Guest Editorials
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Dr. Jack Van Ens
Kathleen Hynes
Albus Brooks’ Con Job On Small Lot Parking Exemption Exposed
Old Abe Lincoln had sage advice for people like Denver City Council President Albus Brooks to wit:
“You can fool all people some of the time, and some of the people all the time, but you cannot fool all the people all the time.”
Brooks has aspirations to succeed the developer controlled Michael Hancock as mayor of Denver and he knows the best way to do so is to do the bidding of those exact same developers.
Of course, it is not smart to let your constituents know that you are bought and paid for so Brooks is always coming up with highly inventive ways of pretending to be a man of the people. Case in point is his incredibly duplicitous work on “Small Lot Parking Exemption” scam that former print company owner and now real estate developer Barry Hirschfield and others are unleashing on Denver’s neighborhoods. We highlighted this controversy in our lead story last October titled “Humboldt Neighbors And Allies Take On Barry Hirschfeld.”
Back in 2010 the Denver Zoning Code was revised to exempt lots of 6,250 square feet or less from parking requirements when redeveloped. As stated by Councilman Jolon Clark the exemption “was to catalyze business on small retail and commercial parcels along major arterials such as Colfax Avenue and Broadway, where there were empty store fronts and there was a real threat of a loss of neighborhood character by small lots being assembled.”
But the ever greedy Denver real estate developer community saw the exemption as another opportunity to stick it to the local neighborhoods. The exemption does not expressly limit itself to small retail and commercial uses and does not expressly prohibit assemblages for application of the exemption, but it would appear clear that such was the intent. Thus people like Hirschfeld came up with an idea of building coffin-like micro units on assembled lots and rent them to the ever ripped off millennials pouring into Denver, but with absolutely no parking provided. Of course, the majority of the millennials do in fact have at least modest cars. Thus in areas that these units are built, everyone in the neighborhood will find it difficult if not impossible to find any street parking at times.
The problem was that the developers’ incredibly strained interpretation of the exemption might not stand up in court even in Denver’s sad sack judicial system. The developers and their bought and paid for Denver Cit
y Councilmembers needed time to amend the Zoning Code to remedy the problem, but they didn’t want to slow down any existing projects. And of course the citizens in various neighborhoods such as Cherry Creek North, Curtis Park and Humboldt Street were also screaming bloody murder about was being done to them.
That is when the evil genius of Albus Brooks took hold. He told the citizens that he would demand that the Council impose a moratorium on all such projects until a Steering Committee could be formed charged with coming up with a consensus solution. All interested parties would have a seat at the negotiating table. The citizens were thrilled when the City Council passed the moratorium unanimously.
They did notice that all actually existing plans including all of Hirschfeld’s projects were exempted. Also when a Denver city councilman says he wants to bring everyone to the table what he really means is that he will form a committee that is stacked in favor of the developers and their allies and citizens will be in a distinct minority. As a result, citizen representatives agree either to be browbeaten into submission or they will be simply outvoted by the developers and their allies. This is, of course, exactly what happened with Brooks’ Steering Committee which was chaired by the distinguished City Council President himself as an “honest broker” between the two sides.
The citizens quickly discovered that Mr. Brooks was being led around on a relatively short lease by Mr. Hirschfeld who was of course prominently placed on the committee. Brooks after listening to all sides proposed an amendment to the Zoning Code which specifically made clear that the Small Lot Parking Exemption did in fact apply to micro apartment units and as well as to assemblages like Hirschfeld’s. If approved by the City Council, the amendment would solve the developers’ greatest danger of a legal challenge to the City’s interpretation of the existing exemption. The amendment also allowed the full exemption for small lots for the first two floors of an apartment building and three floors within walking distance of rail stations and frequent transit corridors (whatever that phrase means). Even more importantly the City Council could waive any and all restrictions at any time for their favorite developers without specific notice to the affected neighborhoods. It was a compromise in which the Hirschfeld side gave up nothing and the neighborhoods gave up everything as was intended by Councilman Brooks from the very beginning.
But “surprise, surprise, surprise” as Gomer Pyle would exclaim, the neighborhoods were not taken in. Abe Lincoln’s admonition cited above in fact came true. In the Steering Committee all four neighborhood representatives voted “no” along with one real estate business representative. Of course, the developers and their allies had locked in eight votes so the “consensus compromise” passed eight to five. The neighborhoods groups had now caught on to the stacked voting trick and they also demanded parity in the voting rights between developers and the neighborhoods in all future deliberations, if any, of the Steering Committee.
Brooks tried another fast one by having representatives of the Orwellian named “Denver Community Planning and Development Department” try to con the Inter Neighborhood Cooperative (the umbrella group of neighborhood associations and others in Denver) into voting in favor of the “consensus compromise” but even they were shot down by a unanimous 32 to 0 vote.
With his con job falling apart along with his reputation, Brooks was even struggling at the City Council level with the honest city councilmembers led by Jolon Clark raising questions. Brooks had to postpone City Council approval of the scam and request an extension of the building moratorium.
Next time the neighborhood groups meet with Council President Brooks on matters such as parity in voting on the Steering Committee they quietly, but visibly, should have with them a pulled Recall Petition pertaining to Mr. Brooks. It will help to clarify the issues and the stakes for everyone involved.
— Editorial Board
Sleazy Dealings Abound Over Independent Ethics Commission’s Unprecedented Power Grab
A couple of well accepted axioms are that bureaucracies endlessly seek to grow and expand and that some of the least ethical of humans naturally gravitate to ethical boards and commissions if for no other reason than to help obscure their own highly unethical conduct in life. Both appeared to be at work in the most recent attempt of the Independent Ethics Commission (IEC) to control home rule cities and others throughout Colorado under Amendment 41 by attacking former Glendale City Councilman Jeff Allen on behalf of owners of Authentic Persian & Oriental Rugs store.
Amendment 41 was the brainchild of Jared Polis before he became a congressman and it was a ballot initiative to the State Constitution imposing draconian limits on gifts by lobbyists and others to elected officials and to restrict certain lobbying for two years. By its express terms it did not apply to home rule cities in Colorado such as Denver, Aurora, Colorado Springs and 67 other cities since the Amendment stated it “shall not apply to home rule counties or home rule municipalities that have adopted charters, ordinances or resolutions that address the matters that are covered by this article.”
That is how the IEC has apparently ruled ever since its inception in 2006. But that all changed just before Christmas when the five-member board unanimously claimed jurisdiction over every city in the state.
The new IEC position was almost unanimously condemned by all g
ood government groups in Colorado and even by strong Amendment 41 supporters such as Ethics Watch and Colorado Common Cause.
This is certainly not the first public condemnation of the IEC while under the control of its Chairman William Leone, an attorney, who has been controversial and is considered in some quarters to be highly disreputable. In early 2016 the State Auditor did an audit of the IEC and as stated by the headline in The Colorado Independent, “Audit: Colorado’s Ethics Commission has questionable ethics.” The State Auditor castigated Leone’s IEC saying it engaged in incredible sloppy record keeping and openly violated the state’s open meetings and open records laws. The Auditor could not even determine “whether the IEC consistently followed it rules over time, or properly conducted hearings . . . .” Former Secretary of State Scott Gessler has simply called the IEC — “Corrupt.”
As a result of the audit the Colorado Legislature was aghast at the conduct of IEC and Leone who was a former Acting U.S. Attorney for Colorado, albeit intimately involved in the Alberto Gonzales scandal at the United States Department of Justice in 2006.
When Pat Steadman, State Senator for District 31 (which includes Denver and Glendale), sought to address the ethical lapses of Leone and the IEC including its use of the Attorney General lawyers and not its own, Leone went ballistic. He declared the bill was a “backroom deal” made by an unnamed former commissioner and Ethics Watch and Common Cause. He threatened to sue the legislature and “fight to the death in court,” if necessary. Steadman was incredulous at Leone’s assertion that not even the legislature had the right to pass bills that would in any manner affect the IEC. As one observer noted, “Bill Leone believes he is above the law and the ethics rules apply to everyone but him.” The bill ultimately failed and Leone’s megalomania went unchecked.
But few people knew exactly how out of control Bill Leone was until mid-January. Under Amendment 41 all complaints to it must be kept confidential until it is determined that the IEC has jurisdiction and the complaint is determined to be “non-frivolous.” The IEC illegally leaked to The Denver Post that it had determined that a complaint against Jeff Allen filed by the owners of the Authentic Persian & Oriental Rug store by Russell Kemp of Ireland Stapleton was “non-frivolous.”
The claim proffered was that Allen should not have voted on a unanimously approved city budget because the City, under a law adopted years ago, gives money to the Greater Glendale Chamber of Commerce and Jeff Allen as COO of the Chamber draws a small salary. Under such ludicrous logic no councilman could ever approve any annual budget because under that budget they draw a salary approved years before.
But the key to the decision is what in the world does such a complaint have to do with the IEC under Amendment 41 and its gift/lobbying limitations? Aha! It doesn’t. Amendment 41 has a vague little noticed provision that declares that the IEC has jurisdiction over not only gifts and revolving door lobbying but also “any other standard of conduct or reporting requirement in state law.” Thus under Bill Leone the IEC could go after doctors, lawyers, contractors, or virtually anyone else in the state. Its purported jurisdiction is virtually unlimited according to William Leone.
Moreover, individuals covering IEC meetings and hearings have reported possible skullduggery concerning the Allen case. Last year another ethically dubious establishment character Bernie Buescher (once an appointed Secretary of State but later soundly rejected by voters) was discovered hanging around various meetings although he had no public case or controversy before the IEC. He was engaged in what appeared to be illegal ex parte communications with Leone and Leone’s Executive Director Dino Ioannides. When caught in the act he disclosed that he was representing “rug merchants” in Glendale to get their high-rise built and was hoping to use the IEC to pressure the City Council. Upon review it was discovered that Buescher is “of counsel” to the law firm of Ireland Stapleton which of course represents M.A.K. Investments.
In various IEC minutes Ioannides declared that he has a “conflict of interest” regarding a certain mysterious case which observers believe concerned Jeff Allen. Typical of the lack of ethics of the IEC, Ioannides did not disclose (as required by state law) what was in fact the “conflict of interest.” Did it involve Bernie Buescher and the wealthy rug merchants of Glendale?
Which brings us back to Jeff Allen. He is but a pawn in a massive power game of William Leone. Allen left the City Council years ago and gets only a small salary as a Chamber COO. He has no funds to fight the sick megalomaniac dreams of ethically challenged Bill Leone and his IEC. It will of course bankrupt him.
That is, of course, why Leone picked Allen. If he challenged Mayor Michael Hancock over his 2015 Super Bowl Trip he could expect a major fight on his hands. Leone and the IEC can roll over the corpse of Jeff Allen many times over. He has no ability to fight a cadre of sleazy, unscrupulous lawyers like Bill Leone, Russell Kemp and Bernie Buescher.
It can only be hoped that Glendale and home rule cities throughout Colorado will rise up to take on Bill Leone and his highly unethical Independent Ethics Commission on behalf of Allen. If Allen goes down, he will be only the first of many potential victims of one morally repugnant individual — William Leone.
— Editorial Board
Where Does Glendale Go To Get Its Reputation Back?
The 18 month long legal ordeal brought by M.A.K. Investments, LLC controlled by Mohammad Ali Kheirkhahi and his in-laws Saeed Kholghy and Nasrin Kholghy against the City of Glendale is finally over as chronicled on the front page of this newspaper. As in the case of many protracted wars it ended not with a bang, but with a whimper as M.A.K.’s lawyers have gotten the state court to dismiss with prejudice the last of its outrageous claims without even a single minor concession by the triumphant attorneys for the City of Glendale.
When President Ronald Reagan’s Secretary of Labor Ray Donovan was acquitted of all charges brought against him and six other defendants by a Bronx jury in 1987, he famously asked outside the courthouse, “Which office do I go to to get my reputation back?” The City of Glendale must wonder the same thing.
Glendale has spent close to a fifth of a century building an extraordinary city so that it could be known for more than simply the home of Shotgun Willie’s. The city acquired various parcels of land at no small cost for a series of extraordinary parks; it turned Cherry Creek Drive South from an eyesore into an amazing parkway with a wonderful circuitous pathway beside the creek; it built a first class boutique recreation center and made it available to its citizens at extremely low rates; it built a conference center that is one of the top venues in all of metropolitan Denver; it created Infinity Park a world class rugby venue such that internationally the city is known as Rugbytown USA; it made the city business-friendly and it attracted major investments such as CitySet greatly broadening the city’s tax base, etc., etc., etc.
The culmination of its efforts was to create a real downtown eating and entertainment district along East Virginia Avenue originally known as the Riverwalk and later the Glendale 180 Project. M.A.K acquired its 3.8 acres of land along E. Virginia to take advantage of the investment the city was going to make in the area but then decided it could make more money by building a massive apartment complex on its land to take advantage of the apartment boom in metropolitan Denver. M.A.K. did not care that the city height restrictions, the City Master Plan and zoning laws did not permit the same or that its massive apartment building would effectively destroy the Glendale 180 Project. M.A.K. and its principals only cared about what would make the most money for them and them alone.
In its greed and avarice M.A.K. decided it must threaten to, and then try to, destroy the reputation of the city and its elected officials and employees. It went after, to name just a few, Mayor Mike Dunafon, former Councilman Jeff Allen, Deputy City Manager Chuck Line and City Clerk Sherry Frame as outlined in the front page story.
Neither M.A.K. nor Mohammad Ali Kheirkhahi and his in-laws apparently appreciated the toughness of a community that as an unincorporated town and then a home rule city has had to fight to prevail overwhelming powerful forces for its mere existence since 1859. Mayor Mike Dunafon adopted as his creed regarding the matter a variation of the statement in John F. Kennedy’s inaugural address, to the effect: “Let everyone know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of Glendale.” It is a sentiment that every leader of Glendale over the last 150 plus years could appreciate and support.
According to City Attorney Jeff Springer, Glendale will consider seeking from the courts reimbursement for its massive attorneys’ fees and costs involved in the M.A.K. litigation. Glendale might want to also consider bringing abuse of process claims against M.A.K., Mohammad Ali Kheirkhahi, Saeed Kholghy and Nasrin Kholghy to recover the loss associated with the harm done to the Glendale 180 project. In its war against the City of Glendale and its people, M.A.K. has laid many land mines and poisoned its share of wells, not all of which have been uncovered. Discovery in such a lawsuit would help expose those many hazards that are lying in wait for the unwary in the city. Glendale has been and must ever be vigilant if it and its people are to prosper.
— Editorial Board
Mitch Morrissey’s Strange And Extraordinary 12-Year Term As DA Comes To And End
There is no individual elected official that has been a subject of more Chronicle editorials over the last 12 years than Denver District Attorney Mitch Morrissey. He is term limited and will be turning over the reins of office to soon to be septuagenarian Beth McCann this next month.
Mr. Morrissey is admittedly something of a mystery to us. He is intelligent, highly articulate and strikingly handsome which are attributes he shares with Arapahoe County District Attorney George Brauchler. When he came into office in January 2005 we had high hopes for him and his office.
His immediate predecessor as DA, Bill Ritter, went on to become governor of Colorado and there was no reason to think that Morrissey might not successfully follow that path to higher office.
There have been no scandals to speak of at the Denver DA’s office during his entire 12-year tenure for which Morrissey can be justifiably proud. Moreover, he has at times had the courage to do such things as his extremely sharp edged attack on presiding Denver County Court Judge John Marcucci and his brethren for turning Denver into the heroin capital of the West as highlighted on the front page of this month’s Chronicle.
But conversely from the beginning up until today there has been a constant barrage of legal and public relations gaffes that are extraordinary.
By way of example, we were aghast when he decided in 2008 to criminally prosecute Skinner Middle School Principal Nicole Veltze for failure to notify the police over incidental touching in a classroom, although she suspended the children involved. He assigned his two top assistants to bring three charges against the poor school administrator which brought howls from the local media.
County Court Judge Doris E. Burd threw out all charges against Veltze saying there was absolutely no evidence that the school principal acted willfully and wantonly to thwart the law. Amazingly Morrissey then went after Judge Burd saying that his office was very surprised and concerned by the ruling and just might appeal.
To prove he never was able to grasp the old saying that “if you find yourself in a hole stop digging” Morrissey then went personally to the editorial board of the now defunct Rocky Mountain News to attempt to prevent them from issuing an editorial castigating him. He told its editorial board that state law required him to bring the charges. The editorial board found his arguments ludicrous and issued one of the most damning editorials about a Denver DA in living memory.
To demonstrate he has learned nothing in his 12 years in office he just recently decided to bring to trial Clarence Moses-EL for rape charges. Moses-EL had been convicted back in 1987 for beating and raping a woman in his Five Points neighborhood. His conviction was based almost solely on the testimony of the victim saying that it had come to her in a dream that Moses-EL was the one who raped her. She had previously said that she could not identify her assailant because of the beating, but that the person had a toupee and was either “LC, Earl or Darnell.” Moses-EL did not have a toupee nor was one of the men named.
There was significant evidence containing DNA collected by the Denver Police but that field of science was just in its infancy and no tests were performed. Moses-EL was sentenced to 48 years in prison. Moses-EL steadfastly denied he was guilty even after the verdict
When the field of DNA advanced to the point that the evidence gathered could, in fact, be tested Moses pleaded with the DA’s office and the state to perform the tests, but they refused saying they did not have enough money. Eventually Moses-EL, with the help of fellow prisoners, scrapped together enough money to have the tests performed but once again the DA’s office and the state refused. With help of pro bono attorneys, a court finally ordered Denver to perform the tests.
Unbelievably it turned out Denver had destroyed all of the DNA evidence relating to the Moses-EL case. LC Jackson, one of the men who the victim originally said was a possible assailant, confessed to the crime but later recanted, then reconfessed and then recanted.
A Denver District Court found enough evidence “to allow a jury to probably return a verdict of acquittal in favor of the Defendant” and allowed Moses-EL a new trial. Everyone assumed the case was over, but Morrissey decided to go after Moses-EL. To cover his tracks, Morrissey attempted to get Moses-EL to plead guilty to various lesser charges in return for the DA’s office recommending he be released for time served. Moses-EL said he would never plead guilty to a crime he had not committed even if it meant he would spend the rest of his life in prison.
The NAACP brought to the court a petition signed by 2,000 prominent Denverites asking that he not be forced to go through a second trial. The Denver Post wrote a blistering editorial pleading that Moses-EL not be retried. Beth McCann stated that if Morrissey would not take any action until she was in office she would not retry Moses-EL. Apparently, none of that mattered to the tone deaf Morrissey. As in the Veltze case he brought his top aide Chief Deputy Bonnie Benedetti to try the case.
On November 14, 2016, a 12-person Denver jury after only three hours of actual deliberation found Moses-EL not guilty on all charges to the tumultuous cheers of the community. At age 60 Moses-EL was finally free after 28 years of wrongful confinement for a crime he never committed.
As we noted earlier, both Morrissey and Arapahoe DA George Brauchler are highly intelligent individuals, but Brauchler has one attribute that Morrissey has demonstrated time after time he badly lacks — judgment.
An extraordinary lack of judgment is why Mitch Morrissey should never again be elected or appointed to any office of public trust, notwithstanding his many gifts. The Veltze and Moses-EL cases demonstrate he simply cannot be trusted to do the right thing when it truly counts.
— Editorial Board
How To Fight Denver City Hall
The intrepid and resourceful everyday citizens from Humboldt Street Neighborhood Association and Curtis Park Neighbors (some of which are pictured below) were, of course, greatly disappointed when the Denver Board of Adjustment for Zoning turned down their appeal of the decision from the Denver Planning Department by a 4-1 margin. The project will help destroy their neighborhoods by permitting high density micro apartments without any parking.
The vote was 4 to 1 rather than unanimous because the Board did not want to appear to be what they are — lackeys for the mayor and the real estate developers who control him. It is known in the trade as the “gentleman’s dissenting vote.”
What’s next? Well, they can exercise their rights as Americans and Coloradans and appeal the decision to the Denver District Court for the State of Colorado. The only problem is, of course, that the average Denver citizen never wins in the Denver District Court when suing the City and County of Denver when it relates to the destruction of their neighborhoods. Never, ever.
Just to review a few of the more egregious recent cases:
- Friends of Denver Parks v. the City and County of Denver et al. In September of 2013 Denver District Court Judge Herbert L. Stern III dismissed each and every claim of the citizens concerning the sale for development of a portion Hentzell Park in Denver.
- Residents of West Highland v. The Denver City Council et al. In September of 2013 Denver District Court Judge Robert C. McGahey dismissed each and every claim of the citizens regarding the rezoning of property in the Highlands area of Denver.
- Sloans Lake Neighborhood Association v. Denver City Council et al. In March of 2016 Judge J. Eric Eliff dismissed each and every claim on the rezoning of the former St. Anthony’s Central Hospital site.
- Residents of Crestmoor Park v. Denver City Council et al. In May of 2016 Denver District Court Judge Shelly I. Gilman not only dismissed each and every claim of the citizens over the rezoning of the Mt. Gilead Church property but she appeared to mock and taunt the citizens for even bothering to bring claims in her courtroom and made it abundantly clear that she would never rule in their favor.
Then there was the infamous case of Ballpark Neighborhood Association, Inc. v. City and County of Denver et al in September of 2015. There Denver District Court Judge R. Michael Mullins actually ruled, in a six page opinion, in favor of the citizens declaring that the City and County of Denver and the Board of Adjustment for Zoning had “abused their discretion and exceeded their jurisdiction in agreeing to allow the Denver Rescue Mission to expand.
Never accused of being the “brightest crayon in the box” Judge Mullins apparently had not been informed that the citizens of Denver are never allowed to win such cases. Calls were apparently made and Mullins was given, directly or indirectly, a talking to. Several weeks later Judge Mullins reversed himself and ruled in favor of the City and County of Denver on all claims. Judge Mullins, in disgrace, announced his retirement several months later.
There is a time honored idiom in American politics — “You Can’t Fight City Hall.” The saying is not “You Can’t Sue City Hall” because you clearly can. It means, inter alia, simply that you won’t win your lawsuit. Why? Because the concept of an “independent judiciary” is a myth, or more accurately, something of a cruel hoax as it pertains the Denver District Courts.
It is not that Denver judges are bribed. Why bother? Bribery would be so gauche and totally unnecessary. The 23 Denver District Court judges are, in reality, state government employees in black robes who plan to retire as state government employees on state government pension plans. They roam the hallways and eat in the cafeteria at the City and County Building with other government employees whether they are elected officials or government bureaucrats in the form of city attorneys and district attorneys, etc. They go to the same American Bar Association and Colorado Bar Association meetings. They attend the same parties and events. They were able to become judges in part because of their political connections and they do not intend to upset the applecart.
It is an unwritten rule in Denver whereby the unelected judges agree they will not play in the elected officials’ sandbox so long as elected officials don’t interfere with their spoils. Everybody in state and municipal government gets their healthy serving of the taxpayer funded pie all in the name of old fashioned “public service.”
So is all lost for Denver’s brave and intrepid neighborhood groups like the Humboldt Street Neighborhood Association and Curtis Park Neighbors? The answer is surprisingly, no, at least for the future. Of course the Mayor, the City Council, the Denver Planning Department, the Board of Adjustment, Barry Hirschfeld and the Denver District Court system will have raped and partially destroyed their neighborhoods for fun and profit, but things can and will continue to get worse and worse unless citizens start fighting for the future of their city.
The election system in Denver is, in fact, not rigged unlike some large cities in the United States. There is no Daley machine or a modern day Tammany Hall in Denver. Regular citizens can and have won elections if they are willing to fight hard enough, as demonstrated by the victories of City Auditor O’Brien and Councilmen New, Kashmann and Espinoza. You can even beat incumbents like Councilwoman Susan K. Shepherd.
Do citizens need to wait until the next municipal election finally rolls around? Of course not. Progressives in the early 20th century knew the only way to hold elected officials actually accountable was for citizens to be able to recall them, and provided for such in the Colorado Constitution and the Denver City Charter. Progressives in the 21st century are somehow extremely squeamish about holding elected officials, and therefore the entire system, accountable by filing recall petitions. Fill one petition against one of the numerous real estate developer owned City Council persons and suddenly — win, lose or draw — the whole political landscape changes and the citizens of Denver can now in fact “fight Denver City Hall.”
The time is a-wasting. Let us begin the fight to take back the City and County of Denver from real estate developers like Pat Hamill and his crony capitalist enablers at the loathsome Colorado Concern organization. You owe it to your children and grandchildren.
— Editorial Board
