Land Use Legislation: H.b. 1034 and H.b. 1041
| Publication year | 1977 |
| Pages | 1686 |
| Citation | Vol. 6 No. 10 Pg. 1686 |
1977, October, Pg. 1686. Land Use Legislation: H.B. 1034 and H.B. 1041
The authors gratefully acknowledge the assistance of Eugene G. Duvernoy, a third-year student at the Cornell Law School, and Charles B. White, a third-year student at the Stanford Law School. Both are summer clerks with Bermingham, White, Burke & Ipsen.
Michael D. White, Denver, is a partner and Raymond L Petros, Denver, is an associate with the firm of Bermingham, White, Burke & Ipsen. One of their specialties is land use law.
In 1974, two important pieces of legislation, House Bill 1034(fn1) and House Bill 1041,(fn2) became law. Each is an attempt to increase significantly the powers of local governments to control land use activities. H.B. 1034, which has yet to be interpreted by either the Colorado Supreme Court or the Court of Appeals, appears to be an attempt to give local governments virtually unlimited power for land use control. H.B. 1041, the subject of limited judicial interpretation, is an attempt to encourage local governments to regulate matters which are of greater than local concern or which have statewide impacts. While the powers delegated to local governments under H.B. 1034 are purely discretionary, meaning that the local governments are in no way obligated to exercise those powers, the powers delegated in House Bill 1041 are in part mandatory.
Although H.B. 1034 was enacted with very little fanfare, it promises to become a very effective piece of enabling legislation under which local governments should feel free to adopt significant land use regulations. On the other hand, although H.B. 1041 generated great excitement, it has been the basis of very few significant local land use controls.
H.B. 1034, the Local Government Land Use Control Enabling Act of 1974, was drafted in response to complaints by city and county attorneys that the existing power of local governments to control development was inadequate to deal with the full range of contemporary land use conflicts.(fn3) Consequently, the intent of the Act was "to clarify and provide broad authority to local governments to plan for and regulate the use of the land within their respective jurisdictions."(fn4)
Although there is some uncertainty as to the full extent of the power which is conferred by the Act, there is no doubt that it is quite broad. By the terms of the Act, other legislation and the federal and state constitutions provide certain parameters or limitations within which the powers conferred by H.B. 1034 must be exercised. Consequently, those constraints must be considered in conjunction with a discussion of the provisions of H.B. 1034.
The provisions of H.B. 1034 apply to all units of local government, including any "county, home rule or statutory city,
The significance of the Act, however, is unclear with respect to constitutionally empowered home-rule municipalities. Because home-rule municipalities had broad authority in land use matters even before the Act,(fn7) their inclusion within H.B. 1034 might be interpreted as an attempt to give them the discretion to exercise powers which their municipal charters would otherwise prohibit or restrict. Obviously, the state legislature cannot enact any law that would infringe upon the constitutional sovereignty of home-rule municipalities to control their local and municipal affairs.(fn8) Arguably, though, regulation of land use, at least in some instances, does have regional and statewide consequences and might properly be a matter of statewide concern and control.(fn9) Under this latter rationale, H.B. 1034 could conceivably be upheld as an attempt by the state to prompt restrictions on land use powers contained in the charters of home-rule municipalities.
The Act states that each local government "has the authority to plan for and regulate the use of the land by":(fn10) "(a) Regulating development and activities in hazardous areas."
This broadly stated provision reinforces a previous legislative declaration that municipal zoning regulations are to be designed "to secure safety from fire, panic, flood waters, and other dangers."(fn11) It also supplements the existing authority of local governments to regulate other specific types of hazardous areas and activities. For example, municipalities(fn12) and counties(fn13) are empowered to regulate land use in flood-plains which have been designated and approved by the Colorado Water Conservation Board. Controls on airports and adjacent lands,(fn14) dust blowing,(fn15) fire hazards,(fn16) and noise(fn17) are also separately authorized. Nevertheless, by employing the same language of H.B. 1041, H.B. 1034 evinces the plain intention to give local governments the additional powers to control land development with regard to any dangers from avalanches, mud slides, earthquakes, and other hazardous activities specifically mentioned by H.B. 1041.(fn18)
(b) Protecting lands from activities which would cause immediate or foreseeable material danger to significant wildlife habitat and would endanger a wildlife species.
This provision secures the power of local governments to acquire and manage open space and parks,(fn19) and to inaugurate programs involving conservation trust funds,(fn20) construction easements,(fn21) and natural areas.(fn22) It would also seem to give local governments the independent police power authority to regulate private land to protect wildlife habitat, although the scope of such police power has not been defined by the Colorado courts.
Local governments which exercise their authority in this area might be limited to some extent by state laws, such as the Nongame, Endangered, or Threatened Species Conservation Act,(fn23) and the regulations of the Wildlife Commission issued pursuant to that Act.(fn24)
(c) Preserving areas of historical and archaeological importance.
Several constitutional home-rule cities, such as Denver(fn25) and Boulder,(fn26) had already enacted historic preservation ordinances prior to the passage of H.B. 1034, pursuant to their home-rule charters. The extent to which statutory cities also possessed this power under existing broad delegations of authority to regulate land use for "the general welfare of the community"(fn27) was somewhat uncertain
The full extent of the police powers conferred by H.B. 1034 to preserve historic areas is uncertain in Colorado. Most of the litigation concerning the preservation of historic areas through exercise of the police power involves challenges under the due process and just compensation clauses of the state and federal constitutions. The Colorado courts have not yet dealt with this specific issue.(fn29) Courts of other jurisdictions have generally upheld regulations which restrict the alteration of historic property, at least where commercial benefits to the property also result.(fn30) The legislative declaration in H.B. 1034 that historic preservation is in the public interest may help the Colorado courts to accept such regulations in their own right, for cultural or aesthetic purposes alone, without requiring an economic justification as well.
In preserving historic areas, local governments can draw on the considerable resources and experience of the state. The state has reserved title to all historical, prehistorical, and archaeological resources on all lands and waters owned by the state or its political subdivisions.(fn31) A permit is required before these resources may be studied or removed.(fn32) Historic properties may be protected by designation as a state historical monument(fn33) or inclusion in the state register of historic properties.(fn34) No state agency(fn35) may take any action adversely affecting any property of historical significance, or concerning in any way properties listed in the state register, without the approval of the State Historical Society, subject to arbitration by the governor.(fn36)
(d) Regulating, with respect to the establishment of, roads on public lands administered by the federal government; this authority includes authority to prohibit, set conditions, or require a permit for the establishment of any road authorized under the general right-of-way granted to the public by 43 U.S.C. 932 (R.S. 2477) but does not include authority to prohibit, set conditions, or require a permit for the establishment of any road authorized for mining claim purposes by 30 U.S.C. 21 et seq., or under any specific permit or lease granted by the federal government.
This provision was intended to remedy the unregulated development of roads on lands administered by the Bureau of Land Management ("BLM"). Under the 1866 statute(fn37) mentioned in this provision of H.B. 1034, the federal government had categorically granted rights-of-way across unreserved public lands, and the BLM in most cases, had no authority to control their exercise.(fn38)
On the other hand, lands administered by the U.S. Forest Service were not subject to the 1866 statute,(fn39) and the Forest Service has for many years required a special use permit for rights-of-way across national forest lands.(fn40) All roads on these Forest Service lands might, therefore...
To continue reading
Request your trial