Vote "NO" On Issue 2A
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Myths and Truths about Ballot Issue 2A
Myths:
1. “It’s only $5…that's nothing.”
Here’s the actual ballot language on subsequent increases:
“may be thereafter increased by City Council by Resolution only to the extent required to comply with a valid court order [remember we are in litigation with the EPA so this is a yet-to-be-determined amount], federal or state permits, federal or state laws, and intergovernmental agreements (IGAs) of the City entered into before June 1, 2016."
The Intergovernmental agreement with Pueblo County which illegally financially obligated our City for twenty years (more on the illegality later) was signed and placed into effect on May 2, 2016 and hence falls under the date requirement of the ballot language. Also note that IGAs can be amended at any time by a single vote of City Council, with the date of the original IGA serving as the official date.
Even if no revision is made to the IGA with Pueblo County, here is one clause from the existing IGA that voters should consider when assessing the probability of future increases:
“(3) Cooperation on Future Funding. To ensure long-term funding of FCWFCGD’s [Fountain Creek Watershed, Flood Control and Greenway District] annual operating budget, the City, Utilities and Pueblo County will work cooperatively and in good faith to establish a proportional formula by which each of the Parties and the other participating stakeholders in the FCWFCGD, will agree to contribute funds to ensure the long-term funding of FCWFCGD’s operating budget.”
Do you trust politicians to work “cooperatively…to establish a proportional formula” that could increase your monthly taxes for twenty years and probably longer (when an extension will almost certainly be sought)?
City Councilman Don Knight, who serves as the Chairman of the City Council Budget Committee, says the growth in revenue makes the tax hike unnecessary (See Knight's Letter). Our existing budget, if prioritized and used prudently would provide enough to address stormwater issues for our city and our neighbors downstream. City of Colorado Springs officials have committed over $10 million of funding available for other purposes instead to infrastructure for a museum project this year. It's time the City learned to focus on the role of government.
2. “It’s our responsibility and civic duty to clean up this mess…” This line of reasoning is put forward to tug at the collective conscience of the good people of Colorado Springs. We are to feel a sense of guilt for the terrible situation that we are faced with in our decaying stormwater infrastructure. Unfortunately, it is through systematic offering of waivers to developers and failure to provide developer oversight from our elected officials and those who work for them that has resulted in inadequate runoff infrastructure. Yes, we should absolutely lament the situation we’re in, but equally we should demand future accountability by our government and the developers who create runoff.
3. “Lawsuits will continue unless we pony up the money…”
The lawsuit from last November by the EPA and the Colorado Department of Health specifically cited the City’s failure to provide developer oversight and its propensity to grant developer waivers to accepted criteria for drainage. No amount of money fixes that problem. Money doesn’t answer all of the lawsuit charges. City Code and City policies remain in exactly the same form as when these problems were identified by the EPA.
In the EPA’s 2015 Inspection report, city representatives were quick to tell the EPA that they lacked proper funding to properly fund stormwater activities despite a $500 million budget: “Specifically, City representatives stated that the City lacked resources to adequately maintain and repair stormwater-related infrastructure.” This almost appears to be inviting legal action from the EPA. Perhaps a nice hook to vote yes for a future stormwater tax?
4. “We have a legal obligation to Pueblo…”
The Intergovernmental Agreement (IGA) with Pueblo County, approved by City Council and signed by Mayor Suthers is a direct violation of TABOR (see the full TABOR Section in the Charter):
From City Charter, Section 7-90:
d) Required Elections. The following require voter approval in advance:
(2) Except for refinancing City bonded debt at a lower interest rate or adding new employees to existing City pension plans, City creation of a direct or indirect City debt or other financial obligation whatsoever that extends, or causes a penalty if not extended, past the fiscal year incurred without adequate present cash reserves irrevocably pledged and held for all future payments.
Truths:
1. The focus of the EPA and CO Dept of Health lawsuit is on the City’s failure to follow its own rules when approving and overseeing developer stormwater infrastructure. In one case, the lawsuit details an $11.4 million shortcut provided to developers (see entire lawsuit complaint):
“The Cottonwood Creek DBPS estimated “[a] total cost reduction of approximately $11.4 million (January 1992 dollars)” by eliminating the proposed detention ponds and associated fees, and reducing the Cottonwood Creek Drainage and Bridge Fees.” [charged to developers]
Here are just a few findings from the 2015 EPA inspection that highlight the City’s ineptitude and unwillingness to hold developers accountable:
“Finding 1ND: Failure to Ensure Post-construction Permanent BMPs [Best Management Practices] are Designed, Approved, and Installed in Accordance with MS4 Program Requirements.”
“Of the 105 projects on the CIP [Capital Improvement] list, it appeared that four stormwater oriented projects were included and slated for funding in 2015:
“…the City did not appear to implement program procedures as described in the City New Development and Redevelopment program description, O&M procedures, City ordinance 7.7.1504, and DCM, Vol 2 to ensure that public and private development and redevelopment plans for permanent BMPs [Best Management Practices] were submitted to EDR with the required design plans prior to approval and issuance of a grading permit.”
“Specifically, the EPA Inspection Team visited a private development, extended detention basin (EDB) (a permanent BMP). A review of the as-built plans by the EPA Inspection Team confirmed that the EDB design that was submitted by the developer and subsequently approved by the City was not in accordance with DCM [Drainage Criteria Manual] Vol I.”
“According to City representatives, these private entities had provided financial assurances (which were being held for their respective permanent BMPs) to the City; however, City representatives explained that these assurances were not substantial enough for the City to maintain these private BMPs indefinitely.”
In the 2013 EPA report, the City approved waivers from stormwater requirements in seven developments. These developments had NO drainage infrastructure whatsoever yet were approved by the City. Here are a couple more findings from that report:
“The request for the probationary inspection for the Flying Horse Pond Filing 26 was issued by the developer on February 4, 2008, but neither the developer nor the City initiated the final inspection in February 2010. According to City records, the City had not performed the final inspection of the pond which would release it from the developer's purview and turn it over to the City to maintain. As of February 6, 2013, no one had been maintaining the pond and the representatives of the developer explained that they had not done so for "some time".
2. The ballot language literally allows for unlimited increases in your new tax (“fee”). Here is the exact ballot language regarding subsequent increases:
“may be thereafter increased by City Council by Resolution only to the extent required to comply with a valid court order [remember we are in litigation with the EPA so this is a yet-to-be-determined amount], federal or state permits, federal or state laws, and intergovernmental agreements (IGAs) of the City entered into before June 1, 2016. See the full ballot text of Issue 2A.
Here are some easy processes by which the tax (“fee”) goes up:
3. It’s also important to note that while developers pay “fees for stormwater” in their developments, they can apply to get reimbursed those fees. Developers pay an impact fee for drainage with each development subdivision. The money goes into a “subdivision drainage fund” managed by the City. The City later pays the developers back for building the infrastructure that is required by City Code for them to build anyway. See the code that explains how this convoluted process works to make sure developers are paying no impact fees to the City.
4. Drainage infrastructure built by developers has no warranty. Once the City inspects and approves the infrastructure for a subdivision, the responsibility for upkeep and repair of potentially poorly or defectively built facilities is immediately transferred to the City.
5. No changes to City Code, Regional Building Inspection criteria or developer oversight guidelines have been suggested or proposed to show how the problems cited in the lawsuit will be prevented in the future. No changes whatsoever. Developer failures to build required infrastructure, either by negligence or by passes and shortcuts allowed by the City have led directly to the EPA lawsuit. A yes vote is tantamount to bailing out developers. Meanwhile the failures that brought us here will be allowed to fester to the surface again and again in the future.
Specifically, City code has a wide allowance to waivers for subdivision drainage requirements. Such waivers were the focal point of the EPA's lawsuit. City Code §7.3.611 is shown below. A subjective evaluation would allow any waivers to be granted per City Code. No proposed changes to this code have been put forth by either City Council or the Administration.
7.3.611: WAIVER OR MODIFICATION OF SUBDIVISION CODE REQUIREMENTS:
"When the situation so warrants, the following requirements of the Subdivision Code may be waived or modified by the Planning Commission or City Council… If it would result in at least one of the following benefits, and Planning Commission or City Council find that the proposal provides for the general health, safety, and welfare of the citizens, a waiver or modification may be approved:
A. Preservation of natural features;
B. Provision of a more livable environment, such as the installment of street furniture, decorative street lighting or decorative paving materials; [providing street furniture can qualify for a waiver on drainage?]
C. Provision of a more efficient pedestrian system;
D. Provision of additional open space; and/or
E. Provision of other public amenities not otherwise required by City standards.
6. Your utility bill already provides a tax to the City. Every cubic foot of natural gas and every kilowatt hour of electricity you buy from Utilities has a surcharge on it to provide a “surplus” in revenue to Utilities every year. Politicians changed the term “payment in lieu of taxes” (PILT) to “planned surplus” to facilitate the disingenuous legal gymnastics to circumvent voter-approved Issue 300.
Right now, your utility bill provides a $30+ MILLION blank check every year to the City’s General Fund. [See details on how this came about]
7. If passed, your 2A tax ("fee") will be charged to your Utilities bill. Here are some important facts that should make you wonder about your Utility bill in light of Issue 2A taxes ("fees") being placed on that bill:
8. Mayor Suthers grew the Attorney General’s Office budget by 54% while overseeing it as AG. We are being asked to grow the City budget with your dollars in the same bloated fashion. Growing government can be addictive.
1. “It’s only $5…that's nothing.”
Here’s the actual ballot language on subsequent increases:
“may be thereafter increased by City Council by Resolution only to the extent required to comply with a valid court order [remember we are in litigation with the EPA so this is a yet-to-be-determined amount], federal or state permits, federal or state laws, and intergovernmental agreements (IGAs) of the City entered into before June 1, 2016."
The Intergovernmental agreement with Pueblo County which illegally financially obligated our City for twenty years (more on the illegality later) was signed and placed into effect on May 2, 2016 and hence falls under the date requirement of the ballot language. Also note that IGAs can be amended at any time by a single vote of City Council, with the date of the original IGA serving as the official date.
Even if no revision is made to the IGA with Pueblo County, here is one clause from the existing IGA that voters should consider when assessing the probability of future increases:
“(3) Cooperation on Future Funding. To ensure long-term funding of FCWFCGD’s [Fountain Creek Watershed, Flood Control and Greenway District] annual operating budget, the City, Utilities and Pueblo County will work cooperatively and in good faith to establish a proportional formula by which each of the Parties and the other participating stakeholders in the FCWFCGD, will agree to contribute funds to ensure the long-term funding of FCWFCGD’s operating budget.”
Do you trust politicians to work “cooperatively…to establish a proportional formula” that could increase your monthly taxes for twenty years and probably longer (when an extension will almost certainly be sought)?
City Councilman Don Knight, who serves as the Chairman of the City Council Budget Committee, says the growth in revenue makes the tax hike unnecessary (See Knight's Letter). Our existing budget, if prioritized and used prudently would provide enough to address stormwater issues for our city and our neighbors downstream. City of Colorado Springs officials have committed over $10 million of funding available for other purposes instead to infrastructure for a museum project this year. It's time the City learned to focus on the role of government.
2. “It’s our responsibility and civic duty to clean up this mess…” This line of reasoning is put forward to tug at the collective conscience of the good people of Colorado Springs. We are to feel a sense of guilt for the terrible situation that we are faced with in our decaying stormwater infrastructure. Unfortunately, it is through systematic offering of waivers to developers and failure to provide developer oversight from our elected officials and those who work for them that has resulted in inadequate runoff infrastructure. Yes, we should absolutely lament the situation we’re in, but equally we should demand future accountability by our government and the developers who create runoff.
3. “Lawsuits will continue unless we pony up the money…”
The lawsuit from last November by the EPA and the Colorado Department of Health specifically cited the City’s failure to provide developer oversight and its propensity to grant developer waivers to accepted criteria for drainage. No amount of money fixes that problem. Money doesn’t answer all of the lawsuit charges. City Code and City policies remain in exactly the same form as when these problems were identified by the EPA.
In the EPA’s 2015 Inspection report, city representatives were quick to tell the EPA that they lacked proper funding to properly fund stormwater activities despite a $500 million budget: “Specifically, City representatives stated that the City lacked resources to adequately maintain and repair stormwater-related infrastructure.” This almost appears to be inviting legal action from the EPA. Perhaps a nice hook to vote yes for a future stormwater tax?
4. “We have a legal obligation to Pueblo…”
The Intergovernmental Agreement (IGA) with Pueblo County, approved by City Council and signed by Mayor Suthers is a direct violation of TABOR (see the full TABOR Section in the Charter):
From City Charter, Section 7-90:
d) Required Elections. The following require voter approval in advance:
(2) Except for refinancing City bonded debt at a lower interest rate or adding new employees to existing City pension plans, City creation of a direct or indirect City debt or other financial obligation whatsoever that extends, or causes a penalty if not extended, past the fiscal year incurred without adequate present cash reserves irrevocably pledged and held for all future payments.
Truths:
1. The focus of the EPA and CO Dept of Health lawsuit is on the City’s failure to follow its own rules when approving and overseeing developer stormwater infrastructure. In one case, the lawsuit details an $11.4 million shortcut provided to developers (see entire lawsuit complaint):
“The Cottonwood Creek DBPS estimated “[a] total cost reduction of approximately $11.4 million (January 1992 dollars)” by eliminating the proposed detention ponds and associated fees, and reducing the Cottonwood Creek Drainage and Bridge Fees.” [charged to developers]
Here are just a few findings from the 2015 EPA inspection that highlight the City’s ineptitude and unwillingness to hold developers accountable:
“Finding 1ND: Failure to Ensure Post-construction Permanent BMPs [Best Management Practices] are Designed, Approved, and Installed in Accordance with MS4 Program Requirements.”
“Of the 105 projects on the CIP [Capital Improvement] list, it appeared that four stormwater oriented projects were included and slated for funding in 2015:
- •Companion Drainage Projects – $412,000. • Drainage Basin Planning Studies – $150,000. • Emergency Drainage Repairs High Priority – $500,000. • Infrastructure Damage Repair – $80,000."
- Though the City couldn't seem to find a high enough priority for much stormwater spending in 2015's budget, here's what the City did find funding for on that list (taken from 2015 Budget):
- Downtown Streetscape Project $864,000
- Museum Exterior Renovation $299,550
- Museum HVAC Upgrades $200,000
- On-Street Bikeway Improvements $411,970
- Summit House Design $1,500,000
- Fire Station Bathroom Remodel: $517,625 (2019)
“…the City did not appear to implement program procedures as described in the City New Development and Redevelopment program description, O&M procedures, City ordinance 7.7.1504, and DCM, Vol 2 to ensure that public and private development and redevelopment plans for permanent BMPs [Best Management Practices] were submitted to EDR with the required design plans prior to approval and issuance of a grading permit.”
“Specifically, the EPA Inspection Team visited a private development, extended detention basin (EDB) (a permanent BMP). A review of the as-built plans by the EPA Inspection Team confirmed that the EDB design that was submitted by the developer and subsequently approved by the City was not in accordance with DCM [Drainage Criteria Manual] Vol I.”
“According to City representatives, these private entities had provided financial assurances (which were being held for their respective permanent BMPs) to the City; however, City representatives explained that these assurances were not substantial enough for the City to maintain these private BMPs indefinitely.”
In the 2013 EPA report, the City approved waivers from stormwater requirements in seven developments. These developments had NO drainage infrastructure whatsoever yet were approved by the City. Here are a couple more findings from that report:
“The request for the probationary inspection for the Flying Horse Pond Filing 26 was issued by the developer on February 4, 2008, but neither the developer nor the City initiated the final inspection in February 2010. According to City records, the City had not performed the final inspection of the pond which would release it from the developer's purview and turn it over to the City to maintain. As of February 6, 2013, no one had been maintaining the pond and the representatives of the developer explained that they had not done so for "some time".
2. The ballot language literally allows for unlimited increases in your new tax (“fee”). Here is the exact ballot language regarding subsequent increases:
“may be thereafter increased by City Council by Resolution only to the extent required to comply with a valid court order [remember we are in litigation with the EPA so this is a yet-to-be-determined amount], federal or state permits, federal or state laws, and intergovernmental agreements (IGAs) of the City entered into before June 1, 2016. See the full ballot text of Issue 2A.
Here are some easy processes by which the tax (“fee”) goes up:
- The City agrees to a settlement with the EPA on the pending court case. Keep in mind the case is in litigation and the City could seek a settlement at any time for any amount of money. Suthers and Council could agree to a preposterous settlement with the EPA before the ink is dried on the City Clerk’s certification of 2A passage. Then it will take one vote of City Council with 24 hours notice of the meeting to increase the amount.
- Pueblo County comes back to the City and says they are demanding immediate increases to the $460 million in the illegal IGA. Remember, Pueblo controls the spigot to the Southern Delivery System (SDS). Developers (particularly those who will develop the enormous Banning Lewis Ranch development) desperately need SDS to be able to build out their plans. Generally speaking, whatever developers desperately need, City Council and the mayor will provide. So council can make revisions to the IGA with 24 hours notice and a single vote on a resolution.
- The existing IGA allows for the signatories to agree to provide “longterm funding” amounts for the Fountain Creek Watershed, Flood Control and Greenway District. So if they cooperatively agree to fund it to the tune of another $5 million per year, after a 24-hour meeting notice and one vote of City Council, your new tax may be up another 20%.
3. It’s also important to note that while developers pay “fees for stormwater” in their developments, they can apply to get reimbursed those fees. Developers pay an impact fee for drainage with each development subdivision. The money goes into a “subdivision drainage fund” managed by the City. The City later pays the developers back for building the infrastructure that is required by City Code for them to build anyway. See the code that explains how this convoluted process works to make sure developers are paying no impact fees to the City.
4. Drainage infrastructure built by developers has no warranty. Once the City inspects and approves the infrastructure for a subdivision, the responsibility for upkeep and repair of potentially poorly or defectively built facilities is immediately transferred to the City.
- 7.7.908: CITY RESPONSIBLE FOR ACCEPTED FACILITIES: [Note: No changes since 2002] "All drainage facilities and appurtenances constructed or provided under this part and designated by the City Engineer as public drainage facilities with public maintenance, shall upon written acceptance by the City become the property of the City and the City shall be responsible for the operation and maintenance of the facilities. (Ord. 96-44; Ord. 01-42; Ord. 02-130)"
5. No changes to City Code, Regional Building Inspection criteria or developer oversight guidelines have been suggested or proposed to show how the problems cited in the lawsuit will be prevented in the future. No changes whatsoever. Developer failures to build required infrastructure, either by negligence or by passes and shortcuts allowed by the City have led directly to the EPA lawsuit. A yes vote is tantamount to bailing out developers. Meanwhile the failures that brought us here will be allowed to fester to the surface again and again in the future.
Specifically, City code has a wide allowance to waivers for subdivision drainage requirements. Such waivers were the focal point of the EPA's lawsuit. City Code §7.3.611 is shown below. A subjective evaluation would allow any waivers to be granted per City Code. No proposed changes to this code have been put forth by either City Council or the Administration.
7.3.611: WAIVER OR MODIFICATION OF SUBDIVISION CODE REQUIREMENTS:
"When the situation so warrants, the following requirements of the Subdivision Code may be waived or modified by the Planning Commission or City Council… If it would result in at least one of the following benefits, and Planning Commission or City Council find that the proposal provides for the general health, safety, and welfare of the citizens, a waiver or modification may be approved:
A. Preservation of natural features;
B. Provision of a more livable environment, such as the installment of street furniture, decorative street lighting or decorative paving materials; [providing street furniture can qualify for a waiver on drainage?]
C. Provision of a more efficient pedestrian system;
D. Provision of additional open space; and/or
E. Provision of other public amenities not otherwise required by City standards.
6. Your utility bill already provides a tax to the City. Every cubic foot of natural gas and every kilowatt hour of electricity you buy from Utilities has a surcharge on it to provide a “surplus” in revenue to Utilities every year. Politicians changed the term “payment in lieu of taxes” (PILT) to “planned surplus” to facilitate the disingenuous legal gymnastics to circumvent voter-approved Issue 300.
Right now, your utility bill provides a $30+ MILLION blank check every year to the City’s General Fund. [See details on how this came about]
- According to councilman Don Knight, the mayor has asked City Council to increase that surcharge on your gas and electric bill to provide even higher utility bills and an even bigger blank check to the City. This would be facilitated by votes in City Council and the Utilities Board—not by citizen ratepayers.
7. If passed, your 2A tax ("fee") will be charged to your Utilities bill. Here are some important facts that should make you wonder about your Utility bill in light of Issue 2A taxes ("fees") being placed on that bill:
- In addition to the millions the City has already spent or pledged on City for Champions, it has just come to light that Utilities will subsidize the infrastructure for the City for Champions museum with your Utility bill to the tune of $1.3 million. This will come out of the water and wastewater departments. (Note: your water bill is slated to be raised 3% to pay for various "projects" including this one). With an influx of $17 million per year to utilities if 2A passes, expect to see more and more money subsidizing pet projects and developments. See the CS Independent Article about the subsidy.
- You are currently ALREADY paying a backdoor tax through your Utility bill to the City. Every cubic foot of natural gas and every kWatt-hour of electricity you use has a surcharge placed on it so that at the end of the year, the City-owned, non-profit utility company intentionally collects more than they need to run Colorado Springs Utilities. They then write a big fat blank check for over $30 million to the City to be used on whatever the City wants. [See details on how this came about] Mayor Suthers has already asked that this surcharge to be increased (see Councilman Don Knight's letter saying so). That's in addition to the Issue 2A tax ("fee").
- In the IGA with Pueblo that illegally obligates Colorado Springs to make annual payments of $23 MILLION for 20 years, the language reads that if the City fails to make the payments, then Utilities must make the payments. Here's the pertinent excerpt from the IGA:
- "(3) Utilities' Joint Obligation. To the extent that the City fails to expend its share of the minimum annual expenditures or minimum five-year total expenditures required to be expended by the City and Utilities as provided under paragraph III.A(]), Utilities, in addition to satisfying its own funding obligations, shall provide the amount of funds necessary to comply with such expenditure obligations and said funds shall be expended by the City."
- Where do you think the funds would come from? It has been suggested by at least one councilmember to skip the 2A vote and just raise everybody's water bills to meet the illegal obligation of the IGA. Perhaps that is the backup plan if 2A fails.
8. Mayor Suthers grew the Attorney General’s Office budget by 54% while overseeing it as AG. We are being asked to grow the City budget with your dollars in the same bloated fashion. Growing government can be addictive.