The City of Boulder is seeking to hold a group of residents financially liable for what it says are efforts to block construction of the South Boulder Creek flood mitigation project at CU South, according to a recent court filing.
Luis Toro, a city attorney, has asked a judge to sanction the plaintiffs by ordering them to pay attorneys’ fees. He argues the lawsuit against the city is baseless and was filed to improperly delay construction of the long-planned project.
The lawsuit, brought by the group Save South Boulder, challenges the city’s ability to finance the project. It alleges Boulder’s stormwater utility fees require voter approval under the Taxpayer Bill of Rights and contests the Boulder City Council’s approval of an ordinance allowing the city to issue $66 million in bonds to help fund the 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.
City officials have said the litigation has prevented them from issuing bonds for the project, which was scheduled to break ground in early 2025. Any delays, they say, could affect interest rates and construction costs, potentially driving up the total price of one of the city’s largest planned infrastructure projects.
The city’s request for $46,000 in attorneys’ fees signals a more aggressive legal strategy and raises the financial stakes for residents pursuing the lawsuit. A district court judge dismissed the case last month, but the plaintiffs have said they plan to appeal to the Colorado Supreme Court.
The city’s latest motion is unusually pointed. It accuses the plaintiffs of making “vexatious” arguments and using “dilatory” tactics to slow the court process and stall the project.
“The Court cannot make the City whole in this proceeding for the financial losses it is incurring and will continue to incur due to delay in the issuance of the Bonds and its current inability to secure bids for the Project,” Toro wrote in the July 1 motion. “Nor can the Court give back the time already lost to Boulder residents facing the risk of flooding on South Boulder Creek.”
The city is asking the court to order the plaintiffs to cover legal costs incurred by the Denver-based firm Kutak Rock, which is helping with the case. During a May 16 hearing, Thomas Snyder, a lawyer for the city on the case, told the judge the city would “be a little bit more aggressive if there were an appeal filed” in terms of “holding the plaintiffs responsible for the delay that this is causing.”
The CU South site, currently mostly undeveloped and used informally as open space, is slated for mixed-use housing and university facilities under a 2021 annexation agreement between the city and CU Boulder. In exchange, CU agreed to allow the city to use a portion of the land for the flood mitigation project.
Opponents of the project — including PLAN-Boulder County, a longtime advocate for open space — have fought the project for years, raising concerns about environmental impacts, the level of flood protection and public access to CU South. Previous efforts to block the project at the ballot box failed in 2006, 2021 and 2022.
Flood mitigation at CU South gained urgency after the 2013 flood, when South Boulder Creek overtopped U.S. 36 and sent waist-deep water into nearby neighborhoods, including the Frasier Meadows retirement community. Some critics pushed for alternatives that would provide a higher level of flood protection, but those proposals faced pushback from CU Boulder, which owns the land, and the Colorado Department of Transportation, which owns the highway right-of-way.
The extent of the lawsuit’s impact on the project timeline remains unclear. According to city spokeswoman Cate Stanek, Boulder has submitted and is awaiting approval for several permits, including a Special Use Permit from the Colorado Department of Transportation and a Conditional Letter of Map Revision from the Federal Emergency Management Agency.
The plaintiffs with Save South Boulder are Margaret LeCompte, professor emerita at CU Boulder and former treasurer of the 2021 ballot measure committee Save CU South; Ann Harlin Savage, former secretary of the same committee; and Steven Telleen, president of the South East Boulder Neighborhood Association. In legal filings, the group said its members “derive aesthetic enjoyment and improved quality of life from the open space that will be destroyed” by the project. All the plaintiffs live in the South Boulder Creek floodplain or near CU South.
In response to the city’s request for attorneys’ fees, LeCompte told Boulder Reporting Lab she sees the move as an attempt to intimidate the plaintiffs. She said she could not comment on their next steps until speaking with their attorneys.
“This is not something that we didn’t expect,” LeCompte said. “Of course we don’t like it. We would much prefer that the city take seriously all of the concerns we have been raising.”
SOUTH BOULDER CREEK FLOOD CONTROL
Boulder’s plans for a detention pond to reduce South Boulder Creek flooding looks like they were designed by Rube Goldberg on steroids. Instead of capturing and detaining peak floodwaters where they spill out of South Boulder Creek at the south end of the floodprone depleted Flatiron gravel pit, now known as CU South, floodwaters will be detained several thousand feet to the north by a three-story high hazard dam along Table Mesa Drive.
There are numerous problems with this approach which could have been easily avoided if the floodwaters were detained in a series of shallow ponds in the south end of the gravel pit, where they could drain directly back into South Boulder Creek before it flows under US 36. But CU, based on a 2001 site plan, would not allow the city to use that portion of its property for flood control.
1) Adding a 32-foot-high hazard dam above a residential area creates a new risk with the potential for damages far greater than the flood it is designed to mitigate.
2) Locating the dam in the far north end of CU’s depleted gravel pit requires a $19.4 million 2,600-foot concrete spillway/floodwall that runs all the way back to South Boulder Creek along US 36. To keep groundwater flowing down from the mountains from backing up and drying up grasslands north of US 36, an expensive complex groundwater conveyance system must be constructed to allow the groundwater to pass through the floodwall.
3) The detention pond must drain back to South Boulder Creek, which is on the other side of US 36 and thousands of feet away. To accomplish this, $6.1 million are budgeted for a long 5-foot diameter conduit which must be tunneled under US 36 in the presence of high groundwater and large boulders. The conduit will dump the floodwaters into Viele channel, which may not have the capacity to accommodate those flows.
4) To provide the required detention volume and reduce the land area needed for floodwater detention, Boulder residents will pay to excavate and deepen the detention pond. This is done so that CU will have more land to develop. The excavated detention will be below the level of groundwater, and an absurd expensive impervious barrier is needed to keep the depression from becoming filled with groundwater.
5) The three-story-high dam is located between Table Mesa Drive and CU South. Boulder residents will pay the cost of highway ramps required to pass over the dam to allow CU to access its property.
City officials claim they studied the concept of using shallow cascading ponds at the south end of the site which could drain directly back to South Boulder Creek before it passes under US 36, but they definitely did not.
When the city council selected CH2M Hill’s concept for the South Boulder Creek project, it was estimated to cost $23 million, and $2 million for engineering. To address the difficulties of the plan, costs have escalated so that a $66 million construction bond is now required. That does not include bond interest of approximately $15 million and $13 million the city has already spent on engineering – a total of $94 million.
Universities, which plan to be around for centuries, wisely build on hills to avoid major floods, and not in floodprone depleted gravel pits at the feet of major drainage basins. I attached a map showing the 100-year floodplain from the 1981 permit for the gravel quarry at CU South. Much of the land was in the 100-year floodplain even before sand and gravel mining lowered the topography 12 – 15 feet. The problems we face today result from the City’s and CU’s failure to respect and design with nature.
I hope other engineers are willing weigh in on this fiasco.
Several years ago, I created the following YouTube videos about CU South and South Boulder Creek flood control.
https://www.youtube.com/watch?v=BxdjcrRDSbw
https://www.youtube.com/watch?v=2sutXapfUoU&t=134s
It’s tough to be awarded attorney fees under the City’s theory that the litigation is being pursued for the intent of delay. Save South Boulder has a prominent environmental lawyer representing them; as long as the Plaintiff’s have a solid legal theory, which the apparently do under TABOR, just having the lawsuit dismissed is not enough to prove their litigation is for the purpose of delay. However, the appeals Courts are probably inclined to limit TABOR, so I doubt they are going to find that issuance of these bonds is a tax.
How about up to the Supreme Court?
And also what about the $15M interest on the bonds? And the $13M the city pre-spent. And the cost overages upwards of $94M? I’m beginning to feel fleeced. As if CU hasn’t already gotten away with too much. Ben Binder always speaks truth to power.
Gotta say, not great look for the City. A lawsuit is legitimate tool for citizens who feel their government isn’t listening to their concerns. And, honestly, the City’s effort to get citizens to pay City costs for the lawsuit sound an awful lot like the Trump/MAGA budget reconciliation bill’s component (now deleted thanks to the Senate Parliamentarian) to require plaintiffs to post a financial bond at the outset of a contempt case in federal court, significantly undermining the courts’ ability to hold the executive branch accountable, according to critics. Is Boulder trying to scare away other groups or individuals who believe they have a credible claim against the City by threatening to demand recovery of City’s costs? Sorry to say, bad look .
The City hasn’t wanted citizen input from the get-go. The CU South project was introduced and approved the same evening by city council’s imaginary “emergency session.” I remember Mark Wallach asking whether it was really necessary to do it by emergency session–it was so obviously not an emergency. But acting by emergency session allowed council to avoid having to consider more rational points of view in a more considered manner; it also prevented them having to listen to citizen input. So that was the first error on the part of the city. It’s been how many years now on this “emergency” measure and the city still doesn’t have any of their permits? I’ve learned recently that some of the city’s flood mitigation may actually cause more flooding in south Boulder. And the expense has gone from $66 million to ~$94 million. Can’t help thinking this is just another giant development boondoggle. I’m embarrassed my city is threatening the plaintiffs, who want actual flood mitiagation, in this bullying, bulldozing manner.
As one of the named plaintiffs I take issue with your focusing only on the side issue that:
“In legal filings, the group said its members “derive aesthetic enjoyment and improved quality of life from the open space that will be destroyed” by the project.”
If that was the actual basis of this lawsuit I would not be a plaintiff. This case is based on two legal issues:
(1) Passing the bond issue as an emergency when there was clearly no emergency.
(2) Financing the bond as a fee rather than a tax.
What both of these issues have in common is they both bypass required citizen input.
Are there examples of other bonds, especially of this size, financed as a fee? If not, this seems like a fairly winning issue; and the uniqueness eliminating any ability of the city to fee shift.
Proud of the city for showing some backbone. I lived through the 2013 flood. Life safety is vastly more important than “enjoyment.” The plaintiffs should be held liable for the entire additional cost resulting from the delays and forced into bankruptcy.
Really glad the city is taking this step in the face of such a spurious lawsuit. In reading the original lawsuit, it does seem like a pretty clear misunderstanding of how enterprise funds work. Of course Utilities’ bonds are not taxes–are they supposed to get voter approval every time a drinking water facility needs an upgrade? A pipeline needs to get fixed? A flood mitigation project is proposed?
And having followed the CU South project closely for many years, there has been plenty of public comment solicited and considered by the City. City Council and the relevant citizen boards have all gone through the public processes and approved the project as designed. The bond issuance was passed through an “emergency” process so they wouldn’t have to do additional readings of the bond (thereby delaying the bond and increasing its’ cost), and they only did that with the bond approval because they had already done all the public processes on the project plan (including the cost). I really hope the city can move forward with this project ASAP!
I don’t think 500 year protection is enough. They said the 2012 flood exceeded the 1000 year level and the big Thompson flood was bigger than that!
You don’t prevent floods by developing on a flood plain.
I’m running for City Council in 2025 and will do everything I can to bring some common sense to this issue if elected.