The Colorado Court of Appeals has ruled in favor of the city of Boulder in a lawsuit over a bond ordinance to fund a flood mitigation project.
The court’s ruling, handed down on Thursday. affirms the city’s stance that it was well within its right to use stormwater utility fees to cover the cost of the South Boulder Creek Flood Mitigation project at CU South.
The suit was brought by the group Save South Boulder, which was represented in court by south Boulder residents Margaret LeCompte, Ann Harlin Savage and Steven Telleen. The suit challenged the legality of an emergency ordinance that the Boulder City Council passed last year to greenlight funding for the mitigation project, which the city believes is vital to preventing flooding like that seen in 2013. “The City of Boulder received the opinion by the Colorado Court of Appeals and is pleased by the conclusions reached by the court,” Boulder spokesperson Sarah Huntley said in a statement. “However, we cannot comment further at this time due to the possibility of a writ of certiorari in the Colorado Supreme Court.”
A writ of certiorari is a higher court’s request to review a lower court’s ruling.
Save South Boulder said in a news release from its attorney Randall Weiner that it is considering its options. The plaintiffs can either petition the Court of Appeals to reconsider its ruling or bring the case to the Colorado Supreme Court for consideration.
The South Boulder Creek flood mitigation project aims to build a concrete spillway, which plaintiffs argued is effectively a dam, that will create a detention pond and divert that water under U.S. 36 and back into Boulder Creek. The project aims to primarily protect homes and residents within the south Boulder 100-year floodplain.
Plaintiffs argued that the stormwater fee that funds the project is, in effect, a tax and therefore needs to go in front of voters to be in line with Colorado’s Taxpayer Bill of Rights, or TABOR. They also argue that it violates TABOR because it only benefits residents in the floodplain. The city rejects those claims.
“Because this will be the largest public works project in the City’s history, and Boulder residents’ utility fees will increase as a result, we argued that the increased charges related to the dam had to be put to the voters under TABOR,” Weiner said in the news release.
Save South Boulder also raised an issue with the fact that the bond was passed in March 2025 on one emergency reading. The group argues that the city could have gone through its standard process of three readings, including a public hearing.
The city has also argued that the cost of the project, initially quoted at about $66 million, has ballooned because of delays.
The court did support a previous ruling in favor of Save South Boulder that keeps the group off the hook to cover the city’s attorney fees. The ruling was issued by Judge W. Eric Kuhn with judges Rebecca Freyre and Sueanna Johnson concurring.