Of Growth Controls, Wilderness and the Urban Strip
| Publication year | 1977 |
| Pages | 1730 |
| Citation | Vol. 6 No. 10 Pg. 1730 |
1977, October, Pg. 1730. Of Growth Controls, Wilderness and the Urban Strip
Christopher J. Warner is an associate with the firm Potter Anderson & Corroon in Wilmington, Delaware. As a third year law student, he spent a year in the Natural Resources Program at the University of Denver College of Law studying energy, natural resources, land use and environmental law.
We start with the premise that lakes and rivers in their natural state are unpolluted and the pollution which now exists is man made. . . .
An owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others. The exercise of the police power in zoning must be reasonable and we think it is not an unreasonable exercise of that power to prevent harm to public rights by limiting the use of private property to its natural uses.
-Just v. Marinette County, 201 N.W.2d 761 (Wisc. 1972).
The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals and general welfare.
-Nectow v. City of Cambridge, 277 U.S. 183 (1928).
We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing.
-Southern Burlington City NAACP v. Township of Mount Laurel, 336 A.2d 713 (N.J. Supreme Ct. 1975).
The fence is going up around Colorado, the word is out: Stop Growth! In 1973, the Colorado legislature declared: "... the rapid growth and development of the State and the resulting demands on its land resources make new and innovative measures necessary to encourage planned and orderly land use development."(fn1)
"Planned and orderly development" and "legitimate environmental concerns" replace "residential character" and "property stability" as the code words for police power exclusion of new housing in Colorado---low and upper income, suburban and wilderness, multiple-family and resort, permanent as well as vacation home. Instead of narrowing local discretion over zoning, H.B. 1034, the Local Government Land Use Control Enabling Act,(fn2) expressly enlarges the local police power to include such "new and innovative" exclusionary and anti-growth devices as population control, phased development, open space reservation and planned unit development.
However, instead of overriding local zoning, the 1974 Colorado Land Use Commission enabling legislation (H.B. 1041),(fn3) patterned after the Model Land Development Code,(fn4) overlaid local zoning and subdivision regulations with a new state-local zoning bureaucracy based on designation of a matter of state interest, local adoption of development guidelines under state criteria, and development in designated areas and activities by local permit only. H.B. 1041's vast potential for still another thick layer of red tape, delay and caprice affecting the local development process makes it no wonder very few local governments have implemented the legislation.(fn5)
The intent of H.B. 1034 and H.B. 1041 is distinctly environmental, the flavor is anti-growth, anti-urban. The effect of these and other land use controls appears to be exclusionary, racially discriminatory, bureaucratic and capricious. The central problem in land use today is zoning per se: allocating land use by local discretion in amending a segregative land use plan almost at will is inherently arbitrary, discriminatory and diseconomical.
Exactly what will be won and what will be lost in the battle between developers and environmentalists in Colorado? If development is strictly controlled in the Front Range, a victory for a national treasure of natural beauty and wilderness will have been won. No-growth policies also indirectly relieve the strain on water and energy resources. But if development is halted in the seven-county urban strip(fn6) immediately east of the Front Range, the suburbs will have built a tight wall around the core of the central cities with the blessing, encouragement and financial assistance of the State; and the long, agonizing death of Colorado cities---Denver, Boulder, Colorado Springs, Pueblo, Fort Collins and Greeley---will accelerate.
The social costs of exclusionary zoning far outweigh the economic costs, if indeed the two can be separated. Population leads zoning rather than vice versa,(fn7) and therefore stricter zoning encouraged by statewide legislation will not slow growth, but will only increase low-income density in the highest developed areas---in the urban core of the cities.(fn8) Intense growth and development in seven counties comprising 73 percent of Colorado's urban population(fn9) and in four Front Range counties immediately adjacent is the testing ground of the innovative legislation.
Stopping growth within the four Front Range counties(fn10) will gain immense environmental benefits for the few who reside there and for the entire nation who visit there, with little social costs to the large majority of the Colorado population unable to afford wilderness recreation anyway. But stopping or slowing growth in the seven urban counties will accelerate the social costs of high population density, urban core blight, housing deficits, and single family dwelling diseconomy. Environmental benefits may never counterbalance these social costs, even when the western edge of the urban strip reaches into the Front Range, because mass housing technology for low-and moderate-income groups is far behind pollution technology in the economics of mountain wilderness development.(fn11)
This article will examine the following land use control statutes and policies, and their impact on urban and suburban growth in Colorado: (1) H.B. 1041; (2) H.B. 1034, City of Boulder growth control ordinance,(fn12) and Denver Water Board 1977 suburban water tap allocation policies;(fn13) (3) the Planned Unit Development Act of 1977 ("PUD Act");(fn14) (4) restrictive covenants; and (5) the City of Denver single-family zoning ordinance.(fn15)
As a preliminary matter, we statistically identify Colorado's land use crisis.
Why the panic in a Rocky Mountain paradise where population density is one-third that of the country at large, where 56 percent of the population lives in thirteen cities comprising 0.3 percent of the land area, and where rural non-farm population amounts to 17.5 percent of the total, below the national average of 21.9 percent?(fn16) Geography and a closer look at census statistics reveal Colorado's crisis in growth and land use.
Colorado grew 25.8 percent in population between 1960 and 1970, 16.9 percent between 1970 and 1976,(fn17) by Census Bureau estimates. The 1970-1976 growth rate is surpassed by only five other states and would result in a projected growth of 28.2 percent for 1970-1980, compared to a projected national growth of only 9.3 percent.(fn18) Between 1960 and 1970, eleven of Colorado's sixty-three counties recorded population increase of over 50 percent, and eight of those increased over 50 percent by net migration alone.(fn19)
The clincher is geography. Seventy-three percent of Colorado's population resides immediately east of the Front Range in a forty-mile-wide strip of land running from Fort Collins to Colorado Springs.(fn20) No person within this area covering 1.8 percent of the state is more than an hour's drive from the Front Range.
Of those eleven counties which gained over 50 percent in population in the 1970 census, six plus the city-county of Denver comprise the entire Fort Collins-Colorado Springs urban strip,(fn21) and two comprise a 542-square mile area of the Front Range, the center of which is only thirty miles west of the center of Denver and twenty-five miles southwest of Boulder.(fn22) Two of the counties, Eagle and Pitkin, comprise an area of 2,654 square miles, the center of what is the heart of the Front Range ski country, 100 miles west of Denver. Their land use problems are sui generis, relating to wilderness recreation versus agricultural development and not comparable to the urban-suburban growth problems of the seven-county urban strip.
While Colorado Springs enjoyed the second fastest growth rate of the 100 largest cities in the nation from 1970 to 1976 (27.8 percent),(fn23) the city of Denver in the same period suffered a 5.9 percent population decline.(fn24) According to the Denver Regional Council of Governments, Denver's population at the end of 1976 totalled 523,800, a gain of 100 over the previous year, while the combined total of the three suburban counties surrounding Denver (Adams, Arapahoe and Jefferson) gained 40,000 over 1975, for a total of 892,000.(fn25)
Three hundred thousand of the 525,000 housing units in the Denver metropolitan areas are outside the city of Denver.(fn26) Although suburban population growth between now and 1980 will be limited by the drought and higher energy costs, the three counties surrounding Denver have already enjoyed annual growth rates between 3.2 and 7.4 percent the first six years of the 1970's.(fn27) Although Denver provides 65 percent of the metropolitan area jobs and 23.6 percent of the total income and sales tax revenue collected in the state, it receives only 9.5 percent of the total state school aid. The suburban counties receive a disproportionate 36.7 percent of state...
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