A group of Boulder residents opposing the South Boulder Creek flood mitigation project at CU South is asking a Boulder County District Court judge to reconsider a decision to dismiss their lawsuit challenging the city’s plan to finance the project.
The lawsuit targets the city’s use of stormwater utility fees to fund the estimated $66 million project, which has been in the works for more than a decade. The city has not yet issued bonds to finance the construction, which was slated to begin this year.
The City of Boulder has described the latest motion by Save South Boulder as baseless, according to a recent court filing. The city is also asking the court to order the plaintiffs to pay $46,000 in attorneys’ fees, arguing they are acting in bad faith to delay the flood project.
The flood mitigation project includes building a concrete spillway along U.S. 36 and creating a detention pond to reduce the risk of flooding for about 2,300 people living in the 100-year South Boulder Creek floodplain.
At the heart of the lawsuit is whether the city’s use of stormwater utility fees to fund the project amounts to a tax, which under Colorado’s Taxpayer Bill of Rights (TABOR) would require voter approval. The plaintiffs argue that many residents who pay the fee will not benefit directly from the project. They also challenged Boulder City Council’s approval of an ordinance allowing the city to issue bonds by emergency, which meant the ordinance took effect immediately.
Last month, District Court Judge Michael Kotlarczyk dismissed the case in response to the city’s motion for an expedited ruling. In its request, the city argued that a delay in issuing the bonds would increase the cost of the project. Now, the plaintiffs are urging the court to reconsider, arguing that the judge made errors in the dismissal, according to a motion for reconsideration filed on June 24.
They argued that the judge failed to consider whether the city ordinance authorizing the bond issuance qualified as an emergency under the city charter. They also argued that the court didn’t properly determine whether the stormwater fee is tied directly to the South Boulder Creek project. The plaintiffs have said they plan to appeal the case all the way to the Colorado Supreme Court if necessary.
Legal battles like this often highlight how complex the balance between public safety and community concerns can be. It reminds me of a recent case in Canada involving school safety and accountability — https://co24.ca/toronto-school-lawsuit-7/. Different context, but the tension between institutional decisions and public trust feels familiar.