Civil Enforcement of Building and Zoning Codes in Municipal Court
| Publication year | 1990 |
| Pages | 469 |
| Citation | Vol. 03 No. 1990 Pg. 469 |
1990, March, Pg. 469. Civil Enforcement of Building and Zoning Codes in Municipal Court
Virtually every municipality faces the dilemma of how to enforce its building or zoning codes against chronic violators. On the one hand, a municipality could bring a criminal action in its municipal court alleging that the municipal code does not expressly authorize the violator's use. Such a criminal action, however, would force the municipality to prove, beyond a reasonable doubt, that the violator's use is not permitted. Moreover, assuming the municipality could prove its case, only criminal fines or jail---not code compliance---would result.
On the other hand, a municipality could bring a civil action against the code violator in district court pursuant to state statutes.(fn1) This alternative, which would include the possibility of equitable remedies, would require the municipality to bear only a "preponderance of the evidence" burden of proof. With this alternative, municipalities typically encounter the overloaded dockets of district courts in addition to potentially time-consuming and expensive requirements of the rules of civil procedure.
Fortunately, home rule municipalities have a third choice that avoids the entire dilemma. They may authorize their municipal courts to hear civil actions involving building and zoning code violations. This alternative has the appeal of civil burdens of proof and equitable remedies without the delays frequently encountered in district courts. In addition, it avoids criminal jury trials and criminal penalties that do not result in code compliance. This article discusses the legal authorities which allow this new, third alternative for code enforcement.
When the Colorado Constitution was adopted, home rule municipalities became vested with exclusive control over the jurisdiction of their municipal courts. The Colorado Constitution states that home rule municipalities may "legislate . . . provide, regulate, conduct and control" matters such as:
[t]he creation of municipal courts; the definition and regulation of the jurisdiction, powers and duties thereof; and the election or appointment of the officers thereof. . . .(fn2)
The Constitution also expressly recognizes that home rule charters and ordinances may supersede state statutes that are in conflict with home rule powers.(fn3)
Home rule municipality charters typically provide for the creation of a municipal court that has jurisdiction to hear any case arising under the city's charter or ordinances. The ordinances of home rule municipalities also may give their municipal courts all "such legal and equitable powers" necessary to enforce the courts' orders, judgments and decrees.(fn4)
Some municipalities have exercised these powers aggressively and have given their municipal courts civil jurisdiction over specified classes of cases. For example, the City of Wheat Ridge has authorized civil actions in municipal court for injunctions against violations of zoning, building and nuisance provisions.(fn5) Other municipalities also have used their constitutional powers creatively to redefine the scope of jurisdiction for municipal courts.(fn6)
Under the Colorado Constitution Article XX, § 6,
[a]ny act in violation of the provisions of [a home rule] charter or of any ordinance thereunder shall be criminal and punishable as such when so provided by any statute now or hereinafter in force.(fn7) (Emphasis added.)
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