Aug. 24–A group of east county residents have filed a lawsuit against a Boulder County Commission decision to expand a floodway onto their properties, alleging the process’s execution amounted to a violation of their due process rights.
The litigation — which seeks to reverse the decision — aligns slightly with the interests of the Denver-based extraction firm, Crestone Peak Resources, whose efforts to develop a nearby site with a host of oil and gas wells has been complicated by the same re-mapping decision. The company levies the decision to rezone the area was done in part to subvert its plans.
According to the complaint filed this week, commissioners approved the floodway expansion over the resistance of local residents, who said the re-mapping would limit development on their private properties — some of which are functioning farms — and cause their flood insurance rates to skyrocket.
The plaintiffs named in the case include Robert and Sindy Lindow, Robert and Traci Jensen, Amber Shelly, Kendra Carberry and Christopher Davidson — who all live along Kenosha Road in Erie and Longmont. They are represented by Colorado Springs attorney Murray I. Weiner of Mulliken Weiner Berg and Jolivet, P.C.
They allege that a typical community hearing or public notice wasn’t given in the weeks leading up to the decision, and that they “only heard about the hearing because (one of the affected properties) was the subject of a building permit application that was improperly denied by the county several days prior to the hearing.”
That property belongs to Robert Lindow, who said Thursday he was only informed the flood zone maps were subject to change when a permit to build a hayshed on his property was denied. A portion of his property is used for his business, he said, adding the expanded floodway would place a severe limit on his profits.
The re-drawing was performed by the Colorado Water Conservation Board, with assistance from Boulder County staff, and was approved last month 2-0 by commissioners. Commissioner Cindy Domenico was absent. When the change officially takes effect Oct. 1, it will substantially widen the floodway along portions of Lower Boulder Creek northwest of Erie.
A floodway is a narrow channel where, in the event of a flood, water will be flowing. A floodplain is where shallow water is likely to be during the event of a flood, though shallower and flowing at a lower volume, if at all, than water in a floodway.
The former, by definition of Boulder County’s standards, is more heavily regulated than a floodplain. Land regulated under floodway status is often limited to very specific redevelopment.
According to the complaint, plaintiffs’ efforts to have the hearing delayed to learn more about proposed expansion went unheeded.
At the hearing, plaintiffs also ague, they were continuously given misleading or “untrue” information about the nature of the decision.
“Varda Blum is the floodplain program manager for the county,” the complaint reads. “At the hearing, Blum testified that (commissioners) had no choice but to approve the downzoning of the affected properties, because the floodway mapping had already been approved by the Colorado Water Conservation Board. Blum had actual knowledge that her testimony was untrue, because the (water conservation board) had already postponed consideration of the floodway mapping for the Lower Boulder Creek area until its Sept. 18, 2018 meeting.”
Commissioners’ refusal to give notice of the hearing, to continue the hearing after residents’ requests and “Blum’s intentional and knowing misrepresentation” all amounted to violations of the plaintiffs’ due process rights, the complaint alleges.
The complaint adds that “no hydrologist, county representative, (water conservation board) representative or any other person working on the new floodway designation for the Lower Boulder Creek area ever entered any of the affected properties to obtain relevant data,” and that “at the hearing, the (commissioners) failed to make any findings to support its downzoning of the affected properties.”
In a statement in response to the lawsuit Thursday, Deputy County Attorney David Hughes said, “zoning regulations that designate floodways and floodplains are important to the protection of life, public safety, and common welfare. Many of the areas covered by the newly adopted floodway — including plaintiffs’ homes — experienced flooding during the 2013 flood.
“The floodway designation was based on sound engineering and the county followed the appropriate state process for adopting floodway regulations,” he added. “As a result, the county does not believe the lawsuit has merit.”
The Colorado Water Conservation Board in 2015 changed the definition of a floodway, triggering a review of flood-hazard areas across the state. Wheeler Open Space, however, was not reassessed, given the lack of residential buildings on the land, Boulder County Senior Assistant Attorney Kate Burke said earlier this year.
In light of the planned oil and gas development on the site, a modeling with the new standards was performed. Under the new guidelines, the entirety of well site Section 1, which is in the open space, is within a floodway, according to documents Boulder County submitted in mid-April with its formal comments to the Colorado Oil and Gas Conservation Commission.
“We applaud the efforts to prevent drilling in our area, but we are thrown under the bus here,” Carberry said at last month’s hearing.
Crestone spokesman Jason Oates said Thursday that while the company’s interest align with residents’ in hoping for the regulations to be removed, the company’s drilling hopes are intact.
In a new plan filed last month, the company is suggesting that its easternmost wellpads stay put, even as that area is being re-designated as a floodway, which puts the site more at risk of damage than under its previous floodplain classification.
Anthony Hahn: 303-473-1422, firstname.lastname@example.org
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