[BoulderCouncilHotline] Re: DRAFT CU Annexation Agreement Comments

[Kleisler, Philip]

Council Member Young and Hotline followers,

Thank you for these thoughtful questions. Below are responses from our team in red. Please do not hesitate to let us know if you have further questions or need additional information.


Phil Kleisler, AICP
Senior Planner
[cid:image002.jpg at 01D78AE3.D669DBB0]
303-441-4497
Comprehensive Planning Division
1739 Broadway | PO Box 791 | Boulder, CO 80306
Bouldercolorado.gov<https://www.bouldercolorado.gov/>



From: Young, Mary <YoungM at bouldercolorado.gov>
Sent: Monday, July 26, 2021 8:58 PM
To: HOTLINE <HOTLINE at bouldercolorado.gov>
Cc: Abby Benson <abby.benson at colorado.edu>; Derek Silva <Derek.Silva at Colorado.EDU>; Patrick T. O'Rourke <patrick.orourke at colorado.edu>
Subject: [BoulderCouncilHotline] DRAFT CU Annexation Agreement Comments

Dear Staff, University Representatives and Colleagues,

Much gratitude to everyone who has devoted so much time to bring us to this point. It is an important milestone in the long process of providing flood mitigation to homes and residents susceptible to extreme flooding from South Boulder Creek. The DRAFT Annexation Agreement, as it was released on July 12, is a solid jumping off point.

Many of us will no longer be here when much of this agreement is finally executed. It is with that lens that I reviewed this draft. My questions address details that might help tighten up the language and clarify responsibilities and provisions.

That said, provisions for the possibility of an all or partial property transfer for private development remain largely unclear. This issue raised numerous questions. It seems, at least to me, that the agreement could benefit from the additional devotion of effort around this scenario.

Thank you.


  1.  General question: What consideration was given to creating a separate section wholly devoted to addressing partial and/or whole transfer of the property for private development?

The team did not originally consider creating a separate section dedicated to the transfer of property. However, after giving that more thought we did create a separate section for the agreement being considered at council’s first reading.

  1.  Section 7c, states that the city has an option to purchase land for Open Space at $37,500 per acre. How was this amount arrived at?
The city and CU Boulder completed appraisals for the property. The valuation of the two appraisals differed and as a result, we negotiated a price in the middle.

  1.  Section 8, in exchange for the conveyance of water rights to the City, the City would provide a credit to the University for the Plant Investment Fee (PIF) and ongoing treated water for irrigation, would the PIF credit and ongoing water allotment continue if

     *   the whole of the property is transferred for private development? Why or why not?
     *   a portion of property is transferred for private development? Why or why not?

As currently written, the credit and water allotment would continue to a private owner. This is one piece of the new section (re: sale to a private owner) that still needs to be negotiated.

  1.  Section 13 provides for an initial zoning of Public, the current land use designation is also Public. The City avoids allowing private development on Public zoning. If the property were transferred for private development, in order to change the zoning, the land use designation would need to change. What would that process look like?

That would follow the city’s normal process. Rezoning of land would need to be consistent with the Boulder Valley Comprehensive Plan map. In this case, the map would need to be amended and approved through our normal two- or four-body review process. Rezoning would typically follow that decision and be consistent with whatever land use designations exist at the time.

  1.  Section 15 enumerates Permitted Uses, Prohibited Uses and Exceptions. How would this change if property is transferred for private development?

The uses in the agreement supersede the uses found in our land use code. For example, Congregate Care Facilities are permitted in the Public zoning district (e.g., 311 Mapleton), but would not be allowed on CU South because they are not a permitted use. However, the agreement could explicitly state that certain uses or terms of the agreement do or do not apply if the property is transferred to a non-state entity.

  1.  Section 15b prohibits a large sports venue, presumably allowing for a small sports venue, under what circumstances would a private developer build a sports venue of any size?

The agreement “runs with the land”, so a private developer would still need to comply with the size limitation. Like #5 above, council could opt to only permit CU Boulder to construct recreation facilities and not a private development (if the land were sold).

  1.  Section 15c states that Buildings will vary in height and articulation. Would swapping out the word “will” with “shall” make a material difference?

No. For this agreement, “will” means the same thing as “shall”. In fact, we swapped those words out during our drafting because “shall” is usually more regulatory language and “will” is often used in agreements.

  1.  Section 15h states that the University will plant trees and shrubs for screening purposes. Does the city have a desired plant list and, if so, would it make sense for the University to work from aforementioned list?

The city does have an approved tree list for parks, properties and public rights of way. Our team will look into this.

  1.  Section 15i.iii states that “Residential units larger than 4,000 square feet will only receive credit of 4,000 square feet to disincentive large dwelling units.”

     *   Stylistically, would it be clearer to say “as a disincentive to building large dwelling units” in place of “to disincentive large dwelling units”?
Very true - we will propose that change.

     *   Wouldn’t 4,000 square feet of residential create a credit of 2,000 square feet of commercial with a 2:1 ratio? It seems that, as written, this is an incentive to build large units. Please clarify.
Correct - it would create 2,000 sq. ft. This was something also brought up at the Planning Board meeting. The agreement for council’s first reading will decrease that number from 4,000 to 2,000.

  1.  Section 16a refers to completion of 60 percent design. How is 60 percent design defined?

The 60 percent design is not defined in the agreement, but rather a standard milestone in engineering projects.

  1.  Section 16e states that the city will remove the tennis courts and warehouse as part of flood mitigation. Does removal of the warehouse include removal of its contents? If so, would it make sense to also state that the city is not responsible for disposal of anything of importance within the warehouse?

Good point. We discussed that clarification with CU. The agreement for council’s first reading includes some language addressing that.

  1.  Section 16h discusses shared construction costs for recreation facilities, but makes no mention of operation and maintenance. Who would be responsible for ongoing costs? What if property is transferred for private development, what then?

Those details are not yet known. The city requested that CU consider a formal running track (e.g., around a recreation field) and a dog park. The university is interested in engaging both the city and school district in the future to determine needs at that time and agreements around construction, operations and maintenance. The agreement does not require either party to construct those facilities. We could consider changing the word “shared” to “publicly available”.

  1.  What is the intent and meaning behind paragraph 17a.ii? Please clarify.

The intent is to describe that the mitigation plan for the area will be enough to offset impacts from the city’s flood mitigation project and university development. We’ll take a look at the readability of that term.

  1.  Section 17a.iii says that the project would be made available for educational opportunities for the Parties?

     *   Is the intent to provide access to the project as a teaching tool for, as an example, University students and City interns? Please clarify.

The specifics are not known at this time. That was a suggested by the Planning Board in the spring and is intended to be responsive to one of the CU South Guiding Principles around including research and/or education pertaining to environmental studies.

     *   If the intent is to provide more than just simple access, how would any expenses related to this use be handled?
The primary purpose of the area would be restoration and mitigation with access approved/restricted based on OSMP management in the future

  1.  Section 17b states that the City may remove the existing levee at its own expense. Would this also be true if the University could benefit from the removal (e.g. use the fill dirt)?

Removal of the levee was a request from the Open Space Board of Trustees prior to consideration of a disposal. The fill material would be owned by the city and could be used at its discretion.

  1.  Section 22b.i requires one count (of trips) prior to commencing development of residential or mixed-use development, presumably to set a baseline. Why not before any development?

The expense of conducting trip counts that early in the process was a point of concern from the university. The Planning Board had several recommendations around the trip cap that will be discussed, including using real time technology for to count trips. We will have discussions and a response to each Planning Board recommendation prior to council’s second reading.

  1.  Section 22e.iii refers to special event days, what is definition of special events? Would a flood or pandemic be considered a special event?
There is not a specific definition, but examples of special events are listed in #23 - "visits from political candidates" and "small-scale sporting events"​

  1.  Section 24e.i refers to budgeting for transportation programs.

     *   A $5.00 amount is stated. What is the basis for this amount? Would it make sense to add an inflation clause?
This was based on the current price for a regional RTD fare. We can bring up the inflation note.

     *   Does budgeting and funding reinvestment account for outreach and marketing of programs? If so, should there be a minimum amount set aside for these purposes?

Our team can take a look at that suggestion.

  1.  Section 25b references off-street parking for affordable units. Would this section apply to any affordable housing in or out of the 5 acres that would be set aside for affordable housing?

Yes - this is designed to facilitate any affordable housing that receives tax credit financing.

  1.  Section 25f refers to separation of pedestrian movements from vehicular movements. Would such separation also apply between bicycles and vehicles?

Not as written, but the agreement could include that.

  1.  Section 26c.v.4 states that the University will charge for all parking. What provisions address the potential disproportionate impact of this expense on lower income workers?

The agreement does not directly consider a disproportionate impact of free parking. CU Boulder could consider supplying waivers to certain residents or visitors. Parking would not be charged when prohibited by tax-credit financing (e.g., affordable housing).

  1.  Section 30b refers to a 50/50 cost sharing arrangement for a Multi-Use Path underpass under Table Mesa. Would this arrangement hold should the property be transferred for private development? If so, is this enough detail to enforce the arrangement with a private developer?

Additional information needs to be added to the new section regarding responsibilities of a third party, specifically which points of the agreement do or don’t apply to a third party developer.

  1.  Section 37 states that, in the event of disconnection, the City would continue to honor Out of City water permits issued on the property. Section 36a lists Parks and Recreation uses, temporary access roads, parking, and renewable/alternative energy systems as the only uses for which construction would be allowed prior to obtaining agency approvals as outlined in section 36b. Please clarify, with examples, which of the allowed uses in 36a would the City issue Out of City water permits for?

The agreement was written to allow the university to connect to city utilities during the “de-annexation period”. The university anticipated a potential need for city utilities for recreational fields (e.g., irrigation, restrooms, etc.). We have heard some concerns about such development during the “de-annexation period” through the community engagement process and from Boulder County. As a result, we expect that the final agreement for council’s second reading will include a term prohibiting connections to city utilities during that “de-annexation” time. In that case we would no longer need to include terms about out-of-city utility agreements.

  1.  How would amendments to this particular agreement be handled under University ownership? Under private ownership?

In both scenarios, amendments would have to be approved by council.



We're all in this together.


In solidarity,

Mary Dolores Young
Boulder City Council
303-501-2439

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"All ethics ... rest upon a single premise: that the individual is a member of a community of interdependent parts..." - Aldo Leopold

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