Opinion: The City of Boulder goes after its own citizens … and loses!

As many of you already know, three Boulder citizens filed a lawsuit against the city over both the process and the substance of the city’s attempt in early March 2025 to sell $66 million worth of bonds to finance the ill-considered South Boulder Creek dam. The court ruled against the citizens. Then, in early July, the city filed a motion to go after these citizens for attorneys’ fees. But on Wednesday, Jan. 21, 2026, the judge ruled for the citizens and against the city. His excellent comments included the importance of preserving the citizens’ right to challenge the city’s actions (my words, not his).

In the original lawsuit, the citizens alleged that the city (1) failed to follow the city charter in passing the bond issue at a single reading “by emergency” and (2) that the fees the city intended to charge calculated on “impervious surface” within the city were not legal to use to pay for the dam that, for the most part, would contain water coming from outside the city.

In my opinion, the citizens’ claims were totally valid, and they have appealed the original ruling. Charter Section 17 “Emergency Measures” states, “No ordinance shall be passed finally on the date it is introduced, except in cases of emergency, for the preservation of the public peace, health, or property, and then only by a two-thirds vote of the council members present. The facts showing such urgency and need shall be specifically stated in the measure itself. No ordinance making a grant of any franchise or special privilege shall ever be passed as an emergency measure.”

An “emergency” is generally defined as something sudden and unexpected, and which requires immediate action. Given that the big flood was over a decade ago, this situation clearly is not an “emergency.”

Worse, the staff memo accompanying the bond ordinance, in effect, agrees with the citizens when it states that passage with only a single reading, “…eliminates the scheduling conflict between the financial process associated with the bonds and the city processes associated with the ordinance.” There is nothing stated about “urgency” at all, just convenience.

I checked with our neighboring city Louisville, also a home-rule city. They pass such bond issue ordinances using the standard two readings process. So, although Boulder may have used this “emergency” process in the past to pass bond issues, that does not make it right or legal, and it’s clearly not necessary.

Finally, I note that the actual ordinance, in its last paragraph, provides a completely different set of “emergency” excuses, “Due to fluctuations in municipal bond prices and interest rates, and due to currently favorable interest rates, and due to the need to finally act upon and accept the bid of the highest responsible bidder…”

Regarding interest rates, I note that bond rates have become more “favorable” since they passed this ordinance in March, 2025. And the ordinance says that the city will accept rates up to 5.25%, above the current market range.

Regarding the statement about the “need to finally act,” at that point (March 2025), the city hadn’t even submitted the dam design to the State Dam Safety Engineer, whose approval is necessary. Then the city didn’t pay to get the first report back until early June; that report found the design needed fixes. And then the city took seven months to submit the corrections, which, of course, may need further corrections. Plus, the city has failed to file the required final cost estimates.

My conclusion: There was plenty of time to hold two readings and a public hearing. The city should fix its processes and stop crying “emergency” when none exists. Very bad behavior!

As to the appropriateness of the use of fees based on the “impervious surface” of lots within the city to pay for this huge dam and flood wall, there are numerous, very substantial issues:

First, the current flood fee structure based on “impervious surface” was adopted in the late 1980s, well before TABOR passed in 1992 and made the “fees vs taxes” issue an important consideration. This fee structure was based on Denver’s fee design. But Denver has an entirely different geography, being mostly flat and very large, whereas Boulder is much smaller and most of the water comes from the mountains to the west. This geographic reality alone makes it clear that the city should have fixed these fees long ago.

As an aside, I note that Boulder’s streets contribute a lot of impervious surface, but they are apparently not accounted for. Also, the applicable fee ordinance, BRC 4-20-45, seemingly charges some lots based on total lot area and others based on “impervious surface.” This inconsistency adds to the already substantial equity issues.

Relative to the equity of only charging based on “impervious surface” within the city, the Boulder Creek watersheds, including South Boulder Creek, main Boulder Creek, and all the other tributaries that drain into or through Boulder, encompass about 447 square miles. But the whole City of Boulder is only around 26 square miles, approximately 6% of the watershed total. South Boulder Creek itself is about 30% of the total, and the part upstream of the proposed dam site at U.S. 36 is almost entirely outside the city limits.

Even if the land above Barker and Gross dams is excluded (for floods that are not in the spring, the reservoirs have some capacity to catch the floodwater), the city proper is still a small fraction. So, the significant majority of our flood water comes from outside Boulder, not from inside. This makes the current fee design, based solely on surfaces within Boulder, both inaccurate and unfair.

Boulder must revise its fee structure to make it legal. One approach would be to charge a two-part fee: The smaller part would be proportional to the surface area inside the city that contributes to flooding. The much larger part would be paid by properties that benefit from being protected by flood improvements. This “benefit” calculation could be tied to a property’s value times the probability of it being flooded and damaged.

So, for example, properties in the 100-year flood plain (1% per year probability of flooding) would pay more than those only in the 500-year flood plain (0.2% probability per year); properties outside both floodplains would not pay a “benefit” fee.

If done right, these “impervious surface” and “benefit” fees together would meet the “rational nexus” test (a reasonable, direct connection between what the fee is being charged for and a legitimate public purpose) and the “rough proportionality” test (it is roughly proportional to the projected impact or benefit). This combination would make such a fee easily legally defensible.

Critically, this redesign of the fees must be done before the dam bond issuance ordinance is finalized, since having a legally defensible revenue source is an important part of any such bond offering.

Back to the decision by the city to sue its citizens: I’ve spent considerable time trying to find out how this offensive action came about. The city manager and attorney never responded to my questions as to who conceived the idea or how it was discussed or approved. And none of the council members provided me with anything useful as to what process was followed. I also checked the council agendas; this action was not announced for consideration as required for either a regular meeting or an executive session.

Council, it’s time to clean this whole mess up! It’s pathetic that no one will take responsibility for this raw abuse of power, and possible violation of open meeting laws. First, acknowledge your mistakes and apologize to the citizens. Then do a serious, independent, objective, detailed, citizen-overseen study of all the various options for South Boulder Creek, including the financials, before trying to make a choice in how to proceed.

Especially, look at the analyses and recommendations of Gilbert White, a long-time Boulder resident and “the father of flood plain management,” whose principles we followed when we did the highly successful work on the main stem of Boulder Creek and other creeks to the north of it. White’s approach may save a lot of environmental damage … and money!

Regarding CU, whose property would be used, I suspect that the new chancellor, with his engineering background and apparent environmental interests, would likely support a less impactful design, so long as CU gets some useful and protected land.