case of a national emergency. He doesn’t see that in this situation.
“I think they’re using a loophole here,” Evans said. “Yes, it is federal land, and sometimes the federal government has to override lower levels. But this is not a national emergency.”
The public process is the democratic way, Evans added.
“If we’re fighting for democracy abroad, we should do it at home,” Evans said.