1975, July, Pg. 1299. Land Use Legislation and the Real Estate Buyer.

• Author: by Gerald F. Groswold

4 Colo.Law. 1299

Colorado Lawyer

1975.

1975, July, Pg. 1299.

Land Use Legislation and the Real Estate Buyer

1299Vol. 4, No. 7, Pg. 1299Land Use Legislation and the Real Estate Buyerby Gerald F. GroswoldColorado has assumed a leadership position in land use legislation. Within the last few years, Colorado has adopted more land use legislation than any other state in the union. It is now at least equal to, if not ahead of, the normally recognized leading states of Hawaii, Vermont and Florida.

In the adoption of both state and federal land use oriented legislation, we are seeing the evolution of a new legislative concept. The old concept was one of providing the local government with statutory authority for the implementation of land use planning programs. Under the new concept, the legislature charges the next lower governmental level with implementation within designated guidelines. If that entity fails to act or acts improperly, the first authority may compel compliance.

The substantial activity on both the state and federal levels may bring about new definitions for established concepts such as marketable title and caveat emptor. Under already existing land use legislation, a title that is marketable may be totally unusable. The dangers a buyer must be aware of are many today and are multiplying rapidly. The purpose of this article is to identify the various land use statutes and regulations that an attorney representing the purchaser today must bear in mind.

I will not delve into the classical and well established land use regulations such as zoning, planning, or subdivision regulations. You should, however, be aware of their existence. The material covered here is in addition to these classical forms of land use legislation. Prior to 1971, if you were to take a parcel of raw land and merely rezone it for development, it would be necessary to establish contact either directly or indirectly with 20 separate state or local agencies or officials. That list today, depending upon the type of development, has grown substantially. The following reviews what has transpired since 1971 and how it affects the real estate purchaser.

1971: DIVISION OF PLANNING

In 1971 the legislature created the division of planning within the Department of Local Affairs. Concurrent with the creation of the division of planning, the statutes were amended to require every county which did not have a county planning division on July 1, 1971, to create one. In addition, every county planning commission was required to develop and the Board of County Commissioners was required to adopt and enforce subdivision regulations for all lands within the unincorporated areas of the county not later than July 1, 1972.

The Colorado Land Use Act created the Colorado Land Use Commission and established the basic concepts and guidelines for Colorado's state-wide land use planning process.

1300 1972: SENATE BILL 35

In 1972, Senate Bill 35 was adopted.(fn1) This act concerns the division of land into sites, tracts or lots and provides for the regulation thereof. It also created a system of reporting to and requiring involvement of school districts, local municipalities, local utilities, service and improvement districts, the State Department of Health relative to sewage treatment, the State Engineer relative to water and water rights, and the Colorado Geological Survey with regard to geological factors.

This act has had a far-reaching effect, notwithstanding the fact that it was determined to be inapplicable to home-rule cities. It has had the effect of substantially slowing the mountain subdivision where the basic concepts were similar to the Florida swamp sales---it has either eliminated or slowed sales predicated on the romance of the ownership of Colorado mountain properties. In addition, we have seen the direct effects of cities utilizing the act's concepts within their own jurisdictions. These include the necessity of formally platting a parcel which is to be divided into two or more pieces and the obligation for mandatory dedications or payments for parks, schools and other municipal purposes. While these city ordinances and regulations do not come as a result of the applicability of the act, the similarity of approach certainly identifies the place where the city fathers came up with the idea.

1973: FIVE MORE ACTS

During 1973 the attention of those who follow land use legislation was concentrated on Senate Bill 377. After the longest legislative session in the state's history, S.B. 377 failed to pass. However, when the smoke cleared, it became apparent that a legislature criticized by many environmentalists for having failed to adopt "land use legislation" had in fact adopted what is now recognized as some of the strongest possible land use legislation.

Before identifying the five 1973 bills, I believe it would be appropriate to make some observation with respect to our legislative process as it relates to land use legislation. There are two very difficult problems with respect to land use legislation. The legislature continuously falls into an easy trap. Each time the legislature approaches land use legislation, it does so as though the particular bill were the first bill ever introduced dealing with the subject and on the assumption that whatever is enacted must be all-encompassing and solve all of the problems at once. These erroneous assumptions are then compounded by the historical nature of the legislative process. Our legislature is comprised of what can be described as power clusters. In the normal legislative process a power cluster, such as agriculture or the municipal league or the county commissioners or business, will promulgate proposed legislation. Every other power cluster will be guided by the desires of the particular power cluster cross each power cluster, and therefore any land use legislation must be a compromise among the various power clustermaking the proposal. Land use legislation, however, cuts directly as.

The five bills passed in 1973 include the following.

Water Quality ControlsSenate Bill 390 became the Colorado Water Quality Control Act,(fn2) enabling legislation for the implementation at the state level of the water quality amendments adopted in 1972 by the United States Congress. Those amendments charge the Environmental Protection Agency with the responsibility of maintaining the water quality standards and controlling the discharge of effluents which will adversely affect the maintenance of the applicable standards. This act created the Colorado Water Quality Control Commission as a division of the Department of Health. The Commission is charged with the responsibility of regulating and monitoring the quality and pollution of all of the water in

1301the state of Colorado. It requires the Commission to classify all state waters and establishes water quality standards. The act further created a permit system for the discharge of pollutants into any state water and provides remedies against those who either fail to obtain the permit prior to discharge or act outside of the scope of the permit. In addition, the Commission has been given authority to promulgate regulations...