A Boulder County District Court judge has denied a request from residents to reconsider his earlier decision to dismiss their lawsuit against the City of Boulder over the financing for the South Boulder Creek flood mitigation project.
In an Aug. 25 ruling, District Court Judge Michael Kotlarczyk rejected arguments from the group Save South Boulder that he made a mistake in finding the city’s stormwater and flood fee was not a tax under the Taxpayer’s Bill of Rights (TABOR). The residents had argued the fee was improperly used to back a $66 million bond sale intended to help pay for the project.
The project is located on the CU South property and is a centerpiece of a 2021 annexation agreement between the city and CU Boulder. Plans for the project include building a concrete spillway and detention pond designed to protect about 2,300 residents in the South Boulder Creek floodplain. Opponents of the project have long raised concerns about environmental impacts and loss of open space. The lawsuit by Save South Boulder is the latest flashpoint in a dispute dating back decades.
This week, Kotlarczyk reaffirmed his June 10 order that the charge qualifies as a fee and that it is exempt from TABOR. He also rejected an argument that the city improperly passed the ordinance to issue bonds for the project by emergency, stating the courts should not second-guess such declarations unless there is evidence of fraud or bad faith.
The latest ruling leaves intact the dismissal of the lawsuit, which city officials have said has delayed the sale of bonds needed to finance the project. The city has warned that delays could increase construction costs. The project’s groundbreaking was planned for early 2025.
Save South Boulder has said it intends to appeal to the Colorado Supreme Court. In part to discourage the lawsuit from dragging on, Boulder is seeking attorneys’ fees from the plaintiffs, accusing them of filing baseless claims to stall the project. That request is pending.