The CU South annexation agreement includes preserving sections of open space, some of which is made public by the University of Colorado and groomed by volunteers for nordic skiing. The agreement will likely be up for a vote in November. Credit: John Herrick

On Sept. 1, the Boulder City Council is expected to approve the final package of ballot measures that city residents will vote on in the Nov. 8, 2022 election. It includes a proposal to move municipal elections to even years and another to create a new tax on electricity and gas

Councilmembers are also likely to approve a referendum that would undo the city’s annexation agreement with the University of Colorado to develop a South Boulder property known as CU South — even as the measure heads for a possible legal challenge. The annexation allows the city to construct a flood wall and the university to build student housing, among other things.

The referendum is the latest flashpoint in a decades-old debate over what to do with the former gravel mine now home to publicly accessible trails and wetlands. 

The city council voted last year 6-1 in support of the annexation, and all current councilmembers have supported the agreement. But petitioners collected enough signatures for a referendum to overturn it. The group backing the referendum, Repeal CU South Annexation, is closely aligned with PLAN-Boulder County, a nonprofit that has long fought development on open space. 

In an 11th-hour effort — presumably to increase its chances of passing — the group is asking the Boulder City Council to change and clarify the title of the referendum. The current title is, “Should Ordinance 8483 regarding the annexation of CU South, be repealed.” It wants to change it to, “Should Ordinance 8483, which annexes the land known as CU South and sets the terms thereof, be repealed?” 

The Boulder City Council has so far declined to make the relatively minor tweak. According to city staff, the ballot title was based on language that Repeal CU South Annexation advocates used in their petition to collect signatures for the referendum. The city worries changing the language would make the city vulnerable to litigation. 

“You’re making it far less risky [by using] that same language” from the petition, Kathy Haddock, a city attorney, told city councilmembers on Aug. 18, 2022. 

Not changing the language, however, could prompt the very outcome the city has sought to avoid.

Last week, members of the Repeal CU South campaign sent the Boulder City Council a letter saying it plans to file a complaint in the Boulder County District Court if the wording isn’t changed. The group alleged the current language is “simply not clear” and could “befuddle the electorate.” (The city’s charter requires that ballot titles be a “clear, concise statement” about the measure.) 

“We just want to count on people knowing what it is that they are voting on so that there can be a true measure of the citizens’ views on this particular issue,” Allyn Feinberg, a former city councilmember and co-chair of PLAN-Boulder County, said in an interview. Feinberg was a member of the committee that helped collect signatures for the referendum.

“The stakes are huge,” Feinberg added. “I think everybody knows that.” 

‘The agreement is big. It’s complicated.’

The university purchased the 308-acre South Boulder CU South property in 1996 from a gravel mining company. Signed in September 2021, the 92-page CU South agreement annexes the parcel into city limits. The details of what can — and can’t — be done with it are broad in scope. 

The agreement transfers to the city about 80 acres near Highway 36 for a flood mitigation project. The design is already underway and construction slated for completion in 2026. The plan also sets aside land for city-managed open space near the South Boulder Creek Trail. And it sets the terms for building housing and offices in an area outside the 500-year floodplain that seeks to “meet the needs of the University faculty, staff and non-freshmen students in order to address the fact that Boulder housing is currently unaffordable to faculty, staff and students.”

The agreement explicitly prohibits first-year student housing, fraternities and sororities, airports, and large-scale sport or event venues. It allows for some non-residential development in the floodplain, including a running track and non-residential facilities, such as restrooms and locker rooms. How many housing units will be built remains to be decided and will be based in part on required studies aimed at reducing traffic in the area. The university expects housing construction to begin in 2027. 

If the ballot title matter ends up in county court, it could push the measure off this year’s ballot and into next year — to be decided in a special election or on the 2023 ballot. That would prolong uncertainty about the future of the South Boulder property. Efforts to block development at the site through ballot measures have failed twice, in 2006 and 2021. 

Opponents clearly don’t want to lose again. The latest skirmish over the ballot title reflects that concern — as well as the complexity of an annexation agreement that is hard to boil down to mere sentences and is ripe for misinformation. 

“The agreement is big. It’s complicated,” Derek Silva, the university’s associate vice chancellor for business strategy who helped negotiate the annexation agreement, told Boulder Reporting Lab. “What we’re trying to do is be as transparent as we can about what’s in the agreement and what’s not so that the citizens of Boulder have the best facts.”

Public information campaigns heat up

State law restricts the state university from spending taxpayer money to campaign against the referendum. But it has been open in its opposition. Chancellor Philip DiStefano and City Manager Nuria Rivera-Vandermyde wrote an op-ed last week that said the referendum would “threaten the progress and values that Boulder residents hold dear.” 

The university has released an information sheet. Likewise, Councilmember Bob Yates published a newsletter seeking to debunk “myths” and misinformation. 

Councilmember Rachel Friend helped change an earlier version of the referendum to remove a common “safety clause” provision, which stated the ballot measure was “necessary to protect the public health, safety, and welfare of the residents of the city.” 

“That’s the opposite of the truth. People could die if this referendum measure passes,” Friend said during the Aug. 11 council meeting, referring to the flood mitigation part of the project. 

Leslie Durgin, former mayor of Boulder and chair of the campaign to oppose the referendum, No More Delay for Flood Safety, said she, too, sought a change to the ballot measure language. As written, a “yes” vote would be a vote in favor of the referendum. Her campaign wanted a “yes” to support the annexation.

“The language of the petition, and therefore the ballot language, is confusing,” Durgin said. “No means, ‘yes, we support the annexation.’ Yes means, ‘we oppose the annexation.’”

Durgin said city attorneys refused to make the change.

The City Attorney’s Office is reviewing the implications of changing the ballot title, according to Sarah Huntley, a city spokeswoman. 

The city council is expected to decide what to do during its Sept 1, 2022 council meeting.

John Herrick

John Herrick reports on housing, climate, health and local government for Boulder Reporting Lab. He previously covered the state Capitol for The Colorado Independent and environmental policy for VTDigger.org. He is interested in stories about people, power and fairness.

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4 Comments

  1. I too found the reporting to be one sided and I hope in the future Boulder Reporting Lab does a better job of framing the issue. No one on any side is against flood protection. One basic point is whether CU used its leverage on holding the land needed to build flood protection in order to get concessions from the city so that CU could build on the property and whether the city is getting a fair deal.
    Please use numbers in the reporting such as costs, something both Mr Yates, the CU information sheet and the op-ed by the city manager failed to do.
    Also not mentioned in the article is that the annexation was passed by the previous council in a questionable use of the emergency vote right before the last council election. They were concerned that if the wrong people were elected that the annexation wouldn’t go through. The referendum vote in 2021 was about whether to require a citizen vote on any CU annexation agreement which seems reasonable considering how expensive the deal is. Since council had already passed the annexation this muddled the referendum vote with many people saying the annexation was already a done deal which is why there is a 2022 measure.

  2. I support the move to take the Council to court. I think it is an intentional attempt to confuse voters so they vote no not realizing that gives the City what they want.

  3. John,
    Why did you omit informing the public that the CU South annexation agreement will allow CU to build 750,000 square feet of non-residential buildings, equivalent to fifteen 50,000 square foot office buildings? Such non-residential buildings would provide workspace for thousands of employees whose housing needs will surpass the 1,200 residences planned for the site, worsening our housing situation . Nor did you mention the annexation agreement includes a 3,000 seat stadium.

    According to CU’s transportation engineer, the 1,200 dwellings and non-residential development (which did not include an additional 250,000 sq ft added at the last minute) will add an additional 7,000 vehicle trips per day on already congested Table Mesa Drive, US 36 and Foothills Hwy.

    Nor did you state that CU demanded a new intersection with CO 93, the road to Golden. CO 93 is one of the most treacherous roads in the state and the new intersection will be located on a curve on a hill. According to testimony of CU’s transportation engineer, a traffic light will not be installed until there are five accidents at the site.

    And you omitted mentioning that the city originally wanted to account for climate change, which is causing larger and more frequent floods, and protect residents against 500-year floods. But CU objected because increased flood protection would use more of CU’s depleted gravel pit. The city immediately reduced flood protection stating the Colorado Department of Transportation would not approve the plans for 500-year protection. When asked for written evidence that CDOT would not approve such plans, the city responded that such documents do not exist.

    Recent catastrophes resulting from climate change, such as the Marshall Fire, should have taught us that it is better to prepare for future disasters than to deal with the aftermath. Ft. Collins had prepared for 100-year floods, but in 1997 was hit with a larger flood which resulted in five deaths, 54 injuries and $200 million in damages. People will die if we don’t account for the effects of global warming and individuals responsible for reducing the level of flood protection should consider the deaths and damages that will result.

    And then there are the $10,684,900 in development fees, which according to a CU document used to sell the Annexation Agreement to the Regents, the city is waiving. These fees reimburse the city for costs resulting from development.

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