Save South Boulder

Breaking News, May 27

 

Dear Friends, Supporters, and Donors to Save South Boulder,

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Finally: Updates!  At least as far as our court case against the City of Boulder is concerned, we’re still in the game. And we are elated!!  However, we still need to raise about $8500 to retire our debt to our hardworking lawyers. So, Read On, and Please send donations!    Here’s the latest:

 

What Happened in Court: 

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On May 27th, 2026, Attorney Randall Weiner,  of Weiner and Cording, appeared in the Colorado Appellate Court to argue for the plaintiffs in Save South Boulder et. al v City of Boulder and City Council for the City of Boulder CO. The oral arguments were heard before a panel of three judges. First Randall, and then Thomas Snyder, of Kutak Rock LLC, the City’s hired attorney, had just 15 minutes, including rebuttal, to argue whether Save South Boulder's appeal of the dismissal of its lawsuit, moved by the City and granted by a local District judge, would be upheld or not.   

 

The judges asked quite a few questions (which is good); they did not seem at all hostile to Randall’s arguments and seemed very knowledgeable about the intricacies of TABOR law. They clearly had read our briefs. We felt that Randall did a stellar job of responding to even the most pointed questions, especially when his interpretation of key cases used as support differed from the City’s interpretation. He also persuasively and strongly rebutted all of the arguments made by the City's lawyer. We also felt that Mr. Thomas didn’t seem to be all that well-prepared or even a very articulate speaker. After it was over, Randall said, "Well, we've got a shot!"  Which is about as positive as we've seen him be. So we feel about as optimistic about our chances of success as is possible, given that the appeals process is lengthy and wearing.

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What's Next?

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The judges' decision will be handed down anywhere from a month (unlikely) to 6 months from now.  If we win, it’s likely the City will seek certiorari –or agreement that the State Supreme Court will hear their appeal. Only about 1 in 20 cases actually are accepted for such a hearing. If we lose, we also definitely will try to appeal.  Nonetheless, given that the Colorado Supreme Court upheld the plaintiffs in a TABOR case similar to ours in Lakewood, CO, last year, we feel our chances are pretty good of gaining a hearing and then of prevailing.  

A win on appeal would be a landmark ruling on how Colorado cities can finance capital projects. It would reinforce the First Amendment rights of citizens to seek redress from government actions. Importantly, it would require citizen votes on large public works projects!

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What The Lawsuit Is About:

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While our fight ultimately is about protecting the environment and implementing safe, sane and best-practice flood control, our legal case is based on the Colorado TABOR Amendment. The Colorado Taxpayer Bill of Rights requires that governments submit any increases in taxes to a citizen vote for approval. In so doing, TABOR reinforces democratic rights.  We’re arguing that the City has violated not only the City Charter by declaring an “emergency” where none existed, and TABOR law—by declaring that what really is a tax is “just” a fee not requiring a citizen vote. So the key legal questions are, is the increase in stormwater assessments a fee?  Or is it a tax?  And by declaring it a fee, is the City violating the First Amendment of the US Constitution, which gives citizens the democratic right to seek redress of grievances imposed by their government? 

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Basically, when Boulder’s City Council approved a $66 million bond issue on March 6, 2025, to fund a dam at Hwy 36 and CU-South, it included in that approval repaying the bond debt through increases in the stormwater assessments imposed for every water user in Boulder. It did so unilaterally, without public input, any public hearings, or a vote of the citizens to approve this use of its utility bill payments. Save South Boulder believes that the City Council is calling the increase a “fee increase,” not a tax increase, because it wants to avoid a public vote on both this water bill increase and on construction of the dam project. Crucially, under TABOR law, a tax increase requires voter approval. A fee increase doesn’t.

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Save South Boulder’s lawsuit argues that the City is trying to sidestep the TABOR requirement that voters must approve tax increases—and the City’s plan for paying for the dam--by claiming that the increase in water bills is just a fee, not a tax. The TABOR Foundation of Colorado agrees with us, stating in the Amicus Brief it filed with the Court of Appeals that it, too, believes that the City’s planned  bond repayment plan does not meet the TABOR definition of a fee and therefore is a tax. It should, therefore, have been approved by a vote of the citizens of Boulder—not unilaterally by the City Council.

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Save South Boulder believes that the City's actions are undemocratic and violate citizens’ First Amendment rights. Our grievances include decades of failure by the City and its staff to listen to Boulder residents’ and other experts who have presented at least a dozen viable alternative flood mitigation plans for South Boulder Creek. They also have failed to address dangerous flaws and risks in the City’s own proposed flood control plan. All citizen efforts to get our local government to listen have been met with official dismissal, derision, and silence. Given the Council's and the City staff's long-term intransigence, Save South Boulder's only avenue left for protest was through the courts. And so, we sued on TABOR grounds and because of violations of the City Charter, which the City ignored in declaring an emergency to pass the bond issue—when no emergency existed.  

The City Attorney tried hard to derail our lawsuit, including asking for a summary judgment against us, filing a motion to dismiss our case, which we lost, and launching a personal SLAPP action against the three plaintiffs (LeCompte, Savage and Telleen). We won that case!

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Beating back the SLAPP action allowed us to pursue an appeal of the City's motion to dismiss our case. The hearing on the 27th May was the result. We’re awaiting word whether we succeeded.  But we now feel at least moderately hopeful about the outcomes!

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If we win, we could make history with this fight!  We could force a re-examination of how cities all over the state are trying to fund public works projects without voter approval.  We would reinforce the right of citizens to have a voice in how their tax money is spent.  So:  Let’s just do it.

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If we win, our current plans are to seek remedies that require the City to:

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•  Submit the current flood control design to an independent, third-party peer review by outside flood management experts and engineers—something the Utilities Department has adamantly refused to do.

•  Conduct a genuine comparison of the City’s plan against the flood control alternatives that we and other experts have presented since 2001, and which the Utilities Department has consistently ignored and ridiculed.

•  Put the City’s proposed flood mitigation project and its complete price tag to a vote of Boulder residents—an action which the City has done everything possible to avoid.

We’ll have to wait till we hear what the judges say before taking any further steps, but we will keep you posted of any and all developments.

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MEANWHILE:  We still need to raise about $8,500 to repay Randall and his associates for the legal work they’ve done so competently to get us this far. We don’t have to worry about the costs of the appeal.  Randall and Cording are carrying that forward at their own expense.  But we need help to pay them back for over a year of previous hard work for us. Please help us win this fight, and help us retire our legal debt by making a donation to Save South Boulder. Go to https:/www.savesouthboulder.com and click on the “Contact and Donate” page to contribute.

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With very best wishes and so many thanks….

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Marki LeCompte, Harlin Savage and Steve Telleen

Plaintiffs for Save South Boulder

margaret.lecompte@gmail.com

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Dear Friends and Supporters of Save South Boulder:
 

Save South Boulder has not given up its fight to preserve the South Boulder environment.  We’re still advocating for feasible, cost-effective, best-practice flood control. After years of being shut out, ignored, and outspent by the City and CU, we finally have a court date in our fight! 
 

Oral arguments in Save South Boulder et al. v. City of Boulder are set for:
 

May 27, 2026 — 2:00 p.m.

Colorado District Court of Appeals

2 E. 14th Ave., Denver — near Civic Plaza, Old Supreme Court Building
 

Come to Court! Support our legal team!  Let everyone see how much people care! 
Scroll down to the end of this page for bus directions from Table Mesa Park n Ride.
 

What Our Lawsuit Is About
 

In March 2025, Boulder’s City Council approved a $66 million bond issue  to fund a dam at Hwy 36 and CU-South, including in that approval repaying the bond debt through increases in stormwater assessments on every water user in Boulder. It did so unilaterally, without public input or hearings. Why? Because City Council does not want the public to vote on either this water bill increase or on construction of the dam project. That’s why the City is calling the increase a “fee increase,” not a tax. Under TABOR law, a tax increase requires voter approval. A fee increase doesn’t. Save South Boulder’s lawsuit argues that the City is trying to sidestep the TABOR requirement that voters must approve tax increases by claiming that the increase in water bills is just a fee, not a tax. The TABOR Foundation of Colorado agrees with us, stating in the Amicus Brief it filed with the Court of Appeals that it, too, believes that the City’s planned  bond repayment plan does not meet the TABOR definition of a fee and therefore is a tax.
 

But this strategy is how the Boulder City Council intends to avoid obtaining the voter approval for the dam flood project which Colorado law requires. This is not democratic. And it is governmental overreach.
 

City Council’s actions also violate the First Amendment, which gives citizens the democratic right to seek redress of grievances imposed by their government.  Our grievances include the decades of efforts by Boulder residents’ to induce the City to  consider alternative flood mitigation for South Boulder Creek and address flaws in the City’s proposed flood control plan. All citizen efforts have been met with official dismissal, derision, and silence. Therefore, when citizens can’t get a vote and can’t get a hearing and when elected officials won’t listen, a lawsuit is the only avenue left for protest. And so, Save South Boulder sued.
 

What the City Threw at Us
 

The City has tried to keep our lawsuit from ever getting a hearing.  We’re now appealing the City’s attempt to dismiss it. Getting this far—to the courthouse door—has meant fighting the City’s:
 

•  Stonewalling on giving us access to public records

• First motion for summary judgment to kill the suit without a hearing

• Second motion to dismiss the lawsuit, which Judge Kotlarczyk granted — and which we immediately appealed. This is the appeal to be heard on May 27th.

• Attempt to scare us into withdrawing our lawsuit by filing a SLAPP action against us, demanding that we pay nearly $50,000 for their attorney fees—on the grounds that our lawsuit was “frivolous, vexatious, and groundless.”

It didn’t work. We weren’t scared off.  We fought that SLAPP action.  And we WON! Judge Kotlarczk, who previously had granted dismissal of our lawsuit, this time ruled our lawsuit was NOT “frivolous, vexations and groundless.”  

But the fight isn’t over! The motion to dismiss still stands, and we still have to win our appeal against it.  
 

What We Need From You
 

Our attorneys, Weiner and Cording, are taking the appeal forward at their own expense.  They really believe in this fight! But we still owe them roughly $10,000 for the work they did earlier--the records fight, the SLAPP defense, the dismissal motions and delays, and the preparation for the appeal--everything they had to beat back to get us to the courtroom door.
 

And so, we need your support even more. Please donate. Whatever you can give helps retire our debt to our lawyers and keeps this case alive.
 

If We Win…

A win on appeal would be a landmark ruling on how Colorado cities can finance capital projects. It would reinforce the First Amendment rights of citizens to seek redress from government actions. If we win, Save South Boulder will seek remedies that require the City to:
 

•  Submit the current flood control design to independent, third-party peer review—something the Utilities Department has adamantly refused to do.

•  Conduct a genuine comparison of the City’s plan against the alternatives it has consistently ignored and ridiculed.

•  Put the full flood mitigation project and its price tag to a vote of Boulder residents—which it has done everything possible to avoid.
 

We would then need to win that vote—which means paying for a public education campaign to tell the real story of this project—an unpleasant saga of collusion between the City and CU, as well as the failure of the Utilities Department and its consultants to design an effective, feasible and environmentally sensitive flood control project—despite years of criticism and multiple proposed alternatives to their chosen high hazard dam solution. 
 

The City already has paid its engineering consultants RJH more than $14 million, with absolutely no audit of that spending and still no design that could actually be permitted and built. Meanwhile, the benefits of this exorbitantly expensive plan would go to less than 2% of Boulder’s population—regardless of flood risks in need of remediation elsewhere in Boulder.
 

The bond issue we are contesting asked for $66 million, even though the cost of the flood control plan had already ballooned from $23 million in 2017 to over $100 million by March 2025, when the bond issue was approved by the City Council. Clearly an additional bond issue will be required to complete the project—if it ever is built. 
 

THIS HAS TO STOP.
 

Good News: Our New Website

Thank you for visiting Save South Boulder's website where you now can donate online by credit card. Our URL is  https://www.savesouthboulder.com  To donate, click here  (or visit the Contact/Donate page).
 

You can also send a check payable to Save South Boulder, or cash, to:
 

Save South Boulder

Margaret LeCompte, Co-Chair

290 Pawnee Drive

Boulder, CO 80303
 

Please check out the in-progress website!  We’re still adding information to it.  Send any questions or feedback about the website to: margaret.lecompte@gmail.com

Please remember: South Boulder Creek and its floodplain — the ponds, the wildlife, the creek itself, the open space and the trails—are integral to our quality of life.  They’re part of what makes Boulder and our neighborhoods worth defending. So is the principle that city government must be accountable to its residents. Save South Boulder has been fighting for these principles since 2015. We need your help to finish the fight.
 

Save South Boulder is a recognized Colorado non-profit. Donations are not tax-deductible because we endorse candidates, support ballot measures, and engage in public advocacy, which disallow tax deductible donations under IRS rules.
 

Learn More and Stay Current by returning here:  https://www.savesouthboulder.com