Due Process and Taking Concerns in Municipal Growth Management

• Publication year: 1995
• Pages: 587
• Citation: Vol. 24 No. 3 Pg. 587

24 Colo.Law. 587 Colorado Lawyer 1995.

1995, March, Pg. 587. Due Process and Taking Concerns in Municipal Growth Management

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587

Vol. 24, No. 3, Pg. 587

Due Process and Taking Concerns in Municipal Growth Management

by Martin R. McCullough

There are a variety of techniques available to municipal governments for controlling and managing the growth of their communities. These may include the enactment of such growth management regulations as moratoria interimzoning; rescission or modification of prior development approvals; restricting water and sewer taps and building permits; and increasing development fees, charges and construction standards. Although the use of each of these techniques has been generally condoned by the courts, each technique, to the extent it limits private property rights raises significant concerns under the due process and taking provisions of the U.S. and Colorado Constitutions

Moratoria

In cases involving challenges to the institution of a moratorium on property development, judicial review seems to consist mainly of a substantive due process analysis in which the courts look at the rationale behind the moratorium and its duration in order to determine whether it is "reasonable." Considered suspect are moratoria of an unusually long duration, or which have no apparent relationship to the service capabilities of the enacting municipality.(fn1) As a general rule, a moratorium will be upheld only if it is enacted for a finite period of time and the length of the moratoria appears to be proportionate to the time necessary to develop a plan to address the growth-related concerns of the municipality.(fn2)

There is no specific case law in Colorado regarding the conditions under which a moratorium may be validly enacted. However, in an early challenge to Boulder's growth management ordinance, which limited the number of building permits issued each year, the Colorado Court of Appeals, using a highly deferential substantive due process analysis, held simply that growth control ordinances are matters of purely local concern for home-rule cities, who may enact their own growth control policies without regard to state law or policy on the same subject.(fn3)

The taking clause of the U.S. Constitution has clearly been given new and greater import in recent decisions of the U.S. Supreme Court.(fn4) However, in the recent case of Concrete Pipe & Products, Inc. v. Construction Laborers Pension Trust,(fn5) the Court refused to find a taking where only 10 percent of the owner's property was precluded from developing due to its status as wetlands. In doing so, the Court reaffirmed the rule applied in Penn Central Transportation Co. v. New York City,(fn6) that in evaluating a taking claim, the relevant inquiry is the effect of the governmental action on the "parcel as a whole," not individual segments.(fn7)

The current federal case law in this area strongly suggests that where only a portion of the property owner's "bundle of sticks" is taken away by governmental regulation, no taking will be found. By analogy, a temporary moratorium that affects only the timing of property development could be expected to be determined to be an insufficient loss of property rights to rise to the level of a taking.(fn8)

Limits on Building and Tap Permits

One technique to control the rate of growth is to impose a numerical limit, or "cap," on either the number of building construction permits or the number of utility tap permits the municipality will issue on an annual basis. The establishment of such caps provides one of the most direct methods of limiting growth. Caps on building permits may be tied to the governing body's determination of the desired annual population increase. Caps on utility tap permits are often tied to current water and sewer system capacities and...