Aug. 3—One week ago, Boulder filed a bombshell lawsuit against the Federal Aviation Administration that could have pivotal consequences for the future of the city's 96-year-old municipal airport.
The suit came with little fanfare or warning, surprising even some who have been deeply involved in the debate over whether the city should keep the airport running or seek to close it so its nearly 180 acres of land can be repurposed for housing.
Calls to close the airport have grown louder and more urgent amid a shortage of affordable housing in Boulder. Neighbors have also expressed concern about noise and possible lead contamination from the airport. But a vocal contingent of pro-airport community members opposes closing the airport and insists it's too precious an asset for the community to lose.
The lawsuit aims to answer key, lingering questions of how long the city is legally bound to keep its airport open and whether the airport can eventually be closed. The city can't simply close its airport tomorrow because of contractual obligations to the FAA. Boulder has accepted FAA grant funding in the past for airport maintenance, and each grant agreement the city enters into requires the airport to stay open for a maximum of 20 more years.
According to the suit, the city has stopped accepting FAA grants, so it could theoretically be feasible to close the airport after 2040, when the current grant contract expires. But the FAA maintains that because the city accepted grants decades ago for acquiring real property, Boulder has to keep the airport open in perpetuity until and unless the FAA releases the city from this obligation. That is the central claim the lawsuit is challenging.
Boulder launched this momentous legal effort without a City Council vote or public hearing, which may seem surprising at first glance. But according to city spokesperson Sarah Huntley, the city initiated the lawsuit following procedures that are laid out in city code.
To begin with, it's not typical for Boulder to notify the public ahead of litigation — the city tends to be guarded about its legal strategy — but additionally, there are situations where the city attorney can legally file or join certain types of lawsuits on her own initiative.
According to city code, the city attorney can initiate or intervene in civil suits, with the consent of the City Council or city manager, that concern "the need to declare the rights of the city when necessary or desirable to carry out or clarify a policy, financial, property, personnel or administrative interest of the city which has been previously recognized by the city council."
Additionally, the city attorney can independently file or join civil suits for any lawful purpose when she believes there are "exigent circumstances that warrant proceeding immediately without city council or city manager approval." In that case, the city attorney must seek approval from the City Council or city manager as soon as possible after taking this action.
"The code does require approval by City Council at an official meeting, and the city is currently working to schedule this item," Huntley wrote in an email.
She also confirmed Boulder has retained the Kaplan Kirsch law firm as counsel for this case. Huntley said the firm has expertise in aviation and federal regulatory issues and that it is typical for Boulder to hire outside council for litigation in areas requiring specialized knowledge.
The Daily Camera attempted to reach the city attorney and city manager for comment, but Huntley said the officials are not able to give interviews on issues involving pending litigation.
Originally Published: August 3, 2024 at 10:00 a.m.
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