HomeMy WebLinkAbout1969-11-17 (Regular) Meeting Agenda Packet•
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City council Meeting -November 17,
1969, Regular Meeting
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INTRODUCED AS A BILL BY COUNCILMAN ____ LA~Y~ ______ 0_~~c~;~:O~·~·
BY AUTHORITY (~lo/o~; f 11..
ORDINANCE NO. 3 $? , SERIES OF 1969 ' c0(~
AN ORDINANCE REPEALING §15.29 OF THE MUNICIPAL CODE OF THE
CITY OF ENGLEWOOD AND AUTHORIZING THE MAYOR AND CITY CLERK TO
ENTER INTO AN AGREEMENT GRANTING TO THE DENVER BENCH ADVERTISING
CO. A REVOCABLE PERMIT TO PLACE BUS BENCH SEATS AT VARIOUS LOCA-
TIONS THROUGHOUT THE CITY IN ACCORDANCE WITH THE TERMS OF THIS
ORDINANCE.
WHEREAS, Section 133 of the Charter of the City of Englewood
authorizes this City Council to grant revocable permits for the
use or occupation of any street, alley or other public place within
the City, and
WHEREAS, §15.29 of the Municipal Code of the City of Engle-
wood purports to authorize Empire Bench Advertising Company to
place certain benches at certain locations within the City, which
right has heretofore been revoked by this Council, and
WHEREAS, Council hereby determines that the placement of
benches for the public at certain locations within the City would
serve a public purpose,
NOW, THEREFORE, BE IT HEREBY ORDAINED BY THE CITY COUNCIL OF
THE CITY OF ENGLEWOOD, COLORADO, as follows:
Section 1. §15.29 of the Municipal Code of the City of Engle-
wood is hereby repealed.
Section 2. The Mayor and City Clerk are hereby authorized
and directed to issue to Denver Bench Advertising Co. a revocable
permit, authorizing said Denver Bench Advertising Co. the right
to place benches at locations along the public sidewalks and other
places within the City to be used by the general public at bus
stops and other locations for the comfort and convenience of the
general public, subject to the following conditions:
(a) The right herein granted shall be for an indefinite
period, but shall be terminable at the will of either party upon
written notice of not less than thirty (30) days to the other
party;
(b) The benches thus placed shall be furnished by said Denver
Bench Advertising Co. and maintained by them.
(c) The aforesaid company may use said benches for the dis-
play of advertisements and may enter into agreements with third
persons for the utilization of such advertising space on such
terms and conditions as may be desirable to the company.
(d) The company shall pay to the Cit y a fee equal to fift y
cents (SOt) per month per bench, which fee shall be paid on or
before the lOth day of the following month.
(e) Denver Bench Advertising Co. may place as many benches
at such locations upon the public sidewalks as it may deem appro-
priate, providing that no bench shall be so placed as to obstruct
the public sidewalk and, providing further, the City shall retain
the right to require the removal of the same at any time for any
cause.
(f) The enver Bench Advertising Company shall provide li-
ability insurance protecting the City in the amount of $100,000
and $200 ,000 and property damage in the amount of $50,000, and
s hall provide the City with proof thereof.
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~ Introduced, read in full and passed on first reading on the
""".;x].~.~.odu...._. day of November, 19 69.
Published as a Bill for an Ordinance on the &266 day of
November, 1969.
Re~~b y title and pass e d on final reading
day of li&<Mn/u4 1 , 1969 .
Published by titl~~nance No. 38'
on the /2 0 day of .L)_~IuA ,, 1969.
Attest :
on the /'2
, Series of 1969,
I, Stephen A. Lyon, do hereby certify that the above and
foregoing is a true, accurate and complete copy of an Ordinance
pass~d~n final reading and published by title as Ordinance No.
--~:2~1L~---· Series of 19 69.
Attest: ~
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0 0 ,vo -. ~~ G'"'· , <= ~ ~,O~~OOOED ~s "~{iLL BY COUNCILMAN --4&_........,.e,.._\._\_..;.\""""V\...:...~+------v~ '· .. P ')· l
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c;:v 0'-ORDINANCE NO. 39 SERIES OF 1969 0"' ~ cP Q~'
AN ORDINANCE AMENDING SECTION 6A.5-2 AND SECTION 6.6-14(a)(2)
THE ENGLEWOOD MUNICIPAL CODE TO DEFINE THE NORMAL RETIREMENT
DATE FOR THE EMPLOYEES OF THE CITY OF ENGLEWOOD, COLORADO.
BE IT ORDAINED BY THE CITY OF ENGLEWOOD, COLORADO, as
fol l ows :
Section 1. Section 6A.5-2 of the Municipal Code of the
City o f Englewood is hereby amended to read as follows:
"The Normal Retirement Date of the Member shall be
the first day of the calendar month coincident with or
next succeeding his 6 5 th b i rthday , but not before Feb-
ruary 1 , 1970 ."
Section 2. Section 6.6-14 (a)(2) of the Municipal Code of
the City of Englewood is hereby amended to read as follows :
"(2) The effective date of retirement under the
provisions of 6 .6-14 (a)(l) hereof shall be the first
day of the first month following the month in which
such employee reaches the age of sixty-five (65) years,
or in the case of any extensions of retirement age, the
date on which the extension expires."
Introduced, read in full and passed on first reading on
the ._3ad day of November, 1969 .
. Published as a Bill for an Ordinance on the GztA day of
November, 1969.
R~aA by title and passed on final reading on the /~tzS
day of Ut<Jd.M,an!J...vu , 1969.
Published by title as Ordinance No. 39 , Series of
1969, on the ci}Q day of ~v 11 1 , 1969.
I, Stephen A. Lyon, do hereby certify that the above and
foregoing is a true, accurate and complete copy of an Ordinance
passed on final reading and published by title as Ordinance No. 3 9 , Series of 19 69 .
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coi..J. INTRODUCED AS A BILL BY COUNCILMAN PARKINSON City '\~· er ~
BY AUTHORITY . tvc;l.~·wo ~ r,l.
ORDINANCE NO. 3f#J"'O , SERIES OF 1969 °0• c 0 [
C1.
AN ORDINANCE AUTHORIZING THE POLICE PENSION BOARD OF THE
CITY OF ENGLEWOOD TO INVEST FUNDS DEPOSITED TO THE CREDIT OF
THE POLI CE PENSION FUND IN SUCH INVESTMENTS AS MAY BE AUTHOR-
IZED BY THE STATUTES OF THE STATE OF COLORADO FOR INVESTMENTS
BY FIDUCIARIES SUBJECT TO THE CONDITION THAT THE SAID BOARD
SHALL ALWAYS HOLD FIXED INCOME OBLIGATIONS HAVING A BOOK VALUE
OR COST OF NOT LESS THAN 60% OF THE TOTAL AMOUNT STANDING TO
THE CREDIT OF THE FUND AND DECLARING AN EMERGENCY.
WHEREAS, the City of Englewood is a home rule city, es-
tablished pursuant to the provisions of Article XX of the State
of Colorado, and
WHEREAS, the City of Englewood has heretofore elected to
participate in the Police Pension Pr ogram established by Chap-
ter 139, Article 49, Colorado Revised Statutes, 1963, as amended,
and
WHEREAS, it is the considered view and judgment of this
City Council that the provisions of said statute are unnecessarily
restrictive upon the securities in which the funds standing to
the credit of the Police Pension Fund may be invested, and
WHEREAS, it is City Council's further considered judgment
and opinion that, in the exercise of the powers granted to this
City by the aforesaid constitutional provision, the matter of
investment of such funds is purely one of a local and municipal
council,
NOW, THEREFORE, BE IT HEREBY ORDAINED BY THE CITY COUNCIL
OF THE CITY OF ENGLEWOOD, COLORADO, as follows:
Section 1. The City of Englewood does hereby elect to
continue to participate in the P olice Pension Fund, in accordance
with the provisions of Chapter 139, Article 49, Colorado Revised
Statutes, 1963, as amended, save and except to the extent that
the provisions of this Ordinance supersedes any provisions of said
statute.
Section 2. In lieu of the provisions of C.R.S. 139 -49-13,
the Board of Trustees of the Policemen's Pension Fund of this
municipality shall be governed by the following provisions, to
wit :
"The Board of Trustees of the Policemen's Pension Fund
in this municipality shall have power to draw on such
Pension Fund, from the Treasurer of the Policemen's
Pension Fund, and may invest the same, or any part
thereof, in the name of the Board of Trustees of the
Policemen's Pension Fund, in any security, bond, de-
benture, corporate obligation, stock, preferred or
common, securities of any open end or closed end man-
agement-type investment company or investment trust
a nd participations in common trust funds, to the ex-
tent that such investments would be an authorized in-
vestment by fiduciaries within this state, as set forth
in 57 -3-1, C.R.S. 1963, or any subsequent amendment
there t o, providing that the said Board shall at all
times hold fixed income obligations having a book value
or cost of not less than 60% of the total contributions
made to the said Policemen's Pension Fund, less the
amounts paid out. All securities invested shall be
de posited with the Treasurer of the City of Englewood,
a s ex officio Treasurer of the Board of Trustees of
the P o l icemen's Pension Fund, and subject to the order
o f sa i d Board."
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Section 3. The City Council hereby finds and determines
that an emergency exists, by reason of which this ordinance shall
become effective immediately upon its final passage.
Introduced, read in full and passed on first reading on the '-3nd day of November, 1969.
Published as e Bill fer aR Oraiuau~e eR the day of
November, 1969. -----
ReaQ~by title and passed on final reading on the /~
day of flllt!J.ro?w<, 1969 .
Published ~~AS Ordinance No. 40 Series of 1969,
on the Q?O day of J)!J..a urn b.;_;v , 1969.
/ Ma or
I, Stephen A. Lyon, do hereby certify that the above and
foregoing is a true, accurate ana complete copy of an Ordinance
passed on final reading and published by title as Ordinance No.
-:1 Q , Series of 1969. Vh ~
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COUNCIL CHA MBE RS
CITY OF ENGLEWOOD , COLORADO
NOVEMBER 17, 1969
REGULAR MEETING:
The City Council of the City of Englewood, Arapahoe
County, Colorado, met in regular session on November 17, 1969
at 8:17 P.M.
Mayor Schwab, presiding, called the meeting to order.
The invo c at i on was given by Reverend Dale Strong,
Associate Pastor of the Englewood First Presbyterian Church.
Pledge of Allegiance was led by Boy Scout Troop No. 154.
The Ma yor asked for roll call . Upon the call of the
roll , the following were present:
Councilmen Brown, Dhority, Lay, Parkinson, Schwab.
Absent: Councilmen Kreiling, Lone.
The Mayor declared a quorum present.
Also present were: City Manager Dial,
City Attorney Criswell,
Acting City Clerk Beittel.
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COUNCILMAN LAY MOVED, COUNCILMAN PARKINSON SECONDED ,
THAT THE MINUTES OF THE REGULAR MEETING OF NOVEMBER 3, 1969
BE APPROVED AS READ. Upon the call of the roll, the vote
resulted as follows:
Schwab.
Ayes: Councilmen Brown, Dhority, Lay, Parkinson,
Nays : None.
Absent: Councilmen Kreiling, Lone.
The Mayor declared the motion carried.
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Mr. Robert L. Mcin yre, 3140 South Dahlia, owner of
Old Town Liquors, 325 East Jefferson Avenue, appeared before
City Council. Mr. Mcintyre requested permission to enlarge his
premises located at 325 East Jefferson.
COUNCILMAN PARKINSON MOVED, COUNCILMAN LAY SECONDED,
THAT THE REQUEST OF MR . ROBERT L. MCINTYRE, OWNER OF OLD TOWN
LIQUORS , 325 EAST JEFFERSON AVENUE , TO ENLARGE HIS PREMISES AT
SAID ADDRESS BE APPROVED. Upon the call of the roll, the vote
resulted as follows :
S c hwab.
Ayes: Councilmen Brown, Dhority, Lay, Parkinson,
Nays: None .
Absent: Counc ilmen Kreiling, Lone .
Th e Mayor declared the motion carried.
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Mr. Glenn Helfer, attorney for Mrs. Tina Warden owner
of Tina's Steak House, 3061 South Santa Fe Drive, appeared before
City Council. Mr. He lf er presented Mrs . Warden's application for
a three-way liquor l icen se for Tina's Steak House and requested
that a date be established for a public hearing on the application.
COUNCILMAN PARKINSON MO VE D, COUNCILMAN DHORITY SECONDED,
THAT THE PUBLIC HEARING DATE ON MRS . TINA WARDEN 'S APPLICATION
FOR A THREE-WAY LIQUOR LICENSE FOR TINA'S STEAK HOUSE, 3061 SOUTH
SANTA FE DRIVE, BE ESTABLISHED AS DECEMBER 15, 1969 AT 8:00 P .M.
AND THAT PROPER PUBLICATION AND POSTING OF THE PREMISES BE
EFFECTED. Upon the call of the roll, the vote resulted as
follows :
Ayes: Councilmen Brown, Dhority, Lay, Parkinson,
Schwab.
Nays: None.
Absent: Councilmen Kreiling, Lone .
The Mayor declared the motion carried .
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Mr. Les Schissler, representing Belleview Bowl, 4900
South Federal, appeared before City Council requesting renewal of
their 3-way liquor license.
Mr. Edward T. Cartwright, representing Cartwright's
Hampden West, 3517 South Elati, appeared before City Council
requesting renewal of their 3-way liquor license .
Mr. Lee Corder, representing Casual Lounge, 65 West
Floyd, appeared before City Council requesting renewal of their
3-way liquor license.
Mr . John Lidke, representing Cherrelyn Drug Store, 4285
South Broadway, appeared before City Council requesting renewal
of their drug store liquor license.
Mr. Harvey A. Pratt, representing Drug Fair, 4204 South
Broadway, appeared before City Council requesting renewal of their
drug store liquor license .
Mrs. Elsie Barrent, representing E-Z Liquors, 3353 South
Santa Fe, appeared before City Council requesting renewal of their
package liquor store license.
Mr. F. D. Bros iu s, representing the Fraternal Order of
Eagles, 73 West Floyd, appeared before City Council requesting
renewal of their club liquor license.
Mr. George Sillasen, representing GEM Liquors, 5450
South Broadwa y , appeared before City Council requesting renewal
of their package liquor store license.
Mr. Bill McCord, representing Glass Bottle Liquors,
336 West Hampden, appeared before City Council requesting renewal
of their package liquor store license .
Mr. Andrei Nagy, representing The Golden Fiddle, 3370
South Acoma, appeared before City Council requesting renewal of
their 3-way liquor license.
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Mr . Walter Hrom, representing Hilda's Cafe, 4386 South
Broadway, appeared b efore City Council requesting renewal of their
3-way liquor license.
Mr. Damon L. Hungate, representing Hungate's, 2796
South Broadway , appeared before C:i.ty Council requesting renewa l
of their 3-way liquor license.
Mr. Frank Wi tt, representing John W's Tap Room, 3467
South Broadway , appeared before City Council requesting renewal
of their 3-way liquor l icense .
Mr. Ed Swanguen , representing Loy al Order of Moose,
3531 South Broadway, appeared before City Council requesting
renewal of their club liquor license.
Mr. Ed Wad e , representing Lum's, 90 West Belleview,
appe ared befor e City counc il requesti ng renewal of their beer and
w~ne liquor license.
Mr . John R . McK ee, r epr e s enti ng M-D Pharmacy, 2895
South Broadway, appeared before City Council requesting approval
of their drug store liquor license .
Mr. Robert Moore , representing Magnet Inn, 2893 South
Broadway, appeared before City Council requesting renewal of their
3-way liquor license .
Mr . Charles 0. Bishop, representing New Frontier Liquors,
3485 South Bannock, appeared before City Council requesting re n ewal
of their package liquor store license .
Mr. Robert L. Mcintyre, representing Old Town Liquors,
325 East Jefferson, appeared b efor e City Council requesting the
renewal of their package liquor store license.
Mr. John F . Hannon, Jr., representing Supreme Liquors,
51 12 South Broadway, appeared before City Council requesting re-
newal of their package liquor store license.
Mrs. Ann Scoggins, representing The Studio, 5020 South
Broadway, appeared before City Council requesting renewal of their
3-way liquor license.
Mr. William S. Lauby, representing Thorobred Liquors,
5050 South Federal Boulevard, appeared before City Council requesting
renewal of their package liquor store license.
It was noted b y City Council that representatives of
Bar Harbor, 34 89 South Broadway, and the Englewood Elks Lodge,
3690 South Jason, were not present to request renewal of their
3 -way and club liquor licenses, respectively .
COUNCILMAN LAY MOVED , COUNCI LMAN PARKINSON SECONDED,
THAT THE CITY COUNCIL APPROVE THE RENEWAL OF THE LIQUOR LICENSES
OF THOSE OUTLETS WITHIN THE CITY OF ENGLEWOOD THAT WERE REPRESENTED
FOR THE YEAR 1970 . Upon the call of the roll, the vote resulted
as follows:
Schwab.
Ayes: Councilme n Brown, Dhority, Lay, Parkinson,
Nays: Non e .
Absent : Counc ilmen Kre~l~ng, Lone.
The Mayor declared the mot~on carr~ed .
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The minutes of the Election Commission meeting of
November 6, 1969 were received for the record.
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The minutes of the Public Library Board meeting of
November ll, 1969 were received for the record.
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A letter dated November 1 3 , 1969 from Mr. E. N. Haase,
Colorado Department of Highways, regarding left turns at South
Bannock Street and U .S. 285 was received for the record.
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BY AUTHORITY
ORDINANCE NO. 38, SERIES OF 1969
AN ORDINANCE REPEALING §1 5 .29 OF THE MUNICIPAL CODE
OF THE CITY OF ENGLEWOOD AND AUTHORIZING THE MAYOR AND CITY CLERK
TO ENTER INTO AN AGREEMENT GRANTING TO THE DENVER BENCH ADVERTIS-
ING CO. A REVOCABLE PERMIT TO PLACE BUS BENCH SEATS AT VARIOUS
LOCATIONS THROUGHOUT THE CITY IN ACCORDANCE WITH THE TERMS OF THIS
ORDINANCE.
(Copied in full in the official Ordinance Book.)
COUNCILMAN LAY MOVED, COUNCILMAN DHORITY SECONDED, THAT
ORDINANCE NO. 38, SERIES OF 1969 BE PASSED ON FINAL READING AND
ORDERED PUBLISHED BY TITLE IN THE ENGLEWOOD HERALD AND ENTERPRISE.
Upon the call of the roll, the vote resulted as follows:
Schwab .
Ayes: Councilmen Brown, Dhority, Lay, Parkinson,
Nays: None.
Absent: Councilmen Kreiling, Lone.
The Mayor declared the motion carried.
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BY AUTHORITY
ORDINANCE NO. 39, SERIES OF 1969
AN ORDINANCE AMENDING SECTION 6A.5-2 ~~ SECTION 6 .6-14
(a) (2) OF THE ENGLEWOOD MUNICIPAL CODE TO DEFINE THE NORMAL RETIRE-
MENT DATE FOR THE EMPLOYEES OF THE CITY OF ENGLEWOOD, COLORADO.
(Copied in full in the official Ordinance Book.)
COUNCILMAN PARKINSON MOVED, COUNCILMAN LAY SECONDED,
THAT ORDINANCE NO . 39, SERIES OF 1969 BE PASSED ON FINAL READING
AND ORDERED PUBLISHED BY TITLE IN THE ENGLEWOOD HERALD AND ENTER-
PRISE. Upon the call of the roll, the vote resulted as follows:
Schwab.
Ayes: councilmen Brown, Dhority, Lay , Parkinson,
Nays: None.
Absent: Councilmen Kre1ling, Lone.
The Mayor declared the motion carried.
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BY AUTHORITY
ORDINANCE NO. 40, SERIES OF 1969
AN ORDINANCE AUTHORIZING THE POLICE PENSION BOARD OF
THE CITY OF ENGLEWOOD TO INVEST FUNDS DEPOSITED TO THE CREDIT OF
THE POLICE PENSION FUND IN SUCH INVESTMENTS AS MAY BE AUTHORIZED
BY THE STATUTES OF THE STATE OF COLORADO FOR INVESTMENTS BY
FIDUCIARIES SUBJECT TO THE CONDITION THAT THE SAID BOARD SHALL
ALWAYS HOLD FIXED INCOME OBLIG ATIONS HAVING A BOOK VALUE OR COST
OF NOT LESS THAN 60% OF THE TOTAL AMOUNT STANDIN G TO THE CREDIT
OF THE FUND AND DECLARING AN EMERGENCY.
(Copied 1n full 1n the offic1al Ordin ance Book.)
COUNCILMAN PARKINSON MOVED, COUNCILMAN BROWN SECONDED,
THAT ORDINANCE NO . 40, SERIES OF 1969 BE PASSED ON FINAL READING
AS AN EMERGENCY ORDINANCE AND ORDE RED PUBLISHED IN FULL IN THE
ENGLEWOOD HERA LD AND ENTERPRISE. Upon the call of the roll, the
vote r es ulted as follows :
Schwab .
Ayes : Councilmen Brown, Dhority, Lay , Park i nson ,
Nays: None.
Absent: Councilmen Kreiling, Lon e .
The Mayor declared the motion carried .
Introduced as a Bill by Councilman Parkinson and read in full,
A BILL FOR
AN ORDINANCE INCREASING THE MONTHLY SALARY OF THE
MEMBERS OF CITY COUNCIL, EFFECTIVE DURING THAT COUNCIL TERM
COMMENCING AT 8 :00 P.M. ON THE FIRST MONDAY AFTER JANUARY 1,
1970.
COUNCILMAN PARKINSON MOVED , COUNCILMAN LAY SECONDED ,
THAT THE BILL FOR AN ORDINANCE BE PASSED ON F IRST READING AND
ORDERED PUBLISHED IN FULL IN THE ENGLEWOOD HERALD AND ENTERPRISE.
Upon the call of the roll , the vote resulted as follows:
Schwab .
Ay es : Counci lmen Brown, Dhority, Lay , Park inson,
Na ys: None.
Absent: Counc1lmen Kreiling, Lone.
The Mayor declared the motion c arried .
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Introduced as a B111 by Councilm an Dhority and read in full,
A BILL FOR
AN ORDINANCE REPEALING 8§24.1-1 THROUGH, AND INCLUDING,
824.1-9 OF THE MUNICIPAL CODE OF THE CITY OF ENGLEWOOD, RE-
ENACTING THE SAME WITH AMENDMENTS , AND ADDING FURTHER SECTIONS
THEREUNT O TO REQUIRE THE ANNUAL LICENSING OF DOGS KEPT WITHIN
THE CITY OF ENGLEWOOD.
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City Manager Dial presented a recap on what other
cities are charg i ng for dog l i cense. Mr. Dial stated that the
ave rage fee was $2.00 for spayed female and male dogs and $3.00
t o $4.00 for unspayed femal e dogs. Mr. Dial stated that in
determining whethe r or not a femal e dog was spayed, it would be
assumed the dog is an unspayed female unless verification from
a veterinar i an wa s r eceiv ed s t a tin g otherwi se.
Discus sion e nsued .
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City Attorney Cri swel l p r esented before and afte r
p i ctures o f the Ki n gsley p rope rty, 2350 South Tejon. Mr. Criswell
s t a ted th at the pro pert y h as b een cleaned up and graded. Mr.
Cri swe l l s t a ted tha t he was anticipating filing a report with the
c ourt the e n d o f t he we e k so t he court can approve the C i ty's
c os t s r eg a r d i n g the Ki n g sley property and give a lien against it.
In t his way t he City c an fore c lose the lien and get reimbursed.
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Ci t y Attorney Criswell reported on the recodification
o f t he Muni c ipal Code. Mr. Criswell hoped that at the next City
council meeting members would have a summary of the substantial
chang es mad e in the Code with copies of the sections which have
und e rgone these changes and a schedule. Mr. Criswell stated that
after considering Council's comments and suggestions on the
changes, a complete copy o f the Municipal Code should be received
the first or second meeting in January and the public hearing on
it would probably be held the first or second meeting in February.
* * * * * *
The Colorado Supreme Court's opinion on the Atchison
Ranch property in favor of the City was received for the record.
City Attorney Cr iswe ll stated that he anticipates a
motion for a rehearing on the above opinion and that hopefully
i t will be denied.
City Attorney Criswell stated that the onl y matter left
c onc e rn i ng t h e Atchison Ranch was the condemnation. Mr. Criswell
state d t hat the hearing on this was delayed as the Federal Court
was awaiting the opinion of the Colorado Supreme Court and that
a c tion on t he condemnation should commence shortly.
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COUNCILMAN DHORITY MOVED, COUNCILMAN PARKINSON SECONDED,
THAT THE BILL FOR AN ORDINANCE ON THE LICENSING OF DOGS BE PASSED
ON FIRST READING , ORDERED PUBLISHED IN FULL IN THE ENGLEWOOD HERALD
AND ENTERPRISE, AND THAT THE LICENSE FEE FOR EACH MALE OR SPAYED
FEMALE DOG BE ESTABLISHED AS $2.00 AND FOR EACH UNSPAYED FEMALE
DOG $4 .00 . Up on t he call of the roll, the vote resulted as follows:
Aye s: Co unci lme n Brown , Dh ority , Lay , Parkinson,
S chwab .
Nay s: No n e .
Abs e n t : Coun cilmen Kreiling , Lone.
The Mayor dec lare d he motion c ar ried .
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Note: A letter from Mr. William Hazlitt, attorney
for Royal Indemn i t y Company , dated November 11, 1969 was re-
ceived for the record.
City Attorney Criswell reviewed the letter received
from Mr. Hazli tt with members of City Council. Mr. Criswell stated
that because the City had previously rejected Royal's proposal
on false arrest covera ge and Royal was bound to take the position
that the 60 day c ancellation provision in the specifications
was not really controlling, th at if the City did not accept their
proposal b y November 26, 1969 a notice of cancellation setting
forth the specific date of cancellation would be received. Mr.
Criswell stated that he anticipated filing a suit against Royal
Indemnity before November 26, 1969.
City Manager Dial stated that the City has started
explo r i ng several alternate firms for replacement of the insurance.
* * * * * *
City Manager Dial reviewed the status of traffic changes
pursuant to Ordinance No. 36, Series of 1969. Mr. Dial referred
to the letter previously received from the Colorado Department
of Highways which stated that progr ess on the Hampden-Broadway
Interchange would stop if l eft hand turns were restored at Bannock
and U.S. 285. Mr. Dial requested Council's consideration of a
Bill for an Ordinance which would delete the requirement that
left hand turns be restored at Bannock and U.S. 285 . Mr. Dial
also reviewed Section 2 of Ordinance No. 36, Series of 1969 which
calls for the restoration of two way tr affic on Hampden. Mr. Dial
stated that two-way traffic on Hampden would present serious
traffic problems.
Discussion ensued .
Introduced as a Bill b y Councilman Parkinson and read in full,
A BILL FOR
AN ORDINANCE REPEALING ORDINANCE NO. 36, SERIES OF
1969 AND THEREBY PROHIBITING LEFT TURN TRAFFIC MOVEMENTS OF
VEHICLES TRAVELING WEST ON U .S . HIGHWAY 285.
COUNCILMAN PARKINSON MOVED, COUNCILMAN DHORITY SECONDED,
THAT THE BILL FOR AN ORDINANCE SHOULD BE AMENDED SO AS TO DELETE
SECTION 2 OF THE BILL FOR AN ORDINANCE OR TO SUBSTITUTE IT FOR,
"SECTION 2 OF ORDINANCE NO. 36, SERIES OF 1969 IS HEREBY REPEALED."
City Attorney Criswell reviewed and explained the different
sections of Ordinance No. 36, Series of 1969 which will be affected
by the Bill for an Ordinance .
COUNCILMAN PARKINSON MOVED, COUNCILMAN DHORITY SECONDED,
THAT THE BILL FOR AN ORDINANCE BE AMENDED SO THERE WOULD BE ONLY
ONE SECTION WHICH WOULD READ AS FOLLOWS, "ORDINANCE NO. 36, SERIES
OF 1969 IS HEREBY REPEALED AND ANY ORDINANCE, RESOLUTION, MOTION,
OR TRAFFIC DIRECTIVE WHICH WAS REPEALED BY SAID ORDINANCE ARE
HEREBY REVIVED," AND THAT IT BE PASSED ON FIRST READING AS AMENDED
AND ORDERED PUBLISHED IN FULL IN THE ENGLEWOOD HERALD AND ENTERPRISE.
Discussion ensued .
Councilman Dhority suggested that the matter be turned
over to qualified experts for their recommendation.
Counc~lman Brown stated that if the Bill for an Ordi-
nance was passed as amended it would reject the two traffic changes
for which he c~t~zens of Englewood petitioned. Mr. Brown stated
that he was ~n agreement w~th Councilman Dhority's suggestion that
someone be hired to rev~e w the problem and make a recommenda ion
as to what d~rect~on the c~ty should take.
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Upon the call of the roll on the second motion, the
vote resulted as follows:
Ayes : Councilmen Dhority, Parkinson.
Nay s : Counc i lmen Brown, Lay, Schwab.
Absent: Councilmen Kreiling, Lone .
The Mayor declared the mot i on f ailed.
COUNCILMAN PARKINSON MOVED, COUNCILMAN DHORITY SECONDED ,
THAT THE BILL FOR AN ORDINANCE BE PASSED ON FIRST READING AS
ORIGINALLY SUBMIT TED AND ORDERED PUBLISHED IN FULL IN THE ENGLEWOOD
HERALD AND ENTERPRISE .
COUNCILMAN LAY MOVED , COUNCILMAN BROWN SECONDED, THAT
THE BILL FOR AN ORDINANCE BE TABLED. Upon the call of the roll,
the vote r esulted as f ollows:
Ayes: Councilmen Brown, Dhor ity, Lay , Schwab.
Nays: Councilman Parkinson.
Absent: Councilmen Kr ei l i ng, Lone .
The Mayor declared the motion carried.
* * * * * *
City Manager Dial discussed the pro p o sed Mo del Tree
Ordinance which pertains to trees and other rel a ted shrubbery
growing on public rights of way within the City . Mr . Dial stated
that the proposed ord i nance does the following:
1. Leaves the cost and responsibility of taking care
of the trees on a public right of way or private property with the
owner of the property.
2. Provides that the City will exercise greater
regulation and control over trees either on public rights of way
or private property i n consideration of public welfare.
3. Gives the Ci y or City Forester authority to
inspect trees on pri vate property that may be diseased and gives
authority to the forester to give notice that the trees have to
be removed b y he owner or i n lieu of that the City will remove
them and as sess the cost .
4. Give s licensing and inferred regulatory standards
on priva e ree trimmers.
City Manager Dial stated that this is a conceptual approach
th a t leaves the situat i on concern i ng dangerous and diseased trees
l argely the respon sibility of the property owners . However, it
gives he City more a uthority to r equi re certain act i on to be
taken 1n hese cases.
Di scussion ensued . It was the consensu s of City council
hat C1 y Manager D1al further pursue and refine the Model Tree
Ord1nancc and consul w1th indiv1duals 1n the tree bus1ness .
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City Manager Dial gave a brief report on the building
progress of the Peanut Barrel, 3535 South Huron. Mr. Dial stated
that pursuant to the Building Code the building permit has been
withdrawn and cancelled.
It was the consensus of City Council that a show cause
order on the Peanut Barrel be prepared by City Attorney Criswell.
* * * * * *
City Manager Dial stated that pursuant to Council's
direction the City has solicited bids for health and life
insurance. Mr. Dial suggested that because the bids were going
to involve extensive analysis, a committee be established to
review over the n ext two weeks the various plan and program
options as well as prices. This committee would consist o f employee
and possibly Career S e rvice Commission Board representatives and
two members of City Council .
Councilmen Lay and Brown stated that they would serve
on the committee .
* * * * * *
City Manager Dial r e minded members of City Council that
the City o f Englewood's Annual Christmas Party would be held
December 18, 1969 at 6 :30 P.M. at Columbine Country Club .
* * * * * *
Note: A letter from Mr. Jack Eachon, Jr., president
of the First National Bank of Englewood, dated October 24, 1969
was received for the record.
Mr. Jack Eachon, Jr., president of the First National
Bank of Englewood, 3311 South Broadway, appeared before C ity
Council. Mr. Eachon discussed an exchange of land along the
Cherokee Street extension. Mr. Eachon suggested that in order to
widen Cherokee Circle to a 50-foot right of way and enable easier
access to the new First National Bank building th a t the City of
Englewood agree to dedicate ten feet of their property extending
from approximatel y the alley behind City Hall to the North-South
portion of Cherokee C i rcle and further deeding the remainder of
this property after the street has been properly dedicated. In
return, the First National Bank of Englewood would dedicate to
the City ten feet of t he property formerly known as the Allen
property.
Discussion ensued. At the conclusion of discussion
it was the consensus of Council that the matter be tabled until a
future City Council meeting.
* * * * * *
The foll owing i ndividuals appeared before Ci ty Council
in regard to the traffic ch anges pursuant to Ordinance No. 36,
S e ries of 1969 particularly left hand turns at Bannock and U.S.
285:
Mr. Chalmerse A. Parker, 3996 South Grant.
Mr. M. M. Summers, 3140 South Delaware.
City Manager Dial presented a draw ing depicting the
proposed Hampden-Broadway Interchange and explained how left h and
turns at Bannock and U.S. 285 would affect the progress of the
interchange and traffic movement according to the Colorado Depart-
ment of Highways.
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Mayor Schwab reported that after meeting with the Colorado
Department of Highways, it is their position that they cannot pro-
ceed with the interchange as the Federal Government, Bureau of
Public Roads, has stated that there can be either left hand turns
or the interchange but not both.
Discussion ensued.
COUNCILMAN BROWN MOVED, COUNCILMAN PARKINSON SECONDED,
THAT THE BILL FOR AN ORDINANCE REPEALING ORDINANCE NO. 36, SERIES
OF 1969 AND THEREB Y PROHIBITING LEFT TURN MOVEMENTS OF VEHICLES
AT BANNOCK AND U.S. 285 BE REMOVED FROM THE TABLE. Upon the call
of the roll, the vote resulted a s foll ows:
Schwab .
Ayes: Councilmen Brown, Dhority, Lay, Parkinson,
Nays: Non e .
Absent: Councilmen Kreiling, Lone.
The Mayor declared the motion carried.
Upon the call of the roll on the motion that the Bill
for an Ordinance be passed on first reading as originally submitted,
the vote resulted as follows:
Schwab.
Ayes: Councilmen Brown, Dhority, Lay, Parkinson,
Nays: None.
Absent: Councilmen Kreiling, Lone.
The Mayor declared the motion carried.
* * * * * *
COUNCILMAN LAY MOVED, COUNCILMAN BROWN SECONDED, THAT
THE MEETING BE ADJOURNED. Upon the call of the roll, the vote
resulted as follows :
Schwab.
Ayes: Councilmen Brown, Dhority, Lay, Parkinson,
Nays: None.
Absent: Councilmen Kreiling, Lone.
The Mayor declared the mot i on carried and the meeting adjourned
at 11:02 P.M.
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AGENDA FOR
REGULAR COUNCIL SESSION
NOVEMBER 17, 1969
8 :00 P.M . Call to order, invocation by the Rev. Dale Strong, Associate
P a stor, Englewood First Presbyterian Church, pledge of
allegiance led by Boy Scout Troop No. 154, and roll call.
1. Minutes.
{a) Regular meeting of November 3, 1969. {Copies trans-
mitted herewith. )
2 . Pre-scheduled citizens and visitors.
(a) Recognition of "special guests" of the Council .
{b) Mr. Robert L. Mcintyre, owner of Old Town Liquors,
will be present to request permission to enlarge
premises.
(c) Mrs. Tina Warden will be present to request a date
for a public hearing on a three-way liquor license for
Tina's Steak House, 3061 South Santa Fe Drive.
(d) Mr. Jack Eachon, Jr., President of the First National
Bank, will be present to discuss exchange of land along
Cherokee Street extension. (Copies of letter from Mr.
Eachon dated October 24, 1969, transmitted herewith.
Due to a conflicting commitment, he will not be able to
be present until about 9:30 p.m.)
3. Representatives of the various liquor outlets within the City
of Englewood will be present to request renewal of their
licenses. (Copies of liquor outlets and police calls trans-
mitted herewith.)
4. Communications.
(a) Minutes of the Election Commission meeting of Novem-
ber 6, 1969. (Copies transmitted herewith.)
{b) Minutes of the Public Library Board meeting of Novem-
ber 11, 1969. (Copies transmitted herewith.)
(c) Letter from Mr. E. N. Haase, Colorado Department
of Highways, regarding left turns at South Bannock
Street and U.S. 285 . (Copies transmitted herewith.)
5. City Attorney.
d~(a) Ordinance on final reading providing for the installation
of benches at bus stops on the public right-of-way.
(Copies previously transmitted.)
Ordinance on final reading allowing an investment of
forty per cent (40 %) of the Police Pension Fund in
equities. (Copies previously transmitted.)
c;t.-<c) Ordinance on final reading amending the employee
pension ordinance. (Copies previously transmitted.)
(d) Bill for an Ordinance establishing new salary levels
for members of the City Council. ('This bill has been
prepared at the request of Mayor Elmer Schwab.
Copies transmitted herewith.)
(Centinued)
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AGENDA FOR REGUlAR COUNCIL SESSION
NOVEMBER 17, 1969
Page 2
5, City Attorney. (Continued)
(e) Bill for an Ordinance repealing the Business and
Occupation Tax on liquor establishments. (This
bill has been prepared at the request of Council-
man Kreiling. Copies will be available at the
session.)
(f) Report on Atchison Ranch condemnation. (Copies
will be a vailable a t the session.)
(g) Attorney's choice.
6. City Manager.
(a) Review of status of traffic changes pursuant to
Ordinance No. 36, Series of 1969,
(b) Discussion of proposed Model Tree Ordinance.
(c) Consideration of municipal dog license require-
ment.
(d) Report regarding Peanut Barrel building progress.
(e) Manager's choice.
6. Recognition of non-scheduled citizens and visitors.
7. General discussion.
(a) Mayor's choice.
(b) Councilman's choice.
8. Adjournment.
----~ T-a -)-l~~ STA~IAL
City Manager
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COUNCIL CHAMBERS
CITY OF ENGLEWOOD, COLO~O· ·.
NOVEMBER 3, 1969 0.
REGULAR MEETING: ··~..:. , l.~;
• 11>10 t O!
The City Counci l of the City of Englewood,
County, Colorado, met in regular session on November
a t 8:0 0 P.M.
Arapahoe
3, 1969
Ma yor Schwab, presiding , c al led the meeting to order.
The invocation wa s given b y Rev erend Dale Strong,
Associat e Pastor of the Englewood First Pre sbyterian Church.
Th e pledge o f allegiance was led by Boy Scout Troop No. 154.
Th e Ma y o r asked for roll call. Upon the call of the
roll, the following were present:
Councilmen Br own, Dhority, Kreiling, Lay, Lone,
Parkinson, Schwab.
Absent: None.
The Mayor declared a quorum present.
Al s o present were: City Manager Dial,
City Attorney Criswell,
City Clerk Lyon.
* * * * * *
COUNCI LMAN LAY MOVED, COUNCILMAN PARKINSON SECONDED,
THAT THE MINUT ES OF THE REGULAR MEETING OF OCTOBER 20, 1969 AND
THE SPECIAL MEETING OF OCTOBER 21, 1969 BE APPROVED AS READ.
Upon the call of the roll, the vote resulted as follows:
Ay es : Councilmen Brown, Dhority , Kreiling, Lay, Lone,
Parkinson, S chwab .
Nays: None.
Absent: None.
The Mayor declared the motion carried.
* * * * * *
Mr. Victor Heyliger of the Denver Bench Advertising
Company, 2500 South Valley Highway , appeared before City Council.
Mr. Heyliger stated that he had benches in place in the com-
munities of Denver, Colorado Springs, Arvada, and Wheatridge on
a revocable permit basis; and he wished that an ordinance be
passed authorizing a similar permit to place benches within the
City of En glewood . Mr. Heyliger stated th at all new benches would
be placed in the City and those presently used would be pic ked
up. Mr. Heyliger concluded his remarks by indic at i ng that his
compa ny would pay to the City of Englewood $.50 per bench per
month.
Introduced as a Bill by Councilman Lay and read in full,
A BILL FOR
AN ORDINANCE REPEALING §15.29 OF THE MUNI CIPAL CODE
OF THE CITY OF ENGLEWOOD AND AUTHORIZING THE MAYOR AND CITY CLERK I •
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TO ENTER INTO AN AGREEMENT GRANTING TO THE DENVER BENCH ADVER-
TISING CO. A REVOCABLE PERMIT TO PLACE BUS BENCH SEATS AT VARIOUS
LOCATIONS THROUGHOUT THE CITY IN ACCORDANCE WITH THE TERMS OF
THIS ORDINANCE.
City Attorney Criswell stated that to the bill should
be included part (f ) under S ec tion 2 which reads as follows:
"The Denve r Bench Advertising Co.
shall provide liability insurance
protecting the City in the amounts
of $100,000 and $200,000 and property
damage in the amount of $50,000 and
shall provide the City with proof
thereof ."
COUNCILMAN LAY MOVED, COUNCILMAN DHORITY SECONDED,
THAT THE BILL FOR AN ORDINANCE BE APPROVED AS CORRECTED, PASSED
ON FIRST READING AND ORDERED PUBLISHED IN FULL IN THE ENGLEWOOD
HERALD AND ENTERPRISE. Upon the call of the roll, the vote
resulted as follows:
Ayes: Councilmen Brown , Dhority, Kreiling , Lay, Lone,
Parkinson, Schwab.
Nays: None.
Absent: None.
The Mayor declared the motion carried.
* * * * * *
Mr. Pete Peterson, manager of the Englewood Chamber
of Commerce, appeared before City Council on behalf of Mr. Bill
Crouch, president of the Chamber of Commerce. Mr. Peterson
requested the City's participation in the annual Christmas
lighting program.
COUNCILMAN LAY MOVED, COUNCILMAN PARKINSON SECONDED,
THAT THE CITY PARTICIPATE IN THE ANNUAL CHRISTMAS LIGHTING
PROGRAM IN THE AMOUNT OF $2,000 AS IN THE PAST. Upon the call
of the roll, the vote resulted as follows:
Ayes: Councilmen Brown, Dhority, Kreiling, Lay, Lone,
Parkinson, Schwab.
Nays: None.
Absent: None.
The Mayor declared the motion carried.
* * * * * *
A letter from Mr. E. N. Haase, Colorado Department of
Highways, regarding the possible effect of U.S. 285-South Bannock
Street left turns upon the Broadway-U.S. 285 interchange was
received for the record.
* * * * * *
The financial report for September was received for the
record .
* * * * * *
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TO ENTER INTO AN AGREEMENT GRANTING TO THE DENVER BENCH ADVER-
TISING CO. A REVOCABLE PERMIT TO PLACE BUS BENCH SEATS AT VARIOUS
LOC ATIONS THROUGHOUT THE CITY IN ACCORDANCE WITH THE TERMS OF
THIS ORDINANCE.
City Attorney Criswell st ated that to the bill should
be included part (f) under S ecti on 2 which reads as follows:
"The De nver Bench Advertising Co.
shall provid e liability insurance
protecting the City in the amounts
of $100,000 and $200,000 and property
damage in the amount of $50,000 and
shall provide the City with proof
thereof."
COUNCILMAN LAY MOVED, COUNCILMAN DHORITY SECONDED,
THAT THE BILL FOR AN ORDINANCE BE APPROVED AS CORRECTED, PASSED
ON F IRST READING AND ORDERED PUBLISHED IN FULL IN THE ENGLEWOOD
HERALD AND ENTERPRISE . Upon the call of the roll, the vote
resu lted as follows:
Ayes: Councilmen Brown, Dhority, Kreiling, Lay, Lone,
Parkinson, Schwab.
Nays: None.
Absent: None.
The Ma y or declared the motion carried.
* * * * * *
Mr. Pete Peterson, manager of the Englewood Chamber
of Commerce, appeared before city Council on behalf of Mr. Bill
Crouch, president of the Chamber of Commerce. Mr. Peterson
requested the City's participation in the annual Chri stmas
lighting program.
COUNC ILMAN LAY MOVED, COUNCILMAN PARKINSON SECONDED,
THAT THE CITY PARTICIPATE IN THE ANNUAL CHRISTMAS LIGHTING
PROGRAM IN THE AMOUNT OF $2,000 AS IN THE PAST. Upon the call
of the roll, the vote resulted as follows :
Ayes: Councilmen Brown, Dhority, Kreiling, Lay, Lone,
Parkinson, Schwab.
Nays: None.
Absent: None.
The Ma y or declared the motion carried.
* * * * * *
A letter from Mr. E. N. Haase, Colorado Department of
Highways, rega rding the possible effect of U.S. 285-South Bannock
Street left turns upon the Broadway-u.s. 285 interchange was
received for the record.
* * * * * *
The financial report for September was rece ived for the
record.
* * * * * *
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Th e minutes of the Planning and Zoni n g Co mmission
mee tings of S ept ember 16, Septe.mber 30, and Oct o ber 11, 1969
were r eceived for th e record.
* * * * * *
The minutes of the Public Library Board meeting of
October 21, 196 9 wi th one memorandum attached were received for
the record .
Mi ss Harriet Lute, Director of Libraries, appear ed
before City Coun cil i n regard to the recommendation that a c ontract
for 1970 with th e Arapahoe Regional Library District be e xecuted.
Mis s Lute indicated that the contra ct amount called for $34 ,301.
Miss Lut e stated th a t in 1968 and 1969 th e Arapahoe Regional
Library District provided funds to the City equal to 31 per ce nt
of the total c os t of the operation and in rega rd to library book
circulat i on only , the District's borrowing accounted for 25 to
26 per cent of the usage. Miss Lute concluded by stating that
i n her opinion the contract was a fair and equitable one.
COUNCIL MA N PARKINSON MOVED, COUNCILMAN BROWN SECONDED,
THAT THE CONTRACT FOR 1970 BETWEEN THE CITY OF ENGLEWOOD AND
THE ARAPAHOE REGIONAL LIBRARY DISTRICT BE APPROVED AND THAT THE
MAYOR AND CITY CLERK BE AUTHORIZED TO EXECUTE THE NECESSARY DOCU-
MENTS. Upon the c all of the roll, the vote resulted as follows:
Ayes : Coun ci lmen Brown, Dhority, Kreiling, Lay , Lone,
Parkin son , Schwab.
Nays: None.
Absent : None.
The Mayor d ec lared the motion carried.
* * * * * *
The minut es of the Board of Career Service Commissioners
meeting of October 23, 1969 were received for the record.
* * * * * *
The minutes of the Water and S e wer Board meeting of
October 21, 1969 with two memoranda attached were received for
the record.
Mr. Charles B. Carroll, Jr., Director of Utilities,
appeared b efore City Council conc e rning the recommendation of the
first memorandum that additional land be included in the South -
g ate Sanitation District. Mr . Carroll stated that it was recom-
mended th a t five acres located in the vicinity of Belleview and
Orchard b e included within the District.
Mr . Ch arles B. Carroll, Jr., Director of Utilities,
reappeared before City council in regard to a Connector's
Agreement between the City of Englewood and the Greenbelt
Sanitation District . Mr . Carroll stated that the Greenbelt
Sanitation District was located in the vicinity of Belleview
and Holly and consi sted of 160 a cres. Mr. Carroll stated that
the agreement should b e approve d subject to receipt o f evidence
of a contract between the Greenbelt Sanitation District, South -
gate Sanitation District and South Arapahoe Sanitation District.
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COUNCILMAN PARKINSON MOVED, COUNCILMAN LAY SECONDED,
THAT A CONNECTOR'S AGREEMENT BETWEEN THE CITY OF ENGLEWOOD AND
GREENBELT SANITATION DISTRICT BE APPROVED SUBJECT TO RECEIPT
OF EVIDENCE OF AN AGREEMENT BETWEEN THE GREENBELT SANITATION
DISTRICT, SOUTHGATE SANITATION DISTRICT AND SOUTH ARAPAHOE
SANITATION DISTRICT WITHIN A PERIOD OF THIRTY DAYS AND IF RECEIVED
WITHIN THIS PERIOD THAT THE MAYOR AND CITY CLERK BE AUTHORIZED
TO EXECUTE THE NECESSARY DOCUMENTS. Upon the call of the roll,
the vote resulted as follows:
Aye s: Councilmen Brown, Dhority, Kreiling, Lay, Lone,
Parkinson, S chwab.
Nays: None.
Absent: None.
The Mayor declared the motion carried.
COUNCILMAN LAY MOVED, COUNCILMAN KREILING SECONDED,
THAT THE INCLUSION OF ADDITIONAL LAND IN THE PROPOSED SUPPLEMENT
NO. 22 WITH THE SOUTHGATE SANITATION DISTRICT BE APPROVED AND THAT
THE MAYOR AND CITY CLERK BE AUTHORIZED TO EXECUTE THE NECESSARY
DOCUMENTS. Upon the call of the roll, the vote resulted as follows:
Ayes: Councilmen Brown, Dhority, Kreiling, Lay, Lone,
Parkinson, Schwab.
Nays: None.
Absent: None.
The Mayor declared the motion carried.
* * * * * *
ORDINANCE NO. 37, SERIES OF 1969
AN ORDINANCE FIXING THE TAX LEVY IN MILLS UPON EACH
DOLLAR OF THE ASSESSED VALUATION OF ALL TAXABLE PROPERTY WITHIN
THE CITY OF ENGLEWOOD, COLORADO, FOR THE YEAR 1970.
(Copied in full in the official Ordinance Book.)
COUNCILMAN LAY MOVED, COUNCILMAN BROWN SECONDED, THAT
ORDINANCE NO. 37, SERIES OF 1969 BE PASSED ON FINAL READING AND
PUBLISHED BY TITLE IN THE ENGLEWOOD HERALD AND ENTERPRISE.
COUNCILMAN PARKINSON MOVED, COUNCILMAN KREILING SECONDED,
THAT ORDINANCE NO. 37, SERIES OF 1969 BE TABLED . Upon the call
of the roll, the vote resulted as follows:
Ayes: Councilmen Kreiling, Lone, Parkinsq~.
Na y s: Councilmen Brown, Dhority, Lay, Schwab.
Absent: Non e .
The Mayor declared the motion failed.
Upo n the ca ll of the roll on the original motion, the
vote resulted as follows:
Ayes : Coun cilmen Brown, Dhority, Lay, Schwab.
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Nays: Councilme n Kreiling, Lone, Parkinson.
Absent: None .
The Mayor decl ared the motion carried.
* * * * * *
Introduced as a Bill by Councilman Parkinson a nd read in full,
A BILL FOR
AN ORDINANCE AUTHORIZING THE POLICE PENSION BOARD OF
THE CITY OF ENGLEWOOD TO INVEST FUNDS DEPOSITED TO THE CREDIT OF
THE POLICE PENSION FUND IN SUCH INVESTMENTS AS MAY BE AUTHORIZED
BY THE STATUTES OF THE STATE OF COL ORADO FOR INVESTMENTS BY
FIDUCIARIES SUBJECT TO THE COND ITION THAT THE SAID BOARD SHALL
ALWAYS HOLD FIXED INCOME OBLIGATIONS HAVING A BOOK VALUE OR
COST OF NOT LESS THAN 60% OF THE TOTAL AMOUNT STANDING TO THE
CREDIT OF THE FUND AND DECLARING AN EMERGENCY .
City Attorney Criswell indicated that a Section 3
sh o u l d be added to the Bill f or an Ordinance declaring an
emerge n cy . I t reads as follows :
"Section 3. The City Council
hereby finds and d etermines that
an emergency exists , by reason
o f which this ordinance shall
become effective immediately
upon its final passage."
COUNCILMAN PARKINSON MOVED, COUNCILMAN LAY SECONDED,
THAT THE BILL F OR AN EMERGENCY ORDINANCE BE PASSED ON FIRST
READING. Upon the call of the roll, the vote resul ted as follows:
Ayes: Counci lmen Brown, Dhority, Kreiling, Lay, Lon e , Parkin son, Schwab.
Nays : No n e .
Absent: Non e.
The Ma y or declared the motion carried.
* * * * * *
City Attorney Criswell stated that a Bill for an
Ordinance had been prepared amending th e personnel and pens ion
chapters o f the Mun icipa l Code. The amendment to the personn el
chapter would b ring the retirement date in line with the r etire-
ment provision in the new pension ordinance.
City Manager Dial st a ted th a t the amendme nt to the
pension ch apter would allow two employees who would normally
retire shortly before January 1, 1970, the effective date of the
Plan, to be extended and placed under the new pension plan.
Introduced as a Bill by Councilman Kreiling and read in full,
A BILL FOR
AN ORDINANCE AMENDING SECTION 6A.S-2 AND SECTION
6 .6-14 (a) (2) OF THE ENGLE WOOD MUNI CIPAL CO DE TO DEFINE THE
NORMAL RETIREMENT DATE FOR THE EMPLOYEES OF THE CITY OF ENGLEWOOD, COLORADO .
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COUNCILMAN KREILING MOVED, COUNCILMAN DHORITY SECONDED,
THAT THE PROPOSED BILL FOR AN ORDINANCE BE PASSED ON FIRST
REA DING AND ORDERED PUBLISHED IN FULL IN THE ENGLEWOOD HERALD
AND ENTERPRISE. Upon t he cal l of the roll, the vote resulted as follows:
Ayes: Councilmen Brown, Dhority, Kreiling, Lay, Lone, Parkinson, Schwab.
Nays: None.
Absent: None.
The Mayor declared the motion c arri ed .
* * * * * *
City Attorney Criswell reported in regard to the
Herndon property for Englewood-Belleview Park Addition. Mr.
Criswell stated that he had received an offer for settlement of
the Herndon property of $21,000; and that although the City's
appraisal was less than this amount, consideri ng all costs
Mr. Criswell believed that the final cost through condemnation
would approximate $21,000 and that the City should accept settlement.
COUNCILMAN DHORITY MOVED, COUNCILMAN PARKINSON SECONDED,
THAT THE CITY ATTORNEY BE AUTHORIZED TO ACQUIRE THE HERNDON
PROPERTY AT A PRICE OF $21,000. Upon the call of the roll, the
vote resulted as follows:
Ayes: Councilmen Brown, Dhority, Kreiling, Lay, Lone, Parkinson, Schwab.
Nays: None.
Absent: None.
The Mayor decla red the motion carried .
* * * * * *
City Attorney Criswell presented a letter from Mr.
Edward G. Donovan dated October 31, 1969 indicating his resigna-
tion as Assistant City Attorney to become Arapahoe County Public Defender on January 1, 1970.
* * * * * *
City Attorney Criswell stated that he hoped to have the
new City Code available for passage on first reading at the first
City Council meeting in December.
* * * * * *
City Council reviewed a list of proposed streets to be
included in Paving District No. 19 with City Manager Dial.
* * * * * *
City Manag er Dial stated that a budget meeting on the
1970 Budget should be held within a few days and suggested the
date of November 10, 1969.
* * * * * *
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City Manager Di al reminded memb e rs of Ci ty Council that
a meeting of Arapahoe Ma y ors would b e held Nov e mber 6, 1969 at
6 :30 P.M. at Columbin e country Club.
******
City Manager Dial indic at e d that the Snorkel fire
apparatus had been received October 31, 1969.
After discussion it was the consensus th a t a
christening ceremony be held November 5, 1969 at 8:30 A.M .
* * * * * *
City Manager Di al indicated to members of City Council
th a t renewal o f liquor licenses would be held at the No vember
17, 1969 me e t ing.
* * * * * *
City Counci l briefly discussed the false arrest
coverage of the City .
COUNCILMAN PARKINSON MOVED, COUNCILMAN LAY SECONDED,
THAT THE OFFER ON FA LSE ARREST OF ROYAL INDEMNITY INSURANCE
COMPANY BE REJECTED AND THAT THE CITY ATTORNEY BE AUTHORIZED
TO TAKE SUCH ACTION AS MIGHT BE ADVISED IN THIS SITUATION. Upon
the call of the roll, the vote resulted as follows:
Ayes: Councilmen Brown, Dhority, Kreiling, Lay , Lone,
Parkinson, Schwab.
Na ys: None.
Absent: None.
Th e Mayor declared the motion carried .
* * * * * *
Councilmen Kreiling and Dhority discussed the Englewood-
Littleton-Fort Logan Bus Line and various alternatives which
might be necessary to keep the line functioning.
Counci lman Kreiling indicated that the contract with
Mr . Ernest Herbertson would expire on January 1, 1970.
* * * * * *
COUNCILMAN LAY MOVED, COUNCILMAN LONE SECONDED, THAT
THE MEETING BE ADJOURNED. Upon the call of the roll, the vote
resulted a s follows:
Ayes: Councilmen Brown, Dhority, Kreiling, Lay, Lone,
Parkinson , Schwab.
Nays: No n e .
Absent: None.
The Mayor decl ared the motion carried and the meeting adjourned
at 10 :01 P .M.
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MASTER
Department of Finance
Novemberc~ t1¥~ 1 Co ·, C 1 )f"
' '"' l... '"'~u ,. rv.,. LIST OF LIQUOR RENEWAL S
NOVEMBER 17, 1969 C.:c Cilr .,
-·-. d forms f~;rnlf.J:. coc_~. "OK" indicates applicant has subm~t~e pro per • "
are in order, and renewal fees rece~ved.
The liquor occupational tax is not received at this time but
"SPECI AL CITI ZEN PROGRAM INVITEES" -
C>rJ:'o<..-,
o~·
Novemb er 17 ~'\ 969
Precinct No. 1 -Mr. and Mrs . Daniel Jordan , 2017 We s t <: A J, Wesley venue v0 •
'0 / '
2962 . o ·<~ Precinct No . 2 -Mr. and Mr s. M. H. Ge s ner, South Galapago Street (Re~{l({itedl
Prec i nct No. 3 -Mr. and Mrs . w. R. May, 3024 South Grant Street
Prec i nct No . 4 -Mr. and Mrs. Ernest L . Gi rard, 3990 South Elati Street
Precinct No. 5 -Mr. and Mrs. Ge r ald L. Willey, 3250 Sou th Pen nsylvania Street
Precinct No . 6 -Mr . and Mrs. Hu g o L . Pullen, 2960 Soutt L afayette Drive
P recinct No. 7 -Mr . and Mrs . George C. Loury, 210 8 East F l o yd Place
Precinct No . 8 -Mr. and Mrs. Glenn E. Miller, 3548 Sou t h Was h i n gton Street
Precinct No. 9 -Mr. and Mrs . Gerald J. Carroll, 3709 South Grant Street
Preci nct No. 10 -Mr . and Mr s . Harold F . Ogden, 4160 South Cherokee Street
Preci n c t No . 11 -Mr. and Mr s . Jame s F. Wheelehan, 4335 South Logan Stree t
P r e ci n c t No. 12 -Mr. and Mr s. Rus s ell Par ish , 4 3 30 South Jason Street
Pre ci n c t No 13 -Mr. and Mr s . w. J . Hi lborn , 3304 We s t Chenango Avaue
Prec i nct No. 14 -Mr. and Mrs. Gerald S. Bellon, 4970 S ou t h Hu ron Street
Prec inct No . 15 -Mr . and Mrs. Elmer Wh i te, 4885 South Delaware Street
P rec i nct No . 16 -Mr . and Mr s . Frank Berg , 440 Pennwood Circle
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OOL 17E
STI\TE CF CDLD!W)()
DEPNUMI:NI' OF RE'Jl:NJE
LICU)R ~ DIVISIOO
1375 Sheman Street
o~. CDLOIWX) B0203
Licen. No. D 386
~
The urdersigned retail licensee requests permission to expan:l, enl..u:g~Jor~
the prEmises at which he is licensed to do business or the plans ard sped:ti~onll
originally subnitted at the time of cbtainiRJ the original license, in line Wt ,
COlorado Liquor Code Regulation No. 17E. e , , -<? (
Ptr,_ c .,
Name of retail licensee Ro bert L. ~·c :r.tyre ' q, 1t~"?-
Addresa or legal descriptia'l of pE"anises at which licensed to do bwlinesa --'----
3 25 East Jeffe rson Av enue Englewood, Colorado 80110 Ara pahoe County
(City or 'l'Gcl, zip OJdO, Cctnty)
Specification, in accurate details, of the planned expansia'l, ~. cr aol-
ificatia'l of the licensed pranises cr pnmises to be licensed ---------
Acquis ition o f the adjo ining buil ding to t he west. (44 1 deep by 15 ' wide)
This building is pr esently being oc cupied as a Barber Shop.
Are the pnmi.see, after the proposed expansion, ~. cr IIIOdification locateS
within 500 feet of a building occupied u a public, cr (:8rOChial 8Chool, CIOllege,
univeraity or IHI1\1nary? No
--~-----------------------
Data of the proposed ecpanai<XI, enl.argalant, cr ncdification of licaneed ~-er
praui-to be licensed. _ _,_N-"'ear=-._._fu.!!."-tu,_,r,_,e'-------=-----.,...--------
-&w--:J~Lf~i..._
APPEOIAL CR I.CCAL LiaHiD«> Al7nDU'1'Y I
The far~ing applicatia1 fer penaiuion to expam, enlarqe, cr noU.fy the~
llcenaed cr plans and specifications, has been t:Xallined, and if granted, will not
be contrary to the proviaions of the Colorado Liquor Cale and R.ll• and Regul.atiarw.
Therefcre, the foregoing application is henby apprcwed.
Dotelat~l\_~) ~~
APPJCNJ.L CR ~ C6 ~
rn. fortl90ing application fer pemiuian to ecpard, enlarqe, or aolify the~
licensod er to aolify the eriginal plana and ~ificationa .ubaitt.s, has been •-
llftinad, and the planned apanaia1, enlarqenlent, cr IO!ificatian, u IP8Cifie:1 aboN,
i8 hereby grantaS.
DDt«l at -------------thb ____ day of ______ l9_ .
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IXIDII'IVB DDEftlt
-·---C6 JEVIHJE
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Department of Finance
Novemberc~ !::1¥~
Co· I C I .~<
t r '' l'
MASTER LIST OF LIQUOR RENEWALS
-.cu,"
NOVEMBER 17, 1969
....
"OK" indicates applicant has submitted proper forms,
are in order, and renewal fees received.
The liquor occupational tax is not received at this time but
will be received on or after January 1, 1970.
Outlet ~ ,o ~ Recommended Action and/or Comments
~ _.......y -•o ~ ,/ ...........-:~ _/
Bar Harbor z:----::7 ~-OK
~ryg Fair /J ;zYa !,u...e.y v--....-1 a ff
E-Z Liq\:(~ .L ~W~L
Englewood ~lks Lodge
__,___.., ~ e;{_?
Englewood Liquor Store
F~aternal rder of Eagles
.....::/<!.crv . ~
G Liquors / ·
~"2.<7 ~ ·~-n.J
GL;ss BOttl~ Liquors ~ J?/ee£l1 oL"
qpJ.den Fiddle
t. t" /latu...!t //a tlA .
Hackney lJ'f6use c:7 -
Hey Louie
OK for 3-way license only. Their
3.2 beer license will be up for
renewal September 14, 1970.
OK
OK
OK
Their 3.2 beer license will be
up for renewal November 4, 1970.
OK
OK
OK
Renewal of this application is
scheduled for a subsequent City
Council meeting as the owner
wishes to transfer the license
in such a way to include his wife.
The FBI report has not yet been
received on this transfer.
OK
OK
OK
OK
It is my understanding that the
Hackney House is in receivership.
The State liquor inspector is
contacting the parties involved
concerning their liquor license.
This license haB been scheduled
for a subsequent City Council
meeting at which time a transfer
of ownership will be required.
Police and FBI reports have been
started on the applicant for the
transfer. I • •
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Hilda's Cafe
'2 ~a_. {-z_.,
;Hung.p.te'~, '77 t; . .¢.Ia ?/ q tfl z'c:.
John W's Tap ~oom
~?C2 -??/f' W--<-tt-
King Soopers
~oy~l 0Fder of Moose ca ~)a ?7 tl c 7(,
Lucky Lady Clbb
~·s c_:,o(ZL&~ M-, Pharm~cy ~ .r Y~~ "'
M~net Inn
ro.Lu .._;.. n?~c;.,'I..L /
Ne~_Frontier ~quo~s
L' /2a ~uJ x:; tc.::l/z.£...-P
0 Town Li~u~s ~ _ ~ !-y / f l.j-~-t;;U_/
Peanut Barrel '
Shakey's Pizza Parlor
s e Li<:Juors
~L /a :n-?UZ?v
udio A .
'?/ JCY'tJtG t?~
Thorqbred Liqu6r$
de~ u ToteM ~
Zuider Zee
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OK
OK
OK
Their 3.2 beer license will be
up for renewal January 26, 1970.
OK
Their license has been revoked.
License unissued.
Their 3.2 beer license will be
up for renewal January 16, 1970 .
OK
OK
OK
Their 3.2 beer license will be
up for renewal March 20, 1970.
This license was issued on November
7, 1969. However, it is not
scheduled for renewal as a trans-
fer has been requested; and it
is being processed through the
police and FBI checks. This
license will be scheduled for
a subsequent City council meeting.
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CITY OF ENGLEWOO.Q.
.,,u •. .,, • r,.~ -
B ' 3.2 BEER
C' CLUB
0 ' DRUG STORE
P ' PACKAGE LIQUOR STORE
T ' THREE WAY
W • BEERBWNE
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LIQUOR OUTLETS IN THE
CITY OF ENGLE'NO;Q.Q ,-C,OLORADO
I C I .j_t._
, ···:::rv .,.
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pt;R ..
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LIQUOR OUTLETS WITHIN THE CITY OF ENGLEWOOD
NOVEMBER -1969
Outlet Address
Bar Harbor 34 89 South Broadway
Belleview Bowl 4900 South Federal Blvd.
Cartwright's Hampden Wes t 3517 South Elati
Casual Lounge 65 West Floyd
Cherrelyn Drug Store 4285 South Broadway
Drug Fair 4204 South Broadway
E-Z Liquors 3353 South Santa Fe
Englewood Elks Lodge 3690 South Jason
Englewood Liquor Store 3434 South Broadway
Fraternal Order Eagles 73 West Floyd
GEM Liquors 5450 South Broadway
Glass Bottle Liquors 336 West Hampden
Golden Fiddle 3370 South Acoma
Hackney House 4595 South Santa Fe
Hey Louie 5180 South Broadway
Hilda's Cafe 4386 South Broadway
Hungate's 2796 South Broadway
John W's Tap Room 3 467 South Broadway
King Soopers 5050 South Federal Blvd.
Loyal Order of Moose 3531 South Broadway
Lucky Lady Club 4155 South Broadway
Lum's 90 West Belleview
M-D Pharmacy 2895 South Broadway
Magnet Inn 2893 South Broadway
New Frontier Liquors 3485 South Bannock
Old Town Liquors 325 East Jefferson
Peanut Barrel * 3535 South Huron
Shakey's Pizza Parlor 3281 South Santa Fe
Supreme Liquors 5112 South Broadway
The Studio 5020 South Broadway
Thorobred Liquors 5050 South Federal Blvd.
Zuider Zee* 1001 W. Hampden
Type of Outlet
3-Way
3 -Wa y and 3.2 Beer
(2 separate operations)
3-Way
3-Way
Drug Store
Drug Store
Package Liquor Store
Club
Package Liquor Store
Club
Package Liquor Store
Package Liquor Store
3-Way
3-Way
3-Way
3-Way
3-W<q
3-Way
3.2 Beer
Club
3-Way
Beer and Wine
Drug Store
3-Way
Package Liquor Store
Package Liquor Store
3-Way
3.2 Beer
Package Liquor Store
3-Way
Package Liquor Store
3-Way
*Authorized but unissued. Renewal not necessary at the November 3 , 1969 City
Council meeting.
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11 -1 -68
11-4-68
11-1 0-68
11 -22-68
11-23-68
12-14-68
12-18-68
12 -20-68
12-24-69
12 -29 -68
1 -2--69
1-4-69
1 -8-69
2-21 -69
3-5-69
3-5-69
3-12-69
3 -1 8 -69
3-19-69
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LIQUOR OUTLET CALLS
November 1 , 1968 thru October 31 , 1969
LOCATION
Hackn ey House
Ta s te of Ho ney
John W's
Hilda 's
Taste of Honey
Taste of Honey
Hilda's
Tast e of Honey
Bar Harbor
John W's
John W's
Taste of Honey
Bar Harbor
J ohn W's
Lucky Lady
Lucky Lady
Casual Lounge
Casual Lounge
Hilda 's
NATURE OF CALL
Disturbance
Fight
Having trouble with female
Rough crowd -see if
everything is ok~
Call f or pol ice -nat ure
unknown
Di sturbance
Drunk causing trouble
Di s t urbance
Di sturbance
Parties causing t rouble
Disturbance
Disturbance
Disturbance
Bar sub stituting or
changing l iquor i n bottles
Disturbance
Drunk wants t o f ight
Disturbance
Large group of people
causi ng t roubl e
Partie s ref using to l eave
ACTIOO TAKFlf
Fight over prior t o
officer's arri val
Fight over pri or to
officer's arrival -
party advised how to
sign complaint
Problem between bartender
and hi s landlady -advised
to handle in civil court
No t r oub l e upo n of f icer's
arrival
Rowdy cust omer agreed to
l eave when offi cers arrived
No di s t urbance upon
officer's arrival
Party brought to station
and released
Parties gone upon officer's
arrival
Problem over -party advised
how to sign complaint
Parties gone upon officer's
arrival
Parties asked to leave
No problem upon officer's
arrival
Parties assisted
Case filed by Sta t e Liquor
Control Board
Manager vas ejecting persons
accused of gamb l ing
Party left before office r's
arrival
Mat t er s ettled prior to
officer's a r rival
Troublemak er left sce ne -
ot her parties calMed down
Of ficers escorte d parties
from area
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LIQUOR OUTLET CALLS (continued)
~ i.OCATION NATURE OF CALL ACTION TAKEN
h-8-69 Magnet Inn Disturbance Disturbance over -parties
released -no charges
h-12 -69 Hilda's Disturbance Parties left -no problem
h -13-69 Lucky Lady Manager requesting Manager asked parties to
walk through to prevent leave -parties complied
disturbance
h-19 -69 Lucky Lady Fight in progress Subjects gone upon
arrival of officers
h-20-69 Lucky Lady Unwanted parties Subjects left the scene
h-2h-69 Golden Fiddle Disturbance Civil matter--no problem
h-25-69 U-Tote-M Adult purchasing beer Juveniles filed on by this
for minors department. Adult to be
filed on by State Liquor
Division
h-26-69 Lucky Lady Fight starting Parties told to leave -
they complied
h-26-69 Bar Harbor Female going berserk Party released to mother
h-26-69 Lucky Lady Fight starting Argument sett led -
parties sent on their way
h-26-69 Lucky Lady Fight Unjustified complai nt
5-11-69 Hilda's Dist urbance 2 male parties involved in
fight -parties advised how
to sign complai nt
5-2h-69 Hey Louie Unwanted party Party left at reques t of
officer
6-10-69 Lucky Lady Drunk party Civil problem -no incident
6-17-69 Bar Harbor Fight Party had gone, however, had
broken windows and bottles
before leaving
6-17-69 Studio Lounge Minor disturl>ance Barmaid having problems
with obnoxious customer -
manager wanted no action
taken
6-28-69 J ohn W's Fight i n progress Party sent home by bus
6-18-69 Englewood Liquors Drunk -disturbance Party transported home by
officer
6-28-69 Bar Harl>or 2 men with hammers Several parties gone prior
threatening customers to arrival of officers -
one male arrested and charged
with disorderly conduct
6-28-69 Bar Harbor Fight in progress One male party arrested and I • • charged with disorderly
conduct
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7-3-69
7-3-69
7-6-69
7-6-69
7-7-69
7-9-69
7-,3-69
7-14-69
7-16-69
7-17-69
7-18-69
7-18-69
7-18-69
7-19-69
7-22-69
8-10-69
9-1-69
9-7-69
9-7-69
LOCATION
John W's
Lucky Lady
Lucky Lady
Studio Lounge
Casual Lounge
Lucky Lady
Lucky Lady
Casual Lounge
Magnet Inn
Studio Lounge
Lucky Lady
Casual Lounge
Lucky Lady
Lucky Lady
Lucky Lady
Lucky Lady
Lucky Lady
Casual Lounge
Casual Lounge
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LIQUOR OUTLET CALLS (Continued)
NATURE OF CALL
Assault
Party refused to leave
Fight
Fight in parking lot
Disturbance
Minor disturbance
Dome stic fight
Dome stic fight
Figh t in progress
Gang fight
Fight in parking lot
Suspicious person
Drunk p arty
Gang fight
Drunk party
Help remove unwanted
party
Trouble with customer
Disturbance
Trouble with customer
ACTION TAKEN
Minor assault, party gone
before officers arrived
Party left with no incident
Parties left prior to
officer's arrival
Escorted parties home
Party broke glasses and
front door out. Party left
before officers arrived
Parties advised to leave
Advised party to sign
complaint. Parties left
Parties gone upon arrival
of officers
No problem upon arrival
of officers
Parties dispersed upon
arrival of officers, no
further probl ems
Parties left as best friends
2 parties involved i n an
earlier dis urbance wanted
officers to arres ano her
person in the lounge . They
were advised of what l egal
procedures to take
Party asked to leave
Large fight in parking lot
Subject refused to leave, was
arrested for disorderly
conduct
Party left at request of
officers
Party who had been 86 1d
giving some verbal abuse
in return. Sub j ect left
t he area
All parties asked to leave
the area. They complied
Pa,ty from earlier disturbance
returned to the scene. Party
warned by officers and he
left the area
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9-8-69
9-,2 -69
9 -1 4 -69
9 -21-69
9-22-69
10-5-69
10-5-69
10-5-69
10-16-69
10-19-69
10-30-69
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LIQUOR OUT LET CALLS (Continued)
LOCATION
John \o/1 s
Lucky Lady
Lucky Lady
Lucky Lady
Lucky Lady
Lucky Lady
Lucky Lady
Lucky Lady
Bar Harbor
Studio Lounge
Studio Lounge
NATURE OF CALL
Dis turbance
Fight
Report of parties
smoking marijuana
Fight
Fight
Possible disturbance
Trouble with Burr brothers
Fight in progress
Parties causing trouble
Party assaulted
Drunk causing disturbance
ACTION TAKEN
3 mal e parties who were
refused service proceeded
to throw wh i skey bott les,
etc . at bart ender. All
sub j ects gone upon
arrival of officers
Fight over upon officer's
arrival -unab l e to determine
who was involved . No action
taken
Parties asked to leave club.
Contact cards made
Disturbance occured after
someone reportedly pulled
a knife. Knife was not
found . All parties sent
on their way.
Two parties arrested . Case
report filed and warrant
issued on third party
Party passed out -t he
management decided to gi ve
him coffee
Joe Burr left without incident
Milo Burr was requested to
stay by manageoent as he was
working there as a bouncer.
Drun k l eft at management's
reques t.
Everyone orderly upo n
arrival of officer s
Man and his wife were both
assaulted wh ile leaving the
bar. Offense report taken
from victims.
Mi.nor argument -party left
prior to officer's arrival
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STI\TE <F row~_n.,-0 mL 17E · DEPJ\RM'Nl' OF RI:."VUIUE r Cr-f:" r:-1 ,....
LICU>R ~ DIVISION I 1 1
1375 Sheoran Street ', '•r-"v.,.
DENWR, CDLOIWJO 80203
c Licenee No. D 386 c,,..,..
'llle undersigned retail licensee requests pell!lissioo of~. enlaxge, or notify
the preniscs at which he is licensed to do business or the piitns and spcificatiorw
originally subn.itted at the time of abtainirq the original license, in line with
COlorado Liquor C<x.le Regulation No. 17E.
tbne of retail licensee _ __:.R:..co~b.c..er'-t.;_;:L:..;:.._l:-.cc...:;:..n_t_._yT.:.....:...e ----------------
Trade Nne __ ~O~l ~d~T~o~w~n~L~i~q~u~o'-rs~----------------------
Address or leqal description of prEIIIiaes at which lioeneed to clo bualnea -----
325 East Jeffe r s on Av e nue Engl ew ood , Co lorado 8o 110 Ar v pshoe County
(City or Toocl, dp Oib, COU\ty)
Specification, in accurate details, of the planned expansion, enl.arqala1t, CC' 110!-
ification of the licensed praniaes or pranises to be lloenMd
Ac qui siti on of t he a djoi n i ng buildi n _ to the west . (4.• deep by 15 1 wide)
This buildi ng is pr esently heine oc cupied as a Barb .,t· Shop •.
Are the prEIIIises, after the proposed expansion, enlargen.nt, or notification l.oc:at.ed
within 500 feet of a buildin:} occupied as a public, or perochial echcol, college,
univenity or 8EIIIinary7 No -----------
Date of the proposed expanaion, enlarganent, or lrodification of llcerwal pnlli-CC'
pnml.aea to be licensed. _ _.,N.::.ea,r,_,_Fu-=t=-u r,_,e~---·--::::::-----~,----------
Sigrm Mki-u;it.Jt ⪚ '-
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~ rl LOCAL LI<::ENSDC N.mDUTY:
Ttle foregoing awlication for permieaion '=a expa.ni, enlarge, or JN:ldify the pl"---
llcensed or p.l.anll and specifications, has been tJUIIII!ned, and if CJrant:aS, will not
be contrary to the provisions of the COlorhdo Liquoc Code an::l Rules and RegUlatiorw.
'nlerefoce, the foreqoi.ng awllcation is ht.:>.reby apprcM!Id.
Dated at this ___ day of _____ l9_.
(NI!INI of Town, City oc County )
AP~ <F DEP~ C7 REVfHJE
Ttw foreqoi.ng application fCC' pel11\is3ion to eKpillld, enlarge, or mcdify the pnlld ..
licenaod oc to notify the original p lana and specifications subllitted, haa been •-
GI\lnod, am the planned expansion, enlargment, or mdificatioo, as specified abc:Ma,
ia hcrol7f granted.
Doted at _____________ this ____ dily of ______ l9 __ •
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Diagrllll of praniaee 1D'ORE expansion, enlargement cr modification:
15'
Diagrllll of pnm.i.aee wrm 8Kp1Ul8ion, enl.arga~Blt or modifitBtioru
as'
a5'
FIUUIT
KXliPl'f1):
~: -T.~~~~======~-(si9ned) &JPER'II!D. (signed) CFFI~
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crry c~F r-I c I A l
'"'r
ELECTION COMMISSION
CITY OF ENGLEWOOD, COLORADO
NOVEMBER 6, 1969
lJ. ~CN1'
The Election Commission of he City of Englewood,
Arapahoe County, Colorado , met at 6:20P .M., November 6 , 1969.
Present: Mr. William Hanson
Mr. Harry Fleenor
Mr . Stephen A. Lyon , Ch a irman
Mr . Lyon reported to the members of the Election
Commission on an incide nt of alleged electioneering at Precinct
No. 12. Mr. Lyon indicated th at at approximately 5 :30 P .M. a
call was received complain ing that the pa s sing of campaign materials
was taking place wi ti1 i n the 100-f oo t limit at c ~ayton S:::hool,
Precinct No . 12 and at Calvary Baptist Church, Precinct No. 15.
Mr. Lyon stated that he dispatched Mr. Bill Todd to Precinct No.
12 to check on the matter.
Mr. Todd reported that he found a Mr . Charles Schwab
passing campaign materials and warned Mr. Schwab that no passing
of materials could take place within 100 feet of the entrance to
the polling place . Mr. Todd also discussed the situation with a
judge of election informing her to make sure that no passage of
materials took place within 100 feet of the entrance and if neces-
sary to call the Police Depa rtment concerning the matter .
At approximately 6 :00 P .M. another call was received in
the Department of Finance alleging electioneering in many precincts
within the City . Mr . Lyon then contacted the Police Department
to investigate . Mr . Lyon presented a report of the Police Depart-
~ent to the members of the Election Commission for their review.
After discussion and review , Mr . Lyon indicated that
although the matter c~uld be turned over to the District Attorney,
it was his opinion that the outcom e of t h e election had not been
materially affected even should the i n ci d e n t be determined to be
electioneering. On this basis and on t he fa ct that should the
matter be urned over to the Di stric t Attorn ey for prosecution ,
considerable misunderstandi ng wo u ld ar ise about the validity of
the election. Mr. Lyon recommended th at n o action be taken by the
Commission.
After discussi on, Mr. Fleenor mo v e d , Mr . Ha nson seconded,
hat he information concerni ng the al l eged incident of electioneer-
ing be conveyed to the District Atto rney f o r his action with the
recommendation of the Election Commission that prosecution be
undertaken. Upon the call of the roll , the vote resulted as
follows:
Ayes: Mr. Fleenor and Mr. Hanson .
Nays: Mr. Lyon .
Mr. Lyon declared the motio n carried .
Mr. Lyon reported that in Precinct No. 16, Cherrelyn
School, a Mr. Tweed had misunderstood the election procedures
and opened the machi n e curtai ns to question the judges. After
receiving an answer, Mr. Tweed wished to re-enter the voting
machine. The Judges informed Mr. Tweed that he could not re-enter
the machine as his vote had already been registered.
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On the evening of November 5, Mr . Tweed h ad received
a harassi n g phone call from an unknown party. Mr. Tweed h a d
requested th at a compl a int be filed with the El ection Commission
co n cerni ng the phone c all. Mr . Lyon stated he was filing this
complaint whi ch was twofo ld: 1) th at Mr. Tweed believed some
individual, a member involved in the election administration, h ad
released his nam e to a party wh o had in turn placed the h a rassi n g
phone c all and 2) hat a harassing phone call h ad been received .
Mr. Ly on stated that the Police Department h a d b een contacted and
was looking into the matter .
Mr. Lyon informed members of t h e Election Commission
t h at in the 1969 redistric ting and re precincting the boundaries
of Pr ecinct No. 12, District III, had no t been dr a wn to c o rres pond
with the boundaries of Arapahoe County as originall y in tended .
Mr. Lyon stated th a t a special registration list for those people
aff ected by the boundary problem had been used b y th e judges in
Pr ecinct No. 12 and th at prior to the 1971 municipal election the
precinct and district lines would be adjusted to so l v e this
problem.
Mr. Ly on stated th a t the tally received for Prec inct
No. 5 on the three amen dment s to the City Charter had not been
clear and that it had n ecessita ted Mr . Herndon and Mr. Todd of
his staff to examine the voti n g ma chines after the e l ec tion to
ascertain the correct number o f vo te s c a st . Mr . Lyon presented
a memorandum certifying the results on the questions in t he se
two precincts.
Mr . Lyon stated th a t the f i nal ord er of business was the
certification of the results o f the e l ection and the ordering of
the publication of said resu l ts in the E nglewood Herald. Mr. Lyon
presented the final tal ly of the election to the members of the
Commission. After e xamination , the Certifi cation of the Election
was executed b y the me mbers of the Election Commission .
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lli-:G L A H MEET I NG
ENULI·:WOOO PUI3LIC LI13HAHY llOA I W
NOVEMUEH ll , I~()!)
The r egula t· m e ·ting o f the En g l ewood Publi c Library lloard wal; ca ll e d t o o t·der· at 7:!i0 p .m.
by l\1r l;. Ueve rl y Simon, C ha irma n .
l'rcscnt : U •vcrly Simo n, Hay Wal s h , llar·old Mill e r, John Ma xwe ll and ll a nie t Lute.
Ab sent : Da ll as Dh o r i ty and Murie l Smith.
A quor·wn was de clared. Minutes of the last m ee ting we r e approved.
l\Ionthly stati stics were presente d, di scus sed and c ompared w ith October 1!)68.
M itis Lute reported that the dinner m eeting of the Libr·:uy lloard a nd the C ity Counc il had
been cance led a nd will b e he ld at a late r d a t e.
Mi ss Lute reported that the Mountain Plains Librat·y Association will have its conve ntion
in De nve r from November 13 to 15 .
Miss Lute reported tha t the carpet back of th ci rcul a ti o n d esk ha s b een in stall ed a nd it
has c u t down s ome of the noi se in tha t area . Sh e also sa id tha t librar·y u se in th e e ve nings
has bee n good this year with the increase in more a dults u sing the library.
T he board discussed lhe cost per book checked oul in the library and on t he bookmobi le.
Mrs. Simon and Miss Lute reporte d on the C e ntr·al Co lora do Library Co uncil me ting .
They di scu ssed with the boar·d the Council's budget for next yea r and the recommendation
for some typ e of c orporation which would p et·mit libra ri es lo contract for se r vices s uch
as centralized proce ssing and circulation control w ithout (O !;in g their a utonom y.
Miss Lute gave the report of the Library L)i n .•ctors Ad,·isory Committe m eeting in
Boulder w hi c h include d a tour· of the Muni cipal Gove rnm e nt Hefer e nce Center a nd also
a work shop on such problems as fines a nd the l e n g th of book loan s.
The board discussed the policy statement of the Eng lewood P uil li c Library.
Dr. Walsh made the motion that Mr s . Simon a nd Mi ss Lu te to s tudy the feasibility of a
s l id e program to show the reso u rces and use of the l ibrary. Mr. Maxwe ll seconded the
motion.
The boar·d di scusse d the leadersh ip role the library ha s take n and could L.'1.kc in the future.
Dr. Wa l s h proposed that the boar·d think about the r cspon ibility of the librat·y fot· l ead r-
ship a nd that the discussion of the policy at next month 's m eeting be c onfin d to the action
on the purpo se of the I ibrary .
Meeting was a djourne d.
Respectfull y s ubmitte d ,
Joan ne Scd{,rwick
R ecording Secretary
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INTRODUCED AS A BILL BY C OUt~CII.MAW~L2..0;h z· 1 0 •~...... ....
A BILL FOR
AN ORD INANCE INCREAS INC THE MONTHLY SALARY OF THE !£MIERS
OF CITY COUNCIL, EFFECTIVE DURING THAT COUNCIL TERM COMMENCING
AT ~:0 0 P .H. ON THE FIRST ~~DAY AFTER JANUARY 1, 197 0 .
WHEREAS , Section 21 of the Charter of tbe said City of
Englewood initially fixed the amounts to be paid, as monthly
salaries, to the members of the City Council of the City of
Englewood, and
fflEREAS, the aforesaid initial salaries were set effective
July , 1958, and have not been increased, or cban&ed, since
that time, and
WHEREAS, with the growth of the City of Englewood aince that
date the duties and responaibilities of members of City Council
have correapoodingly increued aod tbe tt. apent on City buai-
nesa by lllnlbers of City Council baa, likewise, increeaed, so that
it 1a a p propriate that tbe future members of City Council abould
receive an increaaed ccapenaation over and above that which was
initially set by the said City Charter,
NOW , THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL Of THE
CITY OF ENGLEWOOD, COLORAOO, aa follow:
Section 1 : Effective upon tbe effective date of thia ordin-
ance the monthly salariea of tbe member• of City Council are
hereby ftx.d in tbe following •ounu :
Mayor
Mayor pro tempore
t ember of Council
$150.00
12S.OO
100.00
Introduced, read in full and paased on firat reading on
the ___ day of , 1969.
Publlsbed as a Bill for an Ordinance on tbe ----day of
-------· 1969.
Mayor
Attest:
City Clerk-Treasurer
I, Stephen A. Lyon, do hereby certify that the above and
foregoing is a true, accurate and complete copy of a Bill for
an Ordinance introduced, read in full and passed on first reading
on the ___ day of , 1969.
city cieri-Treaaurer I •
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INTRODUCED AS A BILL BY COUNCIU1AN .>4d'v~i~j'
C.,
BY AUTHORITY '
ORDINA NCE NO. c39' , SERIES OF 1969 '
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AN ORD INANCE AMENDING SE CTION 6A.5·2 AND SECTION 6.6-14(a)(2)
OF THE ENGLE OOD l1UNICIPAL CODE TO DEFINE THE N RMAL RETIREMENT
DATE FOR THE EMPLOYEES OF THE CITY OF ENGLE WOOD, COLORA DO .
BE IT ORDAINED BY THE CITY OF ENGLE OOD, COLORADO , as
follows :
Section 1. Section 6A .5 -2 o f the Municipal Code of the
City o f Englewood is hereby amended to read as follows :
' The Normal Retirement Date of the Member shall be
the first day of the calendar month coincident with or
next succeeding his 65th birthday, but not before Feb-
ruary l, 1970."
Section 2. Section 6.6-l4(a)(2) of the Municipal Code of
the City of Englewood is hereby amended to read as follows :
"(2) The effective date of retirement under the
provisions of 6.6-14 (a)(l) hereof shall be the first
day of the first mo nth following the month in which
such emp loyee reaches the age of sixty-five (65) years,
or in the case of any extensions of retirement age, the
date on which the extension expires."
I~uced, yead in full and passed on first reading on
the ...:3~ day of NJVembe r, 1969.
Published aa a Bill fo r an OYdinance on the !a f::A day of
November, 1969.
Read by title and passed on final reading on tbe 1'266
day of )2.4/Jr. m!M 7? , 1969.
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Published by title as Ord~~~e~ 3~ , Series of
1969 , on tbe c?O day of li.~lv 4 _ , 1969.
I s/ Elmer E . Schwab
Mayor
Attest :
/s / Stephen A. Lyon
City Clerk-Treasurer
1, Stephen A. Lyon, do hereby certify that tbe above and
foregoing is a true, accurate and complete copy of an Ordinance
passed on final reading and published by title as Ordinance No. 3q , Series of 1969.
Attest:
city cierk• eaaurer
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INTRODUCED AS A BILL BY COUNCILMAN _____ ..__o_,.~,~
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A BILL FOR '··o o P:·t../2:
. c o l..o.
AN ORDINANCE INCREASING THE MONTHLY SALARY OF THE MEMBERS
OF CITY COUNCIL, EFFECTIVE DURUI: THAT COUNCIL TERM COMMENCING
AT 8:00 P.M. ON THE FIRST MONDAY AFTER JANUARY 1, 1970.
WHEREAS, Section 21 of the Charter of the said City of
Englewood initially fixed tbe amount& to be paid, as monthly
salaries, to the members of the City Council of the City of
Englewood, and
lmEREAS, the aforesaid initial aalaries were eet effective
July a, 1958, and have not been increaeed, or cbanged, since
that tl.me, and
WHEREAS. with the growth of the City of Englewood Iince that
date the duties and reeponaibilitiea of member• of City Council
have correspondingly increaeed and the time spent on City buti•
ness by members of City Council baa, likewise, increased, so that
it is appropriate that the future members of City Council abould
receive an increased compensation over and above that which wet
initially aet by the said City Charter,
NOW, THEREFORE!. BE IT ORMINED BY THE CITY COUNCIL OF THE
CITY OF ENGLEWOOD, t;OLORADO, at follow:
Section 1: Effective upon the effective date of thla orclin•
ance the monthly aalariel of tbe 111811lbera of City CouacUn:are
bare by fixed in the followina •ountl:
Mayor
Mayor pro tempore
Member of Council
$150.00
125.00
100.00
Introduced, read in full and patted on firat nadia& oa the ___ day of , 1969.
Publiahad •• a Bill for All Ordiunce on tbe ----day of
-------· 1969.
Miyor
Attest:
City Clerk-Treasurer
I, Stephen A. Lyon, do hereby certify that the above and
foregoing is a true, accurate and complete copy of a Bill for
an ordinance introduced, read in full and passed on first reading
on the ____ day of , 1969.
elty clerk-treasurer
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INTRODUCED AS A BILL BY COUNCILMAN------'--·.:...~.·---
'··uo-flf.. o. r £;
A BILL FOR 0
AN ~DINANCE REPEALING I 16, 2 THROUGH AND INCUJDING 116. 2-7
OF THE MUNICIPAL CODE or THE CITY or ENGLEWOOD, COLORADO, AND
RESCINDING THE TAX LEVIED THEREBY UPON THE BUSINESS or SELLING
AT RETAIL 3.2 BEER, HALT, VINOUS AND SPIRITUOUS LIQUORS FOR
BEVERAGE PURPOSES FOR THE CALENDAR YEAR 1970 AND ALL SUBSEQUENT
YEARS.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD,
COLORADO, aa followa :
That 116.2 through and including 116.2-7 of the Munici pal
Coda of the City of Englewood 1a hereby repealed and the tax or
fee levied by the provbiona of aaid aection aball not he
collected for the calendar year 1970 or any aubaequent calendar
year.
Introduced, read in full and paaaed on firat reading on
the ___ day of Nove.ber, 1969.
Publilbed aa a Bill for an Ordinance on tbe ___ day of
------· 1969.
Mayor
Attest :
City Clerk-Treasurer
I, Stephen A. Lyon, do hereby certify that the above and
foregoing is a true, accurate and complete copy of a Bill for
an Ordinance introduced, read in full and passed on first
reading on the day of , 1969.
city Clerk-Treasurer
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INTRODUCED AS A BILL BY COUNCILMAN ___ ,_.,.._>-... o0
.. &1\Jo.,l2!"1~~----__ ;:J __ _
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A BILL FOR "'·'o __; r--oo ''-~ . co '-o.
AN ORDINANCE REPEALING 116. 2 THROUGH AND INCLUDING 116. 2•7
OF THE HUIUCIPAL CODE OF THE CITY OF ENGLEWOOD, COLORADO, AND
RESCINDING THE TAX LEVIED THEREBY UPON THE BUSINESS OF SELLING
AT RETAIL 3.2 BEER, HALT, VINOUS AND SPIRITUOUS LIQUORS FOil
BEVERAGE PURPOSES FOR THE CALENDAR YEAR 1970 AND ALL SUBSEQUENT
YEARS.
BE IT ORMINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD,
COLORAOO, aa follOVII:
That 116 • 2 throusb and inc ludina 116 • 2-7 of the Municipal
Code of tbe City of Eqlewood 1a hereby repealed and the tax or
fee levied by the proviaiaa. of aaid aection aball not ~
collected for the calendar year 1970 or any aubaequent calendar
year.
Introduced, read in full and paaaed on firat reading on the ___ day of Nove.ber, 1969.
Mayor
Attest:
city cierk-Treasurer
I, Stephen A. Lyon, do hereby certify that the above and
foregoing is a true, accurate and complete copy of a Bill for
an ordinance introduced, read in full and paaaed on first
reading on the day of , 1969.
City Cierk-Tieaaurer
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INT RODUCED AS A BILL BY COUNCILMAN £A m;zv
A BILL FOR
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AN ORDINANCE REPEALING 5§24 .1-1 THROUGH, AND INCWDit«;,
124 .1-9 OF THE MUNICIPAL CODE OF THE CITY OF ENGLE WOOD, RE -
ENACTING THE SAME WITH AMENDMENTS, AND ADDING FURTHER SE CTI ONS
THEREUNTO TO REQUIRE THE ANNUAL LICENSING OF DOGS KEPT WITHIN
THE CITY OF ENGLE wOOD .
Of..
Bf 1'1' ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD,
COL RADO , that J24.l-through and including §24 .1-9 of the
Munici al Code of the City of Englewood, Colorado, are hereby
repealed and the following provisions are enacted in their place :
'§24.1-1 Definitions. As used herein, unless the context
cle rly indicates otherwise, the following words shall have the
following mean i ngs :
'Dog' shall mean both a male and emale dog;
r ' shall an any 'erson Jwning , eeping or harbor-
ing a dog or dogs;
'A t larg ' shall mean off the premises of the owner and
no t under cont rol by leash, cord, chain or o therwise,
or not under the immediate control or su pervision of the
keeper or any employee, servant or member of the immediate
f amily of the keeper or of the owner or an employee ,
servant or mb e r of the immediate family of the owner.
"§24 .1-2 License and Regiatration Required. All dogs ke pt,
harbored, or maintained by their ovners In the City of Englewood
shall be annually lice nsed and registered if over three mon th&
of a ge. g licenses shall be issued by the city c lerk upon
payment o f a license tax of ~ % L•Qfor each le or spayed f -
ma l e , Rnd $ 2t "( for each unspayed f emale. App lication for
such li ense or each ca lendar year shall be ma d by the owner
of tbe dog on or before March lat of such year or within thirty
days after t he d og reaches t he age of three mon ths, whichever is
later . The owner shall state at the time appl ication is made for
such license a d upon pr inted fo rma provided for such pu r p ose h ie
name and address, and the name, breed, color and sex of each dog
own d r ke p by him . The proviaiona of this section shall not
ap ply to dogs whose owners are nonresidents temporarily within
the ci ty, nor LO dogs brought into t~ city f or the pu r pose of
participating in any dog show, nor to 'aeei -eye' d ogs pr o rly
trained to aasiat blind persons when such doge are actually being
used by bl ind persona for the pu r pose o f aiding them in go ing from
place to place.
'524.1-3 Tag and Collar. Upo n payment of the license f ee,
the clerk shill Issue to the owner a license certificate and a
meta llic tag for each d og ao licenaed. The shape of the tag shall
be changed every year and shall have stamped there on tb year for
whic h it was issued and the numbe r corresponding with the num ber on
the certificate. Every owner ahall be required to provide each
dog with a collar t o which the license tag must be affixed, and
sha ll s e that the collar and tag are constantly worn. In case a
dog ta is lost or destroyed, a duplicate will be issued by the
clerk upon presentation of a receipt shoving the payment of tha
l icense fe e for tha current year, and the payment of a fifty (50)
cent fee for s uch duplicate. Do& taaa shall not be tranaferable
from ne dog to another and no refunda shall be •de on any doa
Ucena f ee because of death of tha doa or the owner' a leaving tha
city before expiration of the license period.
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"~24.1-4 Ra bies Vaccination Required. It shall be unlawful
for t e owner of any dog to keep or maintain any such dog unless
it shall have been vaccinated by a l icensed veterinary surgeon
with anti-rabies vaccine within one year preceding the date on
which s uch dog is kept or maintained, and every dog within the
city limits shall at a ll times have a current rabies tag as pro-
vided by the Stat Dep artment of Health, or a subdivision or
legal repre&entativ of such department.
"$24 .1-5 Runni~ at Large P rohibited. Every owner or keeper
of any dog shall p r~l6!t such dog from being or running at large
and every such owner shall insure that any dog shall not be off
the owner's premises, unless the sam is on a leash, or is o ther-
wise suitably restrained. Any dog running at large or being off
the owne r's premises without such restraint is hereby declared
to be a nuisance.
"124.1-6 Barking Dogs a Nui sance. I t shall be unlawfu l for
any owner or keeper of any dog or d ogs to permit such dog or
dogs by loud and persistent habitual barking, howl i ng or yelping ,
to disturb any person or neighborhood, and the same is hereby
declared to be a pub lic nuisance . It shall not be necessary for
the purposes of this s u bsection, to identify and describe the dog
or dogs which are barking, howling or y lping , pr v ided only that
it shall be shown who has possession, car , cus tody or control
of said dog or dogs .
124.1-7 Imp oundi~ of Dogs. I t sha ll be the duty of the
chief o f po!ic , or au~ person or persona as he ma y designate ,
to ap prehend every dog running at large contrary to the provisions
of §24.1-5 and to impound such dog in the city pound or other
suitable place ; provided, however, that if any dangerous, fier ce
or viciou s do& so found at large cannot b safely taken up and
impounded, such d og may be slain by any police officer. Th e
person in charge of the city dog pou n d, or such other person as
the c hie f o f police may designate, upon receiving any dog ~hal l
make a com p lete registry, entering the breed, color and sex of
such dog and wh th r or not s uc h dog has a current rabies tag.
If such do baa a current r abies tag, h shall enter the number
of the said ta and the name and a ddreu of the owner, if the • ._
can be obtain d.
''f24.l-8 otice -Reclaiming. No t later than three days
&fter the I mpoun ding of any do g, the owner shall be notified, or
if the owner of the dog ia unknown, written notice shall be posted
for three days in three or mo re cons p icuous p laces in the city
describing th dog and the time and place of tak ing . The owner
of any do so impou nde d may reclaim auch dog upon payment of al l
coats and charges incurred by the city for impounding and mainten-
ance of such dog, provided that h e ahall also forthwith obtain a
current rabies tag if such dog shall not have auch tag.
I 124.1-9 Di apoaition of Unclaimed oas•· It ahall be the duty
of the peraon In chirge of the city p oun , or such other person
aa the chi f of police may direct, to kee p all dogs impounded
under the proviaiona of thia section for a period of aix daya .
If at th expiration o six daya from th date of notice to the
owner or the posting of such notice, such dog ahall not have been
redeemed, it may be diapoaed of.
pt,
''124.1-11 Po iaonin,g Doga unlawful. It aball be unlawful for
any raon to polaon any dog or doaa or to diatribute poison in
any manner whataoever with the intent of poiaoain& any do& or dO&•·
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"124.1-12 Cauaig l'l2& Fi&hta. It aball be unlawful for
any peracm to cauae. rnatliah. or encourqe any dog fi&ht in
any public place or private place within tba city."
Introduced. read in full and paaaed on firat reading on
the ___ day of • 1969.
Publiabed aa a Bill for an Ordinance on the
of --------• 1969. ----
day
Mayor
Attest:
City Clerk-Treasurer
I, Stephen A. Lyon, do hereby certify that the above and
foregoing is a true, accurate and complete copy of a Bill for
an Ordinance introduced, read in full and passed on first
reading on the day of , 1969.
City Clerk-Treasurer
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NO. 23352
ALFRED P. ATCHISON and
IDA MAE ATCHISON,
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Plaintiffs in Error
v.
THE CITY OF ENGLEWOOD, a
municipal corporation;
and MARTIN-MARIETTA COR-
PORATION, a Maryland cor-
poration,
Defendants in Error
NO'/ 1 o 1969
Error to the District Court of Jefferson County
Hon. George G. Priest, Judge
EN BANC
Ralph A. Cole,
William 0. Perry,
JUDGMENT AFFIRMED
Attorneys for Plaintiffs in Error
Myrick, Criswell and Branney,
John A. Criswell,
Shivers and Banta,
Attorneys for Defendant in Error,
The City of Englewood
Dawson, Nagel, Sherman & Howard,
Michael Reidy,
Raymond J. Turner,
Charles R. Frederickson,
Attorneys for Defendant in Error,
Martin-Marietta Corporation
MR. JUSTICE GROVES delivered the opinion of the Court.
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The plaint i ff s in error, referred to as plaintiffs
or by nam e , brought an action again s t the City of Engl ewood
and Ma rtin-Marietta Corporation as de fendants for a de ter-
mination with respect to plaint i f fs ' pre-emptive r ight to
repurchase certain lands. The district court granted de-
fendants' motions for summary judgment on the ground that
the documentary provisions granting the rights to the plain-
tiffs were void as violative of the rule against perpetuities.
We affirm.
In 1948 Mr. and Mrs. Atchison were, and for a
number of years had been, the owners of approximately 2500
acres of land in Jefferson County, together with water rights
belonging thereto. Englewood desired to acquire the water
rights, but had no use for the land. However, the City con-
eluded that it should purchase the land with the water in
order to be in a possibly more favorable position when it
prosecuted proceedings to change the points of diversion of
the water and to change its use from irrigation to municipal
purposes. A sale and purchase of the land and water from
the plaintiffs to Englewood was arranged, The written
documents involved gave the right to Mr. and Mrs. Atchison
to repurchase the land (but without any water transferred
therefrom in the meantime) upon the same terms and condi-
tiona as Englewood might be will~ng to sell it to a third
person. Later Englewood entered into a lease of most of
the land (presumably with few or no water rights) and as a
part of the lease granted to Martin-Marietta an option to
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purchase the demised property. Still later Martin-Marietta
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exercised the option and purchased the land. Under the
record existin g as a basis for the summary judgmen 't we
I treat Mr. and Mrs. At c hison as having no knowl edge and
not being charged with notice of the option rights\ granted
to Ma rt in -Marietta; and that upon obtaining knowle ~ge or
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being charged with notice they made time ly filing of this
action. They evinced a desire to purchase the land upon
the same terms as the corporation had purchased it.
While there are some other problems involved of
which we will make disposition, under our view the two
principal questions presented are: (1) was the pre-emptive
right granted Mr. and Mrs. Atchison personal, .! ·~. , would
it die with them and therefore not be v~olative of the
rule against perpetuities; and (2), even if the pre-emptive
right was not personal and would extend ~re than 21 years
beyond the life of a person in being, should it be pros-
cribed by the rule against perpetuities? We have not ex-
perienced too much difficulty in concluding that the right
was not personal; but, as to the second guestion, the scales
of decision are so evenly balanced that a little weight on
either side would weigh it down.
As a preface to quoting the documentary provisions
involved, we state the rule against perpetuities, which had
its inception with the Duke of Norfolk's Case in 1682 (3 Ch.
Cas. 1, 26). It is a part of the common law which was
adopted in this state and has been applied in Colorado to
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\ certain contingent remainder interests. See Rocky Mountain
I Fuel Co. v. Heflin, 148 Colo. 415, 366 P.2d 577; Rc rry v.
I
Newton, 130 Colo. 106, 273 P.2d 735. See also 2 E. King,
I
Colorado Practice Methods §2498. The rule is defined as
I
follows: No interest is good unless it must vest, if at
all, not later than twenty-one years after some life in
being at the creation of the interest. Parenthetically,
attention is directed to our inclusion of the term "if at
all" in the definition. For the absence of this phrase in
the two Colorado cases just cited Professor Thompson G. Marsh
has admonished this court. 32 Dicta 7 and 39 ~ 123. We
also note the suggestion of Messrs. W. Barton Leach and Owen
Tudor that the definition might commence with the words
"Generally speaking." 6 American Law of Property §24.1, p. 4.
Under date of December 15, 1948 the plaintiffs
and Englewood entered into an agreement of sale and purchase,
referred to herein as the December agreement. By the terms
of this contract the plaintiffs agreed to sell and Englewood
agreed to buy the land and water rights (except one-half the
mineral rights to be reserved by the plaintiffs) for a sales
and purchase price of $350,000 to be paid by January 3, 1949.
Paragraphs 11 and 13 of this agreement provided:
"11. Concurrently with the delivery
of the deed to said property and certificate
for forty-five shares of stock of the Nevada
Ditch Holding Company by the Atchisons to
the City as in this contract provided, the
parties hereto shall enter into a further
contract under which the City shall give to
the Atchisons the exclusive and prior right
at the option of the Atchisons to repurchase
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or to lease said real estate, together with
any water rights appurtenant to said lands
at the time o f such sale or leasing at the
sam e price and upon the s ame t e rms and con-
ditions upon which the Cit y is wi llin g to
s ell or l ea se sa id real estate and any
water right then appurten ant thereto to any
third person; and the Cit y shall not s ell
or convey or contra c t to sell or co nv e y or
lease said lands or the water rights that
may then be appurt e nant thereto to any third
person unless and until the City, for a
period of 60 days, shall first offer in
writing to sell or lease such lands with
the then appurtenant water rights, if any,
to the Atchisons at the same price and upon
the same terms and conditions as in the
case of such other sale or contract of sale
or lease of such property to any third
person •.•• 11
* * *
11 13. The terms and provisions hereof
shall inure to the benefit of the heirs,
legal representatives and assigns of the
Atchisons. "
On or about January 3, 1949 the consideration was
paid to the plaintiffs, the property was conveyed by them to
Englewood, and Englewood and the plaintiffs entered into
"a further contract" (referred to as the January agreement)
which provided as follows:
'~HEREAS in connection with the purchase
of said land and water rights by the City and
as part of the consideration of the sale there-
of by the Atchisons, the Mayor of the City by
Resolution of its City Council duly adopted on
the 14th day of December 1948, was duly authorized
and empowered to execute this agreement on behalf
of the City and the Clerk of the City was author-
ized and empowered to attest the same.
"NOW, THEREFORE, IN CONSIDERATION of the
premises the City does hereby covenant and agree
to and with the Atchison& as follows, to-wit:
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"1. Tlw City lwn•hy gives and grants
unto the Atch iso n s the exc lusive ancl prior
right at th e option of th e At ,·ldsons to
rcpurchn s e or Lo 1 <':t:H' t·he J ;J•His dc sc 1· i h<•d
in sAid \v nrranty llc·cd o ( even d a t <> ll e l'<'wi.Lh
to which referenc-e is hereby lllnde [or
description of said lands; together with
any water rights appurtenant to said lands
at the time o f such sale or leasing at the
same price and upon the same terms and con-
ditions upon which the City is willing to
sell or lease said real estate and any water
rights then appurtenant thereto to any third
person; and the City shall not sell or convey
or contract to sell or convey or lease said
lands or the water rights that may then be _
appurtenant thereto to any third person un-
less and until the City, for a period of
sixty days, shall first offer in.writing to
sell or lease such lands with the then
appurtenant water rights, if any, to the
Atchisons at the same price atd upon the same
terms and conditions as in the case of such
other sale or contract of sale or lease of
such property to any third person • . . • "
* * *
"3. The rights of the Atchisons under
this agreement shall be deemed not in tenancy
in common but in joint tenancy in them and in
the survivor of them, their assigns and the
heirs and assigns of such survivor."
I
Counsel for plaintiffs argue strenuously that the
pre-emption granted to the "Atchisons" in paragraph 11 of the
December agreement and in paragraph 1 of the January agree-
ment was a right which was granted to _ them personally and
would die with them. They also contend that paragraph 13 of
the Dec ember agreement and paragraph 3 of the January agree-
ment relate to other portions of the agreements, but not to
paragraphs 11 and 1, respectively. In other words, they sub-
mit, paragraphs 11 and 1 are severable and are things apart.
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Couns el fu rthe r urge that stock phrases such as "heirs
. I and assi g n s " sho u ld nnt h0 appliNl to a p:~rne~llnl· pro-
vis ion of a co n t r act exc0p t upnn examlnnt Inn o( th e con-
text and surrounding facts; th at these words and those
similar thereto should not be applie d to the provisions
relating to the pre-emptive right as it is apparent that
the parties intended that right to be personal; and that
the plaintiff s are entitled to a presumption that the par-
ties intended to have a legal and enforceable pre-emptive
right. See Re statement of Contracts §236.
At this juncture we wish to mention the signifi-
cant fact that, as conceded by one of plaintiffs' attorneys
during oral argument, Mr. and Mrs. Atchison had counsel in
connection with this transaction in December 1948 and Jan-
uary 1949. The deposition of Mr. Atchison was taken. The
district court in its order granting the motions for summary
judgment did not refer to this deposition, and we consider
it only in the following particular. Mr. Atchison stated in
effect that all of the documents involved were submitted to
and approved by the attorney engaged by him and his wife and
that they would not have signed any of them except upon such
approval.
In the December agreement the provision '~he terms
and provisions hereof shall inure to the benefit of the heirs,
legal representatives and assigns of the Atchisons" is definite
and unambiguous. This being the case this is not a matter
for utilization of the rules sought by counsel.
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• • Couns e l h~ called attent~on to the fact that the
Dec emb e r agreeme nt r es erv e d one-hnl{ of thn mineral rights
to "the At e hi s ons , th e ir heirs, and as s i g ns," and thnt the
phras e "their heirs and assign s " is not used i n p<'~r<'~g raph 11.
Ne ver theless , the De cemb e r agr e em e nt ends wit h the Pxplicit
stat eme nt that its t erms an~ prov i sio ns in 1re to the benefit
of heir s and assigns, and the wo rding of paragr:1ph ll is a
part of those "terms and conditions." It is inconceivable
to us that the attorney engaged by the Atchisons to review ·
this document could have come to any other conclusion; and
furthermore, even if the provisions of paragraph 11 were
intended to be severable and purely personal, we believe that
an appropriate modification would have been made in para-
graph 13.
Plaintiffs have urged upon us as authority for
holding the pre-emptive right to be personal Maynard v.
Polhemus, 74 Cal. 141, 15 P. 451; Dodd v. Ratt erman, 330
Ill. 362, 161 N.E. 756; Old Mission Peninsula Schoo l District v.
French, 362 Mich. 546, 107 N.W.2d 758; and Newton v. Newton,
11 R.I. 390. Since the wording of the document in each of
these cases is sufficiently different from the provisions
of the instruments herein involved, we do not regard these
cases as applicable.
The governing document appears to be the January
agreement. It is to be obs erved that in it paragraph 3
placed the rights in joint tenancy, in contrast to the "heirs,
legal representatives and assigns." of paragraph 13 of the
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Dec ember n gr cmcn . Hr rrprnr pn1·ngrnph J 0 r 1 h .lnnunry
agreement:
"J . Th e ri f.h rs 0 r t hC' ArchiS 0 11S unrlcr
this agreem e nt sl w ll be deemed not in tenancy
in commo n but in jo i nt tenancy in thPm and in
the survivor of them, their assigns and the
heirs and assi gns of such survivor."
Counsel for plaintiffs ha\e asked that this be interpreted as
I
meaning only that, when the pre-emptive right is exercised,
it will be held in joint tenancy by the Atchisons and that
the executory pre-emptive right itself was not in joint
tenancy. We view the relationsh ip of para~raph 3 to para-
graph 1 of the January agreement in the.same light as that of
paragraph 13 to paragraph 11 of the December agreement. In
the January agreement the rights under it were to be held
in joint tenancy and the pre-emptive privilege was one of
those rights. It is of som e significance that the word
"right" is used in paragraph 1 .
In paragraphs 11 and 1 of the two agreements it
is provided that the Atchisons' pre-emptive right is
"exclusive." We are urged to interpret this as meaning that
....
the right is personal and does not surviye them. However, our
interpretation of the term "exclusive" used in each agreement
means that this pre-emptive right cannot be granted by
Englewood to anyone else.
Accordingly, we hold that the pre-emptive right was
not personal.
II
We now approach the question of whether the rule
aga in s t perpetuities should he applied to prc-rmptiv rights.
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• At the outs et the differenc e b e tw een an ordin a ry option And
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a pr c -cmptj v e r i e.ht s hotll d be not ed . In a t ypi c .11 nption
th e option pc has the absolute right to purch~sc so mP thing
for a definit e con s id e ration . A pr e -emp tive ri Ght involve s
the c rcati on of th e privi 1 cge to purrh.1 s e on l y on t hP for-
mula tion o f a desire on the pr1rt of the own er to s e 1 J; and,
in the case h e re, the hoJrlrr of the right must p1rrchase for
the p r · c e at which the o\vn er is willing to sell to a third
person.
It will be recalled that there is a difference
between the rule against perpetuities and the rule against
restraints upon alienation. Both rules have the same funda-
mental purpose, namely, to keep property freely alienable;
or, stated differently, each stems from a general policy
which frowns upon the withdrawal of property from commerce.
The rule against perpetuities invalidates interests which
~too remotely. The rule against alienation relates to
other unreasonable restraints. For example, ~conveys land
to ] in fee simple with the provision that if ] during his
lifetime shall convey or attempt to convey it the land shall
become the property off in fee simple. This does not violate
the rule against perpetuities but is violative of the rule
against restraints with the result that B obtains a f~ simple
absolute. An option given to a person, his heirs and assigns,
to purchase land for $5,000 with no limiting term is void
under the rule against perpetuities. The reason is that,
~ith such an option outstanding the owner dare not place
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substantial improvements on the
anyone purchasing it is remote.
of the ru le against perpetuities
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land, and the likelihood of
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The reason for a f plication
to a pre-emptive 'right to
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purch ase at an offeror's price acceptable to the owner is not
suppo rted by the same reasonin g a s found in the o p ion example ,
thus making the case f or non-application much more arguable.
See discussions in 6 Ameri can Law of Property commencing on
the following pages: 13, 22, 141, 411 and 508.
The application of the rule to ordinary options
is firmly established. However, so far as we are advised
this is the first time that there has been before this court
the question of application of the rule against perpetuities
to a pre-emptive right to purchase at an offeror's acceptable
price. The Restatement of the Law of Property makes no
exception of pre-emptive right under the rule against per-
petuities and in the comment following §413 it states,
"Preemptive provisions, being analogous to options upon a
condition precedent, must comply with the rule against per-
petuities in so far as their maximum duration is concerned."
IV Restatem ent of the Law of Property, p. 2444. In 6 American
Law of Prop e rty §24.1, pages 7 and 8 Messrs. Leach and Tudor
criticize the Restatement position and deplore what they
state is the rule of the American Law Institute that it follows
existing law and not what the law should be.
Other authorities supporting, or tending to support,
the v iew that a pre-emptive right such as involved here is
void under the rule against perpetuities are: Neustadt v.
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Pear<••, 145 Conn . 403, 11,3 A.2d 437; ll . J. Lcwjs Oyster Co.
' v. 1-'C's_t , ()l rnnn . 51 R , 10 7 .\. llR; Snul,hcn~y~_:;_:lll l s b e rr v ,
30 N.E.2 d 392 , 132 A.L .R . ()6 3 ; 162 A.T..R . 604; ;md 41 Am. Jur.
Perpetuities and Restraints on Alienation §41 (Supp. 1969).
While statements of the American Law of Property, in citations
already given, indicate that the law ought to be that the rule
should not apply and that non-application is the modern trend,
it nevertheless states, "If the pre-emptive provision is in
the contract form only, the equitable future interest created
can be held within the rule on the authority of the option
cases." 6 American Law of Property §26.66, p. 510.
The plaintiffs rely upon Weber v. Texas Co., 83
F.2d 807, cert. denied, 299 u.s. 561, 5' S. Ct. 23, 81 L. Ed.
413, and except as later mentioned it supports their position.
There the owners of land leased it to Texas Company's assignor
for prospecting and drilling for oil and gas. The lease was
for a primary term of five years and as long thereafter as
either oil or gas is or could be produced from any well on the
land. The owners reserved a one-eighth royalty. The lease
provided:
·~he lessee is hereby given the option of
purchasing all or any part of said royalty
rights from the lessor at the best bona fide
price offered by responsible third parties
wh e n and if offered for sale or transfer by
lessor. ••
Texas Co mpany acquired the lessee 1 s interest and brought in a
producing well. Prior to completion of the drilling the owners
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sold a one-fourth interest of th e ir royalty to
$7,000, As soon .:lS T cx:Js C:0: .•1 .1n r l C':tnwrl n f t-11 is t IH'Y ten-
dered $7,000 for the inL,'rcst •·o ~<L Th e l l'ndcr w<Js refused.
Texas Compan y the n sued for specific performa nce. It was
held that the pre-emptive right was valid and enforceable.
Th e cnurt concluded t h:tt wh en a n option simply gives an oil
and gas lessee the prior righ t to take the lessor's royalty
interest at the same price the lessor could and would secure
from another purchaser, there is no restraint of f .ree alien-
ation by the lessor. The option, therefore, according to
the court, should not be objectionable as a .perpetuity. In
Beets v. Tylor, 365 Mo. 895, 290 S.W.2d 76 the court indicates
approval of the ruling in Weber. However, this is a dictum
as the pre-emptive right before the court was for a term of
only 20 years (except if all parties in interest should extend
it for a further 20-year term by executing a new written instru-
ment). c or an interesting discussion of~ and other
authorities see Reasoner, Preferential Purchase Rights in Oil
and Gas Instruments, 46 Texas Law Review 57, reprinted in 5
Rocky Mountain Mineral Law Review No. 2, p. 163.
We have held that before us is an inheritable pre-
emptive right without limit as to time. It is in no manner
connected with any land owned by Mr. and Mrs. Atchison. While
they r ~e rv e d one-half of the mineral rights, this interest
• can be sold at any time; and following a sale there will be
no land title interest of record to give any clue as to the
identity of future successors in interest to the pre-emptive
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right . He fC'<'l th .1t a s me JW i n n t h r-j 11 r i ,, i t " j mC' at
right would be a n unrC'nsonnhlC' tn sk . As a r es\1 t , th e re would
be a suf f ici ently unr e asonabl e r es traint upon the transfer-
abi li ty of the p rop er ty as to justify imposition of the rule
against perpetuities. It may be said that we are stating a
rule against alienation and giving it a label of the rule
against perpetuities. Be that as it may, the result is the same.
It is to be noted that in Weber v. Texas Company,
supra the identity of the own ers of interests involved
could be ascertained --or at least with some reasonable
investigation discovered --from the record title to the
mineral rights and royalti e s. Our conclusion might be dif-
ferent here if the own ership of t he pre-emptive right
followed the title to designated real property; or, if it
were restricted to a limited term found to be reasonable,
albeit longer than a life in b e ing plus 21 years. Be t hat
as it may, we rul e me rely that a contractual right, granted
to A and his heirs and assigns, unlimited as to time , to
purchase land upon the same terms as the owner could and
would sell to a third person, is void.
III
The plaintiffs submit that this matter was not i r.
a posture susceptible of determination under a mot ion f or
summary judgmen t, citing familiar authority as to the cautions
whi ch sho uld be exe rcised by a court in connection with a
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motion for s umm:try juc1 gmC'nt . The mni n thrusr-of t he argument
on this pnint js lh.1t th C'l"C' \vf'rC' f.1('(11:1l i 'O.S llC'!': t·n h0 r c -
SO l Vi'cl in intcrpr tint', Llll'' cnnt.·nct nn,_.1 d f·t·f'nni nin0 LhC'
in tC'nt or the parti Ps . W0 nr not so pC'TSU.1df'd . To us there
a re no i s sue s o f materia l fac t existing here. The documents
ar e not ambi guo us and th e di.sr-r jr t cour t prop0 r Jy mnoe a
d c t C'nnino ti.on Hi.thin thC' "f"nu r cnrnr r s " o f th\" dncumC'nts.
I V
The pl ai nti rrs C'Ollt C'nd th.1 thC' inclusj o n of
paragraph 3 i n the January a greem<'nt wa s u ltr a vires. To
review, paragraph ll of the December agreement provided that
the Atchisons should have a pre-emptive right to repurchase;
and paragraph 13 of that agreement provided that the terms and
provisions thereof should inure to the benefit of the heirs,
legal representatives and assigns of the Atchisons. The City
Council of Englewood adopted a resolution which authorized and
approved the December agreement. This resolution provided that
upon consummation of the agreement, "the Mayor of the City of
Engl e\vood be and he hereby is empowered to execute on behalf
of said City a contract with Alfred P. Atchison and Ida Mae
Atchison in conformity with the provisions of paragraph 11 of
the agr e em ent hereinbefore set forth " The January
agreeme nt was executed and delivered under the authority of
this r e solution. The plaintiffs submit that anything in the
J a nua ry a g r eement beyond the provisions of paragraph 11 of
the De c em be r agr e eme nt wa s ultra vires and inoperative and,
particula rly, tha t the provisions of paragraph 13 or anything
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resembling them could not be m~de ~ part of the pre -emp tive
right . Therefore, they s a y, p~r~gr~p h 3 o f the January
agreement must be disregarded and the pre -emptive right re-
gard eu as a personal one . Under the i nitial viC'w that we
expressed in this o pinion , paragraph 13 is inseparably con-
\ n ected with paragraph ll , and vice~· To be i~ strict
I
compli ance with the res olution , the January agreement should
hav e containe d the provisions of paragraph ll instead of
tho se used in paragraph 3 ; but, in any event, an inheritable
pre-empt ive right is involved. Furthermore, plaintiffs'
attorney approved the January agreement and plaintiffs executed
it and placed it of record. They are in no position now to
complain of its provisions.
v
Plaintiffs' reply brief s were f iled here on Septem-
ber 16 , 1968. In August 1969, over objection o f the defendants,
we granted a motion of plaintiffs to file a supp lement al
pleading, with leave grante'd to the defendants to re-present
their object i ons at t he time of oral argument. The supplemental
brief subsequently filed by the plaintiffs was built around
section 394f in the 1948 suppl ement to the Restatement of the
Law o f Real Property which reads as follows:
"'Effec t of invalidit y of option to repurchase .
An option to purchase the whole or any part
of th e interest conveyed is necess~rily only
one ingred ient in the entire trans~ction be -
tween the parties . If this ingred 'ent is so
essential a part of the entire agr emcnt that
the parties ~vould not hav e made the .:~greement
if they had kno\vn of the optiorfs inv~lidity,
then the failure o f the option is a sufficient
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basis for appro print e proceed in g s to
the entire transaction nnd to restore each
o f t he pnrtics to the situation in which he
was before t he transaction was made . Th e
ru le stated in t hi s co mme nt is a specific
a pplicat ion of th e r u le stnted in Se ction 402
concerning the effc>ct of p.1r tial inval id ity
upon the ba lance o f the At cmpted ]imitation.'"
Plaintiffs argue t hat , e v en if t he p re-emp t i v e right is
violative of the rule a ga inst perpetuities, they are entitled
to relief in the form of rescission. This entirely new theory
and form of relief was presented nearly a year after the case
was at issue here. Until then the plaintiffs sought solely to
have a d etermination that their pre-emptive right was enforceable.
Considering all the circumstance s, we think the presentation
of this request for rescission came too late, and we now sustain
the defendants' objection to that effect.
Judgment affirmed.
MR . JUSTICE KELLEY dissenting and MR. JUSTICE LEE not
participating .
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NO. 23352 --ATCIIISON v . ENGLEWOOD
MR . JUSTICE KELLEY dissenting:
I diss ent. The majority fai l to persuade
me .
I t is acknowlcdg d that this is a case of
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first impr ession in this jurisdiction. The City and
the At ch isons entered into a contract, the t erms of
which b oth parties i n g ood faith b e li e ved to be bind-·
ing upon them. The City now seeks to justify its hav-
ing reneged on its agreeme nt giv in g the Atchisons a
pre-emptive right to leas e or purchase at a third
party offeror's price aft e r notice and within a limi-
ted period. The City bottoms its "right" to void the
specific terms o f its contractual obligation upon an
ancient rule of property known as the Rule Against
Perpe tuities .
The Rule Against Perpetuities is an arbi-
trary judge made doctri ne which was invoked for the
purpose of k ee pin g prOpe rty alienable. To justify its
application its reasonin g must be valid as it pertains
to the fact s here .
Au t orities cited in the majority opinion
suggest that there is not complete u n animity when it
comes to the application of the doctrine to all situ-
ations. Also, the comment of Messrs . Leach and Tudor
concerning The Re statement of Property appeals to me,
whcr0in th y say:
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"* * "' T h"l'<' :lrf' m:1ny prohl rms nf
p r-1 ·p ,·iui I ir·:~ 111 w hil'h tile· :JuliiO l'it ir·:-;
:l '('SO l h jn lh:Jt :1 C'Olll 'l f:Jc 'lll ~ OllP of
t IH·se pro !> I rms d<' novo should J C<' J 1l'{'f'
lo r e -cxamj n c <·~i-s l.1.11~ d .,. is ions ; * * *."
Under th,.. f :1c-1 s o f thi s r:ls f' thf' <'quj ti c s favor
the Atchisons a nd tho djrr conS<''J\lenccs whj h t he doc-
trine was designed to avoid are not prese n t here. \
I would, th e r efor e , fa vor following the reason-
in g and th e rule of Web er v . T exas Co. , 83 F. 2d 807, .
c e rt . d e ni ed 229 u.s. 561, 57 s.ct . 23, 81 L.Ed. 413 .
•
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ALFRED P. ATCHISON and
IDA MAE ATCHISON,
NO. 23352
•
Plaintiffs in Error
v.
THE CITY OF ENGLEWOOD, a
municipal corporation;
and MARTIN-MARIETTA COR-
PORATION, a Maryland cor-
poration,
Defendants in Error
)
)
)
)
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)
)
)
)
)
)
)
NO'I 1 o 1969
Error to the District Court of Jefferson County
Hon. George G. Priest, Judge
EN BANC
Ralph A. Cole,
William 0. Perry,
JUDGMENT AFFIRMED
Attorneys for Plaintiffs in Error
Myrick, Criswell and Branney,
John A. Criswell,
Shivers and Banta,
Attorneys for Defendant in Error,
The City of Englewood
Dawson, Nagel, Sherman & Howard,
Michael Reidy,
Raymond J. Turner,
Charles R. Frederickson,
Attorneys for Defendant in Error ,
Martin-Marietta Corporation
MR. JUSTICE GROVES delivered the opinion of the Court.
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The plaintiffs in error, refe rred to as plaintiffs
or by name, brought an action again st the City of Englewood
and Martin-Marietta Corporation as defendants for a deter-
mination with r espect to plaintiffs ' pre-emptive right to
repurchas e certain lands. The district court granted de-
fendants' motions for summary judgment on the ground that
the documentary provisions granting the rights to the plain-
tiffs were void as violative of the rule against perpetuities.
We affirm.
In 1948 Mr. and Mrs. Atchison were, and for a
number of years had been, the owners of approximately 2500
acres of land in Jefferson County, together with water rights
belonging thereto. Englewood desired to acquire the water
rights, but had no use for the land. However, the City con-
eluded that it should purchase the land with the water in
order to be in a possibly more favorable position when it
• prosecuted proceedings to change the points of diversion of
the water and to change its use from irrigation to municipal
purposes. A sale and purchase of the land and water from
the plaintiffs to Englewood was arranged. The written
documents involved gave the right to Mr. and Mrs. Atchison
to repurchase the land (but without any water transferred
therefrom in the meantime) upon the same terms and condi-
tions as Englewood might be willing to sell it to a third
person. Later Englewood entered into a lease of most of
the land (presumably with few or no water rights) and as a
part of the lease granted to Martin-Marietta an option to
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purchase the demised property. Still later Martin l ~arietta
I exercised the option and purchased the land. Under the
f . d I record existing as a basis or the summary JU gmen ,t we
I treat Mr. and Mrs. Atchison as having no knowledge and
not being charged with notice of the option granted
to Martin-Marietta; and that upon obtaining ge or
I
being charged with notice they made timely filing of this
action. They evinced a desire to purchase the land upon
the same terms as the corporation had purchased it.
While there are some other problems involved of
which we will make disposition, under our view the two
principal questions presented are: (1) was the pre-emptive
right granted Mr. and Mrs. Atchison personal,!·~·· would
it die with them and therefore not be violative of the
rule against perpetuities; and (2), even if the pre-emptive
right was not personal and would extend ~re than 21 years
beyond the life of a person in being, should it be pros-
cribed by the rule against perpetuities? We have not ex-
perienced too much difficulty in concluding that the right
was not personal; but, as to the second guestion, the scales
of decision are so evenly balanced that a little weight on
either side would weigh it down.
As a preface to quoting the documentary provisions
involved, we state the rule against perpetuities, which had
its inception with the Duke of Norfolk's Case in 1682 (3 Ch •
Cas. 1, 26). It is a part of the common law which was
adopted in this state and has been applied in Colorado to
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\ certain contingent remainder interests. See Rocky Mountain
Fuel Co. v. Heflin, 148 Colo. 415, 366 P.2d 577; kerry v.
l
Newton, 130 Colo. 106, 273 P.2d 735. See also 2 E. King,
I
Colorado Practice Methods §2498. The rule is defined as
follows: No interest is good unless it must vest, if at
all, not later than twenty-one years after some life in
being at the creation of the interest. Parenthetically,
attention is directed to our inclusion of the term "if at
all" in the definition. For the absence of this phrase in
the two Colorado cases just cited Professor Thompson G. Marsh
has admonished this court. 32 Dicta 7 and 39 Dicta 123. We
also note the suggestion of Messrs. W. Barton Leach and Owen
Tudor that the definition might commence with the words
"Generally speaking." 6 American Law of Property §24.1, p. 4.
Under date of December 15, 1948 the plaintiffs
and Englewood entered into an agreement of sale and purchase,
referred to herein as the December agreement. By the terms
of this contract the plaintiffs agreed to sell and Englewood
agreed to buy the land and water rights (except one-half the
mineral rights to be reserved by the plaintiffs) for a sales
and purchase price of $350,000 to be paid by January 3, 1949.
Paragraphs 11 and 13 of this agreement provided:
"11. Concurrently with the delivery
of the deed to said property and certificate
for forty-five shares of stock of the Nevada
Ditch Holding Company by the Atchisons to
the City as in this contract provided, the
parties hereto shall enter into a further
contract under which the City shall give to
the Atchisons the exclusive and prior right
at the option of the Atchison& to repurchase
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or to lease said real estate, together with
any water rights appurtenant to said lands
at the time of such sale or leasing at ,the
same price and upon the same terms and con-
ditions upon which the City is willing to
sell or lease said real estate and any
water right then appurtenant thereto to any
third person; and the City shall not sell
or convey or contract to sell or convey or
lease said lands or the water rights that
may then be appurtenant thereto to any third
person unless and until the City, for a
period of 60 days, shall first offer in
writing to sell or lease such lands with
the then appurtenant water rights, if any,
to the Atchisons at the same price and upon
the same terms and conditions as in the
case of such other sale or contract of sale
or lease of such property to any third
person •.•• "
* * *
11 13. The terms and prov1.s1.ons hereof
shall inure to the benefit of the heirs,
legal representatives and assigns of the
Atchisons."
On or about January 3, 1949 the consideration was
paid to the plaintiffs, the property was conveyed by them to
Englewood, and Englewood and the plaintiffs entered into
"a further contract" (referred to as the January agreement)
which provided as follows:
1 ~HEREAS in connection with the purchase
of said land and water rights by the City and
as part of the consideration of the sale there-
of by the Atchisons, the Mayor of the City by
Resolution of its City Council duly adopted on
the 14th day of December 1948, was duly authorized
and empowered to execute this agreement on behalf
of the City and the Clerk of the City was author-
ized and empowered to attest the same.
"NOW, THEREFORE, IN CONSIDERATION of the
premises the City does hereby covenant and agree
to and with the Atchisons as follows, to-wit:
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"l. The City hereby gives and grants
unto the Atchisons the exclusive and prior
right at the option of the Atchisons to
repurchase or to lease the lands described
in said Warranty Deed of even date herewith
to which reference is hereby made for ·
description of said lands; together with
any water rights appurtenant to said lands
at the time of suc h sale or leasing at the
same price and upon the same terms and con-
ditions upon which the City is willing t~
sell or lease said real estate and any water
rights then appurtenant thereto to any third
person; and the City shall not sell or convey
or contract to sell or convey or lease said
lands or the water rights that may then be .
appurtenant thereto to any third person un-
less and until the City, for a period of
sixty days, shall first offer in writing to
sell or lease such lands with the then
appurtenant water rights, if any, to the
Atchisons at the same price and upon the same
terms and conditions as in the case of such
other sale or contract of sale or lease of
such property to any third person •.•• "
* * *
"3. The rights of the Atchisons under
this agreement shall be deemed not in tenancy
in common but in joint tenancy in them and in
the survivor of them, their assigns and the
heirs and assigns of such survivor."
I
Counsel for plaintiffs argue strenuously that the
pre-emption granted to the "Atchisons" in paragraph 11 of the
December agreement and in paragraph l of the January agree-
ment was a right which was granted to them personally and
would die with them. They also contend that paragraph 13 of
the December agreement and paragraph 3 of the January agree-
ment relate to other portions of the agreements, but not to
paragraphs 11 and 1, respectively. In other words, they sub-
mit, paragraphs 11 and 1 are severable and are things apart.
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Coun sel f urther urge that stock phrases such as "heirs
and assigns" should not be applied to a particula ~ pro-
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vision of a contract except upo n examination of the con-
text and surrounding facts ; that these words and those
similar thereto should not be applied to the provisions
relating to the pre-emptive right as it is apparent that
the parties intended that right to be personal; and that
the plaintiffs are entitled to a presumption that the par-
ties intended to have a legal and enforceable pre-emptive
right. See Restatement of Contrac ts §236.
At this juncture we wish to mention the signifi-
cant fact that, as conceded by one of plaintiffs' attorneys
during oral argument, Mr. and Mrs. Atchison had counsel in
connection with this transaction in December 1948 and Jan-
uary 1949. The deposition of Mr. Atchison was taken. The
district court in its order granting the motions for summary
judgment did not refer to this deposition, and we consider
it only in the following particular. Mr. Atchison stated in
effect that all of the documents involved were submitted to
and approved by the attorney engaged by him and his wife and
that they would not have signed any of them except upon such
approval.
In the December agreement the provision '~he terms
and provisions hereof shall inure to the benefit of the heirs,
legal representatives and assigns of the Atchisons" is definite
and unambiguous. This being the case this is not a matter
for ut ilization of the rules sought by counsel.
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Couns el h~ called attention to the fact tha t the
Dec emlw r a ~r c>e m C'nt r C'SC'J'V<'d on<'-h.11 f o f th <' min r r a l ri g hts
to "th e At c hi so ns, t hr ir hC'i r s , and assi g ns," and that the
phras e "their h e irs and a s sign s " is not used i n para graph 11.
Nev e rth eless, the December agr e eme nt ends with the explici t
stat em ent that its terms an d p rovisio n s inur e to the benefit
of he irs and assigns, and the wording of para graph 11 is a
part of those "terms and conditions." It is inconceivable
to us that th e attorney engaged by the Atch ison s to review
this docum e nt could have come to any other conclusion; and
furthermore, even if the provisions of paragraph 11 were
intended to be severable and purely personal, we believe that
an appropriate modification would have been made in para-
graph 13.
Plaintiffs have urged upon us as authority for
holding the pre-emptive right to be personal Maynard v.
Polh emus, 74 Cal. 141, 15 P. 451; Dodd v. Rotterman, 330
Ill. 362, 161 N.E. 756; Old Mission Peninsula School District v.
French, 362 Mich. 546, 107 N.W.2d 758; and Newton v. Newton, •
11 R.I. 390. Since the wording of the document in each of
these cases is sufficiently different from the provisions
of the instruments herein involved, we do not regard these
cases as applicable.
The governing document appears to be the January
agreement . It is to be observed that in it paragraph 3
placed the rights in joint tenancy, in contrast to the "heirs,
legal representatives and assigns" of paragraph 13 of the
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Decemb e r agreement . We repeat paragraph 3 of the January
agreeme nt:
"3. The rig hts of the Atchison s \ID der
t h i s agr eeme n t sha ll be de e me d not in t e nanc y
in commo n but in jo i nt t enancy in them an d in
the s ur vivo r o f them, their a s s ign s and t he
heirs and assigns of such survivor."
Co\IDsel for plainti f fs ha\e asked that this be inte r pr e t e d as
meaning only that, when the pre-emptive right is exe rc ised,
it will be held in joint tenancy by the Atchisons and that
the executory pre-emptive right itself was not in joint
tenancy. We view the relationship of paragraph 3 to para-
graph 1 of the January agreeme nt in the same light as that of
paragraph 13 to paragraph 11 of the December agreement. In
the January agreement the rights \IDder it were to be held
in joint tenancy and the pre-emptive privilege was one of
those rights. It is of some significance that the word
"righ t" is used in paragraph 1.
In paragraphs 11 and 1 of the two agreements it
is provided that the Atchisons' pre-emptive right is
"exclusive." We are urged to interpret this as meaning that
the right is personal and does not surviye them. However, our
interpretation of the term "exclusive" used in each agreement
means that this pre-emptive right cannot be granted by
Englewood to anyone else.
Accordingly, we hold that the pre-emptive right was
not p ersonal .
II
We now approach the qu e st i on of whethe r the rule
a gain s t p e rp e t ui ties shn1 1ld be a pp li l"d to pr e -cmp i v e r i r,ht s.
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At th e out set the di[[c r cncr hcrwcen a n ord ina ry option and
! a pr C'-emp t·j,,c 1·i gh t shot tld bC' n o te d . In a t ·p icnl optinn
the opU01wc has the ahsol u t 1·ight to pur c hase som ething
for a def in ite con siderRtion. A pr e -emptiv~ right involve s
the creation o f the privi lege t o purchase only on the for-
mulation of a d e sire on th e part of the own e r to sell; and,
in the case h ere , th e hol der of the rj ght must purchase fo r
th e price at whi h th e o \vncr j s w illjn~ to s e ll to a third
person.
It will be recalled t h a t ther e is a difference
between the rule against perpetuities and the rule against
restraints upon alienation. Both rules have the same funda-
mental purpose, namely, to keep property freely alienable;
or, stated differently, each stems from a general policy
which frowns upon the withdrawal of property from commerce.
The rule against perpetuities invalidates interests which
~too remotely. The rul e against alienation relates to
other unreasonable restraints. For example, ~conveys land
to ] in fee simple with the provision tjat if ] during his
lifetime shall convey or attempt to convey it the land shall
become the property off in fee simple. This does not violate
the rule against perpetuities but is violative of the rule
against restraints with the result that B obtains a f~ simple
absolute. An option given to a person, his heirs and assigns,
to purchase land for $5,000 with no limiting term is void
under the rul e against perpetuities. The reason is that,
?ith such an option outstanding the owner dare not place
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substantial improvemen ts on the l and , and the like lihood of
The reason for a ~plication anyone purchasing it is remo te.
of the rule against perpetuities \ to a pre-emptive right to
purchas e at an offeror's price acceptable to the owner is not
support ed by the same reasoning as found in the option example,
thus making the case for non -application much more arguable.
See discussions in 6 American Law of Property commencing on
the following pages : 13, 22, 141, 411 and 508.
The application of the rule to ordinary options
is firmly established. However, so far as we are advised
this is the first time that there has been before this court
the question of application of the rule against perpetuities
to a pre-emptive right to purchase at an offeror's acceptable
price. The Restatement of the Law of Property makes no
exception of pre-emptive right under the rule against per-
petuities and in the comment following §413 it states,
"Preempt ive provisions, being analogous to options upon a
condition precedent, must comply with the rule against per-
petuities in so far as their maximum duration is concerned."
IV Restatem ent of the Law of Property, p. 2444. In 6 American
Law of Pro perty §24.1, pages 7 and 8 Messrs. Leach and Tudor
criticize the Re statement position and deplore what they
state is the rule of the American Law Institute that it follows
existing law and not what the law should be.
Other authorities supporting, or tending to support,
the view that a pre -emptive right such a s involved here is
void under the rule against perpetuities are: Neustadt v.
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Pearce, 145 Conn. 403, 143 A.2d 437; l!. J. Lewis Oyster Co.
v. West, 93 Conn. 518 , 107 A. 138; Sa uls berry v. Saulsberry,
290 Ky . 132, 160 S.W.2d 654; Rob er ts v. Jone s, 307 Mass. 504,
30 N.E .2d 392, 132 A.L.R. 663; 162 A.L .R. 604; and 41 Am. Jur.
Pe rpetuities and Re straints on Al i ena tion §41 (Supp. 1969).
While statements o f the American Law of Property, in citations
already given, indicat e that the law ought to be that the rule
should not apply and that non-application is the modern trend,
it nevertheless states, "If the pre-emptive provision is in
the contract form only, the equitable future interest created
can be held within the rule on the authority of the option
cases." 6 American Law of Property §26.66, p. 510.
The plainti ffs rely upon Weber v. Texas Co., 83
F.2d 807, cert. d enied, 299 u.s. 561, 57 S. Ct. 23, 81 L . Ed.
413, and except as later men tioned it supports their position.
There the owners of land leased it to Texas Company's assignor
for prospecting and drilling for oil and gas. The lease was
for a primary term of five years and as long the reafter as
either oil or gas is or could be produced from any well on the
land. The owners reserved a one-eighth royalty. The lease
provided:
'7he less ee is hereby given the option of
purchasing all or any part of said royalty
righ ts from the lessor at the best bona fide
price offered by responsible third parties
'-1hen and if o ffered for sale or transfer by
lessor."
Texas Company acquired the lessee's interest and brought in a
producing well. Prior to co mpletion of the drilling the own ers
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sol d a o n c -!"mn·t h in t c r cs or thcil· r oy:1l rv t·o l·kh0r f o r
$7,000 . /Is soon 0s Texas Comrnny f'an1C'd of l" lis thr·y t 0n -
d e r e d $7,00 0 f or th e inter est sold . The tr nd~r was refuse d .
Te xas Company the n sue d f or s pecific p e rforma nc e . It was
held t ha t the p re -emptiv e right was v alid and enforceable .
The court concluded that when an option simply gives an oil
and gas lessee the prior right to take the lessor's royalty
interest at the same price t he lessor could and wou ld s ecure
from another purchaser, the re is no restraint of free alien-
ation by the lessor . The option, therefore, according to
the court, should not be objectionable as a perpetuity. In
Beets v. Tyler, 365 Mo . 895, 290 S,W,2d 76 the court indicates
approval of the ruling in ~· However, this is a dictum
as the pre-emptive right be f ore the court was for a term of
only 20 years (excep t if all parties in interest should extend
it for a further 20-year term by executing a new written instru-
ment ). For an interesting discussion of~ and other
authorities see Reasoner, Pre f er entia l Purchase Rights in Oil
and Gas Instruments , 46 Texas Law Review 57, reprinted in 5
Rocky Mountain Mineral Law Review No. 2, p. 163.
\ve have held that before us is an inheritable pre-
emptive right without limit as to time. It is in no manner
connecte d wit h any land owned by Mr. and Mrs. Atchison. While
they res e rved one-half of the mineral rights, this interest
can be sold at any time ; and f ollowing a sale there will be
no land title int e rest o f r e cord to give any clue as to the
identity of future succ e ssors in interest to the pre -emptive
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right . We feel that at som0 point in the infin ite time at
I wh ich F.n;:,1 C'h''''' i r,h t in t 1r furu r0 cnncl 11 dr to srll th e
land, :l SC r t .1inin, .1ncl loC'.1tin?, th e (l\vi1C'l"S of t ]1(• rrr -e mp tiv e
ri ght \VOt tl r1 b0 an unr0.1 s nn .1 ,, C' t.1sk . As a rcsul r , t he r C' would
b e a sufficiently unreasonable restraint upon th e transfer -
:1~ ::ity of th e p ro pcny .:1s t n j ust i fy i mp os i tion of th<' nil e
a~ainst perpetuities. It mRy be said th n t we are stating a
rul e against alienation :tnd gi vin g it a label o f t he rul e
against perpetuities . Be that as it may, the r es ult is the same.
It is to be noted th a t in Web e r v. Texas Com pany,
supra the identity of the own er s of interests involved
could be ascertained --or at least with some reasonable
investigation discovered --from the record title to the
mineral rights and royalties . Our conclusion might be dif-
fer e nt here if the own e rship of the pre-emptive right
follm-1ed the title to designated r ea l property; or, if it •
were restricted to a limited term found to be reasonable,
albeit longer than a life in being plus 21 years. Be that
as it may , we r ule me rely that a contractual right, granted
to A and his heirs and assigns, unlimited as to time , to
purchase land upon t he same t erm s as the owner could and
would sell to a t hird person , is void.
III
\j
The plaintiffs submi t that this matter was not in
a posture susceptible of d e termination under a motion for
summary judgment, citing familiar authority as to the cautions
which shou ld be exercised by a court in connection with a
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motion f or s umma ry judgment. Th e ma in thrust of the argument
on this po int is lh .1 t thorc HC'r<' f.1c t tt :tl j SS tl C'S t·o he r e -
solve d n "nt crpr t i ng th ronrrnrt· .1nrl ,;,.,.<'rmining lhc
in tent of the p.1r tj c s . We .1re not so p0rsu.1 dc I . To us there
a r e no i s sues o f material fa c t exi s tin g her e . The doc um ents
are not ambiguous ond the clis rri c t co tn·t p ro prr 1 y mnde a
determin at ion '"ith i n th e "fo u r corn r s " of the documents.
IV
The pl a~; t iffs cont end tha t t h e inclus i on of
paragraph 3 in the January a gr eement wa s ul tra vires. To
review, paragr aph 11 o f the DPcemhe r agre eme nt provided that
the Atchisons should h a ve a pr e -e mp tive right to repurchase;
and paragraph 13 of that a g r eeme nt provided that the terms and
provisions thereof should inure to the benefit of the heirs,
legal representatives and assigns of the Atchisons. The City
Council of Englewood a dopted a resolution wh i ch authorized and
approved the December agreement. This resolution provided that
upon consummation of the agreement, "the Mayor of the City of
Englewood be and he hereby is empowered to execute on behalf
of said City a contract with Alfred P. Atchison and Ida Mae
Atchison i n conformity with the provisions of paragraph 11 of
the agreement hereinbefore set forth • " The January
agreement was executed and delivered under the authority of
this resolution . The plaintiffs submit that anything in the
January agreeme nt beyond the provisions of paragraph 11 of
the De c embe r agr e em ent was ultra vires and inop e rative and,
particularly, that the provisions of paragraph 13 or anything
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resembling them could not be made a part of the pre-emptive
right. Therefore, they say, pnragraph 3 of the January
I
agreement must be disr0gard c d and th e pre -emptive right re-
gard ed n s a personal on e . Under th e in itial vi<?\17 that we
I express ed in this opinion, paragraph 13 is inseparably con -
I
nect ed with paragraph 11, and vic e ~· To be i~ strict
co mpliance with the resolution, the January agreement should
have contained the provisions of paragraph 11 instead of
those used in paragraph 3; but , in any event, an inheritable
pre-emptive right is involved. Furthermore, plaintiffs'
attorney approved the January agreement and plaintiffs executed
it and placed it of r ecord . Th ey are in no position now to
comp lain of its provisions.
v
Plaintiffs' reply briefs were filed here on Septem-
ber 16, 1968. In August 1969, over objection of the defendant s,
we granted a motion of plaintiffs to file a suppleme ntal
pleading, with leave grante·d to the defendants to re-present
their objections at the time of oral argument . The supplemental
brief subsequently filed by the plaintif~s was built around
section 394f in the 1 9 s upp l em ent to the Restatement of the
Law of Real Property which reads as follows :
"'Effect o f invalidity of option to repurchase.
An option to purchase th e \vho le or any part
o f the interest conv~y e is n ece ssnrily only
one ingredient in the entire transnction be-
tween the par ties. If this ingred 'ent is so
essential a part of the entire agreement that
the parties woul d not hav e m3de the ngreement
if th e y had known of the optiorls invnlid ity,
then the failure of the option is a sufficient
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the entire transaction and to r estore eac h
o f the parties to the situation in which h e
was before the trans 3 ction was made . The
r ule st ated in this comme nt is a specj(ic
application of the rul e st ate d in S e ction 402
C.•l cern ing the ef f C>ct of partial jnvalitlity
u pon the baJ:mce o( t ! ,., attempted limitation. 111
P laintiffs argue that , e v e n if :-h e p re -em ptive rj gh t i s
vio lativ e o f the r ule a g a inst perpe tui t ie s, they are en ti tled
t o relief in the for m of resciss io n . Thi s'entj rel y n ew the ory
a nd form of r elief Has prE's cnt d n<?arJyta y ea r aft<?r the c a se
was at j ssue . e re . Unt il th C'n t he pl<Jintiffs sought so l e l y to
have a d e t ermination that their p r e -emptiv e r igh t was enforceable.
Con si der i n g al l the e ire ~s tances, we t hink the pre s e nt a tion
of t is req u e st for re sc ission c am e too late , and we now sustain
the defen dants 1 o bj ection t o t h :1t C>ffec t.
Judgme n t affirmed .
MR . J USTICE KELL:Y di ssenting a n d MR . JUSTICE LEE not
participating.
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NO. 23352
ALFRED P. ATCHISON and )
IDA MAE ATCHISON, )
)
Plaintiffs in Error )
)
v. )
)
THE CITY OF ENGLEWOOD, a )
municipal corporation; )
and MARTIN-MARIETTA COR-)
PORATION, a Maryland cor-)
poration, ) )
NO'I 1 0 '\969
Defendants in Error )
Error to the District Court of Jefferson County
Hon. George G. Priest, Judge
EN BANC
Ralph A. Cole,
William 0. Perry,
JUDGMENT AFFIRMED
Attorneys for Plaintiffs in Error
Myrick, Criswell and Branney,
John A. Criswell,
/} Shivers and Banta,
Attorneys for Defendant in Error,
The City of Englewood
Dawson, Nagel, Sherman & Howard,
Michael Reidy,
Raymond J. Turner,
Charles R. Frederickson,
Attorneys for' Defendant in Error,
Martin-Marietta Corporation
MR. JUSTICE GROVES delivered the opinion of the Court.
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The plaintiffs in error, referred to as plaintiffs
or by name, brought an action against the City of Engl~ od
and Martin-Marietta Corporation as defendants for a de r-
mination with respect to plaintiffs' pre-emptive righ to
repurchase certain lands. The d i strict court gran ~d d -
fendants' motions for summary judgment on the ground tha
the documentary provisions granting the rights to the plain-
tiffs were void as violative of the rule against perpetuitiel . •
We affinn.
In 1948 Mr. and Mrs. Atchison were, and for a
number of years had been, the owners of approximately 2500
acres of land in Jefferson County, together with water rights
belonging thereto. Englewood desired to acquire the water
rights, but had no use for the land. However, the City con-
eluded that it should purchase the land with the water in
order to be in a possibly more favorable position when it
prosecuted proceedings to change the points of diversion of
the water and to change its use from irrigation to municipal • purposes. A sale and purchase of the land and water from
the plaintiffs to Englewood was arranged. The written
documents involved gave the right to Mr. and Mrs. Atchison
to repurchase the land (but without any water transferred
therefrom in the meantime) upon the same terms and condi-
tions as Englewood might be willing to sell it to a third
person. Later Englewood entered into a lease of most of
the land (presumably with few or no water rights) and as a
part of the lease granted to Martin-Marietta an option to
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purchas e the demised proper ty. Still later Martin ~Marietta
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x rcis d the op tion and purchased the land. Under the
r cord I xisting as a basis fo r the summary judgment we
r . I Mr . and Mrs. At c hison as havLng no knowledge and
n char ed with notice o f the option rights l granted no
o a r i n-Mari tta ; and that upon obtaining knowle ge or
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be n charged with notice they made timely filing of this
act ion. They evinced a desi r e to purchase the land upon
the same terms a s the corporation had purchased it.
While there are some other problems involved of
which we will make disposition, under our view the two
principal questions presented are: (1) was the pre-emptive
right granted Mr. and Mrs. Atchison personal,!·~·· would
it die with them and therefore not be violative of the
rule against perpetuities; and (2), even if the pre-emptive
right was not personal and would extend ~re than 21 years
beyond the life of a person in being, should it be pros-
cribed by the rule against perpetuities? We have not ex-
perienced too much difficulty in concluding tha~ the right
was not personal; but, as to the second guestion, the scales
of decision are so evenly balanced that a little weight on
either side would weigh it down.
As a preface to quoting the doc~entary provisions
involved, we state the rule against perpetuities, which had
• its inception with the Duke of Norfolk's Case in 1682 (3 Ch.
Cas. 1, 26). It is a part of the common law which was
adopted in this state and has been applied in Colorado to
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\ certain contingent remainder interests. See Rocky Mountain
Fuel Co. v. Heflin, 148 Colo. 415, 366 P.2d 577; kerry v.
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Newton, 130 Colo. 106, 273 P.2d 735. See also 2 E. King,
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Colorado Practice Methods §2498. The rule is defined as
follows: No interest is good unless it must vest, if at
all, not later than twenty-one years after some life in
being at the creation of the interest. Parenthetically,
attention is directed to our inclusion of the term "if at
all" in the definition. For the absence of this phrase in
the two Colorado cases just cited Professor Thompson G. Marsh
has admonished this court. 32 ~ 7 and 39 Dicta 123. We
also note the suggestion of Messrs. W. Barton Leach and Owen
Tudor that the definition might commence with the words
"Generally speaking." 6 American Law of Property §24.1, p . 4.
Under date of December 15, 1948 the plaintiffs
and Englewood entered into an agreement of sale and purchase,
referred' to herein as the December agreement. By the terms
-of this contract the plaintiffs agreed to sell and Englewood
agreed to buy the land and water rights (except one-half the
mineral rights to be reserved by the plaintiffs) for a sales
and purchase price of $350,000 to be paid by January 3, 1949.
Paragraphs 11 and 13 of this agreement provided:
11 11. Concurrently with the delivery
of the deed to said property and certificate
for forty-five shares of stock of the Nevada
Ditch Holding Company by the Atchisons to
the City as in this contract provided, the
parties hereto shall enter into a further
contract under which the City s~all give to
the Atchisons the exclusive and prior right
at the option of the Atchiso~ to repurchase
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or to lease said real es tate, toge ther with
any water rig hts appurtenant to said lands
at the time of such sale or leasing at the
same price and up on the same terms and con-
ditions upon which the City is wi lling to
sell or lease said real estate and any
water rig ht then appurtena nt thereto to any
third person; and the City shall not sell
or convey or contract to s ell or convey or
lease said lands or the water rights that
may then be appurtenant thereto to any third
person unless and unt il the City, for a
period of 60 days, shall f irst o ffer in
writing to sell or lease such lands with
the then appurtenant water rights, if any,
to the Atchisons at the same price and upon .
the same terms and conditions as in the
case of such other sale or contract of sale
or lease of such property to any third
person • • • • "
* * *
1113. The terms and provisions hereof
shall inure to the benefit of the heirs,
legal representatives and assigns of the
Atchisons."
On or about January 3, 1949 the consideration was
paid to the plaintiffs, the property was conveyed by them to
Englewood, and Englewood and the plaintiffs entered into
"a further contract" (referred to as the January agreement)
which provided as follows:
'~HEREAS in connection with the purchase
of said land and water rights by the City and
as part of the consideration of the sale there-
of by the Atchisons, the Mayor of the City by
Resolution of its City Council duly adopted on
the 14th day of December 1948, was duly authorized
and empowered to execute this agreement on behalf
of the City and the Clerk of the City was author-
ized and empowered to attest the same.
"NOO, THEREFORE, IN CONSIDERATION of the
premises the City does hereby covenant and agree
to and with the Atchisons as follows, to-wit:
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"1. The City hereby give s and gr ants
unto the Atchisons the exc lusive and prior
right at th e o ption of the At c hisons to
r epurchase or to lease the l a.nd s d escribed
in said Warranty Deed of e v en date herewith
to whi c h r fcrcn e is hereby mad e for
description of said lands; to get h er with
any water rights appu rtena nt to said land s
at the time of such sa le or leasing at the
s ame price and upon the same terms and con -
d itions upon which the City is willing to
s ell or lease said r eal e state and any water
rights then appurtenant thereto to any third
person; and the City shall not sell or convey
or contract to sell or conve y or lease said
lands or the wat e r rights that may then be .
appurtenant th ereto to any third person un-
less and until the City, for a period of
sixty days, shall first offer in writing to
sell or lease such lands with the then
appurtenant water rights, if any, to the
Atchisons at the same price and upon the same
terms and conditions as in the case of such
other sale or contract of sale or lease of
such property to any third person • . . • "
* * *
"3. The rights of the Atchisons under
this agreement shall be deemed not in tenancy
in common but in joint tenancy in them and in
the survivor of them, their assigns and the
heirs and assigns of such survivor."
I
Counsel for plaintiffs argue strenuously that the
pre-emption granted to the "Atchisons" in paragraph 11 of the
December agreement and in paragraph 1 of the January agree-
ment was a right which was granted to ~em personally and
would die with them. They also contend that paragraph 13 of
the December agreement and paragraph 3 of the January agree-
ment relate to other portions of the agreements, but not to
paragraphs 11 and 1, respectively. In other words, they sub-
mit, paragraphs 11 and 1 are severable and are things apart.
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Couns e l further urge that s tock phrases such as "heirs
. I and a ssi r;ns " f'hou l d not h<' app l i Pel to a part1.cul -1r pro-
vis ion of a con tr:~c t excC'pt \lpon cx a mi n <~t ion of th e con-
t ext a nd surrO\m cling facts; th::~t these words and thos e
similar th e r eto sh ould not be applied to the provisions
r el at ing to the pre -empt i v e ri ght as it is apparen t that
the parties intend e d that right to be personal; and that
the plaintiffs are entitled to a presumption that the par-
ties intended to have a legal and enforceable pre-emptive
right. See Restatement of Contracts §236.
At this juncture we wish to mention the signifi-
cant fact that, as conceded by one of plaintiffs' attorneys
during oral argument, Mr. and Mrs. Atchison had counsel in
connection with this transaction in December 1948 and Jan-
uary 1949. The deposition of Mr. Atchison was taken. The
district court in its order granting the motions for summary
judgment did not refer to this deposition, and we consider
it only in the following particular. Mr. Atchison stated in
effect that all of the documents involved were submitted to
and approved by the attorney engaged by him and his wife and
that they would not have signed any of them except upon such
approval.
In the December agreement the provision '~he terms
and provisions hereof shall inure to the benefit of the heirs,
legal representatives and assigns of the Atchisons" is definite
and unambiguous. This being the case this is not a matter
for utilization of the rul es sought by counsel.
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Coun sel have co ll e d ottrnti on to thr fact that the
D~ce mher n grrf'ment r es erv e d o n e-h n lf of the nli nc>r nl ri g hts
to "thc Atchi sons , their h r irs, a nd assi p.ns," and that the
phra se "their h eirs and assi gn s " i s n ot l iSNl jn para graph 11.
Nev ertheless, th e De c cmb'r agrccm<>nt e nds wi th the ex plici t
stat ement that its terms and provisions inure to the benefit
of heirs and assigns, and the wording of paragraph 11 is a
part of those "terms and conditions." It is inconceivable
to us that the attorney engaged by the Atchisons to review
this document could have come to any other .conclusion; and
furthermore, even if the provisions of ~aragraph 11 were
intended to be severable and purely personal, we believe that
an appropriate modification would have been made in para-
graph 13.
Plaintiffs have urged upon us as authority for
holding the pre-emptive right to be personal Maynard v.
Polhemus, 74 Cal. 141, 15 P. 451; Dodd v. Ratterman, 330
Ill. 362, 161 N.E. 756; Old Mission Peninsula School District v.
French,· 362 Mich. 546, 107 N.W.2d 758; and Newton v. Newton,
11 R.I. 390. Since the wording of the document in each of
these cases is sufficiently different from the provisions
of the instruments herein involved, we do not regard these
cases as applicable.
The governing document appears to be the January
agreement. It is to be observed that in it paragraph 3
placed the rights in joint tenancy, in contrast to the 11heirs,
legal repre sentatives and assigns" of paragraph 13 of the
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December agreement. We repeat paragraph 3 of the January
I agreement: I
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"3 . The-righ ts of th e At chiso ns und e r
this agreement sha ll be deemed not in tenancy
in c ommon but in joint tenancy in them and in
th e survivor of them, their assigns and t he
heirs and assigns of such survivor."
Counsel for plaintiffs ha~asked that this be inte ~p reted as
meaning only that, when the pre-emptive right is exercised,
it will be held in joint tenancy by the Atchisons and that
the executory pre-emptive right itself was not in joint
tenancy. We view the relation s h ip of paragraph 3 to para-
graph 1 of the January agreement in the same light as that of
paragraph 13 to paragraph 11 of the December agreement. In
the January agreement the rights under it were to be held
in joint tenancy and the pre-emptive privilege was one of
those rights. It is of some significance that the word
"right" is used in paragraph 1.
In paragraphs 11 and 1 of the two agreements it
is provided that the Atchisons' pre-emptive right is
"exclusive." We are urged to interpret this as meaning that
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the right is personal and does not surviye them. However, our
interpretation of the term "exclusive" used in each agreement
means that this pre-emptive right canno! be granted by
Englewood to anyone else.
Accordingly, we hold that the pre-emptive right was
not personal.
II
We now approach the question of whether the rule
against pcrp c tui tics should be> .1ppl i d to pre -mptive rights.
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At the out.et the difference between an ordinary L tion and
. I a pre-emptive right shoul d be noted. In a typ1.cal option
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the optionee has the absolute right to purchase somet hing
I for a definite consirleratjon . A pre-emptive right involves
the creation of the privilege to purchase only on the for-
mulat ion of a desire on the part of the' own e r t o sell; and,
in the c ase h e re, th e hol der of the right must purchase for
the price at which the owner is willing to sell to a third
person.
It will be recall e d that there is a difference
between the rule against perpetuities and th e rule against
restraints \lpon alie n ation. Both rules have the same funda-
ment al purpose, namely, to keep property freely alienable;
or, stated differently, each stems from a general policy
which frowns upon the withdrawal of property from commerce.
The rule against · .Perpetuities invalidates interests which
vest too remotely. The rule against alienation relates to
other unreasonable restraints. For example, ! conveys land
to ! in fee simple with the provision that if ! during his
lifetime shall convey or attempt to convey it the land shall
become the property off in fee simple. This does not violate
the rule against perpetuities but is violative of the rule
against restraints with the result that B obtains a f~ simple
absolute. An option given to a person, his beirs and assigns,
to purchase land for $5,000 with no limiting term is void
under the rule against perpetuities. The reason is that,
~ith such an option outstanding the owner dare not place
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substantial improvements on the land, and the likl lihood of
h . . . Th f I 1. . anyone pu r e a s~ng ~t ~s remote. e reason or app ~cat~on
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of the rul e a g a in s t p erp e tuities to a pre-emptive right to
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purcha s e at an offe ror's p r ice acc e pt ab l e to the owner is not
support e d by the same reasoning as found in the option example,
thus making the case for non-application much more arguable.
See discussions in 6 Am e rican La\v of Property corrunencing on
the following pages: 13, 22, 141, 411 and 508.
The application of the rule to ordinary options
is firmly established. However, so far as we are advised
this is the first time that there has been before this court
the question of application of the rule against perpetuities
to a pre-emptive right to purchase at an offeror's acceptable
price. The Restatement of the Law of Property makes no
exception of pre-emptive right under the rule against per-
petuities and in the comment following §413 it states,
"Preemptive provisions, being analogous to options upon a
condition precedent, must comply with the rule against per-
petuities in so far as their maximum duration is concerned."
IV Restatem ent of the Law of Property, p. 2444. In 6 American
Law of Property §24.1, pages 7 and 8 Messrs. Leach and Tudor
criticize the Restatement position and deplore what they
state is the rule of the American Law Institute that it follows
existing law and not what the law should be.
Other authorities supporting, or tending to support,
the view that a pre-emptive right such as involved here is
void und e r the rule against perpetuities are: Neustadt v.
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\ Pear ce , 145 Conn. 403, 143 A.2d 437; !!. J. Lewis Oyster Co.
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v. \"est , 9 3 Conn. 518 , 107 A. 1 38; S:1 11l!"lw rr v . S.1 11l sher ry, -----·-
290 Ky. 132, 160 S.W.2d 654; Rohcrts v . Jnnrs , 307 Mo ss. 504,
30 N.E.2d 392 , 132 A.L .R . 663; 162 A.L.R. 604; and 41 Am. Jur.
Perpetuities and Restraints nn Alienat ion §41 (Supp. 1969).
\olh ile st atement s of th e m ri <1n L<1w nf Prope,·ty , in cit:1tions
already given, in dicate that the l aw ought to be that the rule
should not apply and th a t non-ap plication is the modern trend,
it nevertheless states, "If the pre-emptive provision is in
the contract form only, the equitable future interest created
can be held within the rule on the authority of the option
cases." 6 American Law of Property §26.66, p. 510.
The plaintiffs r ely upon Weber v. Texas Co., 83
F.2d 807, cert. denied, 299 u.s. 561, 57 S. Ct. 23, 81 L. Ed.
413, and except as later mentioned it supports their position.
There the owners of land leased it to Texas Company's assignor
for prospecting and drilling for oil and gas. The lease was
for a primary term of five years and as long thereafter as
either oil or gas is or could be produced from any well on the
land. The owners reserved a one-eighth royalty. The lease
provided:
'The lessee is hereby given the option of
purchasing all or any part of said royalty
rights from the lessor at the be~t bona fide
price offered by responsible third parties
when and if offered for sale or transfer by
lessor. 11
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Texas Company acquired the lessee's interest and brought in a
producing well. Prior to completion of the drilling the owners
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so l d .::1 on 0 -fourth int crc•st: o· th ei r ro y.1lt y tn l ~rhr·t · for
$7,0 0 0. Af'. soon :1s Tc";~s (\>.:':my lc.1nw<l of tid:-; 1 hey tC'n-
d cred $7 ,000 (or the intC'l"C'sl . 0. c • The r cnciC'r w<J s r 0fused .
Texas Com pnny then su cci for sp ecific p e rformanc e . Tt was
held that the pre -emptive righ t was valid and enforceable.
The court concludC'd h nr whC'n an o p t ion simp y g ives a n oil
and gas lessee the prior right to t ake th e l essor 's r oyalty
in ter est at the same pr ice the lessor could and would secure
from another purchaser, there is no restraint o f free alien-
ation by the lessor. The o ption , therefore, according to
the court, should not be objectionable as a perpetuity. In
Beets v. Tylor, 365 Mo. 895, 290 S.W.2d 76 the court indicates
approval of the ruling in Weber. However, this is a dictum
as the pre -emptive right before the court was for a term of
only 20 years (except if all p a rties in interest should extend
it for a further 20-year term .Jy executing a new written instru-
ment). For an inte resting discussion of Weber and other
authorities see Reasoner, Preferential Purchase Rights in Oil
and Gas Instruments , 46 Texas Law Review 57, reprinted in 5
Rocky Mountain Mineral Law Review No. 2, p. 163.
We have held that before us is an inheritable pre-
emptive right without limit as to time. It is in no manner
connect ed with any land owned by Mr. and Mrs. Atchison. While
they ·eserved one -half of the mineral rights, this inte r est
can be sold at any time; and following a sale there will be
no land title interest of record to giv e any clue as to the
identity of future successors in interest to the pre-emptive
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right. f.T f 1 I . . I . f .. \ . we ee t1at at some po1nt 1n t1e 1n ·1n1te t1me at
t-1hich Enel etoJood mi ght in tl <' f u rurc ce>nc ] u clc• ~···11 the
l:md , asccrtnining and locn t in c t .1C' O\vn c n: of the pre -emptive
'
r ight would be an unreasonable task. I As a result, ther e would
be a su ffi ciently unreasonable restraint upo n the tra nsfe r-
ability of th e prop e rty as o just i fy im posi ·ion of t he rul e
a gain st perpetu ities . It may be said that.we are stating a
r ule a g a i nst alienation and g ivin g it a label of the ru le
"
against perpetuities . Be that as it may, the result is the same.
It is to be noted th at in W0h c r v. Texa s Company,
supr a the i den ti ty of the owners e>f inte r est s involv e d
cou ld b e asc e r tain ed -or at 1 east -v1i t h some r e asonable
investigation di scov e r ed -fro m the record title to the
minera l rights and roy alti r s . Our conclus ion might be dif-
ferent h e re if the o-vm ership of th e p r e -em ptive right
fo llm-1e d the title to desi gnated r ea l prop erty; or, if it
were restricted to a limited t erm found to be reasonable,
albe it longer thap a life in being plus 21 years. Be that
as it may, we rule merely that a contractual right, granted
to A and his heirs and assigns, unlimited as to time, to
purchase land upon the same terms as the owner could and
would sell to a third person, is void.
III
The plaintiffs submit that this matter was not in
a posture susceptible of determination under a motion for
summary judgment , citing familiar authority as to the cautions
which should be exercised by a court in connection with a
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motion f 0 r su nun:-~ry jud gm0 r.: . The mni n thru s t of the argument
on th is point is th<H th c>n' \~r rc> f.1 C"lll n l i s s u0s t0 here -
solvc·cl in i.nt-r 1·p 1·rt :n1 ·. 1 1r C'nnt r :!C'I· nncl dC'tC'r mi ni.ng the
int e t of the pnrt i s . \.Jc> nr e no t so p e r su.1rl0d . To us there
are not ambiguous and the district court p rop e rly mad e a
determination within the "four corners" of the doc ume nts.
IV
Th e plaintiffs cont end that the inclusion of
paragraph 3 in the J anuary agreeme nt was ultra vires. To
review , paragraph 11 of the December agreement provided that
the Atchisons should have a pre -emptive right to repurchase;
and paragraph 13 of that agreement provided that the terms and
provisions thereof should inure to the ~enefit of the heirs,
legal representatives and a ssigns of the Atchisons. The City
Coun cil of Englewood adopted a r esolution which authorized and
approved the December agreement. This resolution provided that
upon consununation of the agreemen t, "the Mayor of the City of
Engl e~.;ood be and he her eby is empO\.;ered to execute on behalf
of said City a contract with Alfred P. Atchison and Ida Mae
Atchison in conformity with the provisions of paragraph 11 of
the a g reemen t hereinbefore set forth " The January
agreement was executed and delivered under the authority of
this resolution. The plaintiffs submit that anything in the
J anuary agreement beyond the provisions of paragraph 11 of
the December agreement was ultra vires and inoperative and,
part icularly, that the provisions o f paragraph 13 or anything
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resembling them c ou]~ not be made a part of th0 pre -emptive
r ; g ht . Tl w rC' for<', thc>y Stl , p:1r .1grnrh 3 of the Jnnuary
gard Nl as a p0r sonn1 on0 . Tlndc>r th e ini i :~1 vi('\" thnt we
expre ssed in this op inion , pnragrn ph 11 is ins<'pa r nhly con-
nect ed with paragraph 11 , and v ice ~· To be in strict
compliance with the resolution, the J a nuary a gr eeme nt should
have containe d the provisions of paragr aph 11 instead of
those used in p a ragraph 3; but, in any event, an inheritable
pre-emptive right is invo ved. Furthermore, plaintiffs'
a t torney approved the January agreement and plaintiffs executed
it and placed it o f record. They are in no position now to
complain of its provisions.
v
Plaintiffs' reply briefs were file d here on Septem-
ber 16, 1968. In.August 1969, over objection of the defendants,
we granted a motion of plaintiffs to file a supplemental
pleading, with leave grante·d to the defendants to re-present
their objections at the time of oral argument. The supplemental
brief subsequently filed by the plaintiffs was built around
section 394f in the 1948 supplement to the Restatement of the
Law of Rea Property which reads as follows:
"'E ff e ct o f invalidity of option to repurchase.
An o ption to purchase the whole or any part
o f the int e rest conveyed is necessarily only
one ingredient in the entire transaction b e -
tt-7een the p arties . I f this ingred · ent is so
essentia l a par t of the entire agreeme nt that
the parties wo uld not have made the agreement
i f they had kno'vn of the opt iorls inv alidity,
then the f ilure of the option is a sufficient
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ba sis for op pro~rinte prnc0cdinns to resc ind
the cntir 0 tran snc tinn nn! to r0store cnc h
o f th e part· es to t l. situation in \v hich he
\vas be fore the tr.::ms oc tion was maclc . The
n :) c st. l ,,d in -.t:i s con ·1,·11 t is o spce i f i c
app ic · Lion o [ Ll c 'ttlc st.:.ttcd in S ect·· on 4 02
conc ern ing the ef :-cct of' orti:1l inva lidit y
u pon the bnl.:Jnc<' of th0 nttcmptC'cl 1imil.1 l ion ."'
Plaint iff s argue th · t , ev en if the prc -cm>U v0 right i s
violative o f the r ule agoin st perpe tuities , th e y are entitled
to relic in the form of resciss ion. This entirely new theory
and f o rm o f relief was presented nearly .·. year after the case
was at issue here. Unti l then the plaintiffs sought solely to
have a determination that their pre -emptive right was enforceable.
Considering all the circumstances, we think the presentation
of this request for rescission c ame too late, and we now sustain
the defendants' objection to that effect.
Judgment affirme d.
MR. JUSTICE KE ; ~y dissenting and MR. JUSTICE LEE not
participating.
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NO. 23352 --ATCHISON v. ENGLEWO OD
MR. JUSTICE KELLEY dissenting:
I dissent. The maj o rit y fail to persuade
me .
It is ~cknowl cdgcd th .t this i s a cas e of
\ first impression in this jurisdict ion . The City and
the Atchisons ent P r e d into a contract , the terms of
which both parti es in g ood faith b e liev~d to be bind-·
ing upon them . The City now seeks to justify its hav-
ing r enege d on its agre e me nt giving th e Atchisons a
pre-emptive ri gh t to l ease or purch a se at a third
party offe ror's price af t r notice and within a limi-
t e d period . Th e City hottoms its "r ight" to void the
specific te rms of its contractual obli g ation upon an
ancient rule of property known as the Rule Against
Perpetuities.
The Rule Against Perpetuities is an arbi-
trary judge made doctrine which was invoked for the
purpose of keeping property alienable . To justify its
application its reasonin g must be valid as it pertains
to the facts here.
Authorities cited in the majority opinion
suggest that th e r e is not complete unanimity when it
• comes to the application of the doctrine to all situ-
ations. Also, the comment of Messrs . Leach and Tudor
concernin g The Restatement of Property appeals to me,
• wh e r ein t he y say : I • •
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"* * * T here arc many probl ems of
p e rpetui t ies in which the author ities
are s o thin that a court facing on e of
these problems de novo should feel free
t o re -examin e existing d ec i s ions; * * >t,"
Und er the facts of this case the equities favor
th e Atchisons and the dire consequences which the \doc-
trine was designed to avoid are not pr e sent here. \
I would, therefore, favor fo llowing the reason-
in g and the rule of Weber v. Texas Co., 83 F.2d 807,-
cert. d enied 229 u.s. 561, 57 s.ct. 23, 81 L.Ed. 413.
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NO. 23352 --ATCIIISON v. ENGLEW OOD
MR. J USTICE KELL EY di s s e n ting :
I dh;~cnt . T lw m:1 jor i l y fni l to p e r s uade
me.
It L nc know1<'d ::•'d t L:1 t thi~ i s n ens<' of
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firs t im p r es s ion in tl • i.s j1 n·i sdi ction . Th e City nnd
th e Atchison s entered i nto n contract, the te rms of
which both parties in good faith believed to be bind--
ing upon them. The City now se e ks t o justify its hav-
ing reneged on its agreeme nt giving the Atchisons a
pre-emptive right to l ease or purchase at a third
party offeror's price after notic e and within a limi-
ted p e riod. The City bottoms its "right" to void the
spe ci fic terms of its contractua l obligation upon an
ancient rule o f property known as the Rule Against
Perpetuities.
The Rule Against P erpetuities is an arbi-
trary judge made doctrine which was invoked for the
purpos e of k ee pin g property alienable. To justify its
application its reasoning must be valid as it pertains
to the facts here.
Authoriti es cited in the majority opinion
su gges t that there i s not complete unanimity when it
comes to the application of the doctr1ne to all situ-
ations . Also, the comment o f Mess rs. L each and Tudor
concern i ng The Re statemen t of Property appeals to me,
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"* * * Th e re arc many problem s o f
perpetuities i n which th e authorities
are s o thin that a c ourt facing on e of
these pt·o bl C'ms rk novo s houl d fct'l frC'e
to re-e xamin e (.'XiS Lj 1\g" d ecisions; * * * • II
Und C'r th e facts of 1hjs case thC' <''luitics fa vor
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th e Atch isons and th<' dir consc ']U <'nces which thC' doc -
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trine was designed to avoid are not pre sent here .
I would, th e r ef ore, favor following the reason-
ing and the rul e of Webe r v. Te xas Co., 83 F. 2d 807, -
cert. dcn iC'd 229 u.s. 561, 57 S.Ct. 23, 81 L.Ed. 413 .
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H O A YLI!: WI!:LL!:R
.JULIUS to4 rRI I!:D R ICH
""OHN R . HICKISCH
W ILLIAM H . HAZLITT
W "'015!:AT WA.RO
MARTIN J A NDREW
.JAMES C ,.ATTOR
R 5TE.RLIN0 AMI!!I L I!:R
ART MUR H DOWN EY
M I C HAEL 1: OL0fof AM
OI!:QrrRE Y 5 RAC E
DAVI D 1'\ "I:IIIA
"'C ~AR O ... 8AU!:R
AN D R I!:W ,J rAI£0 R IC H
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WELLER, FBIEDBICH, HICKISCH AND IIAZLITT
liii OO C APITOL Ll,.-r: C ENTE.R
DKNVI<B. COLOJI.A.DO 1101100
November 11, 1969 ..
Mr. John A. Criswell
Attorney at Law
3755 South Broadway
Englewood, Colorado 80110
RE: City of Englewood -
Royal Indemnity Company
D e ar John:
L/0;1r-
TEL~~MONII 1!1!1! ·•71!.
AfltU CODE 303
I have and thank you for your letter of November 6, 1969, written as
attorney for the City of Englewood. I have discussed it and the entire
problem with my client, Royal Indemnity Company. The action of
City Council in rejecting Royal Indemnity Company's compromise
proposal is regrettable as it leaves Royal no real alternative to
c ancellation unless Englewood will reconsider.
You will understand that, in view of Englewood's position that the
insurance contract is different from the terms of the policy and the
threat of litigation to which such a position subjects Royal, Royal can
only expose itself to the possibility of additional claims by continuing
to permit the present situation to continue to exist.
Therefore, I h ave been instructed to advise you and the City of Engle-
wood through you that unless the City of Englewood considers and accepts
the compromise proposal submitted by Royal and mentioned in your
letter of November 6, 1969, a notice of immediate cancellation in
accordance with policy provision for cancellation will be issued. · This
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Mr. John A. Criswell
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reoffer to compromise will expire on November 26, 1969. If City
Council wishes to accept the proposal we should be advised before
that date. If it does not wish to accept, the City could well spend the
intervening time in making arrangements with other carriers for
whatever coverages it desires to have.
We regret the occurrence of the differences which have brought us
to this point.
Yours very truly,
Weller, Friedrich, Hickisch and Hazlitt
By
WHH/dv
cc: Royal Indemnity Company
Attn: Mr. Robert Kelly
R9-88A-17658
cc: Royal Indemnity Company
Attn: Mr. Bob Gross
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CHA&. £. SHU MAT E
Chief ~neer
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Hampden-Broadway
Interchange
STATE OF COLOJ.ADO
Dlllt nct No 6
2000 ScNLb Hall 8lrMt
Oeov€~r ....,..
E. N. HAAS£
Ol•trlct D&IDMr
IC I A l
-ul\ E:N r Novembe r 13, 1969
Hr . Stanley Dial
City Manager
City of Englewood
3400 So . Elati St.
Englewood, Colorado 80 110
Dear Mr. Dial :
Fo llowing our discussion
to write to you and elaborate
o n the part o f this Division,
Street off State Hi ghway 285.
l£:
D, c.o n
of Nov. 10, 1969, we we r e requested
on the reasoning behind the refusal,
to approve a left turn at Bannock
Following are the ma 1v r reasons :
l. A ramp from eastbound S.H. 285 to Broadwa y, i n the
southwest quadrant of the S.H. 285 -Broadway inter-
section, was constructed at considerable e xpense to
provide service to the area north of S.H . 285. Since
its constr uc t ion , left-turning vehicles •·an cross
S .H. 2 85 v i a t he Br o adway bridge by use v f this ramp.
To allow left turns at Bannock, where t he ramp begins,
negates the i ntent of the ramp, which was to eliminate
t he unsafe left-turning movements, a t l e ast in the
imm ediatP vicinity , across opposing h iK hway traffic.
(As a matter of interest, the a lignme nt of the ramp
wo uld b e improved on constr uction of l he interchange
at S.H. 285 and Broadwa y .)
2. Left turns at Bannock Street, from e1 st bou nd S.H. 285,
cannot be made safely without a le f 1 tu r n ph as e o n the
tr [fie signal. Opposing volumes a r ! too high and si ght
di lance i s poor due to road curva t • r e an d the proximity
ot the Broadway unde rpas s. I f t he li amond int erchange
Br o adwa y and S .H. 285 were cone r ucted, the r mp i n
rhe n rthwest qu adrant would entel S .H. 285 east of
B nnock Street . Left-t urning veh le s at Bannock Str et
would hav lc c r oss two lanes of uvugh trat fie, plus
an additi v nal lane of ramp t raff A left turn phase
takes valuab l e green time a way m th r ou h t ra ffic, and,
i n considerauon of the cremend < increases i n t ra ffic
volumes on S.ll. 285 , this houl 1e a volded .
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Mr. Stanley Dial Page TWo u 016-1(42)
A review of your files will show that the City of Englewood
formally agreed to elimination of the subject left turn on original
construction o f the southwest ramp. It may be added that Federal
participation in the cost o f the ramp was withheld until the left
turn was, in fact, e liminated by the City of Englewood. Discussions
with representatives of the U. S. Bureau of Public Roads reveal they
expect the left turn restriction to continue and failure to carry out
the restriction would lead to withholding of funds from the proposed
interchange pro j ect and, perhaps, other Federally-aided highway
pro jec t s i n the Ci ty of Englewood. Irrespective of this urious
f inanc i ng handicap, this Division could not, in good conscience,
re c ommend construct i on o f the interchange while left turns at Bannock
were a ll owed.
Hos t of t he r i gh t of way for the proposed interchange has been
purchas ed. We e x pect to clear the land as the improvements are
vacat ed . Con struction of the interchange will remain in abeyance
pend i ng a ssurance of the City that they intend to continue restricting
left turns off ea s tb o und S.H. 285.
We hope t his aids you in understanding our position in the matter
and t hat a sat i s f acto r y solution can be brought forth.
ENH :b
cc: C. E. Sh uma te
L. C. Bower
F. K. Me r ten
A. Zulian
File (Haase)
Very truly yours,
CHAS. E. SHUMATE
Chief Engineer
By (( -~ \) ~
E. N. Haase
Distr i ct Engineer
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A BILL FOR '-.
AN OINA NCE REPEAL! OINANCE NO. 36, SERIES OF 1969,
A D THEREBY PROHIBITING LEFT TURN 1RAFFIC VEMENTS OF VEHICLES
TRAVEL ING WEST ON U. S. HIGHWAY 285.
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WHEREAS, there were previoualy presented to tbia City Council
petitions for a propos d ordinance pursuant to the provisions of
Sections 45 and 46 of the Charter of the City of Englewood, and
.~ \~REA , the provisions of said Section 6 provides that,
upon receipt of such petitions, the City Council shall either
paaa the proposed ordinance without alterations within a period
of 30 days thereafter or, in the alternativ , submit the proposed
ordinance to a vote of the people, and
WHEREAS, upon receipt of said petitions, this City Council
did deem it to be more appropriate to enact said ordinance than
to submit the same to a vote of the people, by reason of which
this City Council h retofore enact d Ordinance , o. 36, Se ries of
1969, and
REA , subsequent to the enactment of said ordinance, this
City Council baa been informed by the Department of Highways of
the State of Colorado that, ahould the City of Englewood author-
ize left-tum movements at the interaection of U. S. Highway 285
and South Bannock Street, ao as to allow weatbound traffic travel
on U. S . 285 to proceed northerly on South Bannock Street, there
would be no neceaaity or reason or the conatruction by the aaid
State Highway Department of an interchange at and near the inter-
section of U. s. 28 and South Broadway Street and that the aaid
partment of Highways would not construct the same, and
WHEREAS, this Council, after consideri t for going, has
reach d the considered judgment and con lua on that the construc-
tion of such an interchange is of the utmoat impor ance to thia
City and t at s id interchange would ccomp ab the aame reault
that permitting left-tum movements for vehicular tra ffic on
U. S. 285 t outh Bannock Street wou d acca.pliah,
NO .I , '! .KE!ou , B T 0 I BY HE CITY COU IL OF 1'HE
CilY vF E GLE ~ OOD, COLORADO, aa foll owa :
ection 1. S ction l of Ordina • No . 36, Series of 1969,
ia hereby repealed.
Noth i erein ha 1 be deemed to have affected
or n} y, the provisions of Section 2 of dinance
36, 69 , which dea n tea a portion of Haapden Av enue
aa a two-way or t -direction& avenu , providing, however, that
any ordinance, resolution, motion or traffic directive which .aa
repeal d by a id S ction 2 aa be in conflict with the proviaiona
of action l of said ordinance, ar hereby revive
I ntroduced, read in full and p~ssed on first reading on h day of ovember, 1969 .
Publish d .. a ill fo r n dinance on the day of
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------------------· 1969.
Mayor
Attest :
city clerk-Treasurer
I, Stephen A. Lyon, do hereby certify that the above and
foregoing is a true, accurate and complete copy of a Bill for
an Ordinance introduced, real in full and passed on first
reading on the _______ day of , 1969.
C1ty Clerk-Treasurer
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FIRST
NATIONAL BANK OF ENGLEWOOD
BR OA.DW A.Y • ENGLE WOOD l"OL CJI:J A.OO • TELEPHO""E ~6 9 0 5 11
O FFICIAl
J A C K EACHON . JR
PfU.IIOENT
CITY COli" r I r J( LJ\lENT
co u .,c ,_
CITY OF Er\ L ,
Mr. Stanley H. Dial, City Manager
City Of Englewood
3400 South Elat i
Englewood , Colorado
Dear Stan:
8 011 0
October 24, 1969
I am writing thi s letter as a matter of restating
some of the convers at ion s that we hav e he ld in the past as well
as a suggestion for the method by wh i ch we should proceed.
You wi ll remember that at the time our bank acqu ired
the property extending from Elati to Cherokee there was a vaca-
tio n of right of way from Elati East to a No rth and South line
that would approximate an alley should there have been one
ded ica ted . The dedication of this street to that point was for
a fift y -foot right of way; however , from that po int to Cherokee
ther e wa s an existing fort y -foot r ight of way . You will remem-
ber ha a t o ne point in time we attempted to n egotiate five
fe o ff the main bank property and suggested that George Allen,
wh o at that time owned the North property, releas five feet,
which would then have made the fifty-foot right of way. You
w1ll reme~ber al so that these negotiations fa1led when George
Allen r efused to d e dicate five feet. Si nc e that t 1me we have
ent red 1n o long-t e rm lea s e with C. H. Leav ell and Comp any
and h r •fore no l onqer have any control ov er that prop rty on
h South s1d of Ch rokce Circle extended.
In June of th1s year we negotia ed and purchased the
All n prop rty s w 11 as al l other properties on Cherokee
Circl wi h th~ xccption o f Ludwig Fl orists, there or enabl1 n g
u· t o fur her n~otia c w1 h the City on widenlnJ the s reet to I •
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Stanley H. Di al -2-Octobe r 24, 1969
a f i fty-foot right of way . I would therefore like to sugg es t
t ha t the F irs t Nat iona l Ba nk of Englewood dedicate to the Ci ty
ten feet o f t he propert y f ormerly known as the Allen property
in return fo r th e City 's ded i cat i ng ten feet of the property
presently owned by them, more properly described as a tri angular
p i ece extend i n g f r om a ppr o x i mately the alley behind C i ty Hall
to the North-So uth por t ion of Che r okee Circle and furthe r deed-
ing to the F i rst Na tional Bank of Englewood the residue of this
triangular portion after properly dedicating the street .
Would you pl e ase let me know whether this outline of
past events is correct in your memory and a suggestion from
you as to what we might do to more formally proceed.
In our last c onversation you and Ke lls Waggoner were
talking about put ting a name on that s treet a n d I might suggest
to you tha~ since i t would be a new s t reet for Englewood and
since the street adjoins the Ci ty Hall, Cinderella City, and the
most prog ressive organ i zation in the a rea, you me rely call it
"Progr ess Coun try ."
With k indest personal regards.
J r .
JEJr : lm
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