Denver voters hold the future of the Park Hill golf course property in their hands in the city’s Tuesday election. Again.

Referred Question 2O asks voters if they want to lift a conservation easement that bans any development on the property beyond an 18-hole golf course and secondary recreational uses like a driving range or tennis courts. Lifting the easement would make way for commercial and residential development on the land located off Colorado Boulevard and East 35th Avenue. The ballot question specifies that “development” in this case would include affordable housing plus a public regional park.

But how can voters — assuming yes votes prevail — be sure they are getting what they vote for?

The short answer from the property owner and city officials is there is a legally binding agreement already locked into place via a City Council vote.

“The development agreement basically says that if the developer breaches any component of the development agreement the city has the ability to withhold processing of development applications and/or issuance of building permits,” said Kenneth Ho, an executive with Westside Investment Partners, the developer that has owned the land since 2019 and entered into that agreement with the city.

John McGrath, an assistant city attorney who helped negotiate the development agreement from the Denver side, said the pact “gives us significant leverage to check from time to time as this unfolds whether there is compliance there.”

Beyond any consequences that could unfold in the city planning office, if the developer were to violate the terms of the agreement, McGrath noted it is also a legally binding deal.

“We can go to court and get a court order if they fail to comply with any requirements,” McGrath said.

And the contract runs with the land, which means that even if Westside and its partners sell to other entities, those future owners would be subject to this agreement just as Westside is now subject to the conservation easement that was first put on the land in 1997 when it was owned by a nonprofit organization.

Whether those assurances will resonate with voters has yet to be seen.

There is a much clearer picture of what the 155-acre property could become compared to November 2021, the last time voters last weighed in on the future of the property by approving Initiated Ordinance 301. That measure (which passed nearly 2-1 while a competing countermeasure backed by Westside failed on a similar margin) gave the city electorate authority over whether the conservation easement could be lifted.

Ahead of that election, representatives with Westside, which purchased the golf course for $24 million four years ago, had talked in broad strokes about bringing “affordable and diverse housing” to the property and the need for business space in the Northeast Park Hill neighborhood.

With voting on the issue Tuesday, there are much more specific demands on Westside spelled out in the development agreement.

It includes guarantees that 25% of all housing built there will be income restricted and not market rate, a percentage that goes well beyond the city’s recently approved Expanding Housing Affordability policy. It also requires the developer to hand over ownership of 75 acres of the land to the city to turn into parks and open space. (The number goes up to 100 when a 25-acre drainage area on the northeast corner of land already acquired by the city in a deal with the developer is included.)

Among the income-restricted units would be 300 for-sale homes or apartments with at least 100 of those having at least three bedrooms to better accommodate families, per the agreement. Other specifically targeted affordable projects — including one for seniors and a supportive housing project for people transitioning out of homelessness — are also laid out.

But opponents to 2O say there are reasons to doubt that agreement.

Penfield Tate, who is running for an at-large City Council seat this year, has been a longtime vocal opponent of redevelopment plans for the golf course. All the work that has gone into planning the future of the property under Mayor Michael Hancock’s administration may as well be moot when a new mayor is sworn in this summer, Tate said. The next administration could have a completely different interpretation.

“The first thing to consider is the people you are talking to now will be gone in July,” he said. “Agreements with the city get renegotiated all of the time either at the request of the developer or at the request of the city.”

Tate and Save Open Space Denver, one of the opposition groups he has been part of for years, are also plaintiffs in a lawsuit that argues that, regardless of the outcome of the  April 4 election, the conservation easement cannot be legally lifted without a court order. That court order would require the city and the developer to prove that “conditions on or surrounding the encumbered property have changed, since the effective date of the easement, so that it has become impossible to fulfill its conservation purposes,” the suit argues.

Supporters of 2O are looking for ways around that via the development agreement, Tate said, because “the city and Westside both know they can’t make that showing.”

The city has filed a motion to dismiss that case. It’s not the first time city attorneys and Tate have disagreed over the legal language governing the property. Save Open Space Denver and its allies have repeatedly argued that the conservation easement doesn’t mean the property has to be a golf course; that it could be turned into a regional park with all kinds of amenities like a track and athletic fields.

The easement itself reads, in part, that its purpose is to protect “the conservation of Golf Course Land as open space and for the continued existence and operation of a regulation-length 18-hole golf course …”

“There is just no way if you read that and you’re honest about it to come away and say that (the property) could be used for 100% park,” McGrath said.

There are some things the city and developer can’t plan for. If the economy were to tank and capital markets were to dry up, the city can’t force construction.

“If development for any reason — economic or any other reason — does not go forward the city wouldn’t normally be able to force a developer to develop,” McGrath said.

The city’s pressure point there comes in the form of a vesting period. The agreement provides a 15-year window on which the City Council-approved upzoning of the land will not change provided 2O passes. After that window, zoning on the land could be revisited. If 2O fails, Westside is required to apply to rezone the land as private open space again.

Ho highlighted annual compliance points with the city when discussing the agreement. The developer does not have the right to develop all of its market-rate projects before it builds income-restricted housing. The timing of affordable projects will hinge on obtaining federal tax credits to finance them but the land for them is already committed to partners including Habitat for Humanity, Brothers Redevelopment and Volunteers of America, he said.

“The details in this agreement are far more robust, the obligations are far more specific and the enforcement mechanisms are also far more robust than anything that the city has done before,” Ho said.

Tate, meanwhile, hammered on the fact that development is contingent on the numbers working for the developers. Lifting the conservation easement would amount to a $184 million gift to Westside and its partners — that’s the value of the development rights on the land, he said.

Save Open Space Denver does want the property to remain a golf course exclusively, but 2O going down would be a win for the city in Tate’s view.

“It would be a win in that we would still have open space and a recreational use,” he said.