What does “YES” vs “NO” vote on Ballot Item 2F mean?� The title is completely unclear.

The title, as passed by the City Council on August 18, 2022:

“Should Ordinance 8483, regarding the annexation of CU South, be repealed?”

This really means:

“Should Ordinance 8483, which annexed the land known as CU South, be repealed?”

“YES” repeals the ordinance and de-annexes the land.

The land would stay in the County, unless a new agreement was reached.

“NO” allows the annexation to stay in place.

The land would be part of the City.

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The CU South Annexation Agreement is a bad deal, because:

• The South Boulder Creek “100-year” detention pond won’t stop flooding. It’s too small, and with climate change, it will become even less adequate.
• The 2013 flood water came from multiple sources besides South Boulder Creek. This pond won’t help with those at all.
• The housing situation in Boulder will be made worse. Too much non-residential development, and not enough affordable residential development.
• Traffic will increase significantly. The Trip Limit is too high, and it’s unenforceable.
• The development is too big. It will destroy our views, impact local wetlands, and result in a loss of open space.
• The council, on its own, can give away more to CU in the future. There is no citizen check on changes to the Annexation Agreement.
• The land could be sold to a private developer. The Right of First Refusal is de facto useless, because the land is worth far more to a developer than to the City.
• The rest of us will have to wait many decades for our flood protection. This all should have been done in a comprehensive flood mitigation project.

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�There are much better alternatives to this deal.

But the City needs to get some bargaining power up front before re-negotiating.

And the City should open the process & involve the public from the beginning.

That’s why I am asking you to:

VOTE “YES on 2F”. REPEAL THIS ANNEXATION.

RE- START THE PROCESS, SO WE CAN DO THIS RIGHT.

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Gain bargaining power by creating options.�Get the citizens involved. Add their expertise!

1. Floodproof the flood-threatened buildings. It doesn’t require CU’s land:

These are the buildings in the So. Boulder Creek 100-yr and 500-yr floodplains.

(2) Do the flood work for the rest of Boulder before So. Bldr. Creek, and make CU wait:

CU’s leverage has come from the City’s haste. There is $350 million of work over a couple of decades to be done elsewhere. Increase flood control fees to speed up the work.

(3) Enable a “land swap” with Planning Reserve land, so the “pond” can be adequately sized:

• Do the work to prepare to annex the City-owned Planning Reserve land, including getting County approval. This could be done in a few months.

(4) Fully evaluate the costs and benefits of ALL the options on CU South land:

• 100-yr detention pond, under current scheme.
• 500-yr detention pond, with some CU constraints.
• 500-yr detention pond, with no CU constraints and using the gravel pit.
• All this work could be completed in 6 months. Much of it is already in process or done.

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1^st Problem: Flooding came from multiple sources, not just South Boulder Creek: �Dry Creek #2, New Anderson Ditch, Viele Channel, Bear Creek, & local drainages.�So, the “100-year” pond won’t stop the flooding. (North is to the Right>. City report data.)

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2^nd Problem: Even WITH the “100-year” detention pond on South Boulder Creek:�The red buildings would still be flooded in a “100 year” event. �Only the green buildings would be protected. (This is from City data.)

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3^rd Problem: Almost all of the 2013 damage in SE Boulder was from local sources, not from South Boulder Creek. Building a “100-year” detention pond won’t prevent that.��The Major Drainageways caused only $1M of the $40M total damage in SE Boulder.�The other $39M - Groundwater Infiltration, Local Drainage Flooding, Floor Drain Damage, and Sewer Backups.��South Boulder Creek - Local Sources account for 96% of total damage of $26,754,412.�Viele Channel - Local Sources account for 100% of total damage of $12,218,646. ��The City’s 2014 survey was cross-referenced with FEMA insurance claims data. So, the data is very good!�This survey was not made public until 2 years ago, even though it was done in 2014!!!

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4^th Problem: Flooding can get a LOT worse than in 2013!�The US had five “1,000-year” events in one month this year.�Plus 2 other mega-rains. Lots of flooding!

This summer (2022), here’s what occurred in 1 month’s time in the USA:

• July 26 -- 9” in 24 hours in St. Louis - 1,000-year rain
• July 26-30 -- 14” in -eastern Kentucky -1,000-year rain
• August 02 -- 10”-13” in a few hours in southeastern Illinois – 1,000- year rain
• August 5-7 -- >1 year of rain in 3 hours in Death Valley – 1,000-year rain
• August 6 -- 7” in northern Illinois
• August 21-22 -- 9”-15” in Dallas-Fort Worth – 1,000-year rain
• August 24-25 -- 8”-14” in Mississippi

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Remember what happened in Pakistan.�This summer -- 6X normal monsoon rains.�1/3 of country flooded!

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June 10–13, 2022 – An “atmospheric river” struck Yellowstone National Park.�“Atmospheric rivers” can happen even in the Rocky Mountains! (per the USGS) Yellowstone River ran @ 50,000 CFS; almost 50% more than previous record.�

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A better alternative to the “100-yr” detention pond:�FLOOD-PROOF THE BUILDINGS THEMSELVES! �This protects against flooding from ALL sources. ��My calculation: $40-$50M. That’s far less than $66M min. for the “100-yr” pond. ��It’s EVEN CHEAPER if done by neighborhood, like Frasier Meadows Manor did after 2013 flood.�The City never even evaluated the cost for floodproofing the 260 buildings in the “100-year” floodplain!!!

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5th Problem: CU said “NO” to the “500-yr” pond, even thought this would protect many more buildings.� CU wanted its 129 acres for development, and wouldn’t give in.

CU’s 5/20/19 letter:

“We are writing to you today to provide notice that the university, as the landowner, does not agree to Variant I 500. Due to the March 28 response which did not offer the university a feasible path forward around the additional acreage the city is asking for under Variant I 500, we are informing the city that any further expenditure for the development of preliminary designs for Variant I 500 should cease. Again, the university will not agree to that option. Neither of our organizations should expend further staff or financial resources to continue to pursue Variant I 500. We provide further detail below.”

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• BTW, CU said it was OK with the looney Variant II 500 plan, which required lowering the freeboard on the US 36 bridge, leading to trees getting stuck, and violating Federal highway standards; CDOT would never have approved it.

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The Annexation Agreement gives CU “500-yr” protection for its 129 developable acres.�But SE Boulder only gets “100-yr” protection at best.

From the Annexation Agreement:

• 16. Site Planning Standards.
• b. Floodplains.
• ii. No portion of Enclosed Structures that include Habitable Space, including offices and residential uses, will be constructed in the 500-year floodplain.

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• CU seems to think this is OK.

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CU said:

“Our requirement to retain 129 out of the total 308 acres represents an equitable balance of the university (a) honoring its role as a member of the community by contributing valuable resources (at no cost to the city) to reduce the life safety risk to our South Boulder neighbors.”

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Almost all ($24M of $30M) of the cost difference between 100-yr and 500-yr pond is fill-dirt to raise CU’s 129 acres above the “500yr” flood level.

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CDOT NEVER said that it would not allow a “500 year” pond. CDOT only said:�1)No flood wall inside the roadway “prism” (It’s “impartial as to “variants”.)�2) Nothing can be attached to the US 36 bridge.�3) Flow through the bridge is “mitigated”�The 500-year pond only increases flow by 6%. �And it’s up to FHWA, not CDOT, to decide.�(Besides, scouring protection could be added, if necessary, but unlikely.)

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Even the City’s own Concept Design Report says that the 500-year design is feasible – the 6% increase in flow can be handled.

• Page 35, Section 5.5.3.3 of the Concept Design Report:

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• The 108-inch-diameter outlet would increase peak flows through the US36 bridge by about 6 percent but would not cause additional flooding downstream of South Boulder Road. It is possible that the increases in flow through the bridge may not cause negative impacts (i.e., scour) or that negative impacts could be mitigated by installing scour  protection through the bridge. Additional analyses would be required to identify if mitigation is needed. It is also possible that a small increase in outlet capacity could maintain peak flows through the bridge without causing incremental increases in downstream flooding. This will be further evaluated with hydraulic modeling in future stages of design if this alternative is advanced.

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• A slightly larger pipe, or slightly smaller pond to slightly lower water height would eliminate these issues!

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But the Council directed staff to no longer evaluate the 500-yr design!

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And, in fact, FEMA regulations do NOT require “zero rise” downstream.

• According to the City’s consultants in the 2020 Concept Design Report, a “500-year” pond, even if built to CU’s land constraints, would only increase flows 6% under the US 36 bridge, and not at all below South Boulder Road.
• And FEMA only cares about affecting “insurable property”.
• But there is no “insurable property” affected by the flows between the US 36 bridge and above South Boulder Road.
• The only building is an old cow shed owned by Open Space, and that can be moved or torn down if FEMA has a problem.

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A “500-year” pond would protect much better. �Why wouldn’t CU compromise?�Because the Council has no leverage on CU.

The Council didn’t do the work necessary to get bargaining power.

• It didn’t do the work to make the Planning Reserve “Land Swap” annexable and developable. This could have been completed in a few months, and provided the Council something to offer CU in exchange.
• It didn’t do the work on protecting buildings rather than flood containment. It’s a cheaper alternative and protects more buildings. And it doesn’t require a “detention pond”, so doesn’t need CU’s land.
• It didn’t plan comprehensively for all the others at flood risk in Boulder. They deserve equal protection on a reasonable time scale.
• This could have allowed the City to say “NO” to CU for decades.

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A BIG Concern: The inadequate “100 year” pond may create a false sense of security.�That may lead to even more danger and damage.

If the flood is larger than the “FEMA design flood” or more widespread, or focused further north, it could overflow and/or bypass the “pond”.

The residents downstream may falsely believe they are protected.

Given the increasing size and severity of the storms, a “100 year” pond is inadequate.

What would the City do if a large storm overtops or bypasses the dam and floods the residents anyway???

A good early warning system and an evacuation plan are critical.

And educating the residents as to the risks and escape routes is essential!

This should be done for all of Boulder.

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Street flooding is NOT a deciding issue.

• If the storm is bigger or lasts longer than the design ”100-yr” storm, or is centered north of South Boulder Creek, the streets and highways will flood anyway.

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• Most of the streets in that area do not have storm drains. So nothing will ensure that they stay clear all the time.

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5^th Problem cont. Flood protection is needed City-wide.�So, why is the focus on SE Boulder?

• Doing the flood work City-wide could take 30-50 years or more to complete at current funding levels.
• Why? Because current funding levels for the est. $350M cost are way too low.

(I just completed serving on the City’s flood study group, so I saw the data.)

• The only deaths in 2013 were on Linden, just west of north Boulder, and NOT in SE Boulder.
• Equity requires that everyone get equal treatment.
• The City should have a city-wide funding plan to address all flood protection needs.
• Maybe CU wouldn’t be so demanding if they knew that they might have to wait 30-50 years or more.

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6th Problem: The 10% affordable housing requirement for CU South is WAY too low.

• 20.i.i. As of the Effective Date, the anticipated number of housing units is approximately 1,100 residential units, …
• 20. k. the University and the developer expect approximately 100-110 units … of permanent, deed- restricted affordable housing.

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That’s only 10% affordable units and 90% market rate housing.

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This is less than half of Boulder’s 25% affordable requirement.

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7^th Problem: The 2:1 floor area ratio provides too little housing for too much non-residential development.

• 20.i.iii. …a mix of uses will be phased according to a ratio of two square feet of enclosed residential floor area to one square foot of enclosed non-residential floor area.
• 20.i.iv. Limitation on non-residential Buildings. The cumulative floor area of all non-residential Buildings on the entirety of the Remaining Land Interest will not exceed 750,000 square feet, regardless of ownership or subdivision.

The approx. 4,000-7,000 students and workers will NOT be willing to live in spaces only twice as big as their work or study spaces.

Inevitable Result -- The students and workers will spill over into the rest of Boulder and surrounding area, and push housing prices up even further.

Remember - CU increased the non-residential number from 500k to 750k sq. ft. just after the deal went public; the City gave in without a whimper!

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8^th Problem: CU South is just TOO BIG! It’s almost the same size and density as downtown Boulder!�And it can be 55 feet tall.

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By the numbers:� CU South is 2.25 Million sq. ft. plus a stadium on 129 acres.� Downtown Boulder is 2.50 Million sq. ft. on 126 acres.

• The current Annexation Agreement would allow CU or a private owner to build up to 750,000 square feet of non-residential development. Then to meet the Annexation Agreement’s 2-to-1 minimum residential-to-non-residential floor area ratio, 1,500,000 square feet of residential development would be required, for a total of 2.25 million square feet. Plus, there is the 3,000 seat stadium.
• Compare this to downtown Boulder. The Downtown Boulder Inc. website indicates that the downtown Boulder Improvement District (BID) has about 2.50 million sq. ft. of development. So, the square footage of development would be about equal.
• Downtown Boulder is about 126 acres. That’s the area from 8^th to 20^th Street, and from Canyon to Spruce, with a few additions and subtractions. The CU South Development Zone, where all this building would happen, is purportedly limited to 129 acres. So, they are about the same size. Thus, their densities would be about the same.

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9^th Problem: The traffic on Table Mesa and surrounding streets will become intolerable.

There are MANY problems with the traffic management work:

• 1. Bad sampling of pre-construction traffic data. Done just after schools and CU closed for COVID.
• 2. The Trip Cap numbers are too high – serious congestion will likely occur.
• 3. Traffic counting done by infrequent sampling rather than continuous count. And only starts after 900,000 sq. ft are already developed.
• 4. Attempt to control development based on traffic counts starts too late and is easily escapable.
• 5. No clarity as to on how many days traffic must be limited.
• 6. The required expenditures of $5 per day (based on cost of regional trip) ignores that CU already gives Eco Passes to both students and staff.
• 7. The inflation adjustment of 3% max on the $5/day charge has already been exceeded.
• 8. The new intersection on CO 93 is on a hill and curve, so is very dangerous.
• 9. Special events and some other days are excluded from counting.

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The simple solution was totally ignored:

Install electronic counters and automatic gates that close (or large fines imposed) when congestion gets too bad, or the numbers are exceeded.

Why wasn’t this put in the Annexation Agreement?

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9th Problem (cont.): The Trip Cap is set too high!

Here’s the Annexation Agreement’s Trip Cap:

26.a. South Loop Drive: No more than 5,550 daily Trips each day.

• I did the math --
• If ½ the trips are in rush hours, that’s 1,387 trips in the AM and PM.
• Even at 1,200 trips per hour, that’s 20/minute, one extra trip every 3 sec.
• Added to the existing heavy traffic and mandatory light cycles, that’s a VERY significant increase, especially for left turns.
• This extra traffic could lead to multi-light cycle wait times.

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The Annexation Agreement does NOT prevent CU from starting all its development prior to the 1^st Trip Cap compliance test.

• 27.c. Prior to occupancy of 900,000 square feet of floor area of development, a monitoring period will be conducted between phases of development to verify compliance with Trip Cap requirements prior to proceeding with the following phase of development. Once 900,000 square feet of floor area is developed, one monitoring period will be conducted annually.

Because of how poorly the AA is written, and because “phase” is undefined, apparently CU could build everything without meeting the traffic constraint!

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What happens if CU does not reduce vehicle trips to the required number?�Nothing of consequence! And, bizarrely, CU could spend the $5 Trip Cap Fees on an “underpass”!

• 29.e. The University or Owner will take the following action if four consecutive quarterly reports indicate non-compliance with this Agreement:
• 29.3.i. The University or Owner will budget and reinvest funding into its transportation programs for the purpose of further reducing Trips to and from the Property. The University or Owner will provide the City with information in sufficient detail to demonstrate how the funds are invested and consider feedback from the City on expenditure. The University or Owner will consider utilizing the funds to lower the amount of funding provided by the City for underpass construction. For example, the University may use funds assessed due to non-compliance to fund an underpass on a 49/51 cost share basis instead of 50/50.

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10^th Problem: The City failed to create any bargaining power before it entered into negotiations with CU. �And the whole public process was seriously flawed.

1) The work on the “Plan B” trade for Planning Reserve land never got done.

2) Local floodproofing wasn’t explored.

3) Focusing on floodproofing the rest of the City also wasn’t considered.

4) The 23 meetings with CU over 6 months were done behind closed-doors. So real public input was zero for that period.

5) The last-minute public input process only happened after the deal was essentially cut.

6) Public input was so dis-organized that people could not participate effectively.

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11^th Problem: Trading part of the Planning Reserve to CU might have been “Plan B”. But the City never did what CU demanded – a water and sewer study, and agreement from the County Commissioners – so the land could be annexed. This could have been done in a few months.�The City’s Planning Reserve land is east of N 26^th Street. It contains a couple of hundred flat acres, with no environmental constraints. And there’s already a fire station across US-36.

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After a land swap, a “100-yr” pond within the old gravel pit could be built, or even expanded to “500-yr” size!�Much less environmental impact! And not next to US-36!

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A “500-yr” pond would cover most of the gravel pit.�It would need about 64% more volume,�but possibly less than that in surface area.

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The Agreement was negotiated in secret in 23 closed-door meetings.�2 council members - Sam Weaver and Rachel Friend (who lives in the flooded area – conflict?), City and CU Staff, some with CU consultants.

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12^th Problem: These 23 meetings were legally required to be public, by both the City Charter and Colorado law.

• Boulder Charter Sec. 9. - Meetings of council.

… All meetings of the council or committees thereof shall be public.

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• CRS 24-6-402. Meetings - open to public - legislative declaration –
• (1)(a)(I) “Local public body” means any board, committee, commission, authority, or other advisory, policy-making, rule-making, or formally constituted body of any political subdivision of the state and any public or private entity to which a political subdivision, or an official thereof, has delegated a governmental decision-making function but does not include persons on the administrative staff of the local public body.
• (2)(b) All meetings of a quorum or three or more members of any local public body, whichever is fewer, at which any public business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times.

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Other legal problems occurred.�None were ever addressed (to my knowledge):

• The Annexation Agreement was passed “by emergency”, but arguably granted a “special privilege” to CU:

“Sec. 17. …No ordinance making a grant of any franchise or special privilege shall ever be passed as an emergency measure.”

• The Council failed to “reconsider” their action, as the Charter requires, after the Referendum gathered enough signatures:

“Sec. 47. …If the petition be found sufficient, the council shall proceed to reconsider such measure, or such part thereof, as the petition shall specify.”

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13th Problem: The city council can give CU even more development rights by a simple majority vote. The citizens have no guaranteed say or veto.

• CU could get the council to lift the 55’ height limit that is in the Agreement.
• Or if CU sold it to a private developer, the council could change the zoning from Public to e.g. Business-Regional, and allow high density office space.

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The “right of first refusal” is meaningless in practical terms:

Although the Annexation Agreement does allow the City the right of first refusal on any sale to a private party, because the land would have become hugely valuable once annexed, there’s no way the citizens would approve a giant bond issue to pay for it, likely in the many hundreds of millions of dollars if not more.

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14^th Problem: The “hurry-up” is made-up. The Referendum could have been on the ballot last January.

• From the 2013 flood, it took 8 years before the plan was put forward!
• After the council passed the annexation ”by emergency”, then, in response, the citizens went out and gathered nearly 6,000 signatures on a referendum.
• Then the council delayed again.
• Instead of putting the Referendum on the ballot in January of this year, the council waited until this November.

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The Charter allows immediately putting a Referendum on the ballot in a “special election”, once the Referendum Petition is certified.�That would have saved almost 10 months.�But the Council didn’t take any action.

“Sec. 47. … Or the council by two-thirds vote may submit such measure or part thereof with like effect to the electors at a special election to be called by said council not less than thirty days after the receipt of said city clerk's certificate.”

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15^th Problem: This Annexation will reduce the amount of Open Space from 220 A to 155 A.�It increases the land available for development.

• The open space plan for CU South is being “greenwashed”.
• In 1981, the Boulder Valley Comprehensive Plan listed 220 acres for future Open Space.
• The CU annexation leave only 155 acres, part for flood mitigation, and the remainder for Open Space.
• Virtually all of this 155 acres is in the South Boulder Creek floodplain and should or could not be developed in any event.

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16^th Problem: MONEY: �The “100-yr” pond fails the cost/benefit test.�Its costs are more than 2X its avoided damage benefits.

• (C/B analysis compares the “pond” current costs versus present value of avoided flood damage, since the floods may occur far in the future.)
• The “pond” fails even assuming floods will occur every 40 years, not every 100 years.
• The “pond” fails even assuming that it will protect every building that got flooded. But it will in fact only protect a fraction of them.
• Doing floodproofing by building or neighborhood is a MUCH better deal financially.
• And the City needs to accelerate its sewer re-lining and help with floor-drain backflow preventers – that’s the most benefit for the least cost.

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MORE MONEY: �CU gets a $6,988,000 windfall in avoided development fees.�(This is from CU’s own website.)

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MORE MONEY: �The water swap is unfair to Boulder. �CU’s flood fees could have paid for its own fill dirt.

• CU gets to trade its unreliable raw water ditch rights for the City’s highly reliable, treated water.
• The Agreement does NOT give the City the power to charge CU for Stormwater/Flood Control Fees that are assessed monthly on other properties in Boulder.
• Those uncollected flood control fees would be enough to pay for the fill dirt.

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My conclusion –�This 40-page Annexation Agreement needs to be completely revised, or an alternative implemented.

• It needs a LOT of work to be a good deal for Boulder.
• So…I hope people vote “YES” on Ballot Measure 2F and repeal this Annexation Agreement.
• Then the process can be done openly, with informed citizens participating, so a better outcome can be achieved.
• And the result might NOT involve annexation of CU South.
• Finally, ALL flood-prone areas in Boulder can be addressed together, rather than making the rest of us wait for decades.

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This PowerPoint is on my website:

www.stevepomerance.com

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