Arvada Park's 100-Year 'No Booze' Rules Show How Society Changes

ARVADA, CO – It's been 100 years since pioneer widow Clemency McIlvoy deeded her home and the land surrounding it to the city of Arvada in May of 1919, creating the city's first park. But during that century, the park's history shows just how society's rules have shifted and changed. McIlvoy's pre-Prohibition-era deed specifically stated that "no intoxicating liquors" would be consumed on the premises. But the city has been allowing 3.2 low-alcohol beer to be consumed (by permit only) at the McIlvoy Park pavilion for ages.

This bugged Arvada Historical Society board member Dave Palm when he saw a permit notice attached to the pavilion for the city's planned Winterfest this weekend on Upham Street, bordering the park. Winterfest will be serving alcohol in a tent on the street, and not at the pavilion, and open consumption of alcohol is forbidden at all Arvada parks, according to Brenda Berg, special events coordinator.

But Palm, a 60-year resident who ran twice unsuccessfully for city council, said he is annoyed that the city continues to allow liquor at McIlvoy Park, despite Clemency's wishes.

"Whatever [Clemency's] beliefs were at that time, she very generously gave the land so Arvada could have its first park," Palm said last week. "This was strictly as result of a gift in perpetuity and she wanted her wishes followed. It's a nice piece of land in Olde Town and the city needs to live up to it."

The issue of whether the anti-booze provision is still valid is either a legal question – or a tempest in a teetotal-teapot.

First some history: Arvada, incorporated in 1904, was literally cut in half by the alcohol question. In the years leading up to the 1917 passage of Prohibition –the 18th Amendment in the United States – and its enactment in 1920, alcohol was allowed west of Wadsworth Boulevard and prohibited to the east. Prohibition was repealed by the 21st Amendment in December, 1933.

The McIlvoy property lies just east of Arvada's booze dividing line, and to that extent, the city has considered McIlvoy's booze prohibition akin to "boilerplate language of the time," said Ben Irwin, communications spokesperson for the city. All city property prohibits open containers, and smoking, Irwin said, except in designated areas.

The city has rented out the McIlvoy Park pavilion for 3.2 beer permits for $150 plus a $15 permit fee and a $100 damages deposit. The creation of the Arvada Downtown Historic District (1998) and the Design Guidelines for Olde Town (2004) were part of the city's strategy to enhance Olde Town as a "recreational, cultural and commercial destination," Irwin said. "The move to permit beer was one aspect of the larger project of creating a more hospitable environment for the community."

The city has guarded against any possibility that the heirs of Clemency McIlvoy could reclaim the property by "purchasing extra title insurance," Irwin said.

Clemency McIlvoy died in 1921 at age 86, her obituary said. Born in French Lick, Indiana in 1834, Clemency Davis and her husband Dennis McIlvoy came to Colorado in 1859 with other Gold Rush hopefuls.

Clemency's legend said she accompanied her husband into the Rockies to search for gold.

"Unlike the wives of other pioneers Mrs. McIlvoy refused to remain in the village while her husband sought gold in the mountains. She dared the Indians with him and accompanied him to the Gregory mine in Black Hawk," her colorful obituary in the July, 1921 Colorado Transcript said. The couple's search for gold led them to Montana, but was ultimately "futile." Dennis and Clemency settled in what is now Arvada in 1859, but Clemency rarely left her home, visiting Denver "only once in that time," her obit said. At the end of her life, she was somewhat of a recluse, living with a caregiver and "confining herself mostly to the kitchen of her little home."

The McIlvoy House at 7307 Grandview is now the home of the Arvada Historical Society on the first floor and the Arvada Business Improvement District on the second. The house and the land for the park were deeded to the city in 1919. The couple are honored in Arvada as "[some] of Arvada's most prominent, civic-minded residents." Clemency and her dog Dago were memorialized in a wooden sculpture in 2013 by artist David Mitchell.

What does the deed say?

The McIlvoy deed, leaving the property to the City of Arvada, has a boomerang-style provision saying if booze is consumed on the property it reverts back to the owners. It's unclear if the provision was based on Clemency's personal teetotaling views or some kind of municipal zoning overlay. There isn't much record of Clemency's participation in any Temperance-era leagues or clubs, but that doesn't mean she didn't have strong opinions.

Here's the exact language: "No intoxicating liquors shall be manufactured, sold or otherwise disposed of as a beverage in any place of public resort in or upon the premises or any part thereof and if these conditions are violated then this deed becomes null and void and reverts to the party of the first part, her heirs and assigns."

Reverter language

The will language may be an example of "possibility of reverter," said Sturm College of Law Professor Lucy Marsh, an expert on wills, inheritance and property transfer.

"If this qualifies for 'possibility of reverter,' the minute a drop of alcohol was poured on this property, it reverted back to the heirs," Marsh said in an interview.

The restrictions created by possibilities of reverter "can last for centuries," Marsh said in an email. "And when the restriction is broken, the land automatically goes back to the grantor – the grantor doesn’t have to do anything to get the land back."

A similar case happened in Idaho Springs in the 1950s, Marsh said, where the city sold land with a municipal swimming pool to a private party, with the provision that the land continue to be used as a pool. The new owner, Frank Overturf, of Overturf's Park, failed to operate the pool as a pool – and a loan on the property was foreclosed and the property repossessed by Golden Savings and Loan in 1967. The city was able to sue the bank, using the reverter clause, to reclaim the property because it had not been used as a pool in 1966, and hence the ownership rights reverted to the city.

In the McIlvoy Park case, Marsh said, even if the property boomeranged back to the heirs of Clemency McIlvoy when alcohol was first served, Arvada may still be able to claim the property by "adverse possession." Basically, according to Colorado law, after 18 years, if a property is being used by a municipality long enough it belongs to the city. No filing or formal declaration of adverse possession is required. But rules for the legal maneuver changed in 2008, so that after that date, municipalities seizing a property through adverse possession must reimburse the owners for the fair market value of their land, plus other fees and fines.

The city's beer permits must have been issued "before 1990" for adverse possession to have been in play without the city's reimbursing the heirs for the adverse possession of the property, Marsh said.

The city has been issuing beer permits for the McIlvoy Park pavilion since 2004, when the park's pavilion was renovated, Ben Irwin said.

Times are changing

One hundred years after Clemency McIlvoy deeded the park to the citizens of Arvada, social norms against the intoxicating substances–in the form of marijuana–are changing again. Even though the city has banned commercial pot sales, Arvada is the home of one of the country's first cannabis-infused beers. Palm himself ran his 2017 city council campaign partially on the issue: "Pot for potholes" would have allowed recreational marijuana sales in the city of Arvada and using tax money for road repairs, he said.

What would Clemency McIlvoy think of legalized marijuana?

"Clemency smoked a pipe and a cigar," Palm said. He'd like to believe that she'd approve of using marijuana tax dollars for road repairs, he said.

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