[BoulderCouncilHotline] The CU South Decision

[Wallach, Mark]

CU South has been the most divisive and controversial project I have encountered in almost 2 years as a member of the Boulder City Council. Passions have run high, and expressions of position have ranged from well-considered to entirely unrealistic. As a sitting member of Council, and the only candidate for election in November who will actually have to vote on this matter, I have been implored, beseeched, and even threatened (politically, not physically) to vote one way or another. Consequently, I want to communicate to the community my thinking on the subject and how I arrived at my ultimate decision. I have no illusions that this explanation will either persuade or satisfy those who disagree with me; it is nothing more than a statement of where I ultimately came out on CU South, and why I reached that conclusion.

I start with the premise that providing flood protection for the Frazier Meadows community is a necessary and important goal. If you do not share this view, obviously there is insufficient basis to support annexation. If you do accept that premise, and given CU’s refusal to consider separating the flood mitigation project from its desire to have the property annexed in order to develop a new campus, then there is little alternative to sitting down with CU and negotiating the best deal possible for the community of Boulder.

Let me start by saying there is much in this project to dislike, and I have only respect for those who have reached the conclusion that they cannot support the Annexation Agreement.  Some of the defects of the deal that has been negotiated are as follows:

   1) Many have noted that the plan calls for 100 year flood protection, instead of the 500 year standard. This is true, and the 500 year is theoretically preferable. However, the expense for the latter standard is probably larger than the City can really undertake, and as CU has not been willing to permit a flood mitigation project of this scope, 100 year protection is the only viable alternative.

   2) This project will substantially increase every resident’s storm water utility rates, and not every resident will be equally benefitted. For residents who live in areas outside our flood zones it is legitimate to ask why so much funding will be focused on a project benefitting a relatively small number of residents. In addition, we have a number of drainage areas throughout Boulder that require flood protection, and it is not inappropriate to ask where the funding will come from to address their concerns.

   3) This is the largest public works project of which I am aware in Boulder. The problem is that the cost is likely to be far larger than initial estimates, which is common for projects of this size and scope. I believe the current estimates are no more than guesstimates, and I am not sure that we have accurately calculated the sticker shock this project will impose on the community.

   4) While our negotiating team has gone to great lengths to minimize the impact on surrounding residential communities from noise and light impacts of the sports facilities to be built on the property by CU, that protection is not perfect.

   5) There is concern for the impact of the proposed development on the adjacent lands to be preserved as Open Space, including the impacts on several endangered plant and animal species.

   6) And, of course, the development of this campus – which is largely intended to provide housing to for upper class students, graduate students and faculty -  does not address the elephant in the room: CU’s drive for continued growth and its continuing  failure to house its students beyond the first year, placing enormous pressure on our local housing market, driving up rents, and fueling the influx of investment capital to purchase private homes and convert them to student rental housing, in order to  provide the housing for which CU has abdicated its responsibility . The time is coming when those policies are going to be the subject of robust community debate. Unfortunately, those topics are not on the table now, as the need for flood mitigation does not permit us to enter into that kind of protracted stalemate with our counterparts.

   7) As noted earlier, the unwillingness of CU to discuss flood mitigation apart from annexation has made this entire process more difficult.  When I questioned CU representatives about this at a briefing early in my term, they were quite explicit that they wished to employ their political leverage to extract from Boulder what they desire, and were prepared to do so for as long as it took. If not for the efforts of our negotiating team, this agreement would have been a cornucopia of unacceptable provisions damaging to the City. I have detected very little of the partnership relationship that CU often talks about.

And yet, despite all this (and I have not been exhaustive in this list), I am going to vote for the Annexation Agreement. After what I have just written, how is this even possible?

   1) First, the impact of the 2013 flood on Frasier Meadows is real. No one died that year, but I believe that is only by the grace of God. As climate change events increase in severity, I am reluctant to bet on similar good fortune in the future.

   2) In Boulder, when we see a problem, we try to address it, to the extent that we can. Especially in the context of life, health and safety concerns I am hard pressed to say to the impacted communities that we will not attempt to seriously confront this problem. Our response to those endangered must be better than: Sure it floods, buy a lifeboat.

   3) Many of the proposed alternatives to this project are, to me, not realistic. Some have suggested that we condemn the property. It is entirely unclear that we have the legal authority to do so, but I can safely say that there is no appetite among my Council colleagues for such a dubious, scorched earth policy. Despite the obvious low regard in which I view CU’s role in this process, condemnation is not an alternative. Similarly, for those who suggest that a land swap for property in the Planning Reserve in North Boulder is a great idea, my response is: you may well be correct. But that swap cannot be compelled, and CU is currently unwilling to entertain it. Unless and until they become more flexible in their position, it is an idea that cannot be implemented. Meanwhile, the clock is ticking down to the next flood event.

   4) So if you accept the idea that a flood mitigation project is necessary, which I do, the only alternative is to actively negotiate with CU to obtain the land necessary to undertake it, and to mitigate the impact of the campus that CU proposes to develop on the balance of the property. And here it is necessary to give a shout out to the negotiating team in their continual efforts to produce an agreement that we can live with. If you have read the successive drafts of the Annexation Agreement – and I have had that very dubious pleasure – it is undeniable that each draft has dramatically improved on its predecessor. All of the most obnoxious and unacceptable terms of the early drafts have been removed, such as the obligation to pay for the fill on the land CU is deeding to us, or the obligation to indemnify them for flood damage to the facilities  that they choose to build in a flood plain. We have circumscribed CU’s right to develop the property in many important ways, such as adhering to 55 foot height limits, requiring that the focus of the project be housing for staff, graduate students, and upperclassmen, requiring that residential be built before non-residential structures and requiring that 2 feet of residential space be constructed for every foot of non-residential space.  We have limited where CU can build, keeping them off the sloping portions of the land and providing buffer zones between the campus and adjacent neighborhoods.

   5) And there is more, including an issue that was  very important to me: restraining the ability of CU to sell this property to an outside party, merely for profit. CU is now barred from conveying the land for 10 years, and we have the right to purchase the property if and when CU puts it on the market. Most importantly, we have limited the uses to which the property may be put by a subsequent owner. One of my concerns was that we not end up with a Class A office park at CU South, when that is not what the community needs. The agreement greatly limits the future uses of the property and is oriented largely towards housing, with a requirement of 45% affordable housing, and the limitation that all non-residential construction serve the purpose of creating a 15-minute walkable neighborhood. That does not mean that a future developer cannot attempt to develop $1,000 per square foot condos on the site, but almost half of the units they do develop will have to be affordable. Is there any other project in the City that would not be enthusiastically approved at that level of affordability?

   6) It is also important to note that more than 1/3 of the land of CU South will be made available for flood mitigation and for Open Space. An additional 5 acres will be conveyed for the exclusive purpose of creating affordable housing. An additional 2 acres will be conveyed for the possible creation of a new firehouse. These are substantial benefits.

   7) The approvals for this project are not a sure thing, and if for any reason we cannot get the flood mitigation project through its many regulatory hurdles, the annexation that we are granting CU is reversible on that basis. We will not be stuck with an annexation without the bargained-for benefits.

   8) We talk all the time about creating a more inclusive community, and creating an avenue for those who cannot afford our astronomical rental and purchase prices to live here. With the stated commitment to utilize the housing on site for upperclassmen, graduate students and faculty, (and I hope that a portion will be set aside for lower income staff who actually make the university run), this is an opportunity for Boulder to walk the talk, and we should take it.

The foregoing is only an incomplete summary of the manner in which this agreement addresses key concerns and issues regarding this project. It is not perfect, or close to perfect. But in my world you deal with the circumstances in which you find yourself and do the best that you can. I believe that we have done so, and I believe this Annexation Agreement provides a basis for moving forward.

Last subject (I promise!): with a ballot initiative coming up dealing with this very subject, why not simply wait to see the outcome of the vote? The answer is that this is our job, and that this project has been germinating for years. It is time to act. And the specific wording of the initiative is likely to prove an insurmountable obstacle to actually bringing the flood mitigation process to a successful conclusion at any point in the future. The language is less a proposal to improve or shape the agreement than a poison pill that will serve to kill it. For that reason alone, I am not supportive. But it is also true that our actions are subject to the possibility of a nullifying referendum, a process specified in our Charter, and I fully expect that opponents of this project will follow that route as well. If they collect sufficient signatures, then the specific actions of this Council, should the Annexation Agreement be approved, will be put to a vote. That vote will be a decision made by the community, and, of course, it will be controlling.

My vote on this is conflicted, but it represents my assessment that we are better off moving forward with the Annexation Agreement than taking no action. I have immersed myself in this subject over a number of months and I have assessed its good and bad points. Through my comments and communications I have attempted to shape the agreement to better serve the community and, exercising my best judgment, I have made a decision to support the Annexation Agreement. My decision is not based on the politics of the issue, which I believe are irrelevant in a matter of such consequence to Boulder.  This is the way I believe we should proceed, and, as I have said elsewhere,  I will stand by that decision.
Happy Labor Day to all.

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