Annexed by emergency vote

Two-and-a-half decades of discussion and negotiation over the CU South property ends in a council vote to annex by emergency—but the saga may not be over

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The Boulder city council voted 6-1 on September 21 to annex one of the most controversial properties in Boulder: CU South. It was the culmination of decades of discussion, review, negotiations and debate. And while the emergency annexation passed by near-unanimous council vote, it will undoubtedly be challenged by referendum. 

A week prior to the vote, on Tuesday, September 14, protesters had flocked to the City of Boulder municipal building—city council was preparing to hold its second reading of the CU South annexation agreement, followed by a public comment period on the long-contentious issue (read: “The controversy surrounding CU South explained,” Boulder Weekly, 3/14/20). 

The group of anti-annexation protesters outside was there to voice opposition to the agreement. The impending city council vote on September 21 was an attempt to subvert their democratic right to vote on the matter, they asserted. After decades of deliberation and negotiation with CU, the city was ready to move forward with its annexation agreement, with or without the people. The council was going to approve Ordinance 8483—to annex CU South—by emergency power. 

City staff had recommended the emergency vote in order to ensure that floodwork and funding for it continued to flow—despite the referendum promised by opponents.

“The only reason [the city council] is in this great big rush is because they want it to pass before the election. They are afraid of us,” Marki LeCompte, co-chair of Save South Boulder, said to the crowd circling before the municipal building on September 14. “If our ballot initiative passes, then there will have to be a citizens’ vote on annexation, and if that passes they have to go back to the drawing board,” she said, to scattered applause.

Peter Mayer, co-chair of PLAN-Boulder spoke to the small crowd next.

“We need to tell our city council to respect democracy!” Mayer shouted. “To respect our democratic traditions that have served the people of Boulder so well. They need to pause this annexation and let the people of Boulder have a vote.”

And if the council were to move forward without said vote by the people, Mayer promised they’d be back with a referendum to overturn the decision. 

Marki LeCompte speaks to a crowd of anti-annexation protesters on Tuesday 14. Courtesy of Will Brendza.

The city council meeting that followed would go on for nearly five-and-a-half hours. In attendance were Phil Kleisler, senior planner with the City of Boulder; Joe Taddeucci, the city’s director of public works; Sandra Llanes, the interim city attorney; Derek Silva, the assistant vice chancellor for business strategy at CU; and Abby Benson, the deputy chief operating officer at CU. Boulder’s mayor Sam Weaver, along with the other eight members of city council, read through and discussed the annexation agreement point-by-point, answering questions and updating everyone as to the latest changes, made within the month.  

The public comment period started two-and-a-half hours in—more than 100 speakers were signed up when it at last began. The vast majority desperately and emotionally implored the council to approve the annexation of CU by emergency powers. Many of the speakers were on the verge of tears as they recalled the catastrophic flood of 2013 and begged for immediate action.

“While I’m sure of the support of some council members, I get a sense of ‘Why hurry?’ from others,” Tim Johnson, CEO of the Frasier Retirement Community, which was devastated by the flood, said. “I helped shepherd our Frasier residents to safety on the night of September 11 of 2013.”

He told how emergency services were unavailable, how he and others had to evacuate the nursing home over the course of two days of nonstop rain, on their own. Eventually a wall of water forced its way into the building and, as Johnson put it, “life changed.” 

“There was no time to gather thoughts, review and systematically follow emergency procedures,” Johnson recalled for the council. “We began evacuating 54 healthcare residents, half of them from our secured memory unit, most in bed, carrying them to safety, some over our shoulders.”

Nikki Lewis, the CFO of Frasier, spoke next, her voice trembling: “Reliving what Tim [Johnson] just spoke about, we were there, and it does need to be a priority to save our neighborhoods and save our residents.” 

A minority of commenters, several from the earlier protest, spoke out against the annexation. 

“This is not a debate about flood mitigation, which I think we can all agree is a good idea,” David Martus, a long-time Boulder resident, told the council. “This is about good governance, and how far the city should go to get flood mitigation from CU. And in my opinion we’re not there yet.”

Raymond Bridge, speaking on behalf of the Boulder County Audubon Society, expressed ecological concerns about the CU south property: “Development of an additional campus at CU South would have enormous impacts on Boulder. No site plan has been provided, violating the normal process the city requires for annexation,” he said, “making it impossible to judge the likely impacts.”

One after another residents spoke, making their cases either for or against the approval of the annexation agreement by emergency. Finally, around 11:30 p.m., after hearing from almost 100 citizens, the tired-looking council members concluded, agreeing to continue the meeting a week later, on September 21—the same day they would deliberate and finally vote on whether to annex CU South or wait until the matter goes to a people’s vote in November. 

The CU South Property, looking west. Courtesy of Angela Evans.

A few days after the September 14 public hearing, Mayor Weaver and Councilmember Rachel Friend met Boulder Weekly at the CU South Property for a walking tour of the controversial 308-acre lot. 

“​​I want to get one thing out of the way, right up front,” Mayor Weaver said seriously, a toothpick sticking out of the corner of his mouth. “People who are against this are saying that if we pass an annexation by emergency, it means that the referendum cannot happen. That is false.”

“We’re not trying to interfere with democracy,” Friend added. 

Mayor Weaver explained that even if city council approves the annexation agreement by emergency, the people of Boulder will still have the opportunity to follow with a referendum, which would allow Boulder voters to overturn the council ordinance. 

Weaver took out his phone and pulled up the City of Boulder emergency provision charter, section 38A, which allows Boulder voters to overturn an emergency ordinance. 

Weaver and Friend hope that doesn’t happen. Because, they both opined, this agreement is about as good an option as Boulder is going to get. 

“My preference would be to mitigate for a [1,000 year] flood,” Friend said. “But, within reality, we’re looking at five hundred to one hundred year flood protection . . . this has been looked at for 20 years and it’s just been this steady winnowing of options.”

Friend and Weaver then physically pointed out and explained all the reasons why the 500-year flood-plan was simply unattainable: In order to build a sufficiently large floodwall to contain the water, the city would need to tie into CDOT’s bridge under U.S. Highway 36—which CDOT will absolutely not allow; according to Colorado water law, all water detained by a municipality in the event of a flood has to be released in 72 hours—which wouldn’t be possible, given the amount of water that would have to be conveyed under Highway 36 in just 72 hours; FEMA wouldn’t have approved the 500-year flood mitigation plan because it would have violated safety codes; the 500-year floodwall would take up eight to 10 additional acres of space on the property, and would extend into the State Natural Area (home to several protected species of animals and plants).

Their list of reasons went on. Clearly, the city’s engineers had considered the different possibilities, from a 300-year flood protection plan to different layouts and configurations of the floodwall, to different options for groundwater conveyance and drainage. The current plan on the table, both politicians repeated, is the best one that the city and CU could come up with—and it’s the best deal that’s been in the city’s hands in over 20 years of negotiation.

“People say, ‘If you just slow down, and if we just had the property and CU wasn’t part of this, we could do better, we could do 500,’” Friend says. “And we can’t. For 20 years we’ve looked, we’ve tried everything and this is what we can do. When we talk about 500 and there’s a zero chance of doing it, then our choices are: do we want 100 or do we want zero?”

That seems to be the point a lot of residents of South Boulder have arrived at. During the public comment period on September 14, that was a recurring line of reason: This has been a discussion in Boulder for decades, the city has already experienced one devastating flood event, and the possible options have been diminishing over the years. The current agreement is a good one for the city, and the time to act is now, before the area floods again.

“I think this is [a better deal] than everybody hoped for,” Friend said, as the tour of CU South concluded. “I think CU has been a very generous negotiating partner.”

Under the current deal, CU is offering the city 155 acres of the 308 acre property—119 acres of which will become permanently protected open space. And, contrary to what many opponents of annexation argue, the city will actually get a say in how CU develops its 153-acre portion of the property. 

“That’s what this whole annexation agreement is about!” Friend writes in an email. “It sets guardrails around what CU can and cannot do [or build] on the property. As a state entity, CU is not ordinarily subject to city building codes . . . But as part of this agreement, CU has agreed to many limits that will be legally enforceable.”

“In a climate emergency, delay is not your friend,” Mayor Weaver adds. “If this had not been studied for 10 years, then maybe there would be a case for more consideration. But we have done plenty of analysis and public engagement to support making a well-informed decision and moving ahead expeditiously. So now is in fact the most opportune time to make a clear decision—when the process is complete and with council members who have had two to 10 years to get up to speed.”

Otherwise, the decision will end up in the hands of a new city council, after the next election. That, Friend says, could lead to “goalposts getting moved.”

Anti annexation protesters on Tuesday September 14. Courtesy of Will Brendza.

When the council gathered virtually on the night of September 21 to finish the meeting they’d started a week earlier and deliberate on the annexation agreement, there was another three hours of discussion before they finally made a motion to vote on Ordinance 8483—whether or not to annex CU South by emergency. 

The vote was six to one: Every council member voted in favor except Mirabai Nagel. After almost 25 years of debate, discussion, analysis, review, negotiation, and at least one catastrophic flood event, the CU South property is subject to annexation by an emergency vote of the council. South Boulder is due to get its 100-year flood protection (eventually, after engineering design for “phase 1” is completed in 2024) and CU will have the option to develop their portion of the property according to the constraints laid out in the agreement. 

Maybe. 

As the protesters at the September 14 anti-annexation rally promised, this decision is already being followed up with a referendum. After decades of fighting against this, the Save South Boulder activists aren’t going to give up easily. 

“What happens when the flood comes that wasn’t the design-flood that the engineers planned for and you’ve got a development the size of downtown there?” Peter Mayer asked at that rally. “What happens when the Sam Weaver detention pond and the Rachel Friend flood berm fail?”

Mayor Weaver scoffed when asked the same question (in so many words). 

“I would say, ‘Thank God we built the 100-year flood protection plan,’” Weaver says. “Because 55 percent of the water that would have gone downstream into people’s basements would be trapped [at CU South] instead.”

“It would buy [residents] a lot of time,” Friend said. “And what we’re talking about here is preventing catastrophic outcomes.”

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