Boulder going after citizens will not resolve South Boulder Creek flood issues

On July 1, the City of Boulder filed a motion in the lawsuit brought in early April by Boulder citizens regarding the bonding of the South Boulder Creek flood control dam. The City’s motion claims that the citizens’ lawsuit is “frivolous” and asks them to pay over $46,000 in attorneys’ fees.

When I heard about this, I inquired of the city attorney, the mayor and councilmembers. The city attorney only said she “authorized the filing of the motion.” But councilmembers either didn’t respond or refused to even say whether they had discussed this with her. Apparently, no one wants to own what seems a blatant attempt to suppress citizens’ dissent.

The fundamental legal issues in the citizens’ original lawsuit are clear, and in my opinion, the exact opposite of “frivolous.” Can the City charge fees based on the “impervious surface area” of people’s lots within the City to pay for this dam, when the floodwater being controlled comes (almost) totally from outside the city? Can the City pass the ordinance to issue these bonds “by emergency” with no public hearing, without having any solid facts to back up that “emergency” claim?

When on Council, I put in a lot of time on flood issues. The flooding we were addressing was from creeks where a significant amount of water came from inside the city. We used the same funding model that many other cities used — charging property owners fees based on their lot’s “impervious surface,” as it seemed like a reasonable measure of their contribution to the flooding.

Whether we should have done this in all cases is a legitimate question, since this methodology makes most sense in relatively flat places, like Denver, where almost all of the runoff is internal. But this was Boulder’s first real foray into flood control, and I think we were a bit naive on the legal standards for fees.

Looking at the current situation, it’s clear that this fee design is completely inappropriate for South Boulder Creek. None of the flood water that this dam would catch (given its location) runs off from lots within the City (except for a few along the southwest border). Therefore, there is no justification for charging lot owners in Boulder on this basis; they are not responsible for this flooding.

As to the “emergency” passage of the bond ordinance, I think the City missed the fundamentals by essentially asserting (as I read their motion) that it is an issue of procedure, not substance. Boulder’s City Charter exists in large part to define the limits of powers granted to the City Council. Charter Article 17 states that an “emergency ordinance” must be “for the preservation of the public peace, health, or property” and, importantly, that the “facts showing such urgency and need shall be specifically stated in the measure itself.”

But the Council’s ordinance contained no such relevant “facts,” only the speculation that bond rates might go up. (By the way, rates went down.) If all it takes is the Council similarly claiming something is an “emergency,” then the Council could pass most anything “by emergency” and avoid public hearings completely.

The much bigger issue is that the City’s attempt to shut down this lawsuit, however it turns out, completely avoids resolving the underlying critically important issues — whether building a dam is the right solution, and, if so, is this dam is in the right location; who should pay and how for whatever flood control measures are instituted; would floodproofing be cheaper; and what should happen at CU South?

It seems to me that, over the last few years, citizens have raised enough legitimate issues that the City Council ought to do a serious review. And they should structure their approach so that most people will feel satisfied with the work, however it turns out.

This will require directly involving Boulder’s informed citizens. Pick a working group representing the relevant perspectives; include the people who have studied these many issues. Then have them work with an independent third-party consultant to collect all the relevant data and generate new work where the old was inadequately done.

This should include proper design of the upstream dam alternative, and a complete evaluation of floodproofing threatened buildings (as Frasier Meadows Retirement Community did). Also, involve CU via their new chancellor.

This group’s job would not be to rubber-stamp the staff or Council’s old work, but to create a complete and competently done set of up-to-date analyses. The end goal is to have most everyone say, “Job well done!”

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