DENVER — If a land use bill championed by Colorado Gov. Jared Polis (D) passes as written, some local governments are likely challenge the measure in court and a statement the governor made years ago could be used against him.
Polis’s office calls SB23-213 a landmark piece of legislation that will help the state address its housing crisis, in part by creating new minimum zoning codes for large communities. Some city governments have criticized the bill, claiming it strips their home rule powers by mandating a new state standard zoning code.
Polis made the same home rule argument about land use as a congressman back in 2015 in an amicus brief filed in a lawsuit against the City of Fort Collins over a voter-approved moratorium on oil and gas drilling in the state.
“Over eighty-five years of Supreme Court jurisprudence support local governments’ ability and responsibility to enact zoning codes and land use ordinances that fit the needs of their communities,” the brief says. “A local government is elected to represent its community members and is ultimately responsible for preserving the character of the community.”
“Local governments are best suited to meet the unique land use needs of their community through transparent pubic processes. Local planning involves widespread citizen input and broad stakeholder involvement. When addressing contentious issues, local governments have more opportunities for public participation than a state or federal government. As such, land use tools allow local governments to act consistently with their constituents’ expectations.”
Kevin Bommer, executive director of the Colorado Municipal League, which is lobbying against he land use bill in the state legislature, said he forgot about the legal argument Polis made back then until he read it Tuesday.
“It literally makes the argument for home rule and local control of local land use policy as good or better than anyone has done thus far in the Senate Bill 213 discussion,” Bommer said. “It wouldn’t surprise me one bit if a brief like this is cited in Senate Bill 213 litigation if it contains unconstitutional preemptions like it does right now.”
A spokesman for Polis said the 2015 brief was meant to be specific to oil and gas, and that Polis has not made a blanket statement on home rule.
"Both these issues speak to homeowners’ rights, which the Governor supports,” said Conor Cahill, a spokesman for Polis. “Homeowners should not be forced to have an oil rig in their backyard, and if they want to build a duplex they should be able to do so. If a homeowner wants an oil drilling pad less than 2000 feet from their home they should be able to have it, but they shouldn’t be forced to. And if a homeowner wants an ADU or duplex they should be able to build it, but shouldn’t be forced to. When local or state authority supports homeowners and private property rights he is generally supportive, and when local or state authority erodes private property rights he is generally opposed.”
"SB-213 keeps zoning authority local including what areas are commercial, which are residential, height limits, etc. it simply would mean that homeowners in areas zoned as residential would have the right to build an ADU, duplex, or triplex because they are in a locally designated residential zone. Empowering homeowners to be part of the housing solution will bring more lower-cost housing inventory to the market and reduce prices.”
SB23-213 had its first hearing in the legislature last week with hundreds of people testifying for the bill. Bommer said most of his cities believe in many of the aspects of the bill, but argue the mandated zoning codes are unconstitutional.
“All politics is local and there’s nothing more local than the place you live,” Bommer said.
He hopes the governor and other legislators will come back to the table to talk about accomplishing the goals of the bill without the mandates and preemptions.
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