Residents are asking the Colorado Supreme Court to reverse a Court of Appeals ruling that upheld Boulder’s use of stormwater utility fees to pay for the South Boulder Creek flood mitigation project at CU South.
The petition for certiorari, filed on Sept. 29, is the latest in a legal fight over the project that has been in the works for more than a decade. The 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 residents who live in the 100-year South Boulder Creek floodplain. Properties in that floodplain have a 1% chance of flooding in any given year.
The lawsuit centers on whether the city’s use of stormwater utility fees to fund the project constitutes a tax. The plaintiffs, Save South Boulder and several Boulder residents, argued that it does and therefore requires voter approval under the state’s Taxpayer Bill of Rights (TABOR). They also argued the fees violate TABOR because many residents who pay them will not directly benefit from the project.
The lawsuit has stalled the city’s ability to issue bonds to finance the project. As a result, the city said it now plans to fund construction year by year using money from the stormwater fund. This would stretch construction from three years to five. City officials have said the new timeline increases the project’s cost from $66 million to $76.6 million. The city has also said the majority of the site will be closed for construction beginning Monday, Oct. 5.