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Churchey, 759 P.2d at 1340. When the party that does not bear the
burden of persuasion at trial moves for summary judgment, the
initial burden of production is satisfied if the moving party
affirmatively shows an absence of evidence in the record to support
the nonmoving partys case. Contl Air Lines, Inc. v. Keenan, 731
P.2d 708, 712-713 (Colo. 1987). Once the moving party has met
the initial burden, the burden then shifts to the nonmoving party to
establish a triable issue. Id. An affirmative showing of
uncontradicted, specific facts dictates the conclusion that no
genuine issue of material fact exists. Civil Serv. Commn v. Pinder,
812 P.2d 645, 649 (Colo. 1991). All doubts are resolved in the favor
of the nonmoving party. Churchey, 759 P.2d at 1340.
B. The Southern Parcel is Not a Park
1. Legal Principles
In Friends of Denver Parks, a division of this court concluded
that by enacting Denver Charter section 2.4.5, as of December 31,
1955, the city intended (1) to eliminate the concept of common law
dedication of parks; (2) for land that the city owned as of that date;
(3) that had not already been dedicated as a park by such means.
Friends of Denver Parks, 53. Under Denver Charter section 2.4.5,
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city land can only become a park after December 31, 1955, if it is
specifically designated a park by ordinance. Id. at 48 (emphasis
added). It must be established that the parcel was a park before
December 31, 1955, or was specifically designated as a park by
ordinance after that date before voter approval is required for sale
or transfer of the parcel. Id. at 56, 58.
The mere use by the public of a city-owned parcel of land as a
park is insufficient to convert that parcel into a park. Hall v. City &
Cnty. of Denver, 115 Colo. 538, 542, 177 P.2d 234, 236 (1946)
(citing Starr v. People, 17 Colo. 458, 30 P.64 (1892)).
2. Dedication as Park Land Prior to December 31, 1955
Plaintiffs contend that the trial court erred when it granted
defendants motion for summary judgment because, at a minimum,
plaintiffs evidence raised a genuine issue of material fact as to
whether the southern parcel was dedicated as a park by the city
prior to December 31, 1955. We disagree.
There is no dispute that the city did not by ordinance
designate the parcel as a park prior to December 31, 1955.
Therefore, the parcel could have become a park only by common
law dedication. Friends of Denver Parks, 46. Common law
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city and County of Denver and its parks and parkways outside such
limits. . . .
No restriction in the deed required the city to dedicate the
parcel as a public park. The question then becomes whether, taken
in the light most favorable to the plaintiffs, the ordinance that
granted an easement over the original parcel, with the stated
purpose of connecting Denver roads with parks and parkways
outside the city limits, is an act or declaration that demonstrates
the unequivocal intent of the city to dedicate the southern parcel
as a park. We conclude that it did not. An easement granted to
assist in connecting roads to parks (plural) and parkways (nonparks) cannot be said to constitute an unambiguous designation of
the southern parcel as a park.
Additionally, statements by city employees and a former city
council member that they believed the parcel was a city park do not
show that the city had taken unambiguous action prior to
December 31, 1955, to dedicate the parcel as a park. These
statements show what the declarants believed the situations to be,
but they do not show any action by the city to dedicate the parcel
as a park.
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STATE OF COLORADO
2 East 14th Avenue
Denver, CO 80203
(720) 625-5150
CHRIS RYAN
PAULINE BROCK
Pursuant to C.A.R. 41(b), the mandate of the Court of Appeals may issue fortythree days after entry of the judgment. In workers compensation and
unemployment insurance cases, the mandate of the Court of Appeals may issue
thirty-one days after entry of the judgment. Pursuant to C.A.R. 3.4(l), the
mandate of the Court of Appeals may issue twenty-nine days after the entry of
the judgment in appeals from proceedings in dependency or neglect.
Filing of a Petition for Rehearing, within the time permitted by C.A.R. 40, will
stay the mandate until the court has ruled on the petition. Filing a Petition for
Writ of Certiorari with the Supreme Court, within the time permitted by C.A.R.
52(b) will also stay the mandate until the Supreme Court has ruled on the
Petition.
BY THE COURT:
Alan M. Loeb
Chief Judge