The Connection Runners + [running man]

Boulder to Waive Non-competitive Events Clause in OSMP Charter?

So this isn't a very sexy topic because I'm going to go into some technical detail, but some of you might find this interesting.

A few of you probably saw that the City of Boulder is considering waiving certain sections of Boulder's Charter so that the USA Pro Cycling Classic can end on top of Flagstaff Mountain. The Colorado Daily reported on it here.

I think having the USA PRO Cycling Class end on top of Flagstaff would be awesome. Flagstaff is an iconic bike ride in Boulder and showcases one of the best routes in the area. I've biked that route many times and I think that this should go forward. Imagine some of the best cyclist in the world flying around Boulder and then finishing on that amazing climb. I would definitely be on Flag to spectate.

However, there's a problem with this route plan. The Flagstaff Mountain road goes through Boulder's Open Spaces and Mountain Parks (OSMP). This is problematic because Boulder's city Charter forbids competitive events in the OSMP area. While the city Charter does allow people to apply for permits if there is a gathering of more than 50 people, it strictly forbids competitive events.

Boulder Revised Code § 8-8-10 says,


No person shall organize, promote, conduct or participate in a competitive event upon open space and mountain parks properties. For the purposes of this section, "competitive event" shall mean any event or activity in which four or more persons try to exceed the performance of each other or another person in a physical activity.
I think the language is pretty straight forward and you don' t need a J.D. to decipher it: no one can have competitive events in OSMP. There are certain options that the city could pursue. As the Colorado Daily points out:


Boulder's attorneys are looking through the city code to figure out which rules and ordinances will have to be waived to allow the USA Pro Cycling Challenge race to hold its Boulder stage and finish on Flagstaff Mountain.
City Attorney Tom Carr told the City Council on Tuesday night that he thinks the rules can be waived by the city manager, without the council taking a vote. However, his office and other city departments are still in the process of figuring out every rule that will need to be waived and analyzing the legal issues.
The only solution they are currently considering, according to the article, is how they can waive certain sections of the Code so that this event can take place. But there are other options.

First, they can alter the Code and revoke that portion, which would open up OSMP to competitive events. I happen to like this option because I think OSMP is a great place to hold events. It is easy to get to and is absolutely amazing. It wouldn't necessary degrade the area if it was done right, by keeping permits, etc.

Second, they can alter the boundaries of OSMP. This would be much more of a hassel, but if it turned out that Flagstaff Road was not part of OSMP, then there wouldn't be a problem. However, if they choose to interpret OSMP as not including the road (I don't know if that can actually be done) then this problem would disappear.

What I hope they don't do is this: selectively apply the law or "waive" it, which seems to be what they are considering. As the article says,


Shoemaker [co-chairman of the race's local organizing committee] said it's normal to need waivers to local rules for a large event like the Pro Cycling Challenge.
"This [the Classic] is the largest spectator event in the state other than the stock show," Shoemaker said. "Your everyday rules aren't written for those sort of things because you don't want these sort of things every day. But if the right opportunity comes along, the government should be able to do what it needs to do to take advantage of that."This is the type of legal exceptionalism that makes me squirm. While I'd really like the race end on Flagstaff, why should this race be any different than the other races people have wanted to put on over the years?

Granted, the Cycling Classic is a large economic draw, where a trail race may not be. But should laws bend to accommodate economics?

Our initial reaction, might be, "yes." Laws are made to ensure prosperity, so if there is a legal impediment in the way of economic success, the law should be waived. While there is great support for this type of thinking, it scares me.

It scares me because much can be justified on the grounds of 'greater economic prosperity'. If we openly allow the law to bend to accommodate those situations are that are in the greater goods interest, we may run afoul of the values we treasure the most.

In legal academia, this is the countermajoritarian dilemma. If democracy is the the will of the majority, then what is keeping that majority from taking democratic action against the minority? For instance, if the majority of people in a country is Buddhist, what would keep the majority from electing officials that create laws forcing everyone to become Buddhist?

The answer is our system of checks and balances, which ensures that a court (a non-democratic institution built into our government) can look at the law and declare that did it unconstitutional, given freedom of religion. This is the way the system supposedly works. That example is obviously trite, and it is meant to be. But we must ask, what is the difference between waiving a law that the majority wants for purportedly economic reasons and waiving a law that the majority wants for purportedly religious reasons? Or what could we waive a law installing a religion on economic grounds? If the majority of Boulderites thought it would be a good thing to force everyone in Boulder to become Buddhist because it would attract pilgrims who would stop in at the tea house and Shambhala center, buy our incense from one of our many import stores, engage in meditation along the creek path, yadda yadda - should we allow it?

Or, to put it bluntly, what if a law was waived for a very wealthy person because they can commute their violation of the law via a payment to the city coffers?

Slippery slopes abound when we begin waiving rules for economic reasons. While we may not like a law, we have two options when confronting it. First, we can get rid of the law. We might decide the law is archaic and no longer deserves codification. This would allow the City of Boulder to end the bike race on top of Flagstaff, but it would also open up all of OSMP to competitive events. Second, we can apply the law. This would prevent the bike race from ending on Flag and perpetuate the status quo.

If Boulder goes through with this waiver, I hope you do not site idly by. But let's see what happens. Or maybe I'm just wrong and have a fucked up notion of how the law works - when the law is inconvenient, it can be and should be disregarded.

Thanks for reading.