Local Zoning and Building Regulation of Other Governmental Entities

Publication year1991
CitationVol. 11 No. 1991 Pg. 2287
20 Colo.Law. 2287
Colorado Lawyer

1991, November, Pg. 2287. Local Zoning and Building Regulation Of Other Governmental Entities

Local Zoning and Building Regulation Of Other Governmental Entities

by W. Paul Eckman

Units of local government often are confronted with issues pertaining to the development and usage of property within their jurisdictions by other governmental entities. This article explores ways in which local governments lawfully might influence and regulate such development and usage.

The State and Its Subdivisions

Zoning Regulations

The common law "superior sovereign doctrine" essentially provides that on functions of statewide interest and concern, if municipalities are not given specific authority to take over the function, municipal zoning ordinances cannot be used to frustrate the implementation of state policy.(fn1) However, in the final analysis, the question of governmental immunity is one of legislative (and constitutional) intent.(fn2)

Colorado's legislative intent regarding zoning and public buildings is found at CRS § 31-23-301(1), where the General Assembly authorized cities and towns in Colorado to enact zoning ordinances but exempted from the operation of such ordinances

...any building or structure as to which satisfactory proof is presented to the board of adjustment that the present or proposed situation of such building or structure is reasonably necessary for the convenience or welfare of the public.

Another legislative provision is found at CRS § 31-23-209, which states

When the [planning] commission has adopted the master plan of the municipality... no... public building or structure... shall be constructed or authorized in the municipality... until the location, character and extent thereof has been submitted for approval by the commission.

The Colorado Supreme Court, in Clark v. Town of Estes Park,(fn3) ruled that CRS § 31-23-301 governed Estes Park in its construction of a parking lot in violation of its own zoning ordinance. Essentially, the court held that unless municipal zoning ordinances specifically exempt municipal activity, such activity was not intended to be exempt. The court also displaced the much-maligned "governmental/proprietary" distinction.

In the case of La Plata County Commissioners v. Board of Adjustment of the City of Durango,(fn4) the Colorado Court of Appeals ruled that La Plata County must comply with CRS § 31-23-301 concerning its proposal to occupy a building in the City of Durango. The court held that the county does not, by reason of § 31-23-301, possess a blanket grant of immunity or exemption from municipal zoning ordinances for all county activities. The court also ruled that CRS § 31-23-209 was inapplicable because the building already existed. In dicta, the court concluded that § 31-23-209 must apply to facilities "not yet built." (However, in this author's opinion, that conclusion is debatable because the statute uses both the terms "constructed" or "authorized," and the term "authorized" would seem broad enough to include buildings already constructed but not yet approved for public use. With respect to facilities "not yet built," both §§ 31-23-209 and 31-23-301 would apply.(fn5))

The Colorado General Assembly also has enacted a special statute, codified at CRS § 22-32-124, pertaining to the acquisition of land for school purposes, and the construction of buildings or structures by school districts. This statute requires the board of education to submit a site development plan for review and comment to the municipal planning commission or governing body prior to construction of any structure or building. However, the statute also provides that the review, comment and public hearing rights of the municipality shall not be construed to limit the authority of the board of education to "finally determine


the location of public schools within the district and erect necessary buildings and structures."(fn6)

Building Regulations

Colorado statutes and the decisions of Colorado courts provide an opportunity for municipalities to regulate with respect to building standards and to apply those regulations to the state, the county and other political...

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