Delegation of Authority in Land Use Decisions

• Publication year: 1997
• Pages: 73
• Citation: Vol. 26 No. 1 Pg. 73

26 Colo.Law. 73 Colorado Lawyer 1997.

1997, January, Pg. 73. Delegation of Authority in Land Use Decisions

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73

Vol. 26, No. 1, Pg. 73

The Colorado Lawyer
January 1997
Vol. 26, No. 1 [Page 73]

Specialty Law Columns
Local Government Newsletter
Delegation of Authority in Land Use Decisions
by W. Paul Eckman

Column Ed.: Victoria M. Bunsen of the City of Westminster - (303) 430-2400, ext. 2231

This month's article was written by W. Paul Eckman Deputy City Attorney for the City of Fort Collins, (970) 221-6520. The author gratefully acknowledges the secretarial assistance of Mary Donaldson in the preparation of this article. Lawyers representing public or private clients in the areas of municipal, county, and special or school district law are encouraged to submit articles for publication

Most Colorado municipalities are governed by city councils and town boards composed of persons who "have a life" outside their part-time, nonsalaried service to the public as a councilmember or trustee. It is difficult for these persons to juggle their duties to their families, their private careers, and their public constituents without the ability to delegate. One of the most time-consuming areas of municipal government for a growing city or town is the area of land use decision-making. This article explores ways that busy councilmembers and trustees can find some extra time for other issues by delegating authority in land use decisions

Background

The general rule has been that legislative delegations of power involving the exercise of judgment and discretion may not be made to persons or boards or commissions unless the delegation has been expressly authorized by legislation.1 It also is a general rule that unless authorized by law, officers have no power to employ subordinates or persons to assist them in the performance of their public duties.2 Additionally, it should be noted that the general rules regarding the delegation of power from the state to municipal corporations apply to the delegation of power by municipal corporations to boards and commissions and persons.3

Essentially, the delegations, to be effective, must be "authorized by law." As stated in McQuillin, Municipal Corporations:

The principle is fundamental and of universal application that public powers conferred upon a municipal corporation and its officers and agents cannot be delegated to others unless so authorized by the legislature or charter.4

In the context of a home-rule city, such authorization can be either by the charter or by the code of ordinances enacted by the legislative body of the city, the city council.

The foregoing general principles have been discussed, modified and embellished upon by the Colorado Supreme Court on numerous occasions. That court has established a line of decisions that have evolved from a relatively conservative approach to the delegation issue to the present, more liberal approach. What follows is an explanation of the decisions of the court on the delegation issue as they have occurred chronologically in recent years. Most of these decisions focus on delegations of legislative acts, but some pertain to the delegation of quasi-judicial acts. Both legislative and quasi-judicial acts involve the exercise of "discretion" and, accordingly, are not "ministerial."5

These decisions seem collectively to enunciate two basic principles...