City of Boulder Ballot Question 302: Let The Voters Decide on CU-South Annexation

CU-South – the “before” picture

At its simplest, passing City of Boulder Ballot Question 302 (Let the Voters Decide on Annexation of CU-South) would require officials to provide information specified in the initiative to the public about CU-South development plans – including a site plan, transportation plan, and financials. It would also require voters to approve an annexation agreement before the City could provide services – except for flood mitigation – for the CU-South property.

But this issue is really not simple, so buckle up and let’s go!

South Boulder Creek: Hazardous at High Volumes

The South Boulder Creek (SBC) runs alongside the CU-South property, and portions of the property could eventually be used for SBC flood mitigation under the current annexation agreement. For a vast majority of time, SBC does not pose great danger to anyone, but in case of severe and extended precipitation, it’s prone to extreme flooding that has caused damage and threatened physical safety in Boulder.

Image of South Boulder Creek watershed, courtesy of Gordon McCurry

As readers can see at left, the SBC originates at about 11,000 feet elevation near the Continental Divide above Boulder. Its entire drainage spans about 132 square miles, and it’s important to understand water will flow into the main SBC through any or all of the smaller sources in this drainage, so it all adds up. Gross Reservoir, currently capable of storing 41,811 acre-feet of water, lies at 7,225 feet elevation between the Divide and Boulder, and it could capture some of the water volume from higher elevations in case of a serious storm.

You don’t need to be a water engineer to understand that an extreme rain event could help create serious flooding in the SBC floodplain, thanks to the combination of a large drainage area and the force of water coming down from higher elevations.

CU-South Property: “Controversial” is a Gigantic Understatement

In 2021, the deep history of the CU-South property might not matter to newer residents, but those who have never considered it could benefit from at least skimming an outline, like this: https://www.savesouthboulder.com/history-of-cu-south.html

Parts of what is now CU-South were used by the Flatirons Company for gravel mining, beginning in 1952. The mining operations took a great deal of gravel from beneath the land surface, and the excavation obviously created low spots on the property.

The City of Boulder established its formal Open Space program in 1967, and in 1972 the City Greenbelt Committee unanimously resolved “since this general area provides an entry way to the City…its general character should be that of open space. ” Also in 1972, it accepted mining of the entire site provided the “land remains open space at virtually no cost to the public” after the mining was completed. In 1981, 220 acres of the property were identified as “future open space” in the Boulder Valley Comprehensive Plan (BVCP).

In 1996, CU purchased the 308-acre property now known as CU-South, though the university said back then that no development was expected until 2020. Extremely briefly, the City of Boulder was interested in purchasing the property before CU bought it, although the City’s appraisal value was significantly lower than the actual purchase price of $16.4 million. After the purchase, the issue remained controversial among certain longer-term residents and contentious among local governments, including the Board of Boulder County Commissioners and Boulder City Council, partially due to floodplain and land management issues.

CU did perform water mitigation projects at CU-South, including increasing the height of an existing earthen berm on the property in 1998, which drew criticism from the Commissioners for its possible impact on downstream flooding. It also filled in small lakes and wetlands on the property.

On the day after 9/11 in 2001, CU held an open forum to present future conceptual ideas for the property, which included “128-170 acres for development of buildings, 82 acres preserved for natural areas, (and) 45 acres for sport fields combined with potential flood storage.” Those who have read the 2021 annexation agreement might find those numbers generally familiar. The BVCP at the time called for preserving 221 acres of the 308-acre property as Open Space.

The 2013 Flood: A Harsh Wake-up Call

In September 2013, an extremely strong and slow-moving storm basically camped out over much of Colorado’s Front Range, dropping in some locations 16 inches of rain or more over the course of several days.

In south Boulder, floodwaters overtopped US 36 near the intersection with Table Mesa Drive, and high volumes of water entered an area with significant residential population called the West Valley. Also, a number of residents of the Frasier Meadows retirement complex had to be evacuated.

In 2021, certain Boulder residents pointed to a report based on a city “Flood Impact Survey,” suggesting that significant amounts of the 2013 property damage in south Boulder could have been attributable to other sources, including tributaries or localized drainage systems, but the storm certainly dumped extremely high volumes of water into the South Boulder Creek.

This is by no means meant to minimize what happened in the South Boulder Creek floodplain – but according to the National Weather Service this was a widespread storm: “Flood damage encompassed nearly 2,000 square miles of the Colorado Front Range in 18 counties. There were 8 flood fatalities. More than 3,000 people had to be rescued and more than 11,000 evacuated. The storm destroyed 1,500 houses, 200 commercial buildings and 30 state highway bridges. Flood waters damaged nearly 19,000 houses and 800 commercial buildings, 200 miles of roadway, and 20 state highway bridges. Large sections of the counties’ roads and highways were washed away, with property and crops completely inundated. Miles of freight and passenger rail lines were washed out. Total estimates for damage range from $1 to $2 billion.”

Closer to home, roads were washed out and outside access to the towns of Lyons and Jamestown became nearly impossible except by helicopter; there was severe flooding along the St. Vrain River in Longmont; and there was much property damage in Boulder along major drainageways. According to a city “After Action Report,” 6,562 housing units throughout Boulder were damaged to some extent. Again according to the Flood Impact Survey, the main Boulder Creek and Two Mile Canyon / Goose Creek drainageways reported comparable property damage in raw dollar figures to the South Boulder Creek drainageway.

Major South Boulder Creek flooding doesn’t happen often, but when it does it can be serious! Image courtesy of Gordon McCurry

But the South Boulder Creek has a history of periodic extreme flooding, as readers can see at right, and the 2013 flood led to stronger calls for flood mitigation to protect the vulnerable West Valley in case of a repeat storm performance.

Flood Mitigation: Not So Much If, But How And When

No matter anyone’s opinion about what should or shouldn’t happen at CU-South, CU owns the property, but there are major complicating factors. For CU to do any large-scale development, such as housing or other construction, it needs basic services including water and sewer. The City of Boulder is able to provide water and sewer services, but doesn’t have to provide them unless the property is formally annexed into the City of Boulder. And flood mitigation options to protect the West Valley pointed to the need for some of CU-South to be used for floodwater detention.

Extremely long story short – talks about annexing CU-South heated up after the 2013 flood. In 2015, City Council approved a South Boulder Creek Flood Mitigation Plan, and the Boulder Valley Comprehensive Plan (BVCP) was updated in 2017 to incorporate land use designation changes for the property.

However, the university and the city continued negotiations on the specifics of flood mitigation after the 2015 plan was approved. This included much discussion and formal City Council votes on various “variants,” until 2020 when it voted in favor of a mitigation plan that would be designed to handle a 100-year flood. It’s important to remember that 100-year floods don’t necessarily happen just once every 100 years – it actually means a storm of a given size has a 1% chance of happening in any year.

In this year’s run-up to Council approving the annexation plan, many citizens mentioned that climate change could mean storm events of the future could be more intense, and asked for more robust flood mitigation. Some people also suggested a “land swap” under which CU might get land in the city’s “Planning Reserve” in unincorporated north Boulder that’s flat and not prone to severe flooding, though this land is not immediately available for annexation and CU has not said it would accept such a deal.

A “Concept Design Report” provided by RJH Consultants describes some of the mitigation options considered for CU-South, including 200-year and 500-year plans, and provides the basics of probable flood mitigation in the area in good detail. To read the report, visit https://bouldercolorado.gov/projects/south-boulder-creek-flood-mitigation and scroll down to “South Boulder Creek Concept Design Report.”

A rendering of what might happen under a flood mitigation plan. Image courtesy of Gordon McCurry.

The image at right might provide readers with a decent concept of what’s currently envisioned. In extremely brief, a concrete floodwall upstream of US 36 would divert floodwaters onto a detention portion of the CU-South property, capturing large quantities of water that might otherwise threaten the West Valley. To enable some types of development on the property, an estimated 150,000 cubic yards of landfill would be used to lift some of the property out of the 500-year floodplain. An earthen embankment on the north side of the property would help keep water in the detention area.

According to a city “briefing book” on CU-South, the estimated cost of the flood mitigation project includes $10M for soil fill and $15M for property impacts, including demolishing existing tennis courts and a warehouse (see below). The placement of fill material would raise 34 acres at CU-South out of the floodplain to allow for future development.

The City of Boulder would still need to obtain approvals for the flood mitigation project from numerous agencies, including the U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, Federal Emergency Management Agency, Colorado Department of Transportation, and Colorado State Engineer’s Office.

The Current Annexation Plan

Boulder City Council and the University of Colorado Board of Regents both approved the current annexation agreement in 2021. Here are some bullet point highlights:

• The City of Boulder would be required to provide water and sewer service.
• The property could eventually hold 1,100 residential units.
• Five acres would be set aside directly for deed-restricted affordable housing.
• Allows 750,000 square feet of non-residential development.
• Loosely defines the types of allowable residential and non-residential buildings.
• CU will not be allowed to sell any of the property for at least 10 years.
• The city would obtain 80 acres for flood mitigation at no cost, and would have the option to purchase up to 75 acres for Open Space, at $37,500 per acre.
• The city and CU would collaborate on trail planning for the Open Space areas.
• There could be various types of events on the property, and the agreement defines noise and lighting standards for the property.
• Transportation planning would include a “trip cap” for South Loop Drive of no more than 5,550 daily trips each day.
• Trip cap exceptions could be granted for up to 12 “special events” per year.
• The plan outlines Transportation Demand Management strategies to limit single-occupancy vehicle use, and CU would build a multi-modal mobility hub.
• If the city can’t obtain the necessary approvals and permits for the flood mitigation project, the agreement authorizes a “de-annexation.”
• If CU wants to sell CU-South property, the City of Boulder would have a “right of first offer” option, giving the city the ability to make an offer to purchase available land.

Since the city and CU approved this annexation agreement, citizens began attempting to collect signatures once again to put a referendum on the 2022 ballot that would nullify the annexation agreement with voter approval. This referendum is separate from the effort to pass Question 302. As of early October, the petition drive was ongoing, and the citizens have until October 21 to gather 3,336 valid signatures for the referendum.

PRO AND CON ON QUESTION 302

PRO:

• By passing 302, city residents would have the opportunity to know much more detail about CU-South plans before voting to potentially approve an annexation agreement.
• The language in 302 would not prohibit flood mitigation work from moving forward before a citizen vote on an annexation agreement.
• City ratepayers will pay millions of dollars for the project, and future taxpayers could be on the hook for expenses associated with the new development, so city voters deserve a say in what happens at CU-South.
• Annexation often requires a site plan, and 302 requires a site plan before voters have a say on annexation, which is logical because it would provide detailed information plus it’s common practice.

CON:

• Passing 302 might make development on the property less of a certainty, since voters would need to approve an annexation agreement before most city services could be provided, and voter approval is not guaranteed.
• Passing 302 could delay flood mitigation upstream of US 36, especially if CU does not allow use of its property for flood mitigation until there is an annexation agreement.
• CU has owned the property since 1996, it’s eligible for annexation, and the university has some reasonable expectation of being able to develop in a timely manner within the scope of the negotiated annexation agreement.
• 302 was drafted before the final annexation agreement was approved, and some of the points in 302 were incorporated into the annexation agreement.

ON THE WEB

YES ON 302: https://www.savesouthboulder.com/
NO ON 302: https://www.protectourneighbors.org/
City of Boulder Annexation Page (many, many documents available here): https://bouldercolorado.gov/projects/cu-boulder-south-annexation
University of Colorado CU-South Page: https://www.colorado.edu/cubouldersouth/

Richard’s Take

Question 302 poses a few general questions. Do city residents who will pay for some of the CU-South project know enough about what development would happen there? Should voters be able to make a binding decision on this issue, or should the decision be left to elected officials? Could there be unintended consequences? And is this annexation agreement the best we can do?

Passing Question 302 would set a specific course of action, assuming it’s found to be legally binding. So, I would recommend voters focus on the actual initiative and what it would do, though it also seems likely that some people will vote solely on whether they support CU-South annexation or not. Meanwhile, I’d like to touch on a few of the questions I posed above.

Should city voters get the opportunity to make a binding decision? I think there’s a strong case to be made that the answer is yes. City ratepayers will be paying a significant amount of money for the project, and while it wouldn’t be through a tax increase that would typically trigger a ballot measure under TABOR, it’s still a big chunk of public spending. There will be neighborhood impacts during construction and post-development, a loss of open lands, and a loss of some of the unspoiled views along US 36 – again, in my opinion legitimate reasons for citizen input.

But as I wrote in my opinion on this year’s Bedrooms Are For People initiative, I often struggle with whether an issue should be decided by the ballot or through public process and elected officials. The down side for me here is that a lot of voters will make a split-second decision on a matter of potentially immense consequences because they read something on a yard sign or social media, and that will include voters on both sides of this issue.

The positive side is exactly what I wrote about Bedrooms – it’s possible that elected bodies can’t or won’t do what broad segments of the people want, so they might have to take it to the voters. Not to minimize the work of in essence elected small-r representatives, but only six City Council members voted for the current agreement (though there were two recusals), and of the five University of Colorado Regents who voted in favor, none of them actually live in Boulder (though Regent Lesley Smith of Boulder recused herself). Even if all the recusals voted “yes,” that would still only be 14 people, while more than 30,000 will probably vote on 302. Whose views matter?

Do city residents know enough about what will happen on the property? My first inclination is to say “read the annexation agreement.” If you do, you’ll find that the parts about physical development are basically an outline, and not very detailed. That’s admittedly natural because of where we’re at in the process, but readers won’t learn much more than general stuff: the general area to be developed; general types of allowable buildings; general regulations like height limits; a general objective to make “15-minute neighborhoods”; and more generalities. Given that there could be 129 acres developed – double the acreage of the Twenty Ninth Street retail district – I seriously doubt a lot of Boulder residents could read the agreement and glean a clear idea as to how the whole thing will turn out.

Question 302 would prohibit city services except flood mitigation until there is a site plan, among other provisions. I have no doubt that doing a site plan for CU-South would take a lot of time, but it’s also a fairly typical requirement for annexations. Mayor Sam Weaver was quoted in the Boulder Weekly as saying, “We almost never do blind annexations; we usually have a site plan,” and with a site plan the people of Boulder could get a far clearer sense of what the development would really entail.

Could there be consequences if 302 passes? Yep. The campaign against 302 is quite adamant in saying passage could delay the start of flood mitigation work. On the other hand, the ballot language for 302 would expressly allow for flood mitigation before any annexation agreement is approved by voters. But CU owns the property, and CU’s been very clear for years that they want 129 acres for development, which might bring up a sort of Catch-22. To do the development, CU needs utility services, and to do mitigation the city needs access to CU land. To date, CU has not shown any willingness to allow mitigation on their land without an annexation agreement, for better or worse – and whether I lean toward “it’s worse” or not, I don’t own the property.

There is also the issue of whether 302 could even actually be effective if it passes, since the city and CU have approved the annexation agreement already. The Boulder Daily Camera published the following sentence in its endorsement editorial against 302: “According to interim City Attorney Sandra Llanes, this (the adopted annexation agreement) means the initiative is moot since it wouldn’t apply retroactively.” Still, the proponents of 302 say on their website that they believe the initiative would be effective if passed, and it deserves to be said that Council approved the agreement roughly six weeks before Election Day. Again going back to Bedrooms, it’s completely possible for a city attorney to be wrong, though of course the proponents might be wrong as well. So, another consequence, if 302 passes and officials hold to a position that the measure is not effective, might be the costs and delays of a court case.

Is the current annexation agreement the best we can do? I’ll answer my own question by posing a rhetorical question – how can the residents of Boulder who are not deeply involved in negotiations know until the details are clearer? Again, you don’t have to work in communications to know that official statements saying something is “good” or “the best we can do” don’t tell people much about specifics. I have no doubt that many painful hours went into negotiations, and that the people involved were well-informed, competent, and interested in completing a defensible agreement. What I do question is how significant the buy-in is from the broader Boulder community.

Conclusion: I’m not going to try to tell people how to vote on 302, but don’t take this as neutrality. Personally, I think CU-South is a lousy place for the kind of development envisioned. The project will be destructive in my opinion – destroying much of a pretty nice greenfield for buildings and asphalt and concrete, damaging the views of a relatively unspoiled area along US 36, threatening endangered species, and requiring gigantic amounts of construction plus landfill to make the whole thing work. There would be benefits, primarily the new housing, though the benefits of housing would be fundamentally similar if the project was located elsewhere in Boulder. If somehow 1,100 homes and some nonresidential development wound up in the north Boulder Planning Reserve, it would be CU In My Back Yard (CUIMBY) because I live near there, and I’d still rather see it there than in the floodplain. I’d also try harder to steer clear of 28th Street, but that’s progress!

I’m a fan of CU in so many ways, but it’s fallible. CU was smart to buy property when it was available, but it had to understand the floodplain issues in advance of the purchase. From the 30,000 foot view, I don’t think an open-minded person could look down and conclude that the only possible way to do flood mitigation is to truck in massive amounts of landfill to another part of the floodplain and build a project twice the size in acreage of Boulder’s Twenty Ninth Street retail district. To be perfectly clear, I want mitigation at US 36 to protect nearby residents ASAP, yet can’t approve of CU’s insistence that development had to get the green light before it would grant access to its land for mitigation. But as Chris Matthews used to say, “Welcome to Hardball.”

As I said above, passing Question 302 would set a specific course of action, and voters ought to consider the pros and cons of taking this action while deciding how to vote. Meanwhile, it’s possible that the referendum could make the 2022 ballot, and in case that happens, I’ll recommend that all Boulder residents should continue to build knowledge about CU-South because we might be back at it next autumn.