Denver Judge: City Park Flood Plan May Be “Thinly Veiled Subterfuge” to Widen I-70

While the judge decided not to halt the drainage project, his decision could lend momentum to a federal lawsuit against the highway expansion through north Denver neighborhoods.

If CDOT gets its way, this Swansea Elementary playground will be on top of a highway instead of next to it. Image: David Sachs
If CDOT gets its way, this Swansea Elementary playground will be on top of a highway instead of next to it. Image: David Sachs

Denver District Court Judge David H. Goldberg won’t stop a flood control project at City Park Golf Course tied to the widening of I-70 through minority, low-income neighborhoods in north Denver. But he did say the drainage work “may be a thinly veiled subterfuge” to grease the skids for the highway expansion, which could prove relevant in a separate federal case against the I-70 project.

Plaintiffs suing the City and County of Denver argued that the true purpose of the project — which is absent from the city’s 2014 Storm Drainage Master Plan — is to protect the Colorado Department of Transportation’s I-70 expansion, which promises to increase traffic and pollution for years to come.

The $1.8 billion I-70 project would sink a portion of the highway 30 to 40 feet below ground, creating a flood pocket during large storms. Having the city assume the burden of drainage infrastructure shifts costs from CDOT and private companies to Denver taxpayers who pay a stormwater fee, advocates argued.

As a city district judge, Goldberg can only rule on whether the drainage project violates the city charter. “Though the reconfiguration of CPGC may be a thinly veiled subterfuge to pave the way for new construction plans on I-70 and along the I-70 corridor, consideration of the various rationales and funding mechanisms for the Project is beyond the scope of this Court’s charge,” Goldberg wrote in his decision [PDF].

The pending case against the highway widening in federal court won’t be bound by such narrow legal concerns, however. That suit argues the Federal Highway Administration should not have approved CDOT’s widening without including the flood project in its environmental analysis.

Plaintiff’s attorney Aaron Goldhamer said there’s a silver lining to the legal defeat. “The judge in the federal court may very well read [Goldberg’s ruling] as a guiding statement as to what the evidence in this case did show,” Goldhamer said. “I’m much more optimistic about the federal case. I think there are some very strong claims there and this ruling may only bolster those claims.”

Goldhamer pointed to the judge’s acknowledgment of “subterfuge” and evidence that the flood project will have adverse environmental impacts. The City Park Golf Course project will remove 263 trees and change the grading of the land. Goldberg wrote that “the loss of a mature [tree] canopy is materially detrimental to the habitat and the neighborhood” and could “take decades to redevelop.”

Goldhamer filed an injunction last month to stop CDOT from beginning construction before the federal case is heard. The request is still pending.

If a federal judge orders CDOT to redo its environmental analysis to include the drainage infrastructure, that would stall the widening, Goldhamer said, likely beyond next year’s election of a new governor. The question of whether to stop the expansion would then fall to whomever Coloradans elect to replace John Hickenlooper in 2018.