Repeal CU South files lawsuit against Boulder over ballot title language

Sep. 6—Petitioners with the Repeal CU South campaign filed a lawsuit against Boulder regarding the title of the referendum that is currently set for a vote in November.

Those involved with the complaint, which was filed on Friday, argue the ballot title is unclear and doesn't accurately describe the substance of the measure that seeks to repeal the annexation agreement guiding flood mitigation and development at the 308-acre site known as CU South.

The title, approved on Thursday by the Boulder City Council, asks whether the ordinance "regarding the annexation of CU South" should be repealed.

The lawsuit argues that the title should instead ask whether the ordinance, "which annexes the land known as CU South and sets the terms thereof," should be repealed.

"It's a very minor change, but it's crucial in terms of the meaning," Marki LeCompte with Save South Boulder said.

The ballot title and language that voters will see in November was approved on the consent agenda in last week's City Council meeting when the matter was addressed briefly by the Council and staff.

"We had earlier advice from our City Attorney's office that our current ballot language that's proposed is appropriate and legal and just note that we did consult expert outside opinion, a legal expert in the area of Colorado election law, and they corroborated our city staff's legal opinion," Mayor Aaron Brockett said in the meeting.

Further, City Attorney Teresa Taylor Tate noted that the city is using language from the original referendum petition that circulated last fall and garnered more than 5,700 signatures.

"We did use the language on the petition," she said last week. "While it may be inartful, we are doing our best to be responsive to that language and to put forward a referendum that people approved by their petition and signatures."

While the language approved last week might be legal, Councilmember Mark Wallach said he took no issue with reworking the title to make it clearer.

"I'm saying this as someone who does not favor that referendum and will not vote for that referendum," he said. "But I do like or prefer to have parties have a clear understanding of what they're voting for or against."

To that end, Taylor Tate said the city would include the ordinance that sets forth the details of the annexation agreement on the city's election website so people can read through it and gain a better understanding of what they're voting on.

This satisfied Wallach but felt insufficient for some members of the Repeal CU South campaign.

"It may help a little bit but how many people when they're marking their ballots are going to know that and how many are looking at that?" Alan Boles said. "I would imagine it's very few."

The referendum, a city charter provision that allows people to reject a legislative matter passed by the Council, will require Boulder voters to decide whether they want to repeal the annexation agreement approved in September.

It calls into question the annexation agreement on the land at U.S 36 and Table Mesa Drive, which is owned by the University of Colorado Boulder and now has been annexed into Boulder in order to obtain city services such as fire protection and water. The area surrounding the property was among the hardest hit in the 2013 flood, and those in favor of the project argue it would provide necessary flood protection as well as affordable housing, a transportation hub and more.

The agreement passed as an emergency measure, primarily because of an expectation that a referendum was coming. City officials said during last year's hearing that doing so would allow initial permitting work for the South Boulder Creek flood mitigation project to continue while the city awaited the results of the referendum election.

Opponents were skeptical of the fact that the annexation agreement passed as an emergency measure and generally view the agreement as a bad deal for the city. They also continue to push back on the fact that the flood mitigation project will provide 100 years of protection instead of 500.

It's unclear whether the lawsuit will affect the timeline for the November election. According to Alan Boles, who is named on the complaint, the city has up to five days to respond. A judge then has another 10 days to make a decision.

Given that the ballot content must be finalized by Friday, it seems unlikely that the lawsuit will be sorted out by that time.

"The opponents of the annexation would very much like to see the measure on the ballot this November and we hope that there is a decision on this matter by Friday," Boles said. "But we recognize that that would require the courts to act with unusual speed."